Reality Check India

SG Punalekar vs Union of India – Bombay HC judgment upholding Minority-only scholarships

Sanjiv Gajanan Punalekar vs Union Of India, Ministry Of … on 6 June, 2011
Bench: D.G. Karnik

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.84 OF 2008

1. Sanjiv Gajanan Punalekar,

Indian Adult aged 42 years, a

practicing advocate, residing at

Flat No.25, Malkani Mahal,

261, Annie Besant Road,

Worli, Mumbai-400 030. … Petitioner

Versus

1. Union of India, Ministry of Minority

Affairs, through Department of Law,

Ayakar Bhavan, Mumbai and others.

2. State of Maharashtra

through Government Pleader.

3. Union of India,

Ministry of Human Resources Department,

Shastri Bhawan,

Dr. Rajendra Prasad Marg,

New Delhi-110 001. … Respondents

Mr. Ashish Naik for the petitioner.

Mr. D.J. Khambatta, Additional Solicitor General with Mr. Rui Rodrigues and Mr. Gulam Ankhad and Nirmal R. Prajapati i/by Dr. T.C. Kaushik for respondent No.1.

Mr. D.A.Nalawade, Government Pleader for State. srk 2 wp-84-08-final

ALONGWITH

APPELLATE SIDE

PUBLIC INTEREST LITIGATION NO.254 OF 2009

Smt. Jyotika Wale,

Age 59, Occ. Social Worker,

R/at L/2, 902, Hariganga, Oppo.

RTO, Yerawada, Pune-6. … Petitioner

Versus

1. Union of India, Ministry of Minority

Affairs, New Delhi .

2. The State of Maharashtra,

Through the Secretary,

Department of Education,

Mantralaya, Mumbai,

Copy to be served on A.G.P. High Court,

Appellate Side, P.W.D. Building,

Mumbai-32. … Respondents

Mr. Aniruddha Rajput with Mr.P.G.Chavan and Mr. Mayur Khandeparkar for the petitioner.

Mr. D.J. Khambatta, Additional Solicitor General with Mr. Rui Rodrigues and Mr.Aditya Mehta and Mr. N.R.Prajapati for respondent No.1. Mr. Mayur Khandeparkar with Mr. Gandhar Raikar for applicant in C.A.No.63 of 2011.

Ms. Neha Palshikar-Bhide, `B’ Panel Counsel for State. srk 3 wp-84-08-final

CORAM : MOHIT S. SHAH, C.J. &

D.G. KARNIK, J.

Judgment reserved on 19th April, 2011

Judgment pronounced on 6th June, 2011

JUDGMENT (Per Chief Justice)

Since both these petitions purporting to be PILs raise common issues of law and facts, the petitions were heard together and are being disposed of by this common judgment.

Broad Controversy

2. PIL 84 of 2008 is filed by a practicing advocate who challenges the “Merit-cum-Means Scholarship Scheme for Students of Minority Communities” issued by the Government of India in the Ministry of Minority Affairs on 1st April, 2008 (Exhibit `A’ to the petition) on the ground that it discriminates against students belonging to the majority community only on the ground of religion. The petitioner has prayed that since the scheme is unconstitutional, it be cancelled.

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3. PIL No.254 of 2009 is filed by a person who claims to be intensely interested, and is involved, in issues relating to women and children. The petitioner is the wife of a retired Executive Engineer, Irrigation Department, Uttar Pradesh and hence has been travelling around the State and the places wherever her husband was posted. This petitioner has challenged the “Scheme of Pre-matric Scholarship for Students belonging to Minority Communities” issued by the Government of India in the Ministry of Minority Affairs on 1st April, 2008. The petitioner has prayed for a direction to the Central Government and to the Government of Maharashtra that the scheme may not be limited to students belonging to the minority communities and may be extended to students not belonging to the minority communities. In the alternative, the petitioner has prayed for a declaration that the scheme is unconstitutional.

4. The salient features of the impugned schemes are set out hereafter.

5. The pre-matric scholarship for studies in a Government or private school from class I to class X, is to be given to a student –

i) who is from a minority community as notified under Section 2(c) of the National Commission for Minorities Act, 1992;

ii) who has secured at least 50% marks in the previous final examination; and

iii) whose parents/guardian are having annual income from all sources not exceeding Rs.1 lakh

30% scholarships are earmarked for girl students. srk 5 wp-84-08-final

6. As far as the second scheme is concerned, the main features of the scheme are that the scholarship for pursuing professional degree and/or post- graduate level technical and professional courses, in a recognized institution in India is to be given to a student-

(i) who belongs to a minority community as defined in the above Act (ii) who has secured at least 50% marks in the last examination, (iii) whose parents/guardian are having annual income from all sources not exceeding Rs.2.50 lakhs.

7. Both the schemes are challenged on the ground that the schemes discriminate against the students belonging to the majority community only on the ground of religion and are, therefore, violative of Articles 14 and 15(1) of the Constitution. It is contended that Article 15(4) permits discrimination only in favour of socially and educationally backward classes, Scheduled Castes and Scheduled Tribes; that a religious community cannot be a “class” under Article 15(4) of the Constitution and that all members belonging to a particular religion per se cannot be termed as “a socially and educationally backward class”. The gravamen of the challenge as formulated by the petitioners is that the sole basis being religion, the classification is violative of fundamental rights of students belonging to the majority community. srk 6 wp-84-08-final

Pre-Matric Scholarship Scheme

8. Writ Petition No.254 of 2009 challenges the pre-matric scholarship scheme for School Students which reads as under:- “CENTRALLY SPONSORED SCHEME OF `PRE-MATRIC

SCHOLARSHIP’ FOR STUDENTS BELONGING TO THE

MINORITY COMMUNITIES.

1. BACKGROUND

The Prime Minister’s New 15 Point Programme for the Welfare of Minorities was announced in June, 2006. It provides that a pre-matric scholarship scheme for meritorious students from minority communities would be implemented.

2. OBJECTIVE

The scholarship at pre-matric level will encourage parents from minority communities to send their school going children to school, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. The scheme will form the foundation for their educational attainment and provide a level playing field in the competitive employment arena. Empowerment through education, which is one of the objectives of this scheme, has the potential to lead to upliftment of the socio economic conditions of the minority communities.

3. SCOPE

The scholarship will be awarded for studies in India in a government or private school from class I to class X, including such residential Government institutes and eligible private institutes selected and notified in a transparent manner by the State Government and Union Territory Administration concerned.

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4. ELIGIBILITY

Scholarship will be awarded to the students who have secured not less than 50% marks in the previous final examination and annual income of their parents/guardian from all sources does not exceed Rs.1 lakh.

