The Context
The Indian state has a highly complex relationship with religion. The relationship is complicated by 1000 years of history of oppression and colonisation of the Indigenous people on the basis of religion and a continuous 1000-year effort of resistance overtly and covertly by the oppressed majority to have a voice in government. A short reading of Indian history would show that it has been a tendency for outsiders who have ruled India to bring in their co-religionists and appoint them to positions of power and influence in the state or the kingdom they formed. This was as true about the Turkish sultans as the Mughals and the British. Unless absolutely necessary, the indigenous locals, who were primarily Hindus, were not appointed to government positions. Undoubtedly, during all these rules of foreigners ruling India, there were some exceptional Indians and Hindus who rose to great prominence. However, they were exceptions and not the norm. Though there has been a tendency post-independence to show as if in all the period for the last 1000 years, Hindus were equally appointed in positions of governance, an objective study would clearly show that it was by far not the case. The ruling dispensation of the period clearly preferred their co-religionists to Hindus when appointing people to power.
This has been a source of grievance and anger amongst Hindus historically. During the end of the British Raj, one of the places of great contestation was the appointment of Indians to the bureaucracy and the judiciary, especially the bureaucracy. The appointments to the bureaucracy are the genesis of today’s debate about reservations on religious lines.
It had been the specific grievance of explicitly Muslim politicians during the period after the first war of independence in 1857 that Muslims, who were the rulers of this country and who had a right to rule, were being displaced by Hindus in government appointments by the British. There was much angst that ‘martial’ Muslims were being replaced by ‘effeminate’ Hindus, and especially Bengali Hindus, in the governance of the country. The argument was that Hindus who had adapted themselves to the British Raj and had learnt English with the help of Western education were being taken into the bureaucracy in very large numbers by the British. The Muslim intelligentsia and the elites were especially aggrieved by their perceived displacement from their positions of power after the events of 1857.
The Muslim struggle leading up to the partition of this country was primarily based on that very grievance. At the heart of the demand for the formation of the state of Pakistan was that Muslims of India were not adequately represented in the executive and legislature. The British, supported by the Indian National Congress, tried to alleviate these fears by providing various measures, including separate electorates and reservations in the bureaucracy and public employment and education. Unfortunately, instead of allaying these unjust demands, these actions catalysed the road to the partition of the country and the formation of Pakistan. Reservations based on religion once given were never enough.
It is, therefore, important to remember this when addressing the question of religious reservations in India.
The Constitutional Debates on Religious Reservations
When the Constitution was being framed after the country’s partition on religious lines, the Constituent Assembly came to discuss the issue. On the question of providing safeguards for minorities, Shrimati Vijay Lakshmi Pandit, during the debates on 20th January 1947, famously said:
“The Resolution before us stresses complete freedom for the individual and concedes guarantees to every legitimate group. Therefore, in this, there is no justification for fear for the minorities. Even though certain minorities have special interests to safeguard, they should not forget that they are parts of the whole, and if the larger interest suffers, there can be no question of real safeguarding of the interest of any minority.”
Sardar Patel,in the discussion on the Report on the Advisory Committee on Minorities on 11th May 1949, made specific observations of reservations for religious minorities, harking back to the history of reservations for religious minorities in India:
“the advisory committee concluded that the time has come when the vast majority of the minority communities have themselves realised after great reflection the evil effects in the past of such reservation on the minorities themselves, and the reservations should be dropped.”
He further concluded the debate by stating firmly:
“the Muslim representatives put forward this plea that all these reservations must disappear and that it was in the interests of the minorities themselves that such reservations in the Legislature must go. The report states that it is no longer appropriate that there should be statutory reservation of seats for minorities except the Scheduled Castes and the Tribals.”
Naziruddin Ahmed observed that:
“Sir, I believe that reservation of Muslim seats, especially now, would be really harmful to the Muslims themselves. In fact, if we accept reservations and go to the polls, the relationship between Hindus and Muslims, which now exists, will deteriorate. The great improvement in the situation that has been achieved will be lost. The Hindu-Muslim relation of the immediate past will be recalled, and feelings will be embittered…8.91.153 Sir, reservation is a kind of protection which always has a crippling effect upon the object protected. So, for all these reasons, I should strongly oppose any reservation for Muslims. Now, Mr. Lari’s amendment is to the same effect that there should be no reservations for Muslims, and I welcome it so far as Muslims are concerned.”
