Pages from our past

Since the late 19th century special provisions were instituted by the colonial British State for a vast array of groups declared as ‘ backward’. Group representation provisions in the central legislature were first introduced by the colonial State through the Morley-Minto reforms of 1909, providing for separate electorates to Muslims. The Government of India Act of 1919 extended the system of separate electorates to Sikhs, Indian Christians and Europeans. In the GOI Act of 1935, 13 communal and functional groups were provided special representation.

Reservations in government appointments for Muslims were first recognised and granted by the colonial State in 1925 and extended to other communities in 1934. Before this, some of the earliest instances of policies of ‘group preference’ in government employment were found in the caste-based reservations and schemes instituted by the princely states such as Mysore in 1895 and Kolhapur in 1902.

How did the debate on minority rights and representation evolve through the Constituent Assembly debates and appear in the first draft of the Constitution published in February 1948 and how did they finally appear in the final draft of the Constitution?

Two aspects stand out here. One, the political safeguards for minorities including reserved seats in legislatures, quotas in government employment, representation of minorities in the Cabinet and the creation of an administrative machinery to ensure supervision and provision of minority rights existed specifically in the first draft of the Indian Constitution published in 1948 (Part XIV of the Draft Constitution).

Two, it was after detailed debates on secularism, equity, justice and national integration, in a remarkable reversal, by the time the Constitution reached the stage of its final draft in October 1949, minorities as a specific category were excluded from the purview of all political safeguards. The same, however, came to be accorded to SC/STs.

Even now, as extracts from the Constituent Assembly debates show (see accompanying box), the word ‘socially and economically backward classes’ as enunciated in Article 16 (4) was specifically argued by all to include minorities within its purview. This has been accepted by the National Commission for Review of the Working of the Constitution. (See article, Iqbal Ansari).

The difference between the first and final draft of the Constitution specifically concerning the exclusion of political safeguards and rights of minorities has been explained in terms of diluting the politics of religious identity in the aftermath of Partition. Muslim acquiescence on the issue was obtained through a closed (door) vote in the Advisory Committee meeting where Muslim leaders, including the Congress leader Maulana Abul Kalam Azad, abstained from voting.

Did these developments occur due to a weakened Muslim leadership, the privileging of the political discourse to leaders like Jinnah over Badshah Khan (Khan Abdul Gaffar Khan) by the British and then the Congress? Whatever the historical reasons, they were certainly explained and argued in the context of a secular Nation State and integration.

Surprisingly however, in the very same Constituent Assembly debates, Muslim members invoked strong notions of internal religious freedom of their community when it came to matters of Muslim Personal Law. They argued that religious personal laws, which govern such areas as marriage, divorce and maintenance, were an essential aspect of religion and, as such, ought to be granted immunity from State interference. Secularism was construed to imply that religion (in the context of family laws) in a secular State should be out of the purview of State interference.

What were the political safeguards for the minority offered in the earlier decisions of the Constituent Assembly that figured in the first draft of the Constitution?

The question of political safeguards to the minorities was referred to the advanced committee on Fundamental Rights, Minorities; Tribals had already been mandated by the Cabinet Mission Plan (May 16, 1946). While the concept of separate electorates as conceived by the British was rejected, the Committee did offer an alternate set of safeguards. These were: a) joint electorate with representation from communities in proportion to the population for a period limited to 10 years; b) ‘desirability’ of individual members of important minority communities in the Cabinet; c) a general declaration that in the All India and Provincial Services claims of all minorities in adequate representation shall be kept in view in consistence with efficient functioning of the administration; d) Provision for a special minority officer at the central and provincial levels to report to legislatures regarding the working of the various political safeguards for minorities.

The entire report was accepted by the Constituent Assembly in August 1947 and also incorporated in the first draft of the Indian Constitution in February 1948. However, in a substantive reversal, amendments were adopted to each of these Articles and they were dropped in the final draft in 1949.

In effect, this removed religious minorities from the purview of these safeguards. Not only that, through another significant reversal in 1950, a constitutional amendment restricted the benefits through reservation to the Scheduled Castes and Tribes among Hindus. Dalit Sikhs were later included through a further amendment. It was during Prime Minister VP Singh’s regime that (neo) Buddhist SCs were included as beneficiaries.

As of now, the constitutional reality of secular India privileges reservations for only Hindu, Sikh and neo-Buddhist Dalits even after it is more than widely accepted that caste and socio-economic backwardness spare no faith here, and in fact have de-privileged religious minorities, especially Muslims, in the past 56 years.