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Updated: June 22, 2012 00:53 IST

Lessons on how not to pitch a quota

K. Vivek Reddy
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The Andhra Pradesh High Court struck down reservation for Muslims within the OBC category not just on grounds of religious discrimination, but also for other constitutional illegalities

Reservation on the basis of religion has always raised serious constitutional concerns and a recent ruling of the Andhra Pradesh High Court (which the Supreme Court refused to stay) declaring the sub-quota for minorities unconstitutional only illustrates this constitutional tension.

This is not the first time that the Andhra Pradesh High Court has declared reservation for religious minorities constitutionally invalid. In 2005, a five-judge-bench of the Andhra Pradesh High Court struck down the Government Order giving 5 per cent reservation to Muslims on the ground that it was given without consulting the Backward Class Commission (T. Muralidhar Rao). Subsequently, when the A.P. Legislature passed an Act giving 5 per cent reservation to Muslims, the same was struck down by another five-judge bench, inter alia, on the ground that the said reservation was purely on religious lines and was therefore constitutionally impermissible (Archana Reddy 2007). The State legislature again passed another legislation giving reservation to specified Muslim religious groups and declared them backward class. A bench of Seven Judges of the A.P. High Court declared the legislation constitutionally invalid on the ground that the entire exercise of investigation and identification of backwardness was done on religious lines and was not done in a scientific manner. The string of judicial setbacks makes one wonder whether the government is announcing minority quotas largely as a symbolic exercise with the knowledge that it will not pass judicial muster.

Implications

But contrary to popular perception, the Andhra Pradesh High Court struck down the minority sub-quota in admissions to educational institutions and Central government employment not just on religious discrimination grounds, but also for other significant constitutional illegalities. It is important to understand and analyse the implications of each dimension on which the minority sub-quota was struck down.

First and foremost, the sub-quota violated the constitutional injunction that state action should not be based on religion alone. The High Court did not say that a sub-quota could not be created for the more backward classes among the OBCs, including minority OBCs. It only said that such a sub-quota cannot be created on the grounds of religion. The Supreme Court in Indira Sawhney held that further classification among the backward classes based on the extent of backwardness was constitutionally permissible. In Tamil Nadu, Andhra Pradesh and various other States, backward classes are further classified into various categories based on the extent of backwardness. There are various minority backward classes which already form part of these categories based on their backwardness.

If the government had demonstrated that the minority backward classes forming part of the sub-quota were more backward than the other backward classes (OBCs), it may have been constitutionally permissible to carve out a sub-quota. However, the government just clubbed all minority backward classes into one sub-group without any material to show that the minority backward classes were more backward among the OBCs. Thus on the face of it, the sub-quota seemed to be based on religion alone.

Had the Central government placed material which showed that it evaluated the condition of minority OBCs vis-à-vis other OBCs and then carved out a sub-quota, the sub-quota may have been justified. On the contrary, as the High Court observed, the substantial variance in the economic, educational and social indicators of various minority groups demonstrated that the sub-quota was based only on religion and not on backwardness.

Second, the basic flaw in the sub-quota in admissions to educational institutions was lack of legislative authorisation. The Supreme Court in Indira Sawhney held that reservation could be made even by way of a Government Order since Article 15(4) stated that reservation could be made by a “special provision”. However, by way of the 93rd Amendment, Parliament introduced a new provision, Article 15 (5) which mandated that reservation for admission in educational institutions could be provided only by way of a “special provision, by law”. The Supreme Court has held that whenever the Constitution uses the phrase “by law,” it means a law passed by a legislature. Thus, if any rights are being curtailed, it would require legislative authorisation. A quota assigned by Parliament for the Other Backward Classes as a group cannot be disturbed merely by an executive instruction. The proper course for the Central government would have been to amend the law providing quota for the backward classes. This would have ensured that it was duly debated in Parliament.