5. DISTRIBUTION

Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) have been notified as minority communities under Section 2(c) of the National Commission for Minorities Act, 1992. The distribution of scholarship among the States/Union Territories will be made on the basis of population of minorities in the States/Union Territories on the basis of Census 2001.

6. EARMARKING FOR GIRL STUDENTS

30% of scholarships will be earmarked for girl students. In case sufficient number of eligible girl students are not available, then the balance earmarked scholarships may be awarded to eligible boy students.

7. SELECTION

As the number of scholarships for minorities available in a year is fixed and limited it is necessary to lay down preference for selection. Inter-se selection weightage is to be given to poverty rather than marks. In case of the renewal applications, such applications would be fully exhausted before the new applications are considered.

8. DURATION

The scholarships will be provided for the entire course. Maintenance allowance will be given for 10 months only in an academic year.

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9. RATE OF SCHOLARSHIP

Actual financial assistance will be provided for admission/tuition fee and maintenance allowance as given below subject to a maximum ceiling indicated against item concerned:

S.No. Item Hosteller* Day Scholars 1 Admission fee from Rs.500 p.a. Rs.500/- p.a. class VI to X subject to subject to actuals. actuals.

2 Tuition fee from Rs.350/- p.m. Rs.350/- p.m. class VI to X subject to subject to actuals. actuals.

3 Maintenance

allowance will be

payable for a period

not exceeding 10

months in an

academic year.

(i) Class I to V Nil Rs.100/- p.m. (ii) Class VI to X Rs.600/- p.m. Rs.100/- p.m. subject to

actuals.

* Hostellers include students who are staying in hostel of the school/institute concerned or those provided by the State Government/Union Territory Administration concerned.

10. IMPLEMENTING AGENCIES;

The scheme will be implemented through the State Government/Union Territory administration.

(Emphasis supplied)

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11. CONDITIONS FOR SCHOLARSHIP: (Important conditions)

(i) Scholarship will be available to the students of minority community studying in Classes I to X. The continuance of award will be subject to securing 50% marks in the previous examination. Maintenance allowance will be provided to hostellers and day scholars.

(ii) The award will be discontinued if a student fails to secure 50% marks in the annual examination except in case of unavoidable reasons to be certified by the Principal/competent authority of the school and recommended by the State Government/Union Territory Administration.

(iii) Scholarship will not be given to more than two students from a family. (iv) Students should be regular in attendance for which the yardstick will be decided by the competent authority of the school. (v) Income certified should be on self-certification basis by way of affidavit on non-judicial stamp paper of self-employed parents/guardian and from employer for employed parents/guardian.

(viii) If a student violates school discipline or any other terms and conditions of the scholarship, scholarship may be suspended or cancelled. The State Government/Union Territory Administration can also directly cancel the award if duly satisfied of the reasons of violation of these regulations governing the scheme.

(x) The State Government/Union Territory Administration will lay down the detailed procedure for processing and sanctioning of scholarship to eligible students.

(xiv) The student obtaining benefits under this scheme shall not be allowed to avail of benefits under any other scheme for this purpose. (xv) A student shall be eligible for only one scholarship for all sources, i.e. SC/ST/OBC.”

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Scholarship Scheme for Professional/Technical Courses

9. The other scheme which is challenged in PIL No.84 of 2008 (Merit- cum-Means Scholarship Scheme for Minority Communities Students) is to provide financial assistance to the poor and meritorious students belonging to the minority communities to enable them to pursue professional and technical courses from recognized institutions in India. Every year, 20,000 scholarships will be distributed among the students of minority communities throughout the country. Based on the state-wise population of these communities, in the State of Maharashtra, out of the total 20,000 scholarships to be given in the entire country, the scholarships to be given to the minority communities are as under:-

Name of community Total number Total number of of

total scholarship scholarships

in in

the Country Maharashtra

Muslims 14585 1084 Christians 2540 112 Sikhs 2028 23 Buddhists 840 617 Parsis 7 4 20000 2040

The features of this scheme are as under:-

(i) Students who get admission to a college to pursue technical/professional courses on the basis of a competitive examination will be eligible to the scholarship. (ii) Students who get admission in technical/professional courses without facing any competitive examination will also be eligible for scholarship. However, such students should have not less than 50% srk 11 wp-84-08- final

marks at higher secondary/graduation level. Selection of these students will be done strictly on merit basis. (iii) Continuation of the scholarship in subsequent years will depend on successful completion of the course during the preceding year. (iv) A scholarship holder under this scheme will not avail any other scholarship/stipend for pursuing the course.

(vi) The annual income of the beneficiary/parent or guardian of beneficiary should not exceed Rs.2.50 lakh from all sources. The rate of scholarship is as under:

Sr.No. Type of Financial Rate for hostler Rate for Day Scholar Assistance

1. Maintenance Allowance Rs.10,000/- per Rs.5,000/- per annum (For 10 months only) annum(Rs.1000 p.m.) (Rs.500 p.m.)

2. Course Fee* Rs.20,000/- per Rs.20,000/- per annum or annum or Actual Actual whichever is less whichever is less

Total Rs.30,000/- Rs.25,000/- * Full course fee will be reimbursed for eligible institutions listed at Annexure-III.

Annexure III is the list of 50 such eligible institutions. The scheme is to be implemented by the State Government which will receive 100% central assistance from the Government of India for the total expenditure under the scheme.

10. As indicated earlier, the gravamen of the challenge to both the schemes is that they are discriminatory against the students of majority community and are based solely on religion and, therefore, violate the fundamental rights of the majority community students under Articles 14, 15(1) and the Schemes are not authorized Article 15(4) of the Constitution. srk 12 wp-84-08- final

Government Reply

11. The Government of India in the Ministry of Minority Affairs has filed affidavit through its Under Secretary on 20th July, 2010 mainly raising the following defences:

I. The main thrust of the Eleventh Five Year Plan (2007-12) is for inclusive growth. The plan states that a major weakness in the economy is the growth not perceived as being sufficiently inclusive for many groups especially Scheduled Castes, Scheduled Tribes and minorities.

II. The impugned Schemes are part of Prime Minister’s New 15 Point Programme for Welfare of Minorities for which announcement was made by the President in his address to the Joint Session of Parliament on February 25, 2005 and by the Prime Minister on the occasion of Independent Day, 2005.

(i) The target group of the programme consists of the eligible sections among the five communities notified as minority communities vide a notification dated 23.10.1993, issued under the provisions of Section 2(c) of the National Commission for Minorities Act, 1992 viz. Muslims, Christians, Sikhs, Buddhists and Zoroastrains (Parsis).

(ii) The objectives of the new 15 Point Programme are as follows:-

(a) Enhancing opportunities for education.

(b) Ensuring an equitable share for minorities in economic activities and employment, through existing and new schemes, enhanced credit support for self-employment, and recruitment to State and Central Government jobs.

