P S Krishnan

pre-eminent in the trade of pepper and other spices and luxury articles popular in the west. An indigenous Muslim community grew up around warehouses and settlements of Arab Muslim traders, stretching from Cannanore (Kannur) in the north, extending to various towns of Mal-

The identification of and reservation for the backward classes among Muslims has been a contentious issue, most recently in Andhra Pradesh. However there is a clear case, on constitutional grounds, for such reservation. A detailed discussion of the national situation and reservation measures in some states.

P S Krishnan (pskrishnan63@yahoo.com), a former secretary to the Government of India, is presently adviser to the government of Andhra Pradesh and has worked in the fi eld of social justice for SCs, STs and BCs and on identification of backward classes in a number of religious communities.

P

opular impression associates Islam in India with Muslim invasions and forcible conversions. In fact, the spread of Islam in the peninsula and also in many other parts of the country is the story of gradual growth essentially through traders and itinerant Sufi s who settled among the local indigenous population (Heredia 2008: 49). Large-scale maritime trade was carried on by Arabs from Saudi Arabia and by Persians after the fifth century, i e, since before the origin of Islam, with the Malabar (north Kerala) coast (Haurani 1951 and Kerala State Gazetteer 1986: 284) and the eighth or ninth century AD with the Coramandel Coast of Tamil Nadu (Bayly 1989: 71-78 and 86-87) and west coast, north of Kerala (Momin 1978: 118), present coastal M aharashtra and Karnataka.

With the appearance of Islam in Arabia, the Arab traders and Muslim religious teachers became the channel for introduction of Islam in Kerala. According to tradition, very soon after the death of the Prophet, a group of 20 Muslims, who a rrived in 643 AD in Kerala (Tofutul Mujahideen: 286) to preach Islam, founded the first Indian mosque at Kodungallur, in today’s Thrissur district, nearly a century before the first arrival in India in 711 AD of a Muslim conqueror, Muhammed bin Qasim (Heredia: 48) whose invasion of Sindh was a sporadic short-lived event. A Muslim inscription in present-day Koyilandi in Kozhikode district, dated Hijra 166, makes it clear that the spread of Islam took place long back in Malabar by conversion and by the settlement of Arab traders (Kerala State Gazetteer: 284). The Mappilas of Malabar are the d escendants of these first Indian Muslims and subsequent converts. Commencing in the 12th century, the Samoothiri (Zamorin) of Calicut (Kozhikode) established close relations with Arab traders resulting in Calicut becoming

august 21, 2010

abar, which coexisted peacefully with the H indu majority.1

North of Kerala, the first caravan of Arab migrants to the Konkan area arrived in 699 AD. In 714 AD, a large group of Iraqi Muslims came to the Konkan to escape persecution by Hajjaj bin Yusuf. They interacted with the local Hindu population, mainly the fisherfolk of Konkan. Their progeny came to be known as N awaits, who are the ancestors of the K okni Muslims (Momin 1978: 118). Small colonies of Arab traders settled in various points in and near the ports in the region from Thane to Bhatkal and further south from the eighth century onwards.

In the Tamil country, well before the waves of invasion from central Asia, which gave rise to the medieval Muslim sultanates of north India, Arab traders and navigators settled along the Coramandel coast in the eighth or ninth century AD (Bayly: 71-73, 86-87). Sufi s from other parts of the Muslim world also provided focus for the transmission of Islamic ideas and teachings. The chain of Muslim trading towns that grew along the Coramandel coast through the agency of Sufi s and Arab traders extended up to Pulicat, in the south of the present Andhra Pradesh. From the coastal areas, the Muslim population spread into the Tamil hinterlands and other inland regions of the south as early as the 13th to 14th century AD. This progress of Islam extended into the a djoining Telugu areas like Nellore and P enukonda in Andhra Pradesh. These developments and the emergence of Muslim society in the Deccan including the present Andhra Pradesh took place b efore the earliest military foray of a M uslim ruler of the Delhi sultanate into the Deccan, namely, Alau’d-din Khilji’s first campaign against Devagiri, the Y adava kingdom, in 1296. A few Muslim missionaries and saints had taken their abode at various centres in towns and

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v illages in the three kingdoms of Deccan (Devagiri of Yadavas, Warangal of Kakatiyas, Dwarasamudram of Hoysalas) and had gathered around them a cluster of devotees some of whom must have been new converts to Islam. The beginning of the 14th century witnessed a large number of saints of different orders in the Deccan. Legend has it that at the instance of the famous Khwaja Nizam’ud-din Aulia of Delhi, bands of Sufis left Delhi and came south to propagate and spread Islam in the Deccan and further south (Joshi and H ussain in Sherwani et al (ed.) 1973).

The infl uence of the Sufis in the spread of Islam has also been noticed in north I ndian areas such as Rajasthan, Gujarat and Kashmir (Lawrence 1982). Arab geographers and traders who came in the ninth and 10th centuries speak of colonies of Arab traders in Gujarat who had centuries of history behind them (Mishra 1985). By the 13th century, the Muslim community had proliferated in all parts of the region, growing out of its original limits of a trading community to include indigenous

o ccupational groups like oilmen, masons, etc. This was during the Rajput rule in G ujarat, prior to the first Turkish invasion of Gujarat by Ulugh Khan and Nusrat Khan in 1297 (Mishra: 6-8).

