The Supreme Court has overwhelmingly depended on the case Shatrughan Chauhan vs. Union of India to decide the issue of commutation of death penalty of the assassins of Rajiv Gandhi, our former Prime Minister. The SC held in Shatrughan Chauhan case that “ If there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself…”. That means the convicts only need to show that there was an undue, unexplained and inordinate delay in execution of death sentence due to pendency of mercy petitions.
The Apex court observed that there has been an exorbitant delay in this case of Rajiv assassins. The mercy petitions under Article 72 of constitution were filed in 2000 and the president rejected it in 2011. 11 years to decide whether or not to give mercy? The Supreme Court observed “Exorbitant delay in disposal of mercy petition renders the process of execution of death sentence arbitrary, whimsical and capricious and, therefore, inexecutable. Furthermore, such imprisonment, occasioned by inordinate delay in disposal of mercy petitions, is beyond the sentence accorded by the court and to that extent is extralegal and excessive. Therefore, the apex constitutional authorities must exercise the power under Article 72/161 within the bounds of constitutional discipline and should dispose of the mercy petitions filed before them in an expeditious manner.”
Another contention against commuting death penalty seems to be that the convicts should prove that they “suffered” due to this delay. Death noose is before you and someone else is to decide whether or not you should be hanged, is it wise to say that you will enjoy the delay in decision? Seems like the apex court also thought in these terms when it said that “The argument that the petitioners are under a legal obligation to produce evidence of their sufferings and harm caused to them on account of prolonged delay is unknown to law and will be misinterpretation of Shatrughan Chauhan (case) .Such a prerequisite would render the fundamental rights guaranteed under Part III of the Constitution beyond the reach of death-row convicts and will make them nugatory and inaccessible for all intent and purposes. Besides, there is no requirement in Indian law as well as in international judgments for a death-row convict to prove actual harm occasioned by the delay. There is no obligation on the convict to demonstrate specific ill effects of suffering and agony on his mind and body as a prerequisite for commutation of sentence of death.”
While some celebrate this judgment as if the assassins were declared innocent, To them Supreme Court says “ We once again clarify that the relief sought for under these kind of petitions is not per se review of the order passed under Article 72/161 of the Constitution on merits but on the ground of violation of fundamental rights guaranteed under the Constitution to all the citizens including the death row convicts.” The court also noted the unreasonable delay in executive decisions and expressed displeasure over it as follows “We are confident that the mercy petitions filed under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim. The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition should compel the government to work in a more systematized manner to repose the confidence of the people in the institution of democracy. Besides, it is definitely not a pleasure for this Court to interfere in the constitutional power vested under Article 72/161 of the Constitution and, therefore, we implore upon the government to render its advice to the President within a reasonable time so that the President is in a position to arrive at a decision at the earliest.”
Finally Supreme Court commuted the death sentence of assassins of our Former Prime minister into imprisonment for life. SC concluded the judgment by “We commute their death sentence into imprisonment for life. Life imprisonment means end of one’s life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.”
As a student of law, what I understand is that the Supreme Court has held that the inordinate delay in deciding mercy petition is a strong ground for commutation into life imprisonment. To all those who are emotionally responding to the judgment, my only submission is that emotions have no place in law. The court does not and need not know the status( socio-religious-political-economic) of killed and the killer, it only decides the issue before it. The issue, in this case, was simple- which was- whether inordinate delay is a ground for commutation. The court answered it in affirmative, just like it did in a case decided last month which was not discussed by media and the layman since it was not political or high profile in nature.
The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
Prior record of the conviction,a relevant factor in awarding Death Sentence, only if it has attained finality : SCPosted: February 16, 2014
Important observations by Hon. Supreme Court in Birju Vs. State of M.P. can be read below
- The case before SC was about killing of a child aged one year who was in the arms of his grand-father, for which the accused was awarded death sentence by the trial court, which was affirmed by the High Court and these appeals have been preferred by the accused against the judgment of conviction and sentence awarded to him for the offences under Section 302 of the Indian Penal Code, read with Section 27 of the Arms Act, 1959.
- One of the factors which weighed with the High Court to affirm the death sentence was that the accused was charge-sheeted for commissioning of 24 criminal cases, out of which three were under Section 302 IPC and two were under Section 307 IPC, consequently, the Court held that there was no probability that the accused would not commit the act of violence in future and his presence would be a continuing threat to the society. The Court also took the view that there was no possibility or probability of reformation or rehabilitation of the accused.
