TCN special: Misra Commission report excerpts- Part 20

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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.