In Bengal (the present West Bengal and Bangladesh), contact with Muslims especially in the field of trade and missionary work began much earlier than the Muslim conquest of Bengal in the 13th century, beginning with Ikhtyaruddin Muhammed ibn Bhaktiyar’s sack of Nadia, c 1203-04 (Sarkar 1972: 2).

Motivation for Conversion

While political patronage and postconquest coercions may have played some role in the spread of Islam, it is seen from a number of studies that a good number of the traditionally disadvantaged and deprived sections of people of India moved to Islam to escape the degradations i mposed on them by the caste system and to improve their lot. This is a continuing story from ancient times. There is e vidence to show that the “untouchable” and other “low” castes were straining at the leash even in the ancient and medieval p eriods and there are indications of protest against caste-based inequalities and

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august 21, 2010

of thirst for equality (Krishnan 1994). The earliest glimmerings of resistance to castebased rigidities are linked with religion (Davids 1997, Stein 1985, Oppert 1972, Sastri 1965 – cited in Krishnan). Buddhism and Jainism have been considered counterpoints to the brahminical social order and have been associated with socially equalitarian character. The towns of the Coramandel region of Tamil Nadu where artisans and trading castes were in greater strength were bastions of Jain and Buddhist influence during the Pallava times and later. Artisan and trading castes were trying to break loose from domination by the brahminical social order supported by the brahmins and dominant cultivating, i e, land-controlling groups.

There are many instances of religionbased opposition to caste-based social

o rder starting with the Tamil Bhakti movement in the mid-sixth century to various other similar movements in different parts of the country up to the 16th c entury. Saint-reformers of these movements criticised the caste system, hierarchy, concepts of “high” and “low”, etc, with varying degrees of emphasis. Many of them were drawn from castes now categorised as scheduled castes (SCs) and Socially and Educationally Backward Classes or Other Backward Classes (SEdBCs/OBCs, hereafter referred to as BCs), while some were from “upper” castes. A good part of their outpourings was dissent and protest of or on behalf of “lower” and “lowest” castes. They could not carry their dissent and protest to the secular sphere, with the e xceptions of a few like Basaveswara in Karnataka and Sankar Deb in Assam, both of whom carried the protest powerfully to the secular sphere as part of their religious reformist movements and promoted marriages cutting across barriers of caste/“untouchability” (Basaveswara) and tribe and non-tribe (Sankar Deb). Purely secular challenges were represented by the self-assertion of artisan-traders which grew with urbanisation. This history of dissent, protest and challenge, continuous from ancient times, which I have brought out in greater detail elsewhere, (Krishnan 1994) shows that the people of “untouchable” and other “low” castes did all along have a perception of the inequalities of (and arising from) the caste system

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ble” castes. These castes, either by the The dichotomy between the social ideology

MANOHAR

same name or by altered non- pejorative names, find place in the presidential schedules of SCs and lists of BCs.

Emergence of Social Stratifi cation

The social ideology of Islam is uncompromisingly egalitarian and upholds equality and fraternity. With this ideology, early Islam shook the traditional foundations of Arab hierarchy. The early Muslim community was inspired by this ideology and marked by simplicity. Later, in the course of conquests, contact with people like Iranians and Spaniards who already had well-defined systems of hierarchy, led to the emergence of stratifi cation in Muslim society (Ahsan 1960). The preachings of reputed Persian scholars like Nasir-ud-Din at-Tusi and the theories of Ziauddin Barani, the famous 14th century historian and political theoretician, are evidence of the promotion of a stratified inegalitarian s ocial order and deprivation of downtrodden Muslims (Ansari, G 1960 and Ansari, H N 2007). S ufism was born as a protest movement against this deviation from the original Islamic social ideology of egalitarianism and simplicity.

It was with this altered state of social organisation that Islam came to north I ndia in the 12th century. At that time I ndia had already developed its own form of social stratification known as the caste system. As J H Hutton, Census Commissioner of 1931, observed, “caste was in the air” and neither the followers of Islam nor of Christianity could escape the infection of caste; even the change of religion does not destroy the caste system, for Muslims who do not recognise it as valid, are found to observe it in practice, and there are many Muslim castes as well as Hindu (Hutton 1980 (1946)). The stratifi cation and concepts of “high lineage” and “low lineage” brought in by the Turkish Central Asiatic and Afghan Muslims who invaded and settled in north India (Ansari, H N 2007) and the caste system of India were a lethal combination and produced a heady mixture, which had a direct impact on Muslim society in complete d erogation of Islamic tenets of equality and fraternity.

of Islam and existence of a caste-like stratification in Muslim society in India has been noticed by many scholars like Hutton (1946), N K Bose (1951), M N Srinivas (1968), Louis Dumont (1970), Imtiaz Ahmed (1978) and M K A Siddiqui (1974). Its features, as found by them, include h ierarchy, occupational specialisation – I would prefer to call it a linkage with a traditional occupation – and endogamy, but doctrinal justification and sanction are a bsent in it. The social history of Muslim society in India, in one of its aspects, can be described as a continuing confl ict between the overwhelming ambience of caste and lslam’s social ideology of equality, fraternity and egalitarianism. In this confl ict, I slamic social ideology has been able to partly but not fully succeed. It has been able to mitigate but not eliminate caste.