(c) Improving the conditions of living of minorities by ensuring an appropriate share for them in infrastructure development schemes.

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(d) Prevention and control of communal disharmony and violence.

(iii) An important aim of the new 15 Point Programme is to ensure that the benefits of various government schemes for the underprivileged reach the disadvantaged sections of the minority communities. The underprivileged among the minorities are, of course, included in the target groups of various government schemes, but in order to ensure that the benefits of these schemes flow equitably to minorities, the new programme envisages location of a certain proportion of development projects in minority concentration areas. It also provides that, wherever possible, 15% of targets and outlays under various schemes should be earmarked for minorities.

III. A High Level Committee (popularly known as “the Sachar Committee”), was constituted to prepare a report on the “Social Economic and Educational Status of the Muslim Community in India” vide notification dated 9th March, 2005. The Committee submitted its report on 17th November, 2006. The Sachar Committee Report brought out the development deficit among Muslims and suggested policy interventions.

IV The merit-cum-means based scholarships scheme for minority community students, which are impugned in the present PILs, in effect, translate the aforestated policy of the Government reflected through the said New 15 Point Programme for the Welfare of Minorities, the decisions of the Government on the recommendations of the Sachar Committee and the thrust of the Eleventh Five Year Plan for inclusive growth. The said scholarships are offered to meritorious students from the underprivileged and disadvantaged category of students amongst the minority communities notified by the Central Government so as to enable them to pursue school education and thereafter professional and technical courses. These scholarships are intended to address the deprivation suffered by the economically, socially and educationally backward sections of all the five notified minorities. The Union of India is duty bound to foster inclusive growth and mainstream these groups, communities etc. lagging behind. No special favour is being srk 14 wp-84-08- final

bestowed on them. Without a programme of affirmative action the gap exiting today cannot be bridged. The scholarships are legal, constitutional and in the public interest. The scholarships are in conformity with the Directive Principles of State policy set out in the Constitution.

V. For the students of other communities placed in similar situations Government has implemented similar schemes being operated by different Ministries/Institutions. For graduate and post graduate studies undertaken by college and university students National Merit Scholarship Scheme run by the Ministry of Human Resource Development, is annexed as Exhibit `F’. Similarly, University Grants Commission, which is funded by the Government of India, has introduced a number of Junior Research Fellowships in Engineering and technology, apart from Junior Research Fellowships in Sciences, Humanities and Social Sciences, which are open to all the eligible candidates from every community. Similarly, Post Doctoral Fellowships in Science, Engineering and Technology have also been instituted by the UGC; apart from Dr. S. Radhakrishnan Post Doctoral Fellowships of 500 slots in Humanities/social Science/Languages. Furthermore, Post Graduate merit scholarships for University rank holders at under graduate level is also in place over and above the said fellowships and scholarships schemes, a provision for P.G. Scholarships to GATE qualified students has also been made.”

(emphasis supplied)

The Government affidavit also gives details of the other pre-matric scholarship and post-matric scholarship for Scheduled Castes, Scheduled Tribes, OBCs and for girl students.

VI) Finally, it is submitted that these very schemes were challenged in a PIL before Gujarat High Court (Special Civil Application No. 2245 of 2008) which came to be dismissed by a Division Bench of Gujarat High Court by judgment dated 20th March, 2009. srk 15 wp-84-08- final

Petitioners’ contentions

12. At the hearing of these petitions, the learned counsel for the petitioners and for the intervenor mainly raised the following contentions:

i) Students belonging to majority community whose parents earn less than Rs.1 lakh/ 2.5 lakhs are discriminated against vis-à-vis the similarly placed students belonging to minority communities. Hence, there is violation of Article 14 of the Constitution.

ii) Article 15(1) prohibits the State from making any discrimination on the basis of religion.

iii) Though clause (4) of Article 15 permits the State to make any special provision for advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and Scheduled Tribes, and clause (3) of the same Article permits the State to make any special provision for women and children, no such special provision can be made in favour of any particular religious community. Religion cannot be the sole criterion for declaring a group of citizens to be a class. Strong reliance is placed on the decisions of the Apex Court in Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 (para 8), Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 146), Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 srk 16 wp-84-08- final

(para 328) and M.R. Balaji v. State of Mysore, AIR 1963 SC 649 (para 21).

iv) To identify a class and to declare it to be socially and educationally backward under Article 15(4), the income, caste/religion and traditional occupational test has to be applied. The respondents have admittedly applied only the twin test of religion and economic criteria. The economic criteria test was rejected by the makers of the Constitution (paras 483 and 484 of Indira Sawhney v. Union of India (supra).

v) Efforts to declare the entire muslim community as backward class has been struck down in the past by the Supreme Court in M.R. Balaji v. State of Mysore, AIR 1963 SC 649 (para 28), Triloki Nath Tiku v. State of J&k, AIR 1969 SC 1 (para 3,6) and State of U.P. v. Pradip Tandon (1975) 1 SCC 267 (paras 20,25,29,37). Strong reliance is also placed on the judgment of five Judge Bench of Andhra Pradesh High Court in Archana Rdddy v. State of Andhra Pradesh, (2005)6 ALT 364 and also on the judgment of seven Judge Bench of the same High Court in T. Murlidhar Rao v. State of Andhra Pradesh, ………………….. srk 17 wp-84-08- final

Respondents’ submissions

13. On the other hand, Mr. Khambatta, learned Additional Solicitor General made the following submissions :-

i) The impugned schemes are based on permissible classification and constitute affirmative action under Articles 14 and 15(1) of the Constitution. They are constitutional even without reference to Article 15(4) of the Constitution.

ii) The burden of proof to impugn a classification under Articles 14 and 15(1) or 16(1) rests on the petitioner;

iii) Minorities/religious communities as specified in the National Commission for Minorities Act, 1992 constitute separate classes.

iv) Article 14 of the Constitution itself recognizes the constitutionality of treating each religion as a separate class. State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay, 84 approved by the Supreme Court in Javed and others v. State of Haryana and others, AIR 2003 SC 3057.

v) Recently, in Praful Goradia v. Union of India 2011(2) SCC 568, the Supreme Court considered constitutional challenge to the grant of subsidy to Muslims who are going to Haj pilgrimage and turned down the challenge which was levelled on the basis of Articles 14, 15 and 27 of the Constitution.