- We may first examine whether “substantial history of serious assaults and criminal conviction” is an aggravating circumstance when the court is dealing with the offences relating to the heinous crimes like murder, rape, armed dacoity etc. Prior record of the conviction, in our view, will be a relevant factor, but that conviction should have attained finality so as to treat it as aggravating circumstance for awarding death sentence. The second aspect deals with a situation where an offence was committed, while the offender was engaged in the commission of another serious offence. This is a situation where the accused is engaged in the commission of another serious offence which has not ended in conviction and attained finality
A man was accused of corruption in 1984, the case came up for trial in 1994, He was convicted in 2003. High Court refused to interfere in the findings of Trial court and took 10 years for it. Finally Supreme Court mitigated the sentence, and imposed a fine of Rs. 50,000. This decision by The Supreme Court is important in two aspects. One is that it exposes the ultra-slow criminal justice system in our country, and the other is the observation “The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence”. Important observations by Supreme Court in this case is given below. Full judgment can be read here
- Appellant was tried for offences under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.The charge was that the appellant demanded and accepted bribe of Rs.265/- from a contractor on 21.12.1984. The Sessions court convicted him of the charges and sentenced him to undergo rigorous imprisonment for a period of one and a half years with a fine of Rs.5, 000/- each under the charged Sections, as per Judgment dated 10.04.2003. The High Court declined to interfere with the conviction and sentence and dismissed the appeal as per Judgment dated 22.07.2013 and, hence, the appeal in Supreme Court.
- “One wonders as to how it took ten years for the matter to be registered as sessions case and stranger is it to see that the trial also took almost ten years and still stranger is that the matter took ten years in the High Court.”
- “In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of commission of an offence by a person and the mitigating factors, if any, the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the FIR was registered by the CBI in 1984. The matter came before the sessions court only in 1994. The sessions court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.”
- “The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.”
- The High Court had not deleted the section 377 of IPC in its entirety. It only made the penal provisions of Section 377 inapplicable to Consented homosexual carnal intercourse. The Supreme Court has not criminalized Homosexuality. It held that the Judiciary has no power to make new “Laws”. In otherwords, that it has no power to criminalize or decriminalize any act. It has directed Legislature to do the needful.The SC has not commented about morality of homosexual behavior. The judgment is purely based on constitutionalism. The SC applied the doctrine of severability- and when they applied it with regard to precedents before it, it found that they cannot read down the particular section of IPC.
- The section was found by SC to be not violating the principle of equality. The section penalizes the act, not any particular group of people. The act being – carnal intercourse against the order of nature- In simple language, it is oral / anal sex. The argument that by criminalizing the act, LGBT community is being discriminated against does not hold, since even if a man-woman couple engages in this act, it is a crime (if we apply the logic). So it cannot be said that the section criminalizes a particular community alone.
- The SC has clearly stated that “Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation (Para 38).” This is what I explained in previous paragraph.
- As far as the question of Article 21 violation is concerned, SC held “Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC ” (Para 51). SC has clearly stated that misuse of law by executive does not affect its constitutionality. It is certainly a relevant fact for the Legislature while amending the said section. There is no single conviction of consented gay or lesbian sex till date.
- It is also worth noting Para 40 of the Judgment “The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities. Only in the affidavit filed before this Court on behalf of the Ministry of Health and Family Welfare, Department of AIDS Control it has been averred that estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM (men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users) is 9.42% to 10.30%. The total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV. The State-wise break up of estimated size of high risk men who have sex with men has been given in paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of total adult population, estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given. These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society”
- Since SC found that the said section is not unconstitutional because it does not violate fundamental rights. The section does not criminalize a particular community. Hence the question of reading it down does not even arise. SC judgment has discussed doctrine of severability at this point. “Unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”
- It is very important to read Para 32 of the judgment where SC says “After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import. “Those who got outraged against SC judgment should first ask the legislature why they did not do the duty.
- Another important thing to note in this judgment is about the affidavit filed by Home Ministry in High Court which says “Shri Venu Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not make any distinction between procreative and non-procreative sex. (Para 7)”
- If Home Ministry is to be believed, the Section 377 has been applied only on complaint of a victim. Complaint usually follows exploitation. So if someone exploits a man or woman, and it is technically not a rape (because there is no penile-vaginal penetration), and if that man or woman complains to police, then only this section comes into play. Otherwise it does not. In effect, SC has endorsed this stand of Home Ministry in its judgment.
