SC paves way for Muslim quota

via Pioneer News Service | New Delhi published on March 25, 2010

Upholds 4% reservation in AP, for now
Constitution Bench to take final call

Paving the way for religion-based reservation, the Supreme Court on Thursday upheld a decision by the Andhra Pradesh Government giving four per cent reservation in jobs and educational institutions to 14 Muslim groups coming under socially and educationally backward classes.

The legislation under challenge — the Andhra Pradesh Reservation — in favour of Socially and Educationally Backward Classes of Muslims Act, 2007, was struck down by the AP High Court on February 8 this year following which the State Government had rushed to the apex court for stay of the order.

In the first 14 categories, names of specific Muslim groups were added as beneficiaries under the Act but the last item on the list for reservation included “Other Muslim Groups” excluding Saiyed, Mughal, Pathans, Irani, Arab, Bohara, Shia Imami Ismaili, Khoja, Cutchi-Memon, Jamayat, and Navayat.

Suggesting a middle path, the Bench of Chief Justice KG Balakrishnan, Justices JM Panchal and BS Chauhan allowed the Act to continue with regard to 14 groups while withdrawing benefit to the last category comprising “any other” Muslim groups. The Bench posted the State’s appeal along with related petitions for further hearing in August before a Constitution Bench. In providing this interim concession, the Bench maintained that the creamy layer among the 14 groups would be excluded.

For the State Government, the decision has come as a partial relief. Attorney General Goolam E Vahanvati, who appeared for the AP Government, had sought stay of the high court order in whole to ensure the Act was implemented with regard to all 15 categories. Vahanvati sought to clear the apprehension that only Muslims would be benefited since the Act specifically excluded 10 categories of Muslims from the ambit of reservation. At the same time, he pointed out the example of Kerala and Karnataka where Muslim community as a whole was considered as a backward class.

Senior advocate K Parasaran, also appearing for the State Government, stated that just because the groups belong to the Muslim community, they do not cease to be backward. For 60 years, he added, the benefits of reservation did not reach them and it was time to correct the situation now, or keep them in the same backward state for years to come.

Prior to passing the legislation in 2007, the Government constituted an independent commission headed by retired IAS officer PS Krishnan on whose recommendations the 14 categories of Muslims were identified as socially and educationally backward.

But senior advocate Harish Salve, appearing for the petitioners, submitted that the legislation was nothing but a “thinly disguised form of religion-based reservation.” He wondered the need for the State to include “any other Muslims” as a separate category when 14 categories were found eligible as backward classes.

The Bench, impressed by Salve’s contentions, said, “There is no denying that backwards are not there among Muslims. If we allow this to continue they will be denied of benefits due to them.” Passing its order, the Bench noted that in the meantime the State Backwards Commission could continue their exercise of identification.

Salve, however, reminded the court that on previous occasions, the Supreme Court and High Court had consistently maintained the stand to deny reservation to Muslims. The first occasion was in the year 2004 when the State Government issued a Government Order dated July 12, 2004 providing five per cent reservation to the entire Muslim community in the State. It was struck down by a larger Bench of the AP High Court in the absence of any criteria laid down for ascertaining backwardness. The Supreme Court upheld the High Court order.

Almost a year later, the State Government brought out an ordinance providing five per cent reservation to the entire Muslim community treating them as a backward class. A five-judge Bench of the AP High Court struck down the law as unconstitutional since the same was treated to benefit the Muslim community as a whole, without there being any identification by the Backward Classes Commission. The apex court is still seized of the appeal challenging this order, when the AP Government chose to enact the 2007 legislation presently under challenge.

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