The glossaries of castes and tribes of different regions of India prepared by various British and Indian ethnographers, d emographers and anthropologists show the existence of a number of Muslim groups, almost analogous to jatis (see S iddiqui 1978; Elliot 1969; Ibbetson 1920; Risley 1891; Crooke 1906; Nesfield 1885; Thurston 1909; Iyer 1909; Rose 1911; Russell and Hiralal 1916; Hutton 1946; Bose 1958 and Srinivas 1964). The Census Report 1901 for Bengal records the existence of three social divisions recognised by Muslims, viz, Ashraf, the “noble”, which includes all undoubted descendants of foreigners and converts from “upper” caste Hindus; Ajlaf, the “mean people”, which includes all “occupational” groups and converts of “lower” ranks; and, in some places, Arzal, the “lowest of all”, with connotation similar to the “Chandal” among Hindus and with whom other Muslims will not associate and who are forbidden entry into the mosque and use of public burial grounds. The census lists castes under each division with a social precedence as among the Hindus.

B R Ambedkar refers to this census r eport while acknowledging that Islam speaks of brotherhood, but deploring that caste among Musalmans has remained (Ambedkar 1990 (1940)). He points out that the Bengal census is illustrative and census reports of other provinces show

similar facts and he underlines that Muslim society is not free from the well-known social evils of Hindu society.

Numerous scholars have undertaken studies of Muslim society in different parts of India, brought out the prevalence of stratification and hierarchy under the names of Ashraf, Ajlaf and Arzal and made local lists of castes/communities/ endogamous and inter-generationally continuous social groups of Muslims in different parts of India. In the AP Report, I have surveyed and analysed numerous such studies focused on different parts and regions of India and also compendia like the Global Encyclopaedic Ethnography of Indian Muslims compiled by Samiuddin and Khanam (2008) as well as preindependence and post-independence district gazetteers and the Anthropological Survey of India’s People of India series and various census reports and from these I have portrayed the all-India picture of Muslim society and social stratifi cation.

Mandelbaum (1972) in his overview based on various studies points out that despite doctrinal equality of all Muslims, the actual social practice of Muslims in all regions of India parallels that of their H indu neighbours, refers to the categories of Ashraf, Ajlaf and Arzal, inter se hierarchical ranking of endogamous hereditary groups and dwells on the disabilities of Arzal, the “untouchables”. He concludes that it is not misleading to speak of Muslim jatis. At the same time, he points to certain redeeming features, like inter-dining of all groups and worship by all in the same mosque with the exception of the Arzal, and the absence of theoretical justifi cation for this unequal hierarchy.

I have noticed and brought out in the AP Report certain other aspects of stratifi cation in Muslim society. One of them is that while “untouchable” groups do exist among Muslims, they form a minuscule proportion of the Muslim population – the highest estimate provided by anyone is 1.2%. Among the “non-untouchable” Muslim groups are counterparts of certain large Hindu “untouchable”/SC castes. Apart from this, there has been a tendency in south India, where conversions mostly were from “untouchable” and other “ lower” castes below the level of peasantry and artisanry, largely composed of agricultural

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labour and other labour castes, to merge and conflate into a larger collective identity like Mappila in Malabar of Kerala, Labbai in Tamil Nadu, Melacheri in Lakshwadeep and Sheikh in Andhra Pradesh, which, however, carried forward collectively the social and educational backwardness of the pre-conversion constituent Hindu castes. The category of Sheikh in Andhra Pradesh as a confl ation of “ lower” castes is also seen in varying d egrees in West Bengal, Kashmir and to a lesser extent Gujarat. The practice of common worship by all Muslims, except in some instances of the very small groups of scheduled caste-counterparts, reinforces the Islamic social ideology of equality and counteracts and ameliorates, though it does not fully eliminate, caste-like practices. However, despite these redeeming features, hierarchies of unequal birth-groups whose boundaries are preserved through endogamy continue to exist and no efforts have been made by the elite of the Muslim society to remove the social and educational backwardness of the “lower” groups who constitute the bulk of the Muslim p opulation of India in all regions.

The centre and the governments of the north Indian states have been remiss in recognising socially and educationally backward classes and providing social justice measures for removal of their all-round backwardness and this has adversely affected BCs of Muslims along with BCs of Hindus. Further even after the BCs have been recognised by the centre and the northern states, they are yet to recognise all BC groups of Muslims in some states. In south India, this lacuna in identification occurred only in Andhra Pradesh till recently.

The criterion for identifi cation of BCs is free from any religion-related stipulation and any caste or community or intergenerationally continuous social group which fulfi ls the criteria of backwardness can and should be included in the BC List irrespective of religion. Accordingly, the belated Central List for various states and the State Lists do include such classes of Muslims also, though in respect of some states there are lacunae and gaps. These lacunae and gaps are because of ignorance of Muslim society and Muslim social stratification on the part of the eminent members

of the majority religious community who have been in charge of identifi cation of BCs and also because, right from the Kaka Kalelkar Commission o nwards, the elites of the Muslim society, drawn from the non-BC classes, were continuously pursuing the objective of getting all Muslims recognised as backward and provided reservation. This enterprise has not succeeded because the Constitution provides for recognition of and provision for social justice measures including reservation for only SCs, STs and BCs and not for any religious community as a whole. But, on account of this line pursued by the elite classes, they failed to place the case of g enuine BCs of the Muslims for inclusion in lists. To remove misperceptions and recognise and enfranchise, at long last, Muslim BCs, which were not noticed and recognised for no fault of theirs, is no more than correction of unconstitutional religion-based discrimination against them.

Approach towards BCs of Muslims

Article 340 of the Constitution deals with the Socially and Educationally Backward Classes including the process of their identifi cation.

