Two lessons from the Aryan Khan case

It reveals the need to review the harsh narcotics law, and allegations about Sameer Wankhede’s religion show the need for the Centre to extend reservations to the backward among Muslims and Christians as well

In the last few days, print, electronic and social media have been preoccupied with the Aryan Khan case. No doubt, this is due to his being the son of Hindi film superstar Shah Rukh Khan. In keeping with the current majoritarian ethos in the country, Khan being a Muslim has become relevant. His nearly three-decade-old inter-religious marriage has added to it a new angle with the present preoccupation with “love jihad”. Moreover, a senior Nationalist Congress Party minister in the Maha Vikas Aghadi government in Maharashtra has kept the pot boiling with his revelations against Sameer Wankhede, the Scheduled Caste (SC) NCB investigating officer. Wankhede’s SC status is being challenged by the allegation that he is a Muslim. Whatever may be the eventual decision of the court, two issues that have come up in the case need urgent attention.

The first is to review the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which has clearly become obsolete. As I have underlined over the years, in India, there is no “sunset” clause in any legislation and a law once enacted continues till eternity. No provision is made to lay down a specific time limit when the act would lapse, unless reviewed and re-enacted. And the manner in which most laws are enacted for political expediency, often without wider public consultations and scrutiny by select committees of Parliament, leads to a mockery of the justice system. Such laws have made our courts “the courts of law and not of justice”. The travails of the NDPS Act bring this out fully. The issue of amendment of the NDPS Act is important enough to be referred to the Law Commission of India for urgent examination, with a request to prepare new draft legislation after examining the implementation of the present Act, holding wide-ranging consultations, and referring to international experience. The draft bill received from the Law Commission should not be rushed through and must be made to undergo scrutiny by the joint select committee of Parliament.

The second issue pertains to treating the backward communities among Muslims and Christians on the same basis as among the Hindus, Sikhs, Jains and Buddhists. At the time when the Constitution was framed, it was believed that the classification of SCs was justified only for Hindus and that backward castes in other religions did not receive such degrading discriminatory treatment. This was factually incorrect. Later, under political pressure, the reservation concessions were extended to the Sikhs in 1956 by the Congress government under Jawaharlal Nehru, and the Buddhists in 1990 by VP Singh’s National Front government. Muslims and Christians were left out, though the concerned governments professed to be secular.

To play devil’s advocate, this could have been due to the apprehension that with the fundamental right to freedom of conscience and free profession, practice and propagation of religion under Article 25, conceded at the insistence of Muslims and Christians, giving reservation to the backward communities in these religions would increase their attractiveness and lead to more conversions of Hindus. But this fear was hardly justified. Also, over the years, several laws have been enacted to prevent conversions by force or allurement. The strong public climate against conversion today must also be reckoned with.

Ideally, backwardness must be judged based on socio-economic, educational and cultural factors. Religion must not have anything to do with it. The Ranganath Misra Commission for the socially and economically backward sections, appointed by the Manmohan Singh government in 2004, was headed by Justice Ranganath Misra, former chief justice of the Supreme Court, Dr Tahir Mahmood, former chairman, National Minorities Commission, and Dr Anil Wilson, principal, St Stephen’s College, Delhi, among others. The commission had recommended that ideally, there should be no distinction based on caste, religion or class. There should be a single list of socially and economically backward, including religious and linguistic minorities, based on common criteria. The criterion for reservation should be socio-economic backwardness and not religion or caste. I had strongly endorsed this approach in my book, Secularism: India At A Crossroads (2016).

Prime Minister Manmohan Singh was, what we call in Marathi, aarambhashoor — one who is very good at starting new things but never takes them to their conclusion. As the Japanese would say, he was like a proverbial three-day monk, enthused about starting something new, but ineffectual in following it through. This was seen in the case of the Ranganath Misra Commission, the Sachar Committee report on the social, economic and educational status of Muslims, and the initiative he took for setting up nine high-power expert working groups to study the problems of J&K and to chart the future course of action. It is India’s misfortune that there was no follow-up action on any of the above.

The issue of reservation for Muslims (and Christians) has come up once again in the Sameer Wankhede case and I hope it will not be pushed under the carpet, as has happened so far. As Fayaz Ahmad Fyzie has brought out in his recent article, from the first Backward Classes Commission (the Kaka Kalelkar Commission), to the Mandal Commission, the Ranganath Mishra Commission and the Sachar Committee, all have acknowledged caste discrimination within the Muslim society. It is wrong to project the entire Muslim society as a homogenous entity. The same is true of Christians.

Irrespective of religion, social and educational backwardness is a human problem. In several international indices such as global hunger, poverty, literacy, sex discrimination, child mortality and undernourishment, India’s performance has declined steeply. And this is not surprising, considering that among other factors, a large percentage of its minority population (17 per cent) is not covered by a safety net. The government of India is reported to have set up an index monitoring cell to rectify this situation and India’s image abroad. If this is to be taken to its logical conclusion, action must be taken to give the benefit of reservations to Muslims and Christians without wasting more time. There is no need to wait for the Supreme Court to intervene. For, what is at stake is India’s image as a forward-looking nation at peace with itself, committed to inclusive growth and social justice.

The writer is a former Union home secretary and secretary, justice. His latest book is India-A Federal Union of States: Fault Lines, Challenges and Opportunities

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