A few Questions came to my mind as I was going through the Judgement by Gujarat Full Bench on the Issue of Constitutionality of Minority Scholarship. The important observations by the Judges is summarised here and the full judgement can be read here. However I will first state the Questions or rather confusions which I had while going through the Judgement which upheld the constitutionality of the Minority Scholarship.
- Whether Scheme has its origin in Sachar Committee report or not?
- Whether there is any logic of Including the other minorities ( Sikhs, Christians , Parsis , Budhists) with Muslims whose alleged backwardness is studied by Justice Sachar ?
- If the Scholarship to minorities is constitutional, then whether the reservations to same is also constitutional?
- If the answer to Question 3 is in negative, how diversion of funds to a particular class of citizens (Scholarship to minorities) can be insulated from Article 15(1) of the constitution.
Most of these Questions are discussed by the dissenting Judges also. But I will go through each of the questions in detail.
Scheme or Sachar report, What came first ?
Below are the observations by the Judges in their Majority judgement on Sachar Committe report and how it forms the basis of the said scheme.
- This Report forms the basis for formation of the Scheme. The Scheme records that the Prime Minister15 Point Programme for the Welfare of Minorities was announced in June 2006, which provided that a prematric scholarship scheme for meritorious students from minority communities would be implemented. (Para 28, Page 43 of the Majority Judgement)
- Sachar Committee collected voluminous data and ultimately submitted its report on 17th September 2006. (Page 39)
I am quite sure that you have noted the contradictions in the above two parts of judgement. How can a scheme which was announced in June 2006 find its basis on a report submitted on September 2006? This contradiction was rightly noted by the dissenting judges, who wrote,
“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” (Page 120)
Some minor errors also could be spotted in the Judgement with respect to the date of origin of Sachar report.
- On 9th March 1995, the Government of India, issued a notification constituting a High Level Committee headed by Justice Rajender Sachar to prepare a report on the social, economic and educational status of the Muslim community in India. (Page 37)
- The Court traced the origin of the Scheme which was framed bearing in mind the findings of the High Level Committee constituted by the Government of India under notification dated 9th March 2005 headed by Justice Rajender Sachar (popularly known as Sachar Committee Report), which was constituted to prepare a comprehensive report on the socioeconomic and educational status of Muslim community in India. (Page 3)
The above errors may be inadvertent but it is worth noting it too.
How is Muslims = Other Minorities?
For a moment, let us assume this scheme is based on Sachar report, but then how it can be shown that the other minorities viz Christians, Parsis, Budhists and Sikhs are also socially and economically backward ?
- 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 )
Sachar Committe has not done any study on other Minorities as it has done with the muslims. So what is the logic of clubbing them with Muslims? The Judgement seems to be not answering it satisfactorily? The dissenting judges pointed this ambiguity also. In this regard it is important to note these observations by the dissenting judges.
- 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 152)
The Judges question the logic of studying backwardness of Muslims only. They ask are the muslims the only community who suffer backwardness as a community ? They also stress that the backwardness should be studied state wise noting the fact that the literacy of Muslims in 10 states ( Including Gujarat) is higher than the state average.
- 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)