India Behind The Lens (News Centre)

Some Important observations made by Gujarat HC full bench on the constitutionality of Scholarship scheme to minorities. Majority (3-2) held that the scheme is constitutional.

Majority view and some questions

• The Government of the day would have its own socio­economic ideology.   We must also remember that the Scheme pertains to scholarship in primary education and cannot be equated with any kind of reservation.   In other words, as an affirmative action or as is often referred to as a reverse discrimination,  it amounts  to preferential diversion of public funds in favor of a class  of citizens. It is true that such diversion of funds  leaves out students of  all communities other than the notified minorities and in that sense, if  it otherwise fails to satisfy the twin tests of reasonableness may still be  seen as hostile discrimination against those  who have been left  out.  Nevertheless, the impact of such a scheme is  vastly different from any  reservation in education or public employment (Para 35)

- Here the Question is whether the impact of such a scheme vis-à-vis reservation makes any difference in the constitutionality? If the said petition was about reservation of minorities, whether court would have called unconstitutional? As far as 15(1) of Indian constitution is concerned, it only states that State should not discriminate between its citizens, it does not specify in what all state can and cannot discriminate. So in my humble opinion, it does not matter whether it is reservation or a scholarship scheme, Question is about its constitutionality. If it is unconstitutional for reservation, it should be the same for scholarship scheme too.

 • The fact that minorities are not declared as SEBCs   for   the   purpose   of    Article   15(4) of the Constitution   is undisputed.  But to our mind, while judging the validity of the Scheme, this would not be of any consequence.  (Para 38)

• The present case involves  granting of scholarship to a class of citizens who, as noted above, were  found to be socially, educationally and economically  disadvantaged  on account of their minority status which was   ascertained through a  report   of   the  High   Level   Committee.   (Para 39)

- Which high level committee studied condition about Non Muslim Minorities who are also beneficiaries of the said scheme.?

• Therefore, even if  constitutionality of the Scheme cannot be upheld on the anvil of Article 15(4) of the Constitution, when we hold that  the same satisfies the test  of reasonable classification, the same would   still be permissible in  terms of Article 15(1) of the Constitution.

- Pont that should be noted here is that even in the majority view, Constitutionality of the scheme cannot be upheld on the anvil of Article 15(4) of the constitution.

• The Scheme is not  framed on the basis of religion.  Of course, five minorities notified under section 2 (c) of the National Commission for the Minorities Act are grouped together for common treatment. However,  the scheme for  scholarship was framed to give  encouragement to the students of such  minorities  to secure primary education when it was found that certain  minorities  were suffering from  social  handicaps which had led  to  their growth retardation as compared to the   national average in the  areas of social, educational and economic advancement.   Thus, the basis for framing of the Scheme is not religion, but improvement of the conditions of such disadvantaged  group.  If religion were  the sole  basis for grouping the minorities for a preferential treatment and  excluding the rest, that would be another issue. In the present case, minorities as a group  was used only for the purpose of identifying a  class of citizens who have lagged behind in progress.  The fact that they belong to a common community may be a reason for their slow  progress but is not the reason for providing the scholarship. The reason for  providing the scholarship is their slow progress as compared to the  national average. (Para 43)

- Read Minority views below

• Findings   of   the   Sachar   Committee   Report   are   not   under  challenge before us.  We have, therefore, proceeded on the basis of  such findings which, inter alia,     highlight   the fact that minority  community   has   lagged   behind   the   national   average   in   several  parameters of advancement. (Para 51)

• It is true that  along with Muslim minority, the  Scheme  clubs together rest of the notified minorities  also. The Sachar  Committee report is based predominantly on the conditions of the  Muslim minority in the country.   However, we notice that Muslim community is predominant amongst such minorities since numerical  strength of rest of the other minorities, in particular, Buddhists and  Parsis is minuscule. (Para 53 )

• In our opinion, the Scheme is   based not only on  religion, but  draws a classification  on the basis of class of citizens  grouped together  who have been identified as under­privileged  and suffering from certain handicaps.   The starting point for finding out  their conditions may be a religious tag attached to them.  However, special treatment  is being meted out not because  they belong to a  certain religion, but because as a class of citizens, they have lagged  behind the national average  in development. (Para 54)

- All the above reasons given by the honourable court fails to answer one fundamental Question which it has only partially answered in para 53. Sachar Committee report is a report which studied the conditions of Muslims in the country. Then how can we club the Muslims with other minorities and call them all backward? Are Parsis backward socially? Or are Christians backward in education? And if the scheme only gave scholarship to Muslims whether it will be constitutional? If the condition of various communities is to be studied independently then we can see that some communities who happens to be a part of majority community will be poorer than Muslims.