In terms of this Article, two Commissions were appointed by the President of India, the Backward Classes (Kaka K alelkar) Commission, 1953-55 and the Second Backward Classes (Mandal) Commission, 1979-80. Both the commissions prepared lists of BCs. Both of them rejected the representations from some Muslim

o rganisations seeking that all Muslims should be treated as backward and on that basis be given educational aid and adequate representation in government services. Both commissions included specifi c groups of Muslims in the lists of BCs recommended by them state-wise.

Prior to this and prior to Independence, reservation was provided by the maharajas in the peninsular princely states of K olhapur, Mysore, Travancore and Cochin and by the Madras Presidency (under the rule of the non-brahmin Justice Party) and the Bombay Presidency. Muslims or specifi c groups of Muslims were part of the lists of BCs in these princely states and the Madras Presidency. Thus, Muslims in the case of Kerala and Karnataka and specifi c groups of Muslims in the case of Tamil Nadu and Andhra Pradesh have a lways been ab initio part of BC lists in these states.

The Mandal Commission (the order a ppointing which dated 1 January 1979 was issued under the signature of this author as joint secretary in charge of SC and BC development and welfare in the ministry of home affairs), taking note of the fact that the Hindu caste system pervaded in various degrees through the non-Hindu communities of India also, evolved two “rough and ready” criteria for identifying non-Hindu OBCs, namely, “(i) All untouchables converted to any non-Hindu religion, and

(ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (Examples: dhobi, teli, dheemar, nai, gujar, kumhar, lohar, darji, badhai, etc)” (GoI 1980).

The second criterion was very effi cient in identifying BCs of Muslims in north I ndia where the bulk of the Muslim population belongs to such “occupational” communities, which carried with them their pre-conversion traditional occupational link and related social status and often the same occupation-based community name.

The Kalelkar and Mandal Commissions included in their BC lists for northern states a number of Muslim communities like ansari/julaha/momin (weavers), d hunia/ naddaf/mansoori (cotton carders), kasaab (butchers), halalkhor (sweepers and scavengers), the Mandal list being more thoroughgoing.

The identifi cation of mappila and labbai as BCs and their inclusion in the State Lists of Madras/Tamil Nadu and Travancore-Cochin/Kerala and in the Kalelkar and Mandal lists for those states, was able to rightly cover the major part of the Muslim population in Tamil Nadu and northern Kerala. But, this did not happen in the case of the Kalelkar and Mandal lists for Karnataka and Andhra Pradesh.

The Kalelkar list for Hyderabad State had only six occupational communities,

namely, laddaf/dudekula/pinjara/pinjari (cotton carders); qasa/qassab/quraishi (butchers); faqer (semi-nomad beggars); sangtarash (stone-carvers); mehtar (Muslim) (Muslim scavengers); and hajjam (barbers); which together accounted for only a small proportion of Muslims. For Andhra, the Kalelkar list included only the small community of dudekula (occupational counterparts of north Indian Dhunia), which was actually inherited from the Madras list. The Mandal list for Andhra Pradesh was limited to dudekula and synonyms, and two other groups, viz, mehtar (Muslim) and katika/kasai (butchers).

Rejection of Kalelkar and Delayed Acceptance of Mandal

The central government rejected the Kaka Kalelkar Commission’s Report (1955) on untenable grounds in 1961. In the case of the Mandal Commission, after an unconscionable delay of nearly 10 years, the central government in August 1990 accepted its recommendation to provide 27% reservation of posts for the BCs.3

The government’s order also laid down that in the first phase the central BC list shall consist of those castes/communities which were common to the list of each state and the Mandal list for that state.

After a stay order of about two years, the Supreme Court in its landmark judgment of 16 November 1992 in the Mandal case4 upheld reservation of 27% for BCs and the principle of common-listing, s ubject to the condition of exclusion of socially advanced persons/sections (SAP/S), often inappropriately referred to as “creamy layer” (CL) of identifi ed backward castes/communities. After exclusion of SAP/S or CL in compliance with the Supreme Court’s direction and the preparation of central (common) state-wise list, both on the basis of the recommendations of an expert committee, of which I was a member, reservation for BCs commenced at last on 13 August 1993, nearly 44 years after adoption of the Constitution.

Central List

In the first-phase state-wise Central List thus notified by the central government, many communities of Muslims were i ncluded but some others could not fi nd place as they could not satisfy the criterion

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of commonality. The National Commission for Backward Classes (NCBC) set up in 1993 under an Act pursuant to a direction of the Supreme Court for the purpose of examining requests for inclusion and complaints of under-inclusion or over- inclusion in the Central List of BCs, after intensive public hearings and on the basis of well thought-out guidelines formulated by it after examining the criteria/indicators of the various central and state Commissions, removed many of these gaps/ lacunae/ omissions and difficulties in respect of such Muslim communities, completing the process in the northern states and most southern states, except Andhra Pradesh and states of east India where the process of identification of Muslim BCs has been rudimentary or a non-starter.

State Commissions and State Governments

After the judgment of the Supreme Court in 1963 in the Balaji case relating to Karnataka,5 a number of state governments, especially of south India, set up BC commissions to bring their lists, of pre-Independence vintage in most of the south, in line with that judgment. The State BC Lists that emerged after these commissions were virtually the same as the lists that existed earlier, including in respect of Muslims/BCs of Muslims.

The state-wise position is outlined b elow:

(i) Tamil Nadu: Inclusion of Backward Communities of Muslims ab initio in State List and in Later Central List for Tamil Nadu.