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vi) The provisional amount of direct and indirect taxes collected by Central Government during the financial year 2010-2011 was Rs. 7,72,265 crores. The total education cess collected by the Union Government in respect of direct and indirect taxes during the financial year 2010-2011 (provisional and only up to February 2011) was Rs.28,885 crores, including

a) Primary education cess on direct taxes of Rs.6,080 crores;

b) Secondary and higher education cess on direct taxes of Rs.3,070 crores;

Only a minuscule of total tax revenue or education cess is spent for the impugned scholarship schemes for the advancement of minority groups. Hence, there is no violation of fundamental rights.

vii) The Central Government has also spent Rs.49,356 crores on education including Rs.33,954 crores for school education and literacy and Rs.15,402 crores on higher education. As against the above sums spent on the entire educational system in the country i.e. for all communities in the country, the total expenditure incurred on these two schemes in the year 2010-2011 was only Rs.675 crores out of which- (a) Rs.446 crores (rounded off) on the pre-matric scholarship and

(b) Rs.228 crores (rounded off) on the Merit-cum-Means scholarship for higher studies.

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(viii) Students of other communities in similar situation have the benefit of similar schemes implemented by the Government which are open to all communities. The submission is made on behalf of the Central Government to indicate that it was unable to procure the information regarding the amounts spent by the Central Government on all the scholarship schemes that are applicable to the students belonging to all the communities, other than the amount of Rs.107.99 crores on one particular scholarship scheme for college and university students for the financial year 2010-2011.

(ix) The factors taken into account by the scholarship schemes satisfy the requirements of law. The schemes are reasonable, not discriminatory and constitute best form of effective affirmative action. The scholarships are granted on the basis of a number of factors including academic merit, poverty, gender, minority status and state wise population distribution. Religion is not the only factor determinative of eligibility and instead, eligibility is determined based on a combination of all the factors. Hence, the class identified is based on all these factors and not on the basis of religion alone. Unlike cases of reservations for admission to institutions, there is no impact on students of the other communities.

(x) Alternatively Article 15(4) permits special provisions to be made for socially and educationally backward classes. srk 20 wp-84-08- final

Strong reliance is placed on the Sachar Committee report indicating social and educational backwardness of the Muslim community. The petitioners have not denied the averments made in para 15 of the affidavit-in-reply dated 20th July, 2010 of the Union of India in PIL No.84 of 2008 which indicates that the classes covered by the schemes are socially and educationally backward. (Reliance is placed on P. Rajendra v. State of Madras, AIR 1968 SC 1012 (Para 8).

xi) For judicial review of administrative action in such matters, the standard of strict scrutiny and suspect classification tests of the United States are not applicable in India (Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 209).

xii) Reliance is also placed on the judgment of Gujarat High Court in Vijay Harishchandra Patel v. Union of India dated 20th March, 2009.

DISCUSSION

14. At the outset, we may refer to the provisions of the National Commission for Minorities Act, 1992 which defines “Minority” for the purpose of Act as community notified as such by the Central Government. There is no dispute about the fact that the following five communities are notified as minority communities; there is also no dispute about the percentage of the minority population as under:-

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Hindus – 81.89%

a) Muslims – 13.40%

b) Christians – 2.00%

c) Sikhs – 1.90%

d) Buddhists – 0.80%

e) Parsis- negligible less than 0.01%)

Sachar Committee Report

15. We may now refer to the Report of the High Level Committee headed by Justice Rajender Sachar which was appointed by the Government of India (Prime Minister’s office) notification dated 9th March, 2005 to prepare a report on the social, economic and educational status of Muslim community in India. The terms of reference of the Committee were as under:- “(a) Obtain relevant information from department/agencies of the Central & State Governments and also conduct an intensive literature survey to identify published data, articles and research on relative social, economic and educational status of Muslims in India at the State, regional and district levels, to address, inter alia, the following questions:-

(i) In which States, Regions, Districts and Blocks do Muslims of India mostly live?

(ii) What is the geographical pattern of their economic activity, i.e. what do they mostly do for a living in various States, Regions and District?

(iii) What is their asset base & income levels relative to other groups across various States and Regions?

(iv) What is the level of their socio-economic development in terms of relevant indicators such as literacy rate, dropout srk 22 wp-84-08- final

rate, MMR, IMR etc? How does this compare with other communities in various States?

(v) What is their relative share in public & private sector employment? Does it vary across States and what is the pattern of such variation? Is the share in employment in proportion to their population in various States? If not, what are the hurdles?

(vi) What is the proportion of Other Backward Classes (OBCs) from the Muslim community in the total OBC population in various States? Are the Muslims OBCs listed in the comprehensive list of OBCs prepared by the National and State Backward Classes Commissions and adopted by the Central and State Governments for reservations for various purposes? What is the share of Muslim OBCs in the total public sector employment for OBCs in the Center and in various States in various years?

(vii) Does the Muslim community have adequate access to education & health services, municipal infrastructure, bank credit & other services provided by Government/public sector entities? How does this compare to access enjoyed by other communities in various States? What is the level of social infrastructure (Schools, health centers, ICDS centers etc.) located in areas of Muslim concentration in comparison to the general level of such infrastructure in various States?

(b) Consolidate, collate and analyse the above information/literature to identify areas of intervention by Government to address relevant issues relating to the social, economic and educational status of the Muslims community.”

(emphasis supplied)

16. We may now refer to the relevant findings given by the Sachar Committee in their Report dated 17th November, 2006. srk 23 wp-84-08- final

Muslim OBCs are not included in the state and central list of OBCs:

Though the State and Central Governments provide for reservation for OBCs, many Muslim OBCs have been excluded from the list of OBCs and therefore do not benefit from the incentives given to OBCs. Those Muslim OBCs which have been included in the lists of OBCs have been clubbed with middle castes of the majority community which have taken away all the benefits of representations in public employment or in educational institutes. Over the years this has resulted in a situation where the educational, economic and employment status of Muslim OBCs is much worse than that of Hindu OBCs and the non OBC Muslims, (Report – pages 200 to 216)

17. Sachar Committee highlights a number of reasons why the Muslim Community in India is socially and educationally backward. Those reasons and also the particulars of educational status of Muslims are as under:- i) Ghetoism

Fearing for their security, Muslims increasingly resort to living in ghettos across the country, especially in the communally sensitive towns and cities. By living together in concentrated pockets, Muslims have been neglected by municipal authorities and facilities such as water, sanitation, electricity, schools, hospitals, banks, ration shops and public transport are in short supply in these areas. Ghetoism therefore has an adverse effect on the social and educational status of Muslims (Sachar Committee Report – page 14)

ii) Identity related concerns:

Muslims carry the double burden of being labelled as “anti-national’ and as being “appeased” at the same time. This has a depressing effect on their psyche. This identity crisis combined with the apparent lack of commitment on the part of the Government often results in a perverse response even to well intended programmes. (Report- pages 11-13 and 25)

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iii) Security :