Violation

Third, the creation of a sub-quota also violated a major procedural safeguard — failure to consult the National Backward Class Commission (NCBC). Recognising that several communities were being included in the list of backward classes on extraneous grounds and not based on backwardness, the Supreme Court in Indira Sahwney case directed that any revision in the backward class list should be done only after a prior consultation with the Backward Class Commission and its opinion is ordinarily binding. This direction of the Supreme Court was given statutory recognition by Parliament which passed the National Commission for Backward Classes Act, 1993.

However, the Central government failed to comply with this requirement by carving out a sub-quota without consulting the NCBC. It asserted that consultation is required only when you are adding a new community and is not required when you are creating a sub-class among the existing backward classes. Not only does this assertion violate the Supreme Court direction, but also undermines the entire rationale for consultation with the Backward Class Commission. The Backward Class Commission was meant to be an expert body that would independently evaluate claims of backwardness, free from populist compulsions. The NCBC as an expert body would have examined the claims of Other Backward Classes vis-à-vis the minority backward classes.

The need for consulting the NCBC was all the more justified for minority sub-quotas, since there were conflicting methodologies in determining the quantum of reservation (4.5 per cent). Justice Lokur observed that when confronted with two conflicting methodologies, the method adopted by the Central government might have been accepted had it consulted the NCBC before carving out a sub-quota.

Fourth, the Report of the National Commission for Religious and Linguistic Minorities (NCRLM), on which the Central government placed extensive reliance, also does not justify the creation of a sub-quota. The NCRLM is not a statutory body to investigate backwardness. Neither did it investigate the backwardness of the minority backward classes vis-à-vis the Other Backward Classes forming part of the 27 per cent quota. That function falls within the exclusive realm of NCBC, which is a statutory body to investigate backwardness. Even the NCRLM questioned the present OBC list as unscientific and not based on proper data, and sought an overhaul of the entire OBC reservation.

The NCRLM report did recommend an 8.4 per cent quota for minorities out of the 27 per cent OBC quota in Central government employment on the ground that 8.4 per cent is the total population of minorities with reference to the OBC population. However, the NCRLM recommendation will not pass the constitutional standard since OBC reservation was given not on the basis of population, but on the extent of backwardness.

And more importantly, neither the NCRLM nor the Centre failed to consider the issue of inadequate representation before creating a sub-quota in employment. The Constitution in Article 16(4) mandates reservation for backward classes who are “inadequately represented in the services of the State”. Merely concluding that a class is backward would not suffice. The government failed to consider whether the minority religious communities forming part of the sub-quota were inadequately represented in the services of the Central government in comparison to other backward classes.

The key lesson that successive governments have failed to learn is that affirmative action programmes that are narrowly tailored and ensure that the benefits of quota reach the intended beneficiaries are more likely to be judicially upheld. By creating a sub-quota without following the rigorous constitutional requirements, the government indeed has done a disservice to the minorities.

(The writer is an advocate and appeared for the petitioners before the A.P. High Court)

More In: Lead | Opinion

What Mr.Vivek Reddy did is to reproduce his arguments under the title "Lessons on how...". And The Hindu published his arguments under the head of Opinion!!

from:  vivekananda
Posted on: Jun 23, 2012 at 16:53 IST

Very Well Written Article. Presented a balanced perspective.

from:  Sudhir
Posted on: Jun 22, 2012 at 23:44 IST

I fail to understand how Muslims majority of whom are under poverty line can be denied the benefit of reservation when relatively better of Hindu castes like yadavs,kurmis,jatav dalits,malas can enjoy the same benefit.There should be a uniform policy governing the reservation.India is a secular country and by restricting the reservation to Hindus and their sub-religions like Buddhism Ambedkar has done grave justice to Muslims and other minorities.It is unfortunate that on issue of justice for Muslims even the liberal media is too timid in openly supporting the cause.