The bulk of the Muslims of Tamil Nadu continued to remain in the BC list by the inclusion ab initio of labbai which consists of a conflation of a number of “untouchable” and other “lower” castes, along with mappila and dudekula (basically of Kerala and Andhra Pradesh, found also in Tamil Nadu). There were some small changes/additions on the basis of the recommendations of the Sattanathan Commission, 1969-70 and the Second Backward Classes (Ambasankar) Commission of 1985. The Mandal list and the Central List did not include three small communities of Muslims included later in the State List. The NCBC, after pubic enquiry and examination of documents, advised in 1998 the rejection of the request of these communities as they are

not socially backward and the central government notified accordingly. These three communities are numerically inconsequential and make no difference to the fact that about 90% of the Muslim population has found legitimate place in the State BC Lists and Central List for Tamil Nadu.

In 1989, Tamil Nadu distributed its undifferentiated list of BCs into “Backward Classes” and “Most Backward Classes” with separate sub-quotas of 30% and 20% respectively. As Muslim BCs were not able to compete with certain castes in the former sub-list, they were, in 2007, constituted into a separate sub-group with a 3.5% sub-quota carved out of the 30% BC quota, which, on challenge, the high court refused to stay.

(ii) Karnataka: Inclusion of “Muslim” in entirety ab initio in State List and inclusion of Muslim BCs comprising bulk of Muslim population in Later Central List for Karnataka.

In Karnataka through the Miller Committee 1918-1921, the Nagan Gowda Committee (1961), the Karnataka Backward Classes (Havanur) Commission (1972-75), the Second Backward Classes (Venkataswamy) Commission (1986) and the Third Backward Classes (Justice Chinnappa R eddy) Commission (1990) and in the consequent successive state government o rders, Muslims as a whole were consistently r etained in the State BC List, in addition to certain identified Muslim communities.

There was a deviation in the Havanur Commission’s report which while recognising the educational backwardness and inadequate representation in the services and poverty of Muslims, recommended that they should not be included in the OBC list on account of its understanding that the concept of BC listing u nder Articles 15(4) and 16(4) of the Constitution was applicable only to Hindus, but said that Muslims may be classifi ed under Articles 15(1) and 16(1) and provided facilities similar to that of BCs. The state government rejected this recommendation and continued to retain Muslims in the BC list. On challenge, the Karnataka High Court in Somashekarappa case upheld in 1979 the government’s order in respect of inclusion of “Muslim” in the OBC list as perfectly justified and pointed out that their being a religious minority is no ground to exclude them from the BC List.

Unlike Tamil Nadu, Karnataka (like K erala and Andhra Pradesh) has always distributed its BCs into categories/groups with sub-quotas, which have been modifi ed from time to time. In 1994, taking into account the inability of “Muslims” to compete with some of the castes in its sub- category of BCs, it constituted “Muslims” into a separate sub-category with a sub-quota of 4% carved out of the total BC percentage, while retaining certain small e xtremely backward groups of Muslims in the category of the “Most Backward” as before.

In the Mandal list and consequently the Central List for Karnataka, “Muslims” did not find a place, though certain specifi c identifi ed Muslim BCs were continued. The NCBC, after public hearings, advised the central government to include, in the Central List for Karnataka, “Muslims” e xcluding nine communities which were not found to be socially backward and the central government notified this accordingly. The excluded communities are n umerically small and the bulk of the Muslim population of Karnataka remains in the Central List of BCs.

(iii) Kerala: The Mandal list for Kerala and consequently the first phase Central List i ncluded “mappila”, thereby covering the entire Muslim population of Malabar, but left out “Muslim” of Travancore and Cochin, which was in the State List all along. This was rectified by the NCBC after public hearings and study of the report of a premier social science research institute, namely, the Ananthakrishna Iyer International Centre for Anthropological Studies (AICAS), which had been commissioned by the NCBC to study whether the Muslims in Kerala are a single homogeneous community or whether there are any identifi able inter-generationally continuous social/ occupational groups within the community known by distinct names and if so whether any or all of them are socially backward. Following the NCBC’s advice, the Government of India included “Muslim” in the Central List for Kerala, excluding fi ve s ocially advanced Muslim communities which constitute a very small proportion of the Muslim population of Kerala.

The Kerala State List ab initio has distributed BCs into sub-categories with subquotas, one of which is Muslim/Mappila. The high court rejected a challenge to inclusion of Muslim/Mappila and to other communities in State of Kerala vs Jacob Mathew.6

Inclusion of BCs of Muslims by State Commissions

The commissions of some of the states other than those of south India and the res pective state governments identifi ed and included in their BC lists specifi c communities/social groups of Muslims, which they found to be socially and educationally backward. None of them recommended or treated Muslims or any other religious community as a whole as socially and educationally backward, as was done by the states of Kerala and Karnataka. In Gujarat, the Bakshi Commission of 1976 identifi ed a number of specific communities of Muslims and also communities which were partly Muslim such as Faquir (mendicants), Ghanchi (oil pressers), Julaya (Garana) (weavers), Jat (Muslim) (nomadic cattlerearers, different from the major landowning Jat of north India) (Government of Gujarat 1978). The Mahajan Commission of Madhya Pradesh in 1983 recommended the inclusion in its State List of 29 artisan and other occupational communities of Muslims like Julaha/momin (weaver), Pinjara and synonyms (cotton carder) and Hajjam (barbers) (Government of Madhya Pradesh 1983).

