Chasing that bank of votes again

The following text is extracted from the expanded edition of Arun Shourie’s 'Falling over backwards'.

Written by Arun Shourie | New Delhi | Published:January 25, 2012 4:05 pm

13 May 2004: The Congress Government with Y S Reddy as Chief Minister is sworn-in as the new Government of Andhra Pradesh.

2 June 2004: The Chief Secretary holds a meeting. Secretaries of various departments attend. The Chief Secretary announces that the Government has decided to provide reservations for Muslims.

4 June 2004: So as to include them in the list of Other Backward Classes and thereby give them reservations in educational institutions and public employment under Articles 15(4) and 16(4),the Andhra Government issues an order directing a department of its own,the Commissionerate of Minority Welfare to submit a report recording the social,economic and educational backwardness of Muslims.

5 July 2004: The Commissionerate duly submits the report that the Government has asked for. It recommends that Muslims be given 5 per cent reservations in both educational institutions and public employment.

7 July 2004: The Government issues an order—5 per cent reservations are granted to the Muslim community.

The Government’s order is challenged in the Andhra Pradesh High Court. The challenge is heard by a Bench of five judges. The Court strikes down the Government Order as wholly unconstitutional. The Court comes to this conclusion on several grounds.

Before a group can be accorded reservations in educational institutions under Article 15,it has to be established that the group is ‘socially and educationally backward.’ And before the group can be granted reservations in public employment under Article 16(4),the authorities have to establish both — that the group is ‘backward’ and that it is inadequately represented in governmental employment. The Government has decreed reservations for the entire Muslim community,but the Muslims are not a homogenous group: there are caste-like stratifications among them,the High Court noted,observing:

Non-Hindu religions like Islam,Christianity,and Sikh,do not recognize caste as such,but the existence of caste like social stratification among the Muslims is well recognized that in spite of egalitarian philosophy of Islam,which opposes all kinds of discriminations,almost all types of caste groups have emerged in the Muslims. The Muslims have developed different caste-groups at different places,but they call themselves as Jamat or Biradari and do not use the term Jat or caste e.g. Nadaf or Mansoori Jamat or Biradari,but in actual practice,they possess practically all the traits of caste structure such as endogamy,stratification,occupational monopoly,dress-code and their own different Mosques.’

Therefore,there can be a case for identifying specific groups from among the Muslims as being backward and thereby according reservations for them,the High Court said. But what has the Government and its Commissionerate done? This is how the High Court sets out what it finds:

The process of identification of Muslims as a group as socially backward by the Commissionerate of Minorities Welfare is totally vitiated since it did not determine any specific criteria for the purposes of identifying the Backward Classes and applied the same in order to find out as to whether the Muslims qualify to categorise them as socially backward and as well as backward for the purposes of Articles 15(4) and 16(4). The Commissionerate acted in undue haste. The Commissionerate failed to undertake any serious investigation and enquiry as is required before identifying the Muslim Community as a socially Backward Class. In the absence of laying down the criteria for ascertaining the backwardness,the entire report is to be treated as an exercise in futility. The approach adopted by the authority is improper and invalid. In the absence of any such finding as to the social backwardness,the Muslims cannot be classified as Backward Classes either for the purposes of Article 15(4) or Article 16(4) of the Constitution of India.

When,in the face of differentia within a religious community,the required investigation is not undertaken,and the entire community is proclaimed to be backward and reservations are decreed for that religious community,two fatal consequences follow:

* Unequals — the socially,educationally and economically advanced sections among Muslims,and those among them who are backward — get treated as equals. And equals—say,the advanced sections among non-Muslims and those among Muslims — get treated unequally: the advanced among non-Muslims do not get reservations and those among Muslims do. This strikes at the very root of the fundamental principle enshrined in Articles 14,15(1) and 16(1),the principle of equality which,the Supreme Court has held times without number,is an essential ingredient of the Basic Structure of the Constitution.

* As no effort has been made to take account of differentiations within the Muslim community and as reservations have been made available to the entire community as such,the decision — of giving reservations to an entire religious community when in fact there is inequality between groups of adherents — is clearly based on religion per se,and this is expressly prohibited by the Constitution under Articles 15(1) and 16(2).

To not exclude the better off in a religious group,the ‘creamy layer’ as the Supreme Court had characterized them in Indra Sawhney,has the same effect that not doing so has in the case of a caste,and,in the light of judgments of the Supreme Court,is ‘totally illegal’,the High Court observes. ‘Such an illegality offending the root of the Constitution cannot be allowed to be perpetuated even by constitutional amendment.’

Next,under the A.P. Commission for Backward Classes Act,which has been on the statute book since 1993,the Government can add a group to or take away a group from the list of Backward Classes only after the case for doing so has been examined by the state’s Backward Classes Commission constituted under that Act. It turned out that the state had not sought the advice of the Commission at all in regard to the backwardness or otherwise of Muslims. Nor had the Commission examined the matter at all. Two earlier Commissions—the Anantaraman Commission and the Murlidhara Rao Commission—had examined the issue,and had come to the conclusion that as a class,Muslims are not socially and educationally backward,and that,except for a few sects,the other sects of Muslims enjoy equal status with followers of other religions. Those few sects that did suffer from social and educational backwardness—Dudekula,Mehtar,etc.—the Commissions had said should be included in the list of Backward Classes,and given reservations. This had been done.