from:  mohammad amin
Posted on: Jun 22, 2012 at 23:11 IST

To address inequalities among the masses, there should be a long term plan.Provision of extra resources to educate both in academic and vocational fields to the so called 'backward communities' could be part of the solution

from:  Rsiva
Posted on: Jun 22, 2012 at 18:53 IST

I guess people who always speak against caste based reservation are only those who aren't entitled to any. Unless the people who enjoy it come forward and say that we no longer need reservations, its obvious that such reservations will continue for generations to come.

from:  Priya
Posted on: Jun 22, 2012 at 15:27 IST

Brilliant article. With meticulous research and systematic approach, writer conveyed the topic so well that I undestood the jinx of supreme court decision.
Do our politicians now understand that they must stop playing communal politics.


from:  Abhishek harsh
Posted on: Jun 22, 2012 at 13:02 IST

Thanks a lot to the author who delineated very perfectly the entire
issue. 'The Hindu' is serving the society like a knowledge beacon by
publishing perfect articles like this.

from:  Sai Krishna
Posted on: Jun 21, 2012 at 18:02 IST

If India wants to become a global leader, the only way is to let merit rise to the top. At the same time the government can give a helping hand to the truly disadvantaged. India spends very little (per capita) in 3 key areas. For disadvantaged segments (determined purely on economic status), provide (1) excellent early education, (2) nutrition and (3)good healthcare. Within a decade you will see dramatic improvement in the academic performance. Stop sending the message to millions of children from certain castes that "It is OK for you to perform at a lower level. The system will take care of you." This system breeds mediocrity. Socially, caste-based reservation has done little to bridge the chasm that exists between different castes (see recent incidents reported by The Hindu). But it has served politicians well. Religion-based reservation will do the same. It is politically expedient. The real solution (unlikely to happen in India) is to de-emphasize caste and raise standards.

from:  Ramesh V
Posted on: Jun 21, 2012 at 17:54 IST

Reservation is necessary for the lower &deprived classes who need desperately,But introducing sub quota in the basis of the religion is totally a political drama.The need for govt is reservation should be given to those people who really,need,who were deprived of the basic rights,amenities,like ,education,employment.The govt must give the reservation on the basis of the economic status,so if it happend that will really help to get rid of the problems &they will come to the main sream of the economic development

from:  bala
Posted on: Jun 21, 2012 at 17:47 IST

Thanks to The hindu for the excellent research and all the facts
presented coherently without clouding the piece with any sort of bias.

from:  Chitra
Posted on: Jun 21, 2012 at 17:17 IST

India is a unique country where everyone wants to become backward..Forwards want to become backwards and backwards want to become more backwards!! Simply Incredible India!!

from:  Pavas Kumar Ambashta
Posted on: Jun 21, 2012 at 15:03 IST

reservation policy has not served our nation. it is a policy of divide and rule politics. only the anti-social and traitors support it.anti-nation elements, like congress,Laloo, Mayavati, Mulayam,and others who are SESHDROHI will like to support it for their vote politics.such persons must be rejected by the people,just as Paswan mayavati laloo has been rejected.

from:  Dr. R. P. Yadav
Posted on: Jun 21, 2012 at 14:22 IST

@Vandana: Agree fully with you that reservations must be on the basis of
economic backwardness. However, in our country, even that is tricky to implement.
Let me give an example.

During my time at IIT, there used to be a merit-cum-means scholarship, which
would cover tuition fees (a paltry 2000 rupees per semester at that time) and add a
small stipend on top, meant for students from families with low income. The
criteria for eligibility were so stringent that even a peon's child could probably not qualify for it. So, who do you think was availing of these MCM scholarships? It was students whose fathers were businessmen, making lakhs each year, but officially reporting no income! And this for a mere couple of thousand rupees a year.
Now that IIT tuition fees run to a lakh or so a year and MCM still pays you back the tuition, things surely haven't changed. Caste is harder to fake than income. It might just be the easier form of reservation to implement.

