From: John Dayal
Date: 2009/12/11
Subject: misra report on sc muslims and christians
To: catholicunion@gmail.com, John
Misra Commission report excerpts- home page
CHAPTER 10
RECOMMENDATIONS AND MODALITIES FOR THEIR IMPLEMENTATION
Terms of Reference No. 1
Criteria for Identifying Socially and Economically Backward Classes among the Religious and Linguistic Minorities.
In our considered opinion the ultimate goal should be the evolution for a uniform pattern of criteria for identifying the backward, which should be based only on the educational and economic status of people and not on their caste ore religion, and its application equally to all sections of the citizens irrespective of their caste or religion.
Religious Minorities
… whatever recommendations of a general nature (for all minorities) we are making here are not only for the communities notified as “minorities” by executive action under the National Commission for Minorities Act 1992 but all religious minorities- large or small-including the Hindus in the Union Territory of Lakshadweep and the States of Jammu & Kashmir, Meghalaya, Mizoram, Nagaland and Punjab.
We recommend that in the matter of criteria for identifying backward classes there should be absolutely no discrimination whatsoever between the majority community and the minorities; and, therefore, the criteria now applied for this purpose to the majority community- whatever that criteria may be – must be unreservedly applied also to all the minorities.
… we recommend that all those classes, sections and groups among the minorities should be treated as backward whose counterparts in the majority community are regarded as backward under the present scheme of things.
… all those classes, sections and groups among the various minorities as are generally regarded as ‘inferior’ within the social strata and societal system of those communities= whether called ’zat’ or known by any other synonymous expression- should be treated as backward.
… all those social and vocational groups among the minorities who but for their religious identity would have been covered by the present net of Scheduled Castes should be unquestionably treated as socially backward, irrespective of whether the religion of those other communities recognizes the caste system or not.
… those groups among the minorities whose counterparts in the majority community are at present covered by the net of Scheduled Tribes should also be included in that net; and also, more specifically, members of that minority communities living in any Tribal Area from pre-independence days should be so included irrespective of their ethnic characteristics.
Linguistic Minorities
… the concept of ‘backwardness’ is to be confined in its application to religious minorities as it has no relevance for the linguistic minorities.
Terms of Reference No. II
Measures of Welfare for Minorities including Reservation
As democracy is a game of numbers, the numerically weaker sections of the citizenry in any society may and often do get marginalized by the majority. This is eminently true of the religious minorities in India where the society remains intensively religious and religion-conscious and the religious minorities live with a predominant religious community accounting for over 80 percent of the national population. In such a situation legal protection from the hegemony and preponderance of the majority community becomes a pressing need of the religious minorities as a whole, and not just that of the ‘backward’ sections among them. To provide such necessary protection by law we do have in the Constitution a Directive Principle of State Policy, Article 46, which speaks of “weaker sections of the people” - notably without subjecting them to the condition of backwardness- and mandates the State to “promote with special care” the educational and economic interests of such sections. It is keeping this in mind that we are making certain recommendations for the religious communities as such- though we are, of course, also recommending some special measures for the socially and educationally backward sections among the minorities.
… backwardness- both social and economic- actually emanates from educational backwardness. We are, therefore, making certain measures for the educational advancement of the religious minorities- especially the Muslims and the Neo-Buddhists…
As the meaning and scope of Article 30 of the Constitution has become quite uncertain, complicated and diluted due to their varied and sometimes conflicting judicial interpretations, we recommend that a comprehensive law should be enacted without delay to details all aspects of minorities’ educational rights under that provision with a view to reinforcing its original dictates in letter and spirit.
The statute of the National Minority Educational Institutions Commission should be amended to make it wide-based in its composition, powers, functions and responsibilities and to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities’ educational rights under the Constitution.
As by the force of judicial decisions the minority intake in minority educational institutions has, in the interest of national integration, been restricted to about 50 percent, thus virtually earmarking the remaining 50 percent or so far the majority community- we strongly recommend that, by the same analogy and for the same purpose, at least 15 percent seats in all non-minority educational institutions should be earmarked by law for the minorities as follows:
(a) The break up within the recommended 15 percent earmarked seats in institutions shall be 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level) and the remaining 5 percent for the other minorities.