 Dissenting views by Two judges

· Articles 14  and 15 must be read together and the effect of these two Articles is not that the State cannot discriminate or cannot  pass unequal laws, but if they do discriminate or they do pass  unequal laws, the discrimination or the inequality must be  based on some reasonable ground. (Page 53-54 )

· As the Scheme stands, there can be no doubt that the Scheme has been floated with an intention to encourage parents from minority communities to send their school-going children to schools, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. It was vociferously submitted that the Court may also take judicial notice of the problems which the Muslims as a whole are facing in the country and who deserve the support and sympathy of the Government. Undoubtedly, this is a very laudable object. But, is there any reason why that laudable object should be confined only to the members of the five communities?  There are members of the public all over the country belonging to the other communities who are in an equally sad plight, and if such scheme is introduced to meet the needs of people in a particular position or belonging to a particular strata of the society, then undoubtedly, it would be a public purpose which would not, in any way, be discriminatory under Article 15(1). But, when the Government picks up members of a particular community or caste, may be declared as a minority, and wishes to give those members particular facilities, although other members of the public may equally be in need of those facilities, then undoubtedly, the action is discriminatory. It is for this obvious reason that the test of reasonable classification based on intelligible differentia fails in the present case. The present case, in my opinion, is nothing but discrimination in the name of classification. (Page 54-55)

· I fail to understand as to in what manner Parsis, Christians, Buddhists and Sikhs could be described as weaker sections of the society or socially, educationally and economically backward, and if yes, in what context and further what is the material on record? Is the Union trying to suggest that once a religion based minority always a socially and educationally backward community. (Page 64-65)

· In my opinion, there is not an iota of material to atleast show that any inquiry or survey was undertaken to identify Parsis, Christians, Buddhists and Sikhs as socially and educationally backward classes of citizens. They have not been so declared by the Central Government even under the provisions of the National Commission for Backward Classes Act, 1993. The reason is also simple. The survey was only for the Muslim community. This is precisely the reason why there is no reference of Justice Sachar Committee in the Scheme. In such circumstances, it could not be said that the Scheme has passed the test of reasonable classification based on intelligible differentia. (Page 66-67)

· Thus, it necessarily suggests that in absence of any material to even remotely suggest that such a problem was identified and with a view to take care of such problem, the Scheme has been floated, the only consideration would be religion and nothing beyond religion (Page 67-68)

· During the course of hearing of the reference, a specific question was put by me to the learned Additional Solicitor General of India as to whether solely on issuance of notification under Section 2(c) of the National Commission for Minorities Act, 1992, the five minority communities could be termed as socially and educationally backward per se. The answer was very fairly ‘No’ (Page 76)

· What is envisaged by the Constitution is a secular state under which no distinction is made between man and man with reference to his religion or his caste. To honour and effectuate this laudable principle embodied in the Constitution, it is necessary that classification should not be made on the basis of religion, like in the present case in the name of minorities. (Page 81 )

· Expression ‘class’ means, a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. Could it be said by any stretch of imagination that the five minority communities constitute a homogeneous section of the people as a class? The answer has to be in the negative (page 99)

· The Scheme was announced in June 2006, whereas the Report of Justice Sachar Committee is dated 17th November 2006. Thus, I have reasons to believe that much before Justice Sachar Committee Report was laid before both the Houses of the Parliament, the Pre-Metric Scholarship Scheme was already announced. Therefore, it could not be said that based on the materials collected by the Committee, the Union decided to float the Scheme as one of the measures for advancement of socially and educationally backward classes of citizens. However, the point I am trying to drive at is, why was the survey restricted only for the Muslim community all over the country. Is it the case of the Union that there are no other social classes/groupings or communities which may qualify as socially and educationally backward classes for the purpose of Article 15(4) of the Constitution of India. (Page 120)

· I am of the opinion that proper identification of social and educational backwardness should be State-wise. Even, according to Justice Sachar Committee Report and more particularly the findings at page-53 of the Report, a general analysis at the State level presented a better picture for Muslims. According to the Report, in as many as 10 out of 21 selected States, literacy rate amongst Muslims were found to be higher than the State average and this included Gujarat. ( page 122)

· The National Commission at no point of time has said that the five religious minorities are socially and educationally backward. (page 125)

My attempt was to reduce the 160 page judgement into a 4 page document which highlights important reasoning given by the judges in support of their respective decisions on the constitutionality of minority scholarship . It is up to you to agree/disagree/ criticise (fairly).

Read More : Analysis of Minority Scholarship Judgement - I