- It is very sad to see people mixing up moral and legal issues of Homosexuality and misinterpreting the Judgment. The judgment has not at all touched the morality issue, but rather it is only about a constitutionality of a section. To conclude, what I understood is, SC has NOT criminalized any sexual orientation, nor has it decriminalized anything. But what it has done is that it asked the Legislature to do what it is supposed to do.
“SC criminalizes gay sex” was the heating topic to debate last day. Today’s newspapers have printed all those outrages and have created further fuss. Political parties are also outraged, and so is Sonia Gandhi, Chairman of the ruling front. She says “I am disappointed that the Supreme Court reversed the previous Delhi high court ruling on the issue of gay rights. We are proud that our culture has always been an inclusive and tolerant one”. Finance Minister of the country even remarked “What we have done is go back in time to 1860 and I’m terribly disappointed, we must explore ways and means in which this judgement can be reversed very quickly. Legislation is one way to reverse it but that may take time.” Congress Vice-President Rahul Gandhi did not keep mum as usual. He also said “”These matters should be left to individuals, as they are matters of personal freedom,”.
My question to all of those outraged, both those who are lauding the judgment for wrong reasons and those who are abusing the judge “Have you read the Judgment? “ (Read it here) I have asked a dozen people today and except one, none has read it. One who is against gay and lesbian sex, lauds SC judgment as a good decision and the one who are pro-gay-lesbian rights drags Vishnu and Shiva to the debate to establish that Indian culture includes gays and lesbians? Both these extremes responses come from the people who have not read the judgment and they are not likely to read it too.
What is my stand on LGBT community and rights? I have no particular stand on LGBT community. They are humans and should have the rights enjoyed by every other humans. My religion, i.e. Hinduism neither prescribes nor proscribes the homosexual behaviour. The issue before the honourable Supreme court was not whether homosexual behaviour is crime or not, but it was whether the Section 377 of the code is unconstitutional? Since the HC had held the section unconstitutional, the question before SC also was whether the HC‘s decision is right?
Supreme Court on Homosexuality
Most of those who are disappointed with SC judgment yesterday are those who thought that SC has called Homosexuality immoral. But as far as I read the judgment, I could not find SC taking a stand on the issue. At one point, it even says “Section 377 IPC does not criminalize a particular people or identity or orientation”.
SC on constitutionality of Section 377 IPC
The real issue before SC, as I said earlier, is not about the morality of homosexual behaviour, but whether the relevant section of the penal code is unconstitutional or not. Another issue is whether the Court can read it down (strike it down)? These questions are answered not on the basis of sexual morality, but on the basis of precedents before the court.
Article 13 and Section 377
I will reproduce the relevant part of the judgment to let you read why SC does not think that Section 377 violates Right to equality? For those who has no patience to read it fully should read the sentences bolded.
31. From the above noted judgments, the following principles can be culled out: (i) The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III. (ii) There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution. (iii) The doctrine of severability seeks to ensure that only that portion of the law which is unconstitutional is so declared and the remainder is saved. This doctrine should be applied keeping in mind the scheme and purpose of the law and the intention of the Legislature and should be avoided where the two portions are inextricably mixed with one another. (iv) The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.
32. Applying the afore-stated principles to the case in hand, we deem it proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality. After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.
33. It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.
So the court is of the view that only if there is a constitutional violation by a law, the court is empowered to strike it down. Then Supreme Court answers whether the section is hit by article 14,15 and 21.
Article 14,15 and Section 377
The Supreme Court does not elaborate much on this aspect, but only says the following
“What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty”
Article 21 and Section377
The following observations are made by SC regarding the question whether Section 377 of IPC violates Article 21 of the constitution
51. Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC. The law in this regard has been discussed and clarified succinctly in Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281 as follows: “11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate legislation”
52. In anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
54. We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
56. While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
After going through the judgment, what I understand is that.
- SC has not criminalized any community or any sexual behaviour.
- SC has only said that the right and duty to legislate lies with legislature, not with the Judiciary.
- There are only a few convictions under Section 377 and most of them are for forced unnatural sex.
- SC has only pronounced on constitutionality of Section 377 and not on the moral question of homosexuality.
Following are my doubts, which I request you to clear.
- Why has not legislature yet amended the Law?
- Why should SC take up the job of legislature?
- Why is this sudden hue and cry about Section 377 which was not there till a decade ago? Were there no homosexuals then?
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)