(b) Minor adjustments inter se can be made in the 15 percent earmarked seats. In the case of non-availability of Muslim candidates to fill 10 percent earmarked seats, the remaining vacancies may be given to the other minorities if their members are available over and above their share of 5 percent; but in no case shall any seat within the recommended 15 percent go to the majority community.
(c) As is the case with the Scheduled Castes and Scheduled Tribes at present, those minority community candidate who can compete with others and secure admission on their own merit shall not be included in these 15 percent earmarked seats.
As regards the backward sections among all the minorities, we recommend that the concessions now available in terms of lower eligibility criteria for admission and lower rate of free, now available to the Scheduled Castes and Scheduled Tribes, should be extended also to such sections among the minorities. Since women among some minorities- especially the Muslims and Buddhists- are generally educationally backward, we recommend that the same measure for them as well and suggest that other possible measures be also initiated for their educational advancement.
Misra Commission report excerpts- home page
Last part: Measures for Muslims
In respect of the Muslims – who are the largest minority at the national level with a country-wide presence and yet educationally the most backward of the religious communities- we recommend certain exclusive measures as follows:
(i) Select institutions in the country like the Aligarh Muslim University and the Jamia Millia Islamia should be legally given a special responsibility to promote education at all levels to Muslim students by taking all possible steps for this purpose. At least one such institution should be selected for this purpose in each of those States and Union Territories which has a substantial Muslim population.
(ii) All schools and colleges run by the Muslims should be provided enhanced aid and other logistic facilities adequate enough to raise their standards by all possible means and maintain the same.
(iii) The Madarsa Modernisation Scheme of the government should be suitably revised, strengthened and provided with more funds so that it can provide finances and necessary paraphernalia either (a) for the provision of modern education up to Standard X within those madarsas themselves which are at present imparting only religious education or, alternatively, (b) to enable the students of such madarsas to receive such education simultaneously in the general schools in their neighbourhood. The Madarsa Modernisation Scheme may, for all these purposes, be operated through a central agency like the Central Wakf Council or the proposed Central Madarsa Education Board.
(iv) The rules and process of the Central Wakf Council should be revised in such a way that its main responsibility should be educational development of the Muslims. For this purpose the Council may be legally authorized to collect a special 5 percent educational levy from all wakfs, and to sanction utilization of wakf lands for establishing educational institutions, polytechnics, libraries and hostels.
(v) In the funds to be distributed by the Maulana Azad Educational Foundation a suitable portion should be earmarked for the Muslims proportionate to their share in the total minority population. Out of this portion funds should be provided not only to the existing Muslim Institutions but also for setting up new institutions from nursery to the highest level and for technical and vocational education anywhere in India but especially in the Muslim-concentration areas.
(vi) Anganwaris, Navodaya Vidyalayas and other similar institutions should be opened under their respective schemes especially in each of the Musilm-concentration areas and Muslim families be given suitable incentives to send their children to such institutions.
As regards the linguistic minorities, we recommend the following measure:
(a) The law relating to the Linguistic Minorities Commissioner should be amended so as to make this office responsible for ensuring full implementation of all the relevant Constitutional provisions for the benefit of each such minority in all the State and Union Territories.
(b) The three-language formula should be implemented everywhere in the country making it compulsory for the authorities to include in it the mother-tongue of every child- including, especially, Urdu and Punjabi- and all necessary facilities, financial and logistic, should be provided by the State for education in accordance with this dispensation.
(c) Members of those linguistic minority group whose education is limited to their mother tongue and who do not have adequate knowledge of the majority language of the region should be provided special facilities in the form of scholarships, fee concession and lower eligibility criteria for admission to enable them to acquire proficiency in the regionally dominant language.
(d) Urdu-medium schools should be provided special aid and assistance-financial and otherwise- to enhance and improve their efficiency, standards and results.
As many minority groups specialize in certain household and small scale industries, we recommend that an effective mechanism should be adopted to work for the development and modernization of all such industries and for a proper training of artisans and workmen among the minorities- especially among the Muslims among whom such industries, artisans and workmen are in urgent need of development assistance.
As the largest minority of the country, the Muslims, as also some other minorities have a scant or weak presence in the agrarian sector, we recommend that special schemes should be formulated for the promotion and development of agriculture, agronomy and agricultural trade among them.
We further recommend that effective ways should be adopted to popularize and promote all the self-employment and income-generating schemes among the minorities and to encourage them to benefit from such schemes.