Many of the communities in the northern State Lists were also included in the Mandal list and, therefore, found place automatically in the first phase Central List. Those who were left out made requests to the NCBC, which, after public hearings and enquiry and study of available literature by a bench, tendered advice to the central government for inclusion of those castes/ communities which are socially and educationally backward and the Government of India issued notifi cations accordingly. The All-India Backward Classes Federation (headquartered in Bhopal) has compiled a list of 103 Muslim communities/groups which have been included in the Central Lists of BCs for different states. Even this compilation may not be exhaustive.

Northern State List

There is no census of the population of communities/groups of Muslim BCs and their proportion to the total Muslim

population of each state. The National Sample Survey Organisation (NSSO) has made estimates, but it has got methodological limitations and, therefore, many of its figures, mentioned in Sachar Committee’s report, are underestimates. It is, in fact, in the range of 80 to 85% in the northern states and even higher in the southern states except Andhra Pradesh as explained below.

There is a methodological difference between the north and the south in the identifi cation of BCs of Muslims. The broad methodology in north Indian states was to list Muslim communities which are clearly socially backward. This methodo logy was able to cover the bulk of the Muslim population of north India who belong to backward social formations. But this methodology has not been and will not be appropriate for southern states on account of a significant difference in the pattern of conversion to Islam in the two parts of the country. The groups who moved to Islam in north India were mainly artisan and artisanal castes and other “occupational” castes – occupational as understood in I ndia, i e, excluding those engaged in agriculture, whether as owner peasants or as agricultural labourers. They are the same castes which now find place in the list of BCs and SCs of Hindus. After conversion their traditional occupational pattern and other features had remained the same as before conversion and they have retained the same social identity and often the same community name which is usually based on the name of the traditional o ccupation. No doubt, there is this difference that the practice of “untouchability” t owards SC converts to Islam seems to have disappeared or got attenuated or, where it still exists, it got limited to very small groups like the Halalkhor and M ehtar. And that within the mosque and generally in the religious sphere no caste difference is followed. On account of the basic principle of equality in Islamic social doctrine the occurrence of caste-based or caste-like practices lost part of their r igours and rigidity.

Therefore, in northern states like UP, B ihar and Madhya Pradesh, the mere process of identifying each such group having inter-generational continuity and identity, up to the limit of the line of backwardness, led to the inclusion of the bulk of the

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Muslim population, leaving out social groups which are not socially and educationally backward. In these states, Muslim communities or groups like the Syed, Sheikh, Pathan, Moghal, Bohra, Cutchi Memon, Khoja, etc, which together constitute no more than 15% to 20% of the total Muslim population are not included in the list of BCs. This can be called the “bottomupward approach”.

In the south, artisans and the artisanal castes and other “occupational” castes have generally not moved to Islam. Conversion to Islam was mostly from castes now known as SCs and from castes now known as BCs, which are below the level of peasantry and artisanry and, in states which have got the realistic practice of categorisation of BCs, from More Backward/ Most Backward categories of BCs. As a result, the Muslim community in the south has taken the shape of a community of agricultural labourers and other miscellaneous labourers and, following urban migration, urban unorganised labourers. Against this background the “bottomupward” approach adopted in north India has not been possible in south India. F ortunately, Travancore-Cochin/Kerala, Mysore/Karnataka and Madras in respect of Malabar perceived the correct position and found appropriate solutions ab initio. At the same time it cannot be denied that there are social groups which are intergenerationally continuous, the identity of which is preserved through endogamy or the concept of “Kufv”, as understood and practised in India, and which are known by their distinctive names, whose social profi le does not go with social backwardness as conceived in the Constitution of India and as further clarified by the Supreme Court. Such social groups of traditional merchants, traders, scholars, warriors and the like, however small their size and however limited their proportion in the total Muslim population of the state, are definitely not socially backward. The NCBC, therefore, calculatedly and logically adopted a top-down methodology in the south Indian states, particularly in Kerala and Karnataka, of identifying and excluding such specifically non-backward communities/social groups and including the rest of Muslims in the Central List of these states. But, at the same time, those specifi c

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communities of Muslims at the lower end of the spectrum which retained their link with their traditional occupations, ranking low in the “hierarchy of occupations” (Ambedkar’s term coined in 1916) and r etaining the related identity like Darvesu in Karnataka were also included in the Central List on the advice of the NCBC.

AP: Lacuna in Identifi cation

Andhra Pradesh fell between the two stools of the north Indian and south Indian methodologies of identifi cation of BCs of Muslims. In the Andhra list inherited from the composite Madras state on the formation of the Andhra state in 1953, the Hyderabad list in respect of Telangana area and the combined list of Andhra Pradesh, the presence of Muslims was limited to the Dudekula community, thanks to its being present in the Tamil area also, and thereby having been noticed by the Tamil-centric Madras Government.

