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Constitution for inclusive policies by Abusaleh Shariff

Of late, there has been a debate on whether public programmes such as school education, scholarships, health-care delivery and access to microcredit can be targeted at beneficiaries based on religion; some consider this ‘unconstitutional' and argue that it amounts to discrimination. I highlight the constitutional provisions and argue that there is nothing in the Constitution which bars identification of beneficiaries based on religion. Religious identity is listed on a par with race, caste, sex and place of origin, all in the same line, and these other traits are used to identify beneficiaries.

The Constitution, resolves to secure to all citizens .... ‘equality of status and of opportunity,' and directs the government to be proactive to ensure equal opportunity. Equality, equal access and equal opportunity concepts are elaborated in Articles 14 (right to equality), 15 (access to education) and 16 (public employment). The ‘... state shall not discriminate.... on grounds only of religion, race, caste, sex, place of birth ....' .

Clause (4) of Article 15, states, “Nothing .... shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” Interestingly, ‘socially and economically backward classes (SEBC)' precedes mention of the SCs and the STs. Clause (5) directs the state to make a special provision by law for the advancement of the ‘socially and educationally backward classes' ..... through admission to educational institutions including private, aided or unaided.

Article 16 provides for equal opportunity in government employment, and cautions the state not to discriminate on the grounds of religion, race, etc..; and clause (4) provides for making provisions for reservation of appointments in favour of ‘any backward class' which .... in the opinion of the state , is not adequately represented in the services under the state. Thus, the onus of identifying a ‘backward group/class' rests with the state.

All explanations of Articles 14, 15 and 16 emphasise that the group classifications should not be arbitrary, must be compatible with the ‘objective of classification' and pre-existing inequality should not be ignored. Therefore, any group of citizens (not arbitrarily formulated), including those named in the Constitution, namely religion, race, caste, sex, descent, and place of birth/residence should form the basis for backwardness. Backwardness can also be assessed based on occupation, workplace, age, language, etc., which are not arbitrary in nature.

The state is directed by the Constitution “to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life” [Article 38(1)]. An amendment in 1976 states “The state shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations [Article 38(2)].”

Generally, the government collects and collates data for the SCs and STs; for example, to measure levels of literacy and higher education, share in state employment, etc. Similarly, multidimensional gender discrimination and regional disparities reflected from the ‘place of birth/origin/residence' are measured. One fails to understand, therefore, as to why an assessment based on ‘religion' is taboo. Therefore, the public policy view that religious comparisons in the levels of achievement in development indicators are ‘unconstitutional' appears due to a lack of understanding of the spirit and intentions of the Constitution. Religion in India is a dominant social identity next only to sex and caste and, therefore, it cannot be singularly sidelined or ignored.

Further, religious identity lends itself to a double whammy. Studies show unacceptably large compounding effects of sex, age and regional discrimination interacting with those linked to religion. Muslim and Dalit women (children) living in less developed States are the most excluded of all types of socio-religious groups in India.

Empirical evidence is essential to developmental knowledge. It is reassuring that modern empirical and econometric methodologies accurately estimate and identify the characteristics of backwardness. Caste and religion stand out as dominant social identities of backwardness along with occupation (source of household income), residential and regional identities. Empirical analysis of process indicators (literacy, higher level education, formal employment, access to banking and credit, political participation, etc.) according to religious communities excluding Hindus, confirm Muslim placement below the line of average. If the SCs/STs are singled out and compared with religious groups, one finds Muslims in most of the measures about the same or even lower. With adjustments for initial conditions, the conditions of Muslims relative to the SCs/STs have worsened over the years. Such evidence suggests that policies and programmes of the national and State governments are less accessible to Muslims, to the extent that they can be labelled as discriminatory.

Applying the standards set by the Constitution, one can argue the existence of a systemic bias based on religion. The only way to eliminate such bias is to ensure equal opportunity and access to programmes which generate benefits proportional to the size of the population. Naming programmes specific to the deprived community even if has to be done by caste and religious identity must be the public choice. It is clear that there is no catch-22 situation as has often been made out to be and it is not even ‘unconstitutional.' Since the Constitution grants the state the responsibility of identifying ‘backward communities,' it is the bounden duty of the national and State governments to bring the caste and religious communities facing exclusion especially the Muslims, into the fold of mainstream policies and programmes as recommended by the Sachar Committee report. Note that Article 25, while setting the parameters of the right to freedom of religion, has named selected religions to bring a certain degree of clarity as to what constitute the Hindus; and this Article does not preclude naming Muslims and Christians (two large religious communities) in public documents and legal enactments.

(The writer is with the Centre for Research and Debates in Development Policy, New Delhi. He was Member-Secretary, ‘Prime Minister's High Level Committee on Muslims in India' — 2005-06, and Adviser, ‘National Commission to Review the Working of the Constitution' — 2001-02)

There is nothing in the Constitution which bars identification of beneficiaries of public programmes based on religion.