We recommend that the rules, regulations and process of the National Minorities Development and Finance Corporation be overhauled on a priority basis- in the light of the recent report submitted by the NDMFC Review Committee and in consultation with the National Commission for Minorities- with a view to making it more efficient, effective and far-reaching among the minorities.
We further recommend that a 15 percent share be earmarked for the minorities- with a break-up of 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level)- and 5 percent for the other minorities in all government schemes like Rural Employment Generation Programme, Prime Minister’s Rozgar Yojna, Grameen Rozgar Yojna, etc.
Since the minorities- especially the Muslims- are very much under-represented, in government employment, we recommend that they should be regarded as backward in this respect within the meaning of that term as used in Article 16(4) of the Constitution- notably without qualifying the word ‘backward’ with the words “socially and educationally”- and that 15 percent of posts in all cadres and grades under the Central and State Governments should be earmarked for them as follows:
(a) The break up within the recommended 15 percent shall be 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level) and the remaining 5 percent for the other minorities.
(b) Minor adjustment inter se can be made within the 15 percent earmarked seats. In the case of non-availability of Muslims to fill 10 percent earmarked seats, the remaining vacancies may be given to other minorities if their members are available over and above their share of 5 percent; but in no case shall any seat within the recommended 15 percent go to the majority community.
We are convinced that the action recommended by us above will have full sanction of Article 16(4) of the Constitution. Yet, should there be some insurmountable difficulty in implementing this recommendation, as an alternative we recommend that since according to the Mandal Commission Report the minorities constitute 8.4 percent of the total OBC population, in the 27 percent OBC quota an 8.4 percent sub-quota should be earmarked for the minorities with an internal break-up of 6 percent for the Muslims (commensurate with their 73 percent share in the total minority population at the national level) and 2.4 percent for the other minorities- with minor adjustment inter se in accordance with population of various minorities in various States and UTs.
We further recommend that the reservation now extended to the Scheduled Tribes, which is a religion-neutral class, should be carefully examined to assess the extent of minority presence in it and remedial measures should be initiated to correct the imbalance, if any. The situation in Meghalaya, Mizoram, Nagaland and Lakshadweep which are minority-dominated and predominantly tribal, as also such tribal areas/districts in Assam and all other States, is to be especially taken into account in this respect.
We recommend that the judicial reservation recently expressed in several cases about the continued inclusion of the creamy layer in various classes enjoying reservation, inclusive of the Scheduled Castes and Scheduled Tribes should be seriously considered for acceptance as a State policy.
Additional Term of Reference
Para 3 of the Constitution (Scheduled Castes) Order 1950
On a careful examination of prevalence of the caste system among various sections of the Indian citizenry we have concluded that caste is in fact a social phenomenon shared by almost all Indian communities irrespective of their religious persuasions. Many of the particular castes are found simultaneously in various religious communities, equally facing problems of social degradation and mistreatment both by their co-religionists and the others.
We are also conscious of the fact that the Constitution of India prohibits any discrimination between the citizens on the basis of caste, and yet it sanctions special affirmative measures for Scheduled Castes. At the same time it prohibits any discrimination on the ground of religion. Reading all these constitutional provisions together, we are convinced that any religion-based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions. We are accordingly making the following recommendations on this additional Term of Reference added by the government to our original Term of Reference several months after we began our work.
We recommend that the caste system should be recognized as a general social characteristics of the Indian society as a whole, without questioning whether the philosophy and teaching of any particular religion recognize it or not- since the Indian brands of certain faith traditions like Christianity and Islam have never assimilated many puritan principles of those religion, posing the question in respect of the caste system only and singling out for a differential treatment is unreasonable and unrealistic.
We would like this fact to be duly recognized that among the Muslims of India the concepts of zat (caste) and arzal (lower caste) are very much in practice; and even the Muslim law of marriage recognizes the doctrine of kufw- parity in marriage between the parties in all vital respects including social status and descent- which in this country means nothing but caste.
In view of what has been said above, we recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950- which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link the Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.
We further recommend that all those groups and classes among the Muslims and Christians, etc. whose counterparts among the Hindus, Sikhs or Buddhists, are included in the Central or State Scheduled Castes lists should also be covered by the Scheduled Caste net. If any such group or class among the Muslims and Christians, etc. is now included in an OBC list, it should be deleted from there while transferring it to the Scheduled Castes- placing the same persons in the Scheduled Caste list if they are Hindu, Sikh or Buddhist but in the OBC list if they follow any other religion- which is the case in many States- in our opinion clearly amounts to religion-based discrimination.