The decision of the Government is ‘entirely based’ on the report of its own department,the Commissionerate,the High Court noted. And what kind of a report had this Commissionerate produced? This what the High Court found on examination:

* ‘The report on hand,to say the least,is somewhat peculiar . . . The Commissionerate report does not contain the details of any investigation or enquiry as regards the social backwardness of Muslim Community,’ the High Court noted. ‘There is no finding recorded by the Commissionerate as to the social backwardness of the community.’

* ‘The report,in our considered opinion,’ the High Court held,‘is vitiated for the reason of not taking relevant factors into consideration. It is also vitiated for the reason of non-application of mind. This Court cannot help but observe that the Commissionerate acted in undue haste in submitting the report. The Commissionerate failed to realise the complex nature of investigation and enquiry that was required to be made. No scientific or reasoned investigation or enquiry has been made. In the absence of laying down the criteria for ascertaining the backwardness,the entire report is to be treated as an exercise in futility. The approach adopted by the authority is improper and invalid.’

The Government,as we just noted,was also duty-bound under Article 16(4) to determine that the Muslims as a community are inadequately represented in governmental services. This fact also cannot be ascertained mechanically for the expression that has been used in Article 16 is not ‘proportional representation’ but ‘inadequate representation’. Hence,one cannot just look up the proportion that a group forms of the total population and compare that with the proportion of posts that its members have in governmental services. On this aspect also,the High Court concluded,the Government had been totally remiss in what it was required to do by the Constitution and the relevant judgments of the Supreme Court:

* ‘In the instant case,there is no material that was available with the Government to form its opinion,which may be a purely subjective process to arrive at any conclusion that the Muslim Community is not adequately represented in the services of the State. The data collected from Kurnool District [just one of 23 districts in the state and incorporated in the report in no manner reveals inadequate representation of Muslim Community in the services of the state. There were no material and circumstances on which the Government could have formed the opinion as to the adequacy of representation of Muslim Community in the services of the state. In fact,the impugned G.O. [Government Order does not reflect any formation of opinion as to the adequacy of representation. The G.O.,is therefore,vitiated on the ground of non-application of mind.’

Finally,the High Court noted that reservations under Articles 15(4) and 16(4) in Andhra already totaled 46 per cent. With another 5 per cent now being reserved for Muslims,the ceiling of 50 per cent was being breached. The state has not been able to explain the compelling reasons on account of which this ceiling should be allowed to be breached,the High Court concluded.

The response

As resounding a slap on the face of the Government as one could imagine. And how did the Government respond? It was headed by a committed secularist,remember,by a Chief Minister who was even then known as a go-getter—a reputation that would get reinforced in more ways than one in the ensuing years.

The High Court had given its judgment in Muralidhar Rao on 21 September 2004. On 18 November 2004,the Government wrote to the Andhra Pradesh Backward Classes Commission to examine the question of the backwardness of the Muslim community for assessing their eligibility for being given reservations in educational institutions and public employment. The Commission gave its report—we shall soon learn what kind of a report this was—on 14 June 2005. Within the week,on 20 June 2005,the Congress Government issued an Ordinance—again reserving 5 per cent seats in educational institutions and governmental jobs for Muslims.

The Ordinance was challenged in the Andhra High Court. When the judges gathered in Court to deliver their judgment,they were told that the Ordinance on which they had been hearing arguments and on which they were about to pronounce judgment had lapsed. It had been replaced by an Act. The Court saw that there was no material change in the provisions,and merely noted in its judgment that wherever the word ‘Ordinance’ occurs,it shall be taken to refer to the Act. Delivered by a five judge Bench,the second judgment of the High Court—in B. Archana Reddy v State of Andhra Pradesh—was an even tighter slap than the first one. The Ordinance/Act was struck down as unconstitutional and violative of Articles 15(4) and 16(4),the two Articles under which it had ostensibly made the reservations.

An even tighter slap

The first feature that made the Ordinance and the Act wholly unconstitutional was precisely the one that had made them so attractive to a Government so eager to pander to a vote-bank—the boon that it was conferring was based wholly and solely on religion! From the title of the Act—A.P. Reservation of Seats in the Educational Institutions and of Appointments or posts in the Public Services under the State to Muslim Community Act,2005—to its Preamble,down to individual provisions,every bit of the text was designed to leave no doubt that it was intended for giving reservations to the Muslims as a religious community solely because it was the Muslim community. The classification of those who would get the reservations that were being provided and those who would not was based only on religion—something that is explicitly prohibited by Articles 14,15(1),15(2),as well as 16(1) and 16(2).

In any event,this single feature—of basing the discrimination,in this case between Muslims and non-Muslims,only on the ground of religion—was the one on which the High Court judges came down first.

