Reservation for Muslim, Christian SCs: Why a new commission when the old one was ignored

The Constitution of India, brought into force in 1950, guaranteed equality before law and equal protection of laws to the citizens (Article 14). Elaborating upon this basic fundamental right, it declared that the state shall not discriminate against any citizen only on the grounds, inter alia, of religion and caste (Article 15). Provisions were, however, included in the Constitution regarding the welfare and advancement of the so-called Scheduled Castes (SCs). To reinforce them, Article 15 was amended next year to clarify that its initial principle would not deter the state from making “any special provision” for the socially and educationally backward classes of citizens, or the SCs and Scheduled Tribes (STs).

The Constitution had left it to the President of India (read central government) to proclaim the first list of SCs, and to Parliament to amend the list from time to time in the future. A few months later, the Constitution (Scheduled Castes) Order 1950 was promulgated, containing the first list, with a clear rider under its para 3 that no non-Hindu, even if belonging to any of the castes listed (or to be listed in future), would be covered by its entries. On persistent protests by the Sikh and Buddhist communities, the rider was modified twice, in 1956 and 1990, to admit lower castes among them to the fold of constitutionally-recognised SCs. All those belonging to such castes whose forefathers might have converted to Christianity or Islam in the distant past remained, and still remain, out of its purview.

On the eve of the 2004 general elections, the Congress, then out of power, made a promise in its manifesto that on coming to power it would constitute a national commission to examine and report on the issue of reservation for minorities in government jobs and educational institutions, which they had been demanding since long. It was an electoral compulsion since, in the past, the party had always been openly averse to this demand. After its unforeseen victory in the election, the personal integrity of Prime Minister Manmohan Singh saw the promise translated into action. The constitution of the proposed commission was announced by a gazette notification on October 29, 2004, spelling out at length its terms of reference — all basically relating to the possibility of reservations for religious and linguistic minorities.

The government took about five months to select commission members, and their names were eventually announced in March 2005 — former Chief Justice Ranganath Misra in the Chair, and I, as a member, picked up under the clause of the October 2004 notification saying that one of the members should be “an expert in legal and constitutional matters”. The other two members selected were St Stephen’s College Principal Anil Wilson and Punjab studies scholar Mohinder Singh. Officially called the National Commission for Religious and Linguistic Minorities, it became popularly known after its Chair as the Misra Commission.

Two writ petitions against the religion-based exclusivity of the Scheduled Caste Order of 1950 had then been pending in the Supreme Court for long. The Court, on its demand for the government’s final response to the petitions, was told by its counsel that the matter would be referred to the Misra Commission for research and recommendation. The commission’s terms of reference were then modified by the government to include among them the “issues raised in the court relating to para 3” of the Constitution (Scheduled Castes) Order 1950. The commission’s report was handed over to the Prime Minister in May 2007. This newly-added term of reference was answered in the report with a recommendation that the religion-related rider under the said Order be deleted to make the SC law “religion-neutral” like the Constitution (Scheduled Tribes) Order, also of 1950.

There was a deafening silence on the part of the government. On persisting public demands, the commission’s report was at last tabled in Parliament — two-and-a-half years after its submission. There was no action-taken report and no discussion in either House. The government never disclosed its stand on any recommendations of the commission, and did not answer any questions about it. Only once did a cabinet minister tell the media, outside Parliament, that “we will pick sensible” ones from amongst the commission’s recommendations. Members of the political party now in power, then the main Opposition, had bitterly criticised the report and called it an “anti-national” measure.

All such comments, by both the ruling and the opposition parties of the day, related to the commission’s positive recommendation on its original terms of reference relating to reservation for minorities. There was never even a whisper, official or private, about its stand on the subsequently added term of reference regarding the religion-caste nexus under the Constitution (Scheduled Castes) Order of 1950. The media report that its recommendation on this issue was rejected by the government “on the ground that it was not substantiated by field studies” is, I am afraid, not correct – the government had just slept over the entire report till it lost power seven years later.

Misra Commission member Anil Wilson had died even before its report was tabled in Parliament. Ranganath Misra breathed his last in 2012, and Mohinder Singh this year. Only I am here now to recall the commission’s forgotten story. Going by the stand then taken on its report by the present government of the country, I am at a loss to comprehend the surprise move to set up another similar body. Given their known policies, it seems to be somewhat paradoxical.

The writer is a Professor of Law & ex-member, Law Commission of India. He was also a member of the Ranganath Commission