Consequent on the Supreme Court judgment in State of Andhra Pradesh and Another vs P Sagar,7 striking down the state’s integrated BC list of 1966, struck down first by the High Court, which had also ruled against the state’s earlier integrated list in 1963 in Sukhadev,8 the state government set up the First Backward Classes (Anantaraman) Commission in 1968. The Second Backward Classes (N K Muralidhara Rao) Commission was set up in 1982. Both of them, the latter more explicitly, misunderstood the egalitarian ideology of Islam and its practice in the mosque to mean social equality in the non-religious sphere too. The Anantaraman Commission referred to certain groups like the Dudekula, Kasab, Darzi, Momin, Mochi, etc, but out of all of them it included only Dudekula along with its synonyms Laddaf, Pinjari, Noorbash in its list. This was only a continuance of the entry in the old Madras list. This commission also noticed the low social status of the Muslim Mehtar, traditionally linked with scavenging, but cancelled out its own fi nding by recommending that it be not included in the list of BCs because it was already included in the SC list, inexcusably unaware of the Proviso to Clause (3) of the Presidential Order which excluded Muslims of the listed castes from the defi nition of SCs. Thus, the BC list recommended by the

commission, distributing them in four groups (A, B, C, D) with separate sub-quotas, and the list accordingly issued by the state government in 1970, contained only Dudekula and its synonyms (in Group B – “Vocational Groups”) which was no more than the continuance of the limited knowledge of the Tamil-centric Madras Government about Muslim society of Andhra. It took two years for the government to notice the grievous error regarding the Mehtar (Muslim) committed in 1970 and include it in Group A (“Aboriginal Tribes, Vimuktha Jatis, Nomadic and Semi-Nomadic Tribes, etc”) of the BC list in 1972.

Apart from repeating the misperception of Muslim society, Muralidhara Rao persisted with Anantaraman’s other error by recommending the deletion of “Mehtar (Muslim)” which the state government did not accept. This commission made a marginal improvement in the existing list by recommending inclusion of one more Muslim community, namely, “Quresh (Muslim butchers)”, noticing that they suffered the same disability and the same social status as Arekatika/Katika, the Hindu community of butchers, already in the list. “Quresh” is the same as “Kasab”, one of the communities noticed by Anantharaman but omitted in his list in 1970. Four years after Muralidhara Rao, the state government issued orders which i nter alia included “Quresh (Muslim butchers)” in the list, but, simultaneously, raised the proportion of reservation for BCs to 44% as recommended by Muralidhara Rao, taking the total reservation for SCs, STs and BCs to 65%, exceeding the S upreme Court’s 50% limit. The high court struck down only the order enhancing the percentage of reservation and did not negate the additions to the list including Quresh (Muslim butchers). But the state government restored the status quo ante, whereby Quresh, although unintentionally, went out of the BC list almost as soon as they were belatedly included.

On account of the cumulative misperception of the two state commissions and the Mandal Commission, Dudekula and Mehtar (Muslim) were the only two Muslim BC communities that came into the fi rst phase Central List for AP.

The NCBC received requests for inclusion of Muslims in the Central List for AP from a number of organisations. It advised rejection of the request for inclusion of the Muslim community in its entirety on the ground that it is not a socially homogeneous class or community, a number of social groups or sections among them have high social status as seen from the occupational profile of Muslim communities given in the Anthropological Survey of India’s AP volume of its survey report titled “India’s Communities”, and those sections or communities among Muslims from whom requests have been received and who are actually socially backward can be considered for inclusion in the list of BCs.9 On that basis it advised the inclusion of Quresh (Muslim butchers) which is what the Muralidhara Rao Commission had recommended in 1982 and had been notified by the state government in 1986, but was cancelled out in the same year unintentionally. Thus, Quresh (Muslim butchers) came into the Central List but still remained out of the State List at that stage.

The case of other genuine backward classes of Muslims suffered again because, as in the past, the leadership of the Muslim community failed specifically to seek the inclusion of such backward communities of Muslims and only pressed for inclusion of the Muslim community in its entirety. This was compounded by the ignorance of the majority community about Muslim s ociety, as seen from Anantaraman and Muralidhara Rao reports.

Thus, it came about that till recently AP remained the only peninsular state and one of the few states of India in which only a fraction of the Muslim population found place in the BC list.

Highlighting AP Lacuna

The report this author prepared highlighted this gap, presenting data contained in the

R eport of the Prime Minister’s High Level (Justice Sachar) Committee for Preparation of R eport on Social, Economic and Educational Status of the Muslim Community of India. The Sachar Committee’s Report, on the b asis of the sample data of the NSSO’s 55th (1999-2000) and 61st Reports (2004-2005) gave the proportion of the Muslim population covered by lists of BCs. Table 1 gives the picture for India as a whole and some of the major states, as extracted from Appendix Table 1.1 of the AP report.

logical limitations of the NSSO’s

they undertook for the first time in

From my personal knowledge

gathered from authentic repre-

sentatives of BC Muslim communi-

ties and from information gathered

during public hearings of the

benches of the NCBC of which I was

member-secretary from August

clusion were disposed of either by advices for inclusion or for rejection, the proportion of BCs among Muslims in UP, Bihar, Jharkhand and MP should be in the range of 80% to 85% and the proportion in Karnataka is really in the range of Kerala and Tamil Nadu. Notwithstanding these defi ciencies, the NSSO’s samplebased data are indicative and bring out the glaring shortfall in AP.

Taking India as a whole, 76.4% of the t otal Hindu population are in the list of SCs and STs (as per the census) and BCs (on the basis of Mandal estimate projected from 1931 Census). Even by the Sachar estimate/NSSO data for 2004-05, this proportion comes to 74.8%. In the case of AP, the Sachar-NSSO data show that 75.8% of Hindus are in the categories of SCs, STs, and BCs. The proportion of BCs among Muslims in AP cannot be less in view of the following facts:

(4) The overall condition of Muslims as brought out in the Sachar Committee’s r eport is worse than that of Hindus as a whole.

Taking all these factors into account the proportion of BCs among Muslims can objectively and logically be only more than the proportion of SCs + STs + BCs among Hindus.