Communal tensions or any untoward incident in any part of the country is enough to make Muslims fear for their safety and security. The government inaction in bringing to book the perpetrators of communal violence has been a sore point. The lack of adequate Muslim presence in the police force accentuates this problem. (Report – pages 13-14)

iv) Poor Accessess to Schools (discussed in the subsequent paragraphs)

v) Non-availability of Urdu:

The non-availability of the Urdu language in schools is one of the reasons for the low educational status of Muslims. (Report – pages 78 and 79)

vi) Employment and economic conditions of Muslims:

a) Self employment is the main source of income of Muslims. (Report- page 136)

b) The share of workers engaged in street vending (especially without any fixed location) is highest amongst Muslims (Report- page 96)

c) The participation of Muslims is relatively lower in professional, technical, clerical and managerial work (Report- page 103)

d) Many Muslims are engaged in the unorganised sector of the economy and are worst affected by liberalisation. (Report- page 21)

e) The participation of Muslims in regular salaried jobs in much less than that of other socio-religious groups (Report – page 92)

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f) About 38% of Muslims in urban areas and 27% in rural areas live below the poverty line. (Report- page 176)

g) Muslim women are overwhelmingly self-employed in part due to discrimination in formal employment and also due to lack of education and technical skills. This results in low income levels amongst Muslim women and their seclusion from the rest of the community. (Report- page 22)

18. Educational Status of Muslims (Sachar Committee Report Chapter 4)

Muslims lag behind most other communities both at the school level as well as at the graduation/post-graduation level. Muslims have not been able to reap the benefits of planning and have gradually slipped further and further behind other socio-religious groups. (Report pages 15,84 and 85)

The following are a few important figures regarding the literacy and educational status of Muslims:

a) The literacy rate among Muslims is 59.1% which is below the national average of 65.1%. – (Report- page 52.

b) Muslim urban literacy levels are lower than all other socio- religious categories except SC/STs among both genders. (Report- page 53)

c) 25% of Muslim children between the ages of 6 to 14 years have either never attended school or have dropped out (Report – page 58)

d) The majority of Muslim children fail in their matriculation examination or drop out before that. (Report – page 244-245)

e) Less than 4% of Muslims are graduates or diploma holders compared to about 7% of the population aged 20 years and above. (Report – page 64)

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f) Only 1 out of every 25 students enrolled in Undergraduate courses is a Muslim and only 1 out of every 50 students in post-graduate courses is a Muslim (Report – page 68).

g) Muslims constitute only 1.3% of students studying in all courses in all IIMs in India and in absolute number, they were only 63 from out of 4743 (Report Page 68)

h) Muslim parents are not averse to modern or mainstream education for their children and do not necessarily prefer to send their children to madarsas.(Report – page 85)

19. The following analysis in Chapter 4 of the Report of this High Level Committee headed by Justice Sachar gives further insight into reasons for low levels of education in the Muslim community.

“4.1 Low Levels of Education (Report pages 15-16)

As mentioned earlier, education is an area of grave concern for the Muslim Community. The popular perception that religious conservatism among Muslims is a major factor for not accessing education is incorrect. The recognition of their educational backwardness is quite acute amongst a large section of Indian Muslims and they wish to rectify it urgently. There is a significant internal debate about how this should be done. Private minority institutions and Madarsas are seen as the only option available to the community for improving the educational status of the Muslim community. However, others find these to be questionable alternatives pursued by the State neglecting its own responsibility. Relying predominantly on Madarsa and denominational institutions for improving the educational status of Muslims was also seen by some as violating the spirit of the Constitution.

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Poverty- the Main Cause of Low levels of Education

High dropout rates among Muslim students are worrisome. As with many Indians, the main reason for educational backwardness of Muslims is abject poverty due to which children are forced to drop out after the first few classes. This is particularly true for Muslim girls. Little children are expected to provide for their families by working in karkhanas (small workshops), as domestic help or by looking after their siblings while their mothers go to work. It was felt that the incidence of child labour was much higher among Muslims as compared to other SRCs. Poor and illiterate parents cannot afford tuition for their children; nor can they provide the necessary support system at home which has become so essential a part of today’s educational system. The opportunity costs involved in sending children to school is also too high, making it difficult for parents to do so.

Low Perceived Returns from Education

Moreover, a community-specific factor for low educational achievement is that Muslims do not see education as necessarily translating into formal employment. The low representation of Muslims in public or private sector employment and the perception of discrimination in securing salaried jobs make them attach less importance to formal `secular’ education in comparison to other SRCs. At the same time the Community, especially the educated Muslim middle class, finds itself frustrated and alienated because of the lack of presence and opportunities in administrative, policy and political spaces.

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Poor Access to Schools

Many complained that only a few good quality schools, especially Government schools, are found in Muslim areas. The teacher pupil ratio is also high in these schools. This forces Muslim children to go to private schools, if they can afford to, or else to drop out. Schools beyond the primary level are few in Muslim localities. Exclusive girls’ schools are fewer, and are usually at a distance from Muslim localities. This has its repercussions because after any incident of communal violence parents pull out their girls from school fearing their security. Lack of hostel facilities is another limiting factor, especially for girls. This problem gets compounded by the fact that people are unwilling to give rooms on rent to Muslim students. In any case, spending on separate residential facilities, in the absence of hostels, is a great financial burden on Muslim families as rents for accommodation are very high.

School-based Factors

Government schools that do exist in Muslim neighbourhoods are merely centres of low quality education for the poor and marginalized. The poor quality of teaching, learning, absentee teachers, in turn, necessitate high cost inputs like private tuitions, particularly in the case of first generation learners from the Muslim community. This has a negative impact on retention and school completion. Thus, poverty again has a causal link with access to education among Muslims.”

(emphasis supplied)

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20. All that the petitioners have submitted in their written submissions against the Sachar Committee Report is as under:- (i) As per the report 41% Muslims are already availing benefits as OBC. (page 6, Sachar Committee Report).

(ii) According to the report there is insufficient data to know the situation of Muslims and additional data has to be collected. (page 26, Sachar Committee Report).

(iii) Muslims are far better as compared to Scheduled Castes and Scheduled Tribes. (page 53, Sachar Committee Report).

(iv) The Report is not based on data collected by the Sachar Committee but based on data collected by NSSO, 2001 (page 5-6. 51 Sachar Committee Report). The Committee has arrived to the conclusion of backwardness of Muslims by comparing their educational percentage with the national average of education. This national average includes the percentage of Christians, Parsis, Sikhs and Buddhists. These minorities whose percentage of education is included to find out national average has consequentially raised the national average since all these minorities are educationally highly advanced. The conclusions of Sachar Committee are based on skewed arithmetical computation.

(v) According to the NSSO, 2001 data, on which Sachar Committee relies, it is the majority which is lagging behind in education. The statistics show that majority are less educated than minorities in many states and union territories.