The danger of reservation for religious minorities was expressly recognised. It was decided explicitly during the framing of the Constitution that even though such reservations preexisted the Constitution, it had no place in the Constitution of India, which came to be framed.
The Supreme Court on Religious Reservations
The Supreme Court has not addressed the question directly and clearly. However, the issue has been brought before it several times, especially in the context of repeated attempts by governments of so-called “secular parties” to bring in reservations in employment for religious minorities disguised as reservations for Other Backward Classes. However, the broad line of the Court can be made out when the Court was confronted by a live religious reservation in the legislature, which was a historical legacy. Broadly, while addressing the question of reservations even though in the context of representation in the legislature in the Sikkim Assembly of the Buddhist Sangha, which had a reservation in the historical context of the state, the Court in a Constitutional bench decision observed in R. C. Poudyal v. Union of India, 1994 Supp (1) SCC 324 at page 388:
- The Sangha, the Buddha and the Dharma are the three fundamental postulates and symbols of Buddhism. In that sense, they are religious institutions. However, the literature on the history of the development of the political institutions of Sikkim, adverted to earlier, tends to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own contribution to the Sikkimese culture and political development. There is material to sustain the conclusion that the ‘Sangha’ had for long associated itself closely with the political developments of Sikkim and was interwoven with the social and political life of its people. In view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the impermissible idea of a separate electorate either. Indeed, the provision bears comparison to Article 333 providing for representation for the Anglo-Indian community. So far as the provision for the Sangha is concerned, it is to be looked at as enabling a nomination, but the choice of the nominee is left to the ‘Sangha’ itself. We are conscious that a separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis of religious considerations for the election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional. But in the case of Sangha, it is not merely a religious institution. It has been historically a political and social institution in Sikkim and the provisions in regard to the seat reserved admit of being construed as a nomination and the Sangha itself being assigned the task of and enabled to indicate the choice of its nominee. The provision can be sustained on this construction.”
According to the Supreme Court, any reservation based on religion is anathema to the Constitution.
The New Political Game
The new political game of trying to circumvent this Constitutional bar by incorporating religious minorities into the Other Backward Classes category and thereby pushing reservations in employment and education for them under Articles 15 and 16 of the Constitution in a large number of states by so-called “secular” political parties must therefore be seen in that light. It is clearly an attempt to do something which is expressly unconstitutional in a way so that it does not look as if it is against the constitutional bar against reservations based on religion. It must be called out as it is: a colourable action with unholy motives.
The Endgame
It is surprising (or maybe not surprising at all) that 70 years after the culmination of the disastrous policy of religion-based reservations, resulting eventually in the partition of India with substantial human costs, calls for the same thing are being raised again. The coalition calling for it is the same coalition of interests that did the same in pre-partition India. A coalition of leftists, so-called enlightened liberals and Islamists are again leading the same movement. Like those in pre-partition India, the trend started with the completely made-up report of the Sachar Committee, whose data has never stood up to scrutiny. Just like in pre-partition India, the Westernised elites have primarily been complicit in this scheme to be able to hang on to power when they see it slipping away from their hands in the face of growing calls for democratic representation. This is a fool’s game and, more importantly, a very dangerous one considering the history of grievances and documented history of discrimination against Hindus till the partition of India and the sensitivities surrounding the same.
As those invested in India, we must actively, openly, and aggressively thwart this badly thought-out design. As we learned during partition, the cost of not resisting it successfully is just too high. Therefore, we must resist this demand with all our might right at the beginning or risk our very existence again, like in the medieval tale of the dwarf and knight.
After all, “Those who don’t learn from history are condemned to repeat it.”
Author Brief Bio: Shri Vikramjit Banerjee is a Senior Advocate, Supreme Court of India and Additional Solicitor General ofIndia. The views expressed by the author are entirely personal and have nothing to do with the Government.