We further recommend that as the Constitution of India guarantees freedom of conscience and religious freedom as a Fundamental Right, once a person has been included in a Scheduled Caste list a willful change of religion on his part should not affect adversely his or her Scheduled Caste status- as that would in our opinion conflict with the basic constitutional provision relating to equality, justice and non-discrimination on religious grounds; as also with the spirit of the old and time-tested Caste Disabilities Removal Act of 1850.
Term of Reference No. III
Modalities for Implementing Our Recommendations
We have been asked also “to suggest the necessary constitutional, legal and administrative modalities” required for the implementation of our recommendations. In this regard we have to say as follows.
We are not suggesting any amendment in the Constitution- as we are fully convinced that none of our recommendations require for its implementation any amendment of the Constitution and that each of these can be fully implemented by legislative or/and administrative action.
We recommend that all Central and State Acts, Statutory Rules and Regulations be suitably amended to implement those of our recommendations which in the opinion of the Ministry of Law and Justice or any another concerned authority may require such amendments.
More specifically, we recommend the following legislative actions which in our opinion are required either for the implementation of some of our recommendations stated above or otherwise in the interest of the welfare of minorites:
(a) Enactment of a detailed law to enforce the dictates of Article 30 of the Constitution;
(b) Amendment of the National Commission for Backward Classes Act 1993;
(c) Amendment of the Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes ) Order 1951 as also of the Central and State lists of the Scheduled Castes and Scheduled Tribes;
(d) Review of the laws and rules, processes and procedures, relating to selection and notifications of OBCs at the Central and State levels;
(e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime Minster’s 15-Point Programme for Minorities 1983 as modified in 2006;
(f) Amendment of the National Commission for Minorities Act 1992 and the National Commission for Educational Institutions Act 2004 so as to make it necessary for the government to appoint as the chairpersons and members of these bodies- through a Search Committee as in the case of the National Human Rights Commission- only reputed experts in the constitutional, legal, educational and economic matters relating to the minorities;
(g) Necessary amendments in the Wakf Act 1993 and all the Rules framed under its provisions;
(h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes relating to the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation.
We recommend the following administrative measures which in our opinion are required either for the implementation of some of our recommendations or otherwise in the interest of the welfare of minorites;
(a) Establishment of a Parliamentary Committee to consider and decide in the light of the Constitution policy matters relating to the minorities;
(b) Establishment of a National Committee consisting of Chairpersons of NHRC, NCW, NCBC, NCST, NCSC, NCM, NCMEI, NMDFC, CLM, Central Wakf Council and Maulana Azad Foundation along with nominated experts for mentoring the educational and economic development of the minorities;
(c) Creation of similar bodies in all the States/UTs for the same purpose and consisting of local top-level officials dealing with minority-related matters and independent experts;
(d) Establishment of a National-level Coordination Committee consisting of representatives of all the nationalized banks and other financial institutions to work under the RBI for monitoring credit flow to the minorities;
(e) Establishment of State Minorities Commission and Minority Welfare Departments in all those States and UTs where these do not exist as of now;
(f) Decentralisation of all minority-related schemes, programs and plans so as to create suitable district-level mechanisms for their day-to-day implementation;
(g) Revision of the list of Minority Concentration Districts as suggested by the NCM in 1990s and initiating special educational, economic and general welfare measures there through the local administration;
(h) Appointment of Minority Welfare Committee consisting of officials and local experts in all districts of the country to act the nodal agencies of NCM, State Minorities Commissions and all other Central and State-level bodies working for the minorities.
CHAPTER 9
DEMANDS FOR AMENDING CONSITUTION (SCHEDULED CASTES) ORDER 1950
Constitutional Provisions
The Constitution of India does not restrict the Scheduled Castes class to any select religions. The term “Scheduled Castes” has been defined in Article 366(24) read with Article 341(1) as:
“Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purpose of this Constitution.
(a) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation that State or Union territory, as the case may be.
(b) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Under these provisions a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the Order said that any non-Hindu could not be regarded as a Scheduled Caste. Since this Order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the Scheduled Castes, since the latter amendment this para says that nobody who is not a Hindu, Sikh or Buddhists can be a Scheduled Caste. The text of the Order is reproduced below.