21. As far as the above objections are concerned, in the first place, it needs to be noted that the Central Government had relied on the Sachar Committee Report in the affidavit-in-reply which was filed as far back as in July, 2010 specifically indicating that the Sachar Committee Report had brought out the development deficit among Muslims and suggested policy interventions. The srk 30 wp-84-08- final

petitioners did not file any affidavit-in-rejoinder controverting the averments made in para 15 of the affidavit-in-reply that the classes covered by the scheme are socially and educationally backward. We, therefore, find considerable substance in the submission of Mr. Khambatta, learned Additional Solicitor General that the petitioners cannot now be permitted to challenge the findings of Sachar Committee. The decision of the Apex Court in P. Rajendran v. State of Madras, AIR 1968 SC 1012 (Para 8) supports such a submission.

Secondly, the contention that Muslims are better as compared to scheduled castes and scheduled tribes does not necessarily mean that Muslims are not a weaker section of the society.

Even if some of the Muslims are recognized as OBCs, the Sachar Committee was at pains to point out that those Muslim OBCs which have been included in the list of OBC have been clubbed with the middle castes of majority community which have taken away the benefits of representations in public employment and educational institutions and that, therefore, over the years, this has resulted in a situation where the educational, economic and employment status of Muslims OBCs is much worse than that of Hindu OBCs and non-OBC Muslims (Sachar Committee Report pages 202-216).

22. Apart from the above, the petitioners have challenged the impugned schemes by invoking the principles of strict scrutiny test and suspect legislation. Under the strict scrutiny test applied in the United States, an affirmative action by the State would only survive if the courts find compelling evidence that proves without doubt that the affirmative action is narrowly srk 31 wp-84-08- final

tailored and serves only the most compelling of interests. In other words, the affirmative action based on suspect classification may only be used after all other methods have been considered and found to be deficient.

23. However, in Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 209), the Supreme Court has not accepted the above test and has laid down the following principles:-

“209. The aforesaid principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by constitutional provisions and we have not applied the principles of “strict scrutiny” and “suspect legislation” and we have been following the doctrine that every legislation passed by Parliament is presumed to be constitutionally valid unless otherwise proved. We have repeatedly held that the American decisions are not strictly applicable to us and the very same principles of strict scrutiny and suspect legislation were sought to be applied and this Court rejected the same in Saurabh Chaudri v. Union of India. Speaking for the Bench, V.N. Khare, C.J., said : 2003(11) SCC 146.

“36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same.” srk 32 wp-84-08- final

24. Just as there is a presumption that every legislation passed by Parliament is constitutionally valid, unless otherwise proved, there is a presumption that a Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness and was not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the government is unreasonable or without public interest because there are a large number of policy considerations which must necessarily weigh with the government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. (Kasturi Lal LakshmiReddy v. State of J and K, (1980) 4 SCC 1, Para 14).

25. In view of the above authoritative pronouncements of the Supreme Court, it is clear that in absence of any material placed by the petitioners, this Court must proceed with a presumption in favour of the impugned Schemes that they are constitutionally valid. Even otherwise, the findings given in the Report of the High Level Committee headed by Justice Sachar, and particularly the facts and figures highlighted hereinabove and, the reasons for the social and educational backwardness of the Muslim community in India, fully justify the impugned affirmative action taken by the Government of India. srk 33 wp-84-08- final

Affirmative Action under Article 15(1) or Article 15(4)

26. Before proceeding further, we must first deal with the petitioners’ contention that Article 15(4) is a proviso or exception to Article 15(1) and that the impugned schemes are a special provision as contemplated by clause (4) of Article 15. Strong reliance is placed on M.R. Balaji v. State of Mysore, AIR 1963 SC 649. It is vehemently contended that the special provision is made for Muslims, because they are Muslims. Similarly, special provision is made for other minorities only because of their religion.

27. Articles 14, 15 and 16 are part of a string of constitutionally guaranteed rights that together form a comprehensive scheme to ensure equality in all spheres. While Article 14 lays down the broad doctrine of equality, Articles 15 and 16 apply this doctrine to sensitive areas that are historically and socially important. The decision of the Supreme Court in M.R.Balaji v. State of Mysore, AIR 1963 SC 649 strongly relied upon by the learned counsel for the petitioners in support of the contention that Article 15(4) has to be read as a proviso or exception to Article 15(1) has been overruled by the decision of the Apex Court in State of Kerala v. N.M. Thomas (AIR 1976 SC 490), Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 (paras 741, 742 and 168) and Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (para 146).

Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) in the sense that classification can be made even apart from Articles 15(4) and 16(4).

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28. Articles 14 and 15(1) of the Constitution permit reasonable classification, that is, classification between two classes of people treated differently, must be based upon intelligible differentia and the differentia must have rational nexus with the object sought to be achieved. Clause (4) of Article 15 would come in, when, and only when, a special provision is made for the benefit of one class at the cost of, or to the detriment of, another class. For instance, reservations for admissions to educational institutions or reservations in public employment would fall under Articles 15(4), 15(5), 16(4) and 16(5) respectively.

When a specified number of seats in professional courses like in medical colleges or engineering colleges are reserved for students belonging to particular categories like Scheduled Castes (7%) and Scheduled Tribes (14%), the other students are necessarily excluded from consideration for admission to such reserved seats and, therefore, there is direct adverse impact on students of other communities. Such reservations can, therefore, be justified only under Articles 15(4), 15(5), 16(4) and 16(5).

29. However, the impugned schemes are quite different from reservations for admissions to educational institutions or reservations in public employment.

The impugned schemes do not take away any benefits already being availed of by students belonging to the majority community or any other community. In other words, there is no adverse impact on the majority community because of the impugned schemes.

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30. It has come on record that the Government of India spent Rs.33,954 crores for school education and literacy for all the communities in the just concluded year i.e. 2010-2011. Out of this outlay, only Rs.446 crores (rounded off) was spent on pre-matric scholarships to students of minority communities (i.e. 1.3% only ). Similarly, out of Rs.15,402 crores spent by the Government of India on higher education in the year 2010-2011, only Rs.229 crores (rounded off) was spent by the Central Government on the merit-cum-means scholarships given to the students of minority communities for higher studies in professional and technical courses (i.e. only 1.5%) as against 18% population of the minority communities. Thus, the impugned scholarships/schemes do not adversely affect the students of the majority community.

31. The fact that for an overwhelming majority of students, whether belonging to the majority community or to minority communities, both school education and higher education is substantially subsidized, is not disputed. Hence, the substantial portion of the outlay of Rs.33,954 crores for school education plus Rs.15402 crores on higher education has gone to the majority community having population of 81.89% (rounded off to 82%). It is not even the petitioners’ case that the benefit obtained by the majority community students from total outlay of Rs.49,356 crores on education is less than 82% and in these proceedings, we are not required to embark upon an inquiry whether the benefits of these outlays have gone to the majority community to the extent of 83%, 85%, 90% or 95%.