AP Government Moves

The AP government did have the broad impression that there has been lacuna regarding BCs of Muslims. In 2004, it declared the entire Muslim community as BC and provided 5% reservation for them. This was struck down by the High Court of Andhra Pradesh in T Muralidhara Rao case10 on two grounds – one of them technical, that the state government had not consulted the State BC Commission, and the second the substantive ground of exceeding the 50% limit since the 5% reservation for Muslims took the total for SC, ST and BC to 51%.

In 2005, the state government, on the basis of the recommendation of the State BC Commission passed an Act declaring the entire Muslim community as socially and educationally backward and provided 5% reservation for them. This was struck down in Archana Reddy11 on the grounds that the nexus of social backwardness in respect of the Muslim community as a whole was not established, there were deficiencies in the commission’s procedure and because total reservations exceeded the 50% limit. There was also the constitutional issue of import, in two of

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the concurring judgments, of the concepts of “suspect legislation”, “compelling governmental need”, “narrow tailoring”, “least restrictive alternative” and “strict scrutiny” evolved by the US Supreme Court in a totally different constitutional context, without noticing that the Supreme Court had in 200212 categorically ruled out the relevance and applicability of these American concepts to India.

Andhra Pradesh Committee 2007

At that stage, the state governmentformed a committee and sought this author’s help in identifying socially and educationally backward classes of the Muslim community in accordance with the principles arising from the Constitution and its interpretation by the higher judiciary. I was appointed advisor to Government of Andhra Pradesh, Backward Classes Welfare in 2007, for this purpose. In the report, a comprehensive survey was made covering the various points briefl y outlined in this article and against that background and on the basis of unquestionable facts, identified 13 backward social groups of Muslims of AP and one residuary group and also identified 10 socially a dvanced groups of Muslims and recommended the inclusion of the former in the State BC List as a separate Group E with 4% reservation, which ensured that the 50% limit was not breached and is also justified by the estimated population of the identifi ed BCs, and the specifi c exclusion of the latter 10 from the list and leaving “Dudekula” and “Mehtar” listed in 1970 and 1972 as before. The state government communicated the AP report to the APCBC for its consideration. That commission put the report on the web site transparently, inviting objections and comments, held public hearings, took into account the materials in the report, the Sachar Committee Report, Ranganath Mishra Commission Report and their own survey data and made its statutory recommendations to the state government recommending the social groups identified by me, one more group which had come to its notice during its enquiries (which had not been recommended in the AP report because the ASI had not noticed it), added certain synonyms on the basis of their enquiry and recommended 4% reservation for them.

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The state government issued an ordinance, followed by legislation, which was almost unanimously passed. This was challenged in a series of writ petitions in which the case of the state, the APCBC and other respondents was argued elaborately both on constitutional as well as factual grounds. The constitutional position regarding the inapplicability of American concepts of strict scrutiny, etc, the judicial standard of review of a plenary legislation as laid down by a catena of Supreme Court judgments were pointed out.

On the factual side, the fact that nobody had shown any material against the fact of social backwardness of any of the identified social groups and that the identifi ed groups were covered by the Mandal Commission’s “rough and ready” method for identifi cation of BCs among non-Hindu religious societies, being counterparts of already identifi ed Hindu BCs and/or converts from “untouchable” and other “low” castes, and by the “fast-track” method in the NCBC’s guidelines for identifi cation of BCs. The fast-track method is one of identifying castes/communities which can be seen patently to be socially backward on the basis of their linkage with traditional occupations which are esteemed as low (relatable to the Ambedkarite concept of hierarchy of occupations) without need for elaborate enquiry and other evidence unless there is contra-material in any particular case.

The High Court of AP struck down the State Act by a majority judgment of 5 against 2 on 8 February 2010 mainly on two grounds: (1) defects in the state commission’s procedure, and (2) the Act is religion-specific and will encourage conversions to Islam.

The state government has promptly filed its Special Leave Petition in the Supreme Court and a fter hearing the state’s counsels as well as the respondent writ petitioners’ counsels the Supreme Court passed an interim order on 25 March 2010 allowing the Act to continue to be implemented except in respect of the residuary group, and posting the matter for further orders and consideration of a Constitution Bench in A ugust 2010.

Thus, the now identifi ed BCs of Muslims

of AP have got the long-denied benefi t of

reservation in education and employment

for four years in succession. In the last three years about 27,000 BC Muslims of Group E have got admission into professional and other higher educational institutions. A few of this category have for the fi rst time got selected to class-I state services including two young w omen, one each into the state civil service and the state police service – most probably a first for Muslim women in AP.

Continuing Lacuna

There are still a few states, particularly in east India where the process of identifi cation of BCs has either not started at all or is at a rudimentary stage. Of these, West Bengal announced, on 8 February 2010, its intention of providing 10% reservation for BCs of Muslims. This is over and above the existing low 7% reservation for BCs whose identification is slow and incomplete. In order to make it operational, the state government will have to exhaustively identify all BCs of Muslims.

Significance of Completion of Identifi cation

Removal of the remaining lacunae in identifi cation of BCs of Muslims is part of the constitutional mandate and a matter of their right. It will remove the unconstitutional discrimination that has existed against them in some State Lists and, to some extent, in the Central List. This will, in turn, eliminate one of the real grounds that have created the feeling of subjection to injustice prevalent among Muslims, e specially Muslim youth, and thereby help the creation of an atmosphere which will promote social harmony and national integration.

Further, to ensure that Muslim BCs are not exposed to unequal competition with the relatively less backward of the BCs, the

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