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.
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.
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)