The Constitution (Scheduled Castes) Order, 1950
In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order namely:
1. This order may be called the Constitution (Scheduled Castes) Order, 1950.
2. Subject to the provisions of this Order, the castes, races or tribes or parts, or groups within, castes or tribes specified in (Parts to (XXII) of the Scheduled to this Order shall, in relation to the States to which those Parts respectively related, be deemed to be Scheduled Castes so far as regards member thereof resident in localities specified in relation to them in those Parts of what Schedule.
3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhists religion shall be deemed to be a member of a Scheduled Caste.
4. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division as constituted on the 1st day of May, 1976.
Moves to Change by Legislation
Efforts have been made in the past to get the Constitution (Scheduled Caste) Order 1950 amended by legislation so as to make it religion-neutral. A number of Private Members’ Bills have been moved in Parliament, but to no avail. An official Bill called the Constitution (Scheduled Caste) Orders (Amendment) Bill was at last drafted in 1996. The opinions expressed by the State/UT governments on the Bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the Central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion the Bill was not introduced in the Parliament.
Recent Court Cases
In three different pending petitions before the Supreme Court of India the petitions have challenged paragraph 3 of Constitution (Scheduled Caste) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists Scheduled Castes. They have relied upon the following grounds:
(a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of Scheduled Caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble of the Constitution.
(b) The Constitution has provided for equality of opportunity to all those who are similarly situated.
(c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of caste system.
(d) Caste is more a social combination than a religious group and that even though the tenets of Christianity do not recognize caste, it is in fact a reality.
(e) The only available judgment on this issue….Soosai vs. UOI 1985 (Supp) S.C.C. 590. In the Judgment, the Supreme Court had accepted that the caste continued even after conversion. It had, however, sought for more material to show tha the handicap of persons of Scheduled Castes had remained the same even after conversion to Christianity. In the said case, the Court was not satisfied with the material placed before it.
(f) The position of persons of Scheduled Caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations…. They continue to be both poor and socially and educationally backward.
(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to.
Seven Writ Petitions making the same demand are pending in different High Courts, based mainly on the following pleas:
(a) The Presidential Order of 1950 was issued by the President of India under Article 341 of the Constitution. The power conferred on the President by Public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. … So the Presidential Order of 1950 is unconstitutional and it is a black letter written outside the Constitution introduced through the back door by an executive order.
(b) Even under Article 341 the President is not given a power to proclaim to prohibit any citizen from professing any religion of his choice. But the President under Article 341 prescribes indirectly people particularly (Scheduled Caste) not to profess any religion different from Hindu or Sikh religion. In other words to get a benefit under Scheduled Caste Order 1950 a citizen should profess only Hindu or Sikh religion. … Under Article 341 the power given to the President is to specify the Caste and not to specify religion or to identify the Caste by the symbol of religion and hence it is a coloured legislation under guise of Presidential Order.
(c) Para 3 of Scheduled Caste Order of 1950 suffers as it discriminates the citizens of the ground of religion only.
(d) The Apex Court in the said judgment [Indira Sawhney Vs. Union of India Suppl. (3) Supreme Court Case 217] delivered by B. P. Jeevan Reddy (on behalf of Kania C.J., Veykantchalia, Ahmadi, and for himself) in majority view came to the conclusion that the concept of Castes is not confined to Hindu religion only but it extends irrespective of the religious sanction.
(e) That the action of the Government is arbitrary and discriminatory on the ground that on one hand the Muslims have been excluded for the purposes of treating their Caste as Scheduled Caste, but on the other hand the Muslims are included in the list of backwards meaning thereby that the person belonging to a Caste which has been included in the list of Scheduled Caste shall stand excluded from being treated as Scheduled Caste on the simple ground that he is a Muslim.
Conclusion
By all available evidence we do find the caste system to be all-pervading social phenomenon of India shared by almost all Indian communities irrespective of religious persuasions.
It is claimed and agreed to by almost all sections of the society in India, in various context and especially in respect of the issue of reservations, that no special benefits can be given to any community or group on the basis of religion. At the same time, however it is generally insisted upon that the class of Scheduled Castes must remain religion-based. This seems to be illogical and unreasonable.
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