In other words, when in 2010-11, the Central Government has spent Rs. 48,671 crores on education for all communities including the majority srk 36 wp-84-08- final

community with 82% population, and the benefits of these outlays have not trickled down to a substantial number of a minority community like Muslims with 13.40% population in the country, the petitioners are obviously not in a position to assert that expenditure of Rs.675 crores on the impugned scholarship schemes (1.4% of the total outlays on education) on all minority communities in the entire country with 18% of the total population has made any adverse impact on majority community students.

32. In Prafull Goradia v. Union of India, 2011 (2) SCC, 568, the challenge raised by the petitioner was noticed as under :- “3. The grievance of the petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the airfare of the pilgrims.”

The petitioner contended that his fundamental rights under Articles 14, 15 and 27 were violated.

The challenge on the basis of Article 27 was that, no person shall be compelled to pay any taxes, the proceeds of which are to be spent for the promotion or maintenance of any particular religion. In the context of this challenge, the Supreme Court has laid down the following principles :- “8. In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25% of the entire income tax collected in India was utilised for promoting or maintaining any particular religion or srk 37 wp-84-08- final

religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution.

10. In our opinion, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilised for any particular religion that Article 27 would be violated.

11. …………………….

12. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of government money is spent for a particular religion, there will be violation of Article 27.”

(emphasis supplied)

Paragraph 14 in the above judgment further indicates that the Apex Court turned down the challenge on the basis of Articles 14 and 15 as well, in the following words:-

“14. Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination.”

33. As has been pointed out by the Government of India through the written submissions, when the students of majority community are getting benefit of highly subsidized school education as well as higher education for which the Central Government provided total sum of Rs.49,356 crores and the total amount spent on both the impugned schemes in the year 2010-2011 was only srk 38 wp-84-08- final

Rs.675 crores i.e. less than 1.4%, it can hardly be said that students of the majority community are discriminated against. In view of this, we have not considered it necessary to wait for figures of the scholarships which were given by the Central Government and the State Government in the year 2010-2011 to all students, irrespective of the community to which they belonged. Some such scholarships are already referred to in the affidavit dated 20th July, 2010 on behalf of the Government of India as indicated in para 11 (V) hereinabove.

34. As indicated above, the schemes of scholarships to students belonging to the minority communities cannot be compared with reservation of seats in educational institutions or reservations in public employment. The impugned scholarship schemes must, therefore, be held to be covered by classification permissible under Articles 14 and 15(1) and not falling under Article 15(4) of the Constitution.

35. It is, however, vehemently contended on behalf of the petitioners that Article 15(1) prohibits the State from making any discrimination on the basis of religion and, therefore, the impugned schemes cannot stand the test of constitutional validity.

36. What Article 15(1) prohibits is discrimination only on the ground of religion, race, caste, sex, place of birth. Under the impugned schemes, the scholarships are granted on the basis of a number of factors including academic merit, poverty, gender, minority status and statewise population srk 39 wp-84-08- final

distribution and thus religion is not the only factor determinative of eligibility. Eligibility is determined based on a combination of all these factors.

37. A bare perusal of the Report of the High Level Committee headed by Justice Sachar clearly indicates that low level of social and educational backwardness of the Muslim community is not attributable only to poverty or only to religion. Ghettoisation, identity related concerns, security concerns etc. are social barriers peculiar to the Muslim community and not to the other poor strata of the society belonging to the majority community. Hence, when a meritorious but poor Muslim student is given a pre-matric scholarship for school education and a post matric scholarship for a professional or technical course, he does not get it merely because he is a Muslim, but because he has to face the social barriers indicated above, which the majority community students belonging to poor strata do not have to face. The very fact that out of every 25 students in under-graduate courses, only one is a Muslim, that out of every 50 students in post-graduate courses, only one is a Muslim and that out of every 100 students in IIMs, only one is a Muslim, substantiates in ample measure the Government submission that the benefits of various Government schemes for the underprivileged have not reached the disadvantaged sections of the minority communities.

38. In other words, as highlighted by Mr. Khambatta, learned Additional Solicitor General, some of the reasons for social and educational backwardness of minorities, most of whom belong to the poor strata of society, are unique to the minority communities. Majority community students, even belonging to the poor strata of society, do not have to face those social barriers like srk 40 wp-84-08- final

ghettoisation, identity related concerns and security concerns which are already indicated in paras 16 and 19 hereinabove. The differentia that poor students belonging to minority communities face social barriers which poor students belonging to the majority community do not have to face, is therefore, an intelligible differentia.

39. We, therefore, find considerable substance in the submission of Mr. Khambatta, learned Additional Solicitor General that when the main thrust of Eleventh Five Year Plan is for inclusive growth and when Article 46 of the Constitution requires the State, interalia, to promote with special care the educational and economic interests of the weaker sections of people, the above differentia have a rational nexus with the object of achieving inclusive growth.

40. In U.P. State Electricity Board and another v. Hari Shankar Jain and others, AIR 1979 SC 65, the Supreme Court has held that since the Directive Principles of State Policy are fundamental in the governance of the country, Article 37 also enjoins upon the Court to keep these principles in mind while interpreting laws. The findings in Report of the High Level Committee headed by Justice Sachar certainly support the stand of the Central Government that the Muslim community is a weaker section of people in India. Hence, the impugned scholarship schemes are made in the process of implementing the Directive Principle embodied in Article 46 of the Constitution.

41. In view of the above discussion, we do not find any fault with either of the impugned schemes, on the touchstones of Articles 14, 15(1), 15(4) and 27 of the Constitution.

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42. In view of the above finding that the impugned scholarship schemes giving incentives only, are based on reasonable clarification supported by Articles 14 and 15(1), and in view of our finding that since the impugned schemes do not have any adverse impact on the other communities and, therefore, Article 15(4) does not come into play, we find it unnecessary to give any finding on the petitioners’ contention that minority communities per se cannot be treated as socially and educationally backward classes falling under Article 15(4) of the Constitution nor do we think it necessary to discuss various judgments cited by the learned counsel on either side on the contentions arising from Article 15(4) of the Constitution which are now pending consideration before the Supreme Court in the appeals arising from the judgments of the Andhra Pradesh High Court rendered by a five Judge Bench and by a Seven Judge Bench on the question of reservations for a minority community.