from:  Vivek
Posted on: Jun 21, 2012 at 14:12 IST

Politicians do not have the time or the inclination to introduce
rigorous, constitutionally valid provisions, especially when vote-banks
are to be influenced. It will be worth researching whether all such
reservations were done just before an election to reap quick benefits.

from:  Dinesh Sinha
Posted on: Jun 21, 2012 at 14:03 IST

I would like to thank the author for such an enlightening article.This is one of the few article, which analyses the issue logically and legally,without allowing politics to gravitate the discussion towards a wrong direction.But what perplexes me is that,if the author can think about these issues,then why can't the so called "stalwarts of our democracy"?

from:  Pushkar Kumar
Posted on: Jun 21, 2012 at 13:37 IST

Reservation on the basis of caste and religion only seem to deprive
other deserving candidates of opportunities. I find in my surroundings
that financially well off and not-so-talented people are benefiting
from SC, ST and (especially) OBC quota in terms of application fee and
cut-off marks for all positions and competitive examinations, while
many of those who deserve relaxation (financially and not in talent)
don't get any. This kind of reservation is not at all a good option,
it is like snatching an opportunity from one citizen and giving it to
another. If the government or the court want to deliver any justice to
the public they should do it on the basis of financial state, that
will include deserving people from all castes, creed and religion.
Give the poor free education, career counselling and application
forms, they will automatically find a job if they are eligible and
talented enough. No need to reserve seats for them in employment,
other Indians rich or poor have equal right

from:  ariba
Posted on: Jun 21, 2012 at 12:11 IST

Must thank The Hindu....I have not seen any other news paper or media giving us the reason in detail why this reservation for Muslims was struck down by the court.

from:  Periasamy Sankar
Posted on: Jun 21, 2012 at 10:36 IST

"The Backward Class Commission was meant to be an expert body that would independently evaluate claims of backwardness, free from populist compulsions." A classic oxymoron. How an we talk about being free from populist compulsions when the whole idea of reservation is nothing but populism.

from:  Shamanth
Posted on: Jun 21, 2012 at 10:32 IST

The writer seems content with the reservation for minoritiee. No where he has comment about the vote bank politics which is the main reason behind such quotas. If so called secular parties would have been really worrying for minorities, they would not have suffered such bakwardness as facing currently

from:  prafull
Posted on: Jun 21, 2012 at 08:49 IST

The Andhra Pradesh High Court decision is a sniper attack on the politicians who keep on providing reservations to communities, castes, backward classes and sheduled classes mostly based on religion to gain votes from the respective communities. It is high time all reservations expunched by the state and central government since the present reservations are basically on religious basis. How may Anglo Indians are not Christians? How many Sheduled Classes are Christians or Moslems? How many Dalits are Moslems? At present all reservations are based on religion and all reservations are overwhelmingly favouring Hindus. All reservations at present are based on caste and religion should be scraped. Non-religious reservation purely based on the income is good for admission and employment for helping and empowerment of the poor irrespective of religion and diversity in education and employment. All reservations based on religion is unconstitutional in any secular democracy.

from:  Davis K. Thanjan
Posted on: Jun 21, 2012 at 08:40 IST

Were we not supposed to curb all quotas on basis of castes mere 10 yrs after independence? Do we remember the Doctors' maharally in late 2006? Is it not high time to stop reservations on divide?

Frankly,it doesn't seems to serve the purpose either, as the magnate reap more benefits with fake certificates. Hope some day we would recognise quotas on basis of economic backwardness and not caste votes.

from:  Vandana
Posted on: Jun 21, 2012 at 07:35 IST

Just becase the law they passed got thrown out in court, the politicians get to eat their cake and eat it too! Now they can point to the courts as the villains who overturned their legislation favoring Community X, and thus they keep their vote bank.

from:  MUKUNDAGIRI SADAGOPAN
Posted on: Jun 21, 2012 at 04:20 IST
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