Judicial scrutiny and UPA’s provisioning of minority-only schemes

Guj HC ruled 3-2 in favour of CON-led UPA’s minority scholarship scheme

On Feb-15 2013, a 5 Judge bench of the Gujarat High Court found that the UPA governments pre-matric scholarship program exclusively for minority communities was constitutional.   Details of this vast scheme which has benefited more than a crore students at taxpayer cost  of Rs 810 Crore (Union Budget 2012-13) can be found on the Minority Affairs e-Scholarship website.

Kartikeya Tanna has analyzed the judgment in a two part series over at Niti Central Part 1: All Muslims are not backward  and Part 2: Religion cant decide welfare.  Head on over there for a detailed analysis of the majority and minority opinions.  I am not going to rehash the points made there, but will  focus on a particular issue. One  which lies at the root of most of these cases involving the state classification for providing  private goods. The issue is this : Do we have a standard of judicial review when the govt decides to classify the common body of citizens ? If we do have a standard, what is it ?

Role of scrutiny in the two positions

The majority position can be summarized as follows : The scholarship programs are not in violation of the equality guarantees in Art 15(1) of the constitution ( ..”(1)  The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them ). The honorable  judges in the majority opined that this is a valid classification because it is not just for minorities but for minorities who have been shown as lagging by the Sachar report.  There is no need to look beyond that because according to the opinions in Dr Saurabh Choudhary vs Union of India (residence based classification)  (2004)  and Ashok Kumar Thakur vs  Union of India (OBC quota) (2007)  –  the US style “strict scrutiny” was not applicable to India.  So objections based on the actual findings of the report arent going to carry much weight.

The minority position can be summarized as follows : The programs violate Art 15(1) because similarly situated candidates of Hindu (non-minority) will be excluded from this program only on the basis of religion.  This is a strong position because for OBC benefits, atleast on paper, similarly situated upper caste students are not eliminated. The reason is if a community could show social and educational backwardness they too stood a chance of being identified as OBCs by statutory bodies such as the NCBC and various state commissions.  However in this case, the only difference is religion which cannot be transcended. The 2 judges in the minority also break open the actual content of the Sachar report. They need to review the findings because they assert that if one had to test for valid classification a “strict scrutiny” is a must (P98). Once they adopted an enhanced scrutiny vs the majority judges, the rest of their judgment falls into place naturally.  Sachar never studied Christians or Sikhs  so such a piggybacking would result in a heterogeneous group. Even among Muslims Sachar found that they were ahead in 10 major states including Gujarat. See my 2006 post on “Sachar Literacy Rate puzzle“.

The two positions are rooted in different standards of review. On one side you have a “conceivable / rational  basis” which is a very low standard of review and on the other “enhanced / strict / substantial review” which would actually test the basis of the classification being litigated.

Scrutiny in other classification

Social justice is the primary ground for deviating from the equality provisions. The two platforms of social justice are 1) SC/ST and 2) OBC.  Members of the former are enumerated in the constitution so evidence takes a back seat there.  The OBC category is however based on social and educational backwardness which by its nature must be measured.  Much of the current confusion is due to the fallout of a low standard of review of the OBC category.  If there is one thing Sachar found, it was that in many parts of the country Muslim communities were not being given their pro-rata share in the OBC platform.  The right approach must be to subject the OBC platform itself to a rigorous scrutiny so that such grievances have a valid and secular redressal.  To illustrate the tight spot – consider the notice given by the Supreme Court to the Tamilnadu government to collect data about backwardness. Sure enough the commission came out with a report which inter-alia questioned the court’s domain itself.

These chapters clearly show that the report has hardly any bearing on the Commission’s mandate. Among other things, it questions the judiciary for its Mandal rulings, portrays it as an interloper in state policy, and overturns its mandate to the Commission.

Source : The Hindu – P. Radhakrishan  Perpetuating the scourge of casteism

So here we are. Sachar showed that the primary platform simply wasnt delivering pro-rata share to some vocal groups.  It is also  immune to a substantial review under the prevailing “rational basis” test. So the only option is to partition public goods  along yet another dimension of minority. The right fix in my opinion is to move in the direction of Nagaraj and subject all classifications involving groups listed in Art 15(1) to a substantial review.

Why is this case important

The Congress government has a slew of ambitious minority-only  programs under the Prime Ministers 15-point program. We have seen how in education minority schools are not only exempt from the deeply flawed Right to Education Act but they are also given public money under the IDMI scheme run by the HRD.  The 12th 5 year plan also envisages 15% of all expenditure be channeled to minorities, there are minority universities like the controversial Tipu Sultan University being setup, KV style schools are being planned in minority areas, fund allocation to territory is sought to be linked to the religious composition of that territory under the MSDP scheme.  The direction is clear.  All these  invidious schemes will meet challenge.  Even though the immediate scheme of pre-matric scholarship may only cost a few hundred crores the magnitude isnt important. The same principles will be used for programs which involve no 800 Crores but 8000 Crores. With a conceivable basis test as the standard all these can sail through which in my humble opinion would be an abdication of judicial duty of review.

I’d also like to single out the most important factor in my humble view. The deference given to the creation of an omnibus category called the “Minority” which includes not only Muslims but politically and numerically significant groups like Christians, Sikhs. If you dont have a “Narrow Tailoring”  test – which is part of the strict scrutiny doctrine, you will end up with such anomalous situations where a Syrian Christian in Kerala can be classified along with Muslims based on a study that only pointed out targeted pockets of backwardness.  Lower standards of scrutiny tend to look the other way when faced with these situations. The political class, particularly the Congress party would of course like this freedom to create adhoc factional coalitions that are setup in confrontation with the majority coalitions on the other side. This cannot be good for any democracy as people will be ever locked up in fights and never be able to vote on big ticket issues like corruption.

Conclusion

In conclusion, Reality Check India,  the valiant fighter for lost causes, would like to toss the topic of judicial standard of review into the arena of public debate.