43. We also find no merit in the petitioners’ contention that minority status should be decided at State level (and not at the national level). The judgments relied upon by the learned Counsel for the petitioners dealt with such a contention –

(i) in the context of district-wise reservations under Article 15(4) and the Supreme Court held that such reservation could not have been provided by the State at the district level; or

(ii) in the context of Article 30, where determination of a linguistic minority can only be done on a State by State basis, rather than on the basis of the country as a whole because States have been divided on linguistic lines.

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In the present case, since we have found that the impugned schemes merely provide for incentives under Article 15(1) to meritorious poor students of communities specified as minorities under the National Commission for Minorities Act, 1992, no further discussion is necessary.

44. The learned counsel for the petitioners would, however, submit that though there is some material in the form of Sachar Committee Report, it is only in respect of Muslims and that, no material is placed on record regarding the other minority communities. It is also contended on the basis of NSSO Data 2001 that at the national level the percentage of education of Christians, Sikhs and Buddhist is higher than the majority.

45. The contention deserves to be rejected for more than one reason. The percentage of population of the communities is as under:- Community Percentage

Hindus 81.89%

Muslims 13.40%

Christians 2.00%

Sikhs 1.90%

Buddhists 0.80%

Parsis less than 0.01%

When so much material in the form of Sachar Committee Report covers 74% of the minority population, the Government schemes cannot be struck down for absence of material on record for the remaining minority population, more particularly when the Court can take judicial notice of the fact that a large number of Buddhists and Christians in this country are those who converted themselves from Scheduled srk 43 wp-84-08- final

Castes or Scheduled Tribes to Buddhism or Christianity. Their social and educational backwardness and the social barriers they face cannot be lost sight of merely because of their conversion to minority religions. Moreover, the economic criterion by way of income limit of Rs.1 lakh (for pre matric scholarships) and Rs. 2.50 lakhs (for scholarships for higher studies) ensures that the benefits are available only to the deprived sections of these minority communities.

46. As regards Sikhs and Parsis, the learned counsel for the petitioners submitted that most of them are affluent and that there is no reason to consider these communities as socially and educationally backward classes, or needing any scholarship schemes.

47. The number of scholarships offered will indicate how negligible is the number of such scholarships given to other minority communities, being Sikhs and Parsis.

Name of community Total number of

scholarships

in

Maharashtra

(i) Muslims 1084 (ii) Buddhists 617 (iii) Christians 112 (iv) Sikhs 23 (v) Parsis 4 2040

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48. Even if there is substance in the petitioners’ contention, those few sikhs and parsis who belong to poor strata of society must be finding it all the more socially traumatic to suffer from serious economic handicaps when their affluent brethren are able to afford schooling in premier schools and higher education in Ivy League institutions. The number of graduate/post-graduate scholarships offered to Sikhs in the entire State of Maharashtra is only 23 out of 2040 and such scholarships offered to Parsis in the entire State of Maharashtra is only 4 out of 2040. In fact, the number of scholarships offered to Parsis in the entire country is 7 (seven) out of total 20,000 merit cum means scholarships for all minorities.

49. Looking to the above figures also, we would have been justified in closing the debate on alleged arbitrariness in making the scholarship schemes available to minority communities other than the Muslim community. But we would not like to rest our conclusions on the logic of numbers only, because the impugned schemes also deserve to be upheld on the basis of “UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” that was promulgated by United Nations in 1992. The relevant portion of the Preamble to the said Declaration and Articles 4(5) and 5(1) of the Declaration read as under:-

“Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live.

Emphasizing that the constant promotion and realization of the rights of persons belonging to national or ethnic, religious and linguistic minorities, as an integral part of the development of society as a whole srk 45 wp-84-08- final

and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and States.”

Article 4(5) – “States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.”

Article 5(1) – “National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.”

50. The view that we are taking is also supported by the decision of Gujarat High Court in Vijay Harischandra Patel v. The Union of India and another (Special Civil Application No.2245 of 2008 decided on 20th March, 2009). The Division Bench of Gujarat High Court speaking through Hon’ble Chief Justice Mr. K.S. Radhakrishnan, (as His Lordship then was), examined interalia, the same scholarship schemes which are challenged in the present petitions. The Court held as under:-

“We are, therefore, of the considered view that the funds used to minimise inequalities among minority communities by adopting various social and welfare activities like public safety, health, slum development, improvising the deficiencies in civic amenities, economic opportunities, improving standard of education, skill and entrepreneurship development, employment opportunities, eradication of poverty etc., would no way violate the constitutional principles of equality or affect any of the fundamental rights guaranteed to the members of the other communities.”

(emphasis supplied)

51. We are in complete agreement with the aforesaid view of the Division Bench of Gujarat High Court and we have no hesitation in holding that the srk 46 wp-84-08- final

impugned scholarship schemes for students of minority communities whose parents/guardians income does not exceed Rs.1 lakh (for pre-matric scholarship) or Rs.2.50 lakh (for professional/technical education) and who are required to obtain at least 50% marks in the previous examination are constitutionally valid and do not suffer from any infirmity under Articles 14, 15(1), 15(4) and 27 of the Constitution.

52. It was lastly contended on behalf of the petitioners that even if the scheme is constitutionally valid, it may be directed to be extended to all the communities.

53. The learned Solicitor General has invited our attention to the affidavit in reply indicating various scholarships available to students of all communities. Apart from that, there is nothing to prevent the State from extending the list of beneficiaries under any scheme, as and when the economic resources of the State permit such extension, but the incentives granted to meritorious poor students of the minority communities cannot be faulted with.

54. As per the settled legal position, the State can implement reforms or extend benefits in stages. In Javed and others v. State of Haryana and others, AIR 2003 SC 3057 (Para 17), the Supreme Court has enunciated the following principle:-

“17. The implementation of policy decision in a phased manner is suggestive neither of arbitrariness nor of discrimination. In Lalit srk 47 wp-84-08- final

Narayan Mishra Institute of Economic Development and Social Change, Patna etc. v. State of Bihar and others, (1988) 2 SCC 433, the policy of nationalizing educational institutes was sought to be implemented in a phased manner. This Court held that all the institutions cannot be taken over at a time and merely because the beginning was made with one institute, it could not complain that it was singled out and, therefore, Article 14 was violated. Observations of this Court in Pannalal Bansilal Pitti and others v. State of A.P. and another, (1996) 2 SCC 498, are apposite. In a pluralist society like India, people having faiths in different religions, different beliefs and tenets, have peculiar problems of their own. “A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”

55. In view of the above discussion, the petitions are dismissed.

56. We place on record our appreciation for the valuable assistance rendered by Mr. Aniruddha Rajput, learned counsel for the petitioner, Mr. D.J. Khambatta, learned Additional Solicitor General with Mr. Rui Rodrigues, learned counsel for the Union of India and Mr. Khandeparkar for the Intervenor.

CHIEF JUSTICE

D.G. KARNIK, J.

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