BY K VIVEK REDDY IN THE INDIAN EXPRESS
A seven-judge bench of the Andhra Pradesh high court gave a historic judgment last week on the constitutional vice of religion-based reservations. This is the third time that the high court has declared religion-based reservation as violative of the constitutional prohibition of discrimination based on religion.
In 2004, a five-judge bench of the high court struck down a government order providing five per cent reservation for those of the Muslim religion since the government failed to comply with the condition precedent: consultation with the Backward Class Commission, a statutory body whose job is to investigate backwardness of any proposed group.
The government then referred the issue to the Backward Class Commission and, based on its recommendations, the state issued an ordinance providing for five per cent reservations for the “entire Muslim religion”. A five-judge bench of the high court struck down the ordinance on the ground that the entire religion cannot be treated as a homogenous class. The majority judgement of Justice V.V.S. Rao held that a legislation intended to benefit a class of people who belong to the Muslim community is violative of Article 15(1) and 16(2). The court ruled that the state failed to conduct a scientific investigation that showed that all those of the Muslim religion comprise a backward class. It also ruled that the five per cent fell foul of the 50 per cent outer limit prescribed by the Supreme Court in Indira Sawhney. In appeal, the Supreme Court did not stay the judgement and referred the issue to a constitution bench, where it is still pending.
After this judgment, the state sought to rectify the constitutional vice by issuing an ordinance that confined the reservation to four per cent, and to certain groups within the Muslim religion, excluding Muslim groups who were never known to reside in AP. It provided for a residual category of “other Muslim groups” who could also benefit from reservations.
But it failed to rectify the primary constitutional vice of religion-based discrimination. The ordinance provided reservation only to Muslim groups. In Andhra, backward classes are divided into four categories based on the extent of backwardness, but the government in the ordinance created a new category exclusively reserved for Muslim backward groups. Although several groups had made a representation to be designated as a backward class, including other minority communities like Sikhs and Christians, the state chose to provide reservation only for groups within the Muslim religion.
The court held that the entire ordinance was religion-specific since it focused only on the Muslim community. Chief Justice Anil Dave in his majority judgement held that the “residual category” provided an incentive to conversion since any person who subscribes to the faith of Islam would be a Muslim. He held that it was “subversive of the spirit of secularism” and it would lead to unscrupulous people embracing Islam to benefit from reservations.
The Supreme Court has consistently held that the power to provide for reservations for backward classes under Article 15 and 16 is an enabling power — but if the state is exercising the power of providing reservations for designated backward classes, it has to demonstrate the existence of backwardness and inadequate representation of the backward classes in public services. These are constitutional condition precedents that have to be satisfied. Justice Meena Kumari in her concurring judgment held that the material collected by the Backward Class Commission is “not sufficient for the Government to come to the conclusion that specific classes of Muslims can be classified as a backward class.”
All the three judgments are significant for fleshing out the constitutionally compatible norms for identification of backward classes. Any exercise of identification of backward classes has to be preceded by a scientific investigation of backwardness. The identifying authority has to lay down relevant criteria for assessing social and educational backwardness. This should be followed by an empirical investigation that considers all sections before designating a group as a backward class.
Does the high court imply that groups within Muslims cannot be designated as a “backward class” and benefit from reservations? Certainly not. If an investigation of backwardness of all of society reveals that certain groups among the Muslim religion are indeed backward, there is no prohibition in designating them as a backward class. Nowhere is this more evident than in Andhra itself, where the Supreme Court upheld inclusion of certain Muslim groups in the backward class list when the investigation was suitably extensive. But if the investigation of backwardness is confined exclusively to one religion, it will fall foul of the constitutional prohibition of discrimination based on religion.
It is constitutionally permissible to include a religious group within a backward class list, but it is constitutionally impermissible to make religion the basis for the identification of backward classes.
The writer is an advocate in the AP high court and was a counsel before the seven-judge bench