The Ordinance is ‘religion specific’,the judges noted. It ‘imposes illegitimate,discriminatory and grossly burdensome impact on citizens,on those belonging to the existing notified Backward Classes and on those who are not members of Backward Classes,as well,’ they noted. ‘The inference is therefore compelling that the entirety of the state action manifested in the provisions of the Ordinance,is a crude camouflage to shield what is clearly a naked and exclusively religion based programme of reservation in educational institutions and public employment,’ they observed. The classification—of those who will get reservations and those who would not—is based exclusively on religion,they held.

In this round,the Government had indeed referred the question to the Backward Classes Commission for examination. But the Commission had just done a pro forma job. The Commission’s report ought to have been of the standard of a commanding performance,the Court observed quoting the petitioners with approval,rather than a performance on command. This was made manifest by several facts.

The Commission had not published in advance the criteria on which it would be assessing backwardness—this alone would have given those who had objections or suggestions a chance to assist the Commission with their views. ‘The prior non-publication of criteria and data collected by the B.C. Commission renders the report of the B.C. Commission illegal and contrary to provisions of B.C. Commission Act and principles of fairness.’

In fact,whereas ‘an expert body like the Backward Classes Commission has to necessarily evolve absolutely relevant criteria for the purpose of caste test,occupation test and means test,’ in the case at hand,‘the B.C. Commission did not evolve any criteria for identifying social backwardness and did not apply the three tests in a scientific and objective manner.’

And such criteria as it used,and such data-gathering as it did were inappropriate and worse. So that it may determine whether a group is eligible for reservations,the Commission had to identify those groups among Muslims who were socially,educationally and economically backward—only such groups can be given benefit of reservations. As had been the case with the Commissionerate in the first round,in this round the Backward Classes Commission too had ‘totally ignored the existence of castes and communities and proceeded as if the entire Muslim community is a homogenous group without any visible divisions among the community. The entire approach therefore suffers from a fundamental flaw.’ Treating Muslims of Andhra as a homogenous group thereby papering over the internal differentia among them,‘constitutes a fatal flaw in the conceptual foundation,adopted methodology and social survey of the Commission’s exercise and introduces an irremediable infirmity to its conclusions and recommendations.’

And the Court gave a telling analogy to pronounce what the Commission had done as ‘grotesque and unconstitutional’. It noted,

‘Classes of Muslims already recognized and identified as backward classes constitute a dissimilar and distinct class from those Muslims who have not been so identified. Conceptually treating such dissimilar classes as one violates the established principle of classification,a doctrine underwriting the equality injunctions mandated by Articles 14-16 of Constitution. The equivalence of the Commission’s endeavour and exercise,in the Hindu context,would be to take the entire Hindu collectivity including the several castes,groups and classes including the notified Scheduled Castes and Scheduled Tribes and other Backward Classes,and including the indisputable forward castes among the Hindus,like say the Brahmins,proceeding to survey,collect data,apply the criteria to such data and thereafter characterize the entire Hindu population including Brahmins as a backward class. Such an exercise would compellingly require to be characterized as grotesque and unconstitutional. This is what the exercise of the Commission is,but for the difference that the Commission’s exercise involved the entirety of the Muslim collective.’

The consequence is fatal,the High Court noted: ‘In treating the identified Backward Classes of Muslims in the State of Andhra Pradesh and the other Muslims as an integral homogeneous social class,as the basis for its entire exercise,the Commission was led into a fatal error from which there is no redemption. As a consequence its exercise is rendered an exercise in futility. For this error its report including the Recommendations therein must perish as must the Ordinance based exclusively on the Recommendations of the Commission.’

Several of the so-called criteria that the Commission had deployed—occupation,extent of poverty,access to medical services,low life expectancy,etc.—the High Court held,were neither germane to nor peculiar to the Muslims. Nor had the Commission made any effort to establish any causal relationship between these traits and belief in Islam or of belonging to the Muslim community. As such,the criteria that the Commission had used were ‘defective,unscientific,unreasonable and absurd.’

In regard to several other indices and data that the Commission had brandished,examination showed that its conclusions in instance after instance were ‘based on no relevant evidence or material,’ that for them ‘there is neither data nor details of the survey, incorporated on record,’ that ‘the Commission had no basis,in concept or fact to support the conclusion that Muslims are socially backward,’ that ‘the Commission’s conclusions based on a composition of erroneous assumptions,are therefore unsustainable…’

The Commission had not just pronounced all Muslims of Andhra to be backward,it had also declared that none of the existing backward classes have attained levels of advancement that warrant any revision of the existing reservations—this it had done manifestly so as to make out the case for exceeding the 50 per cent ceiling. ‘This conclusion,’ the Court said of this business of no backward group having advanced,is ‘extravagant and unfounded,’ it is based on no reference,no evidence,is perverse,invalid and is accordingly declared.

In fact,the situation had been worse. Far from identifying and differentiating those groups among Muslims in Andhra who really were backward,in the reliance it placed on some data,the Commission had not even differentiated Muslims in Andhra from Muslims in the rest of the country! For instance,to show that a proportion of Muslims in Andhra were unemployed,the Commission had deployed what turned out to be aggregate National Sample Survey data for the country as a whole!

And in other instances,the Commission had deliberately shut its eyes to data that could be seen from a mile to be intrinsic to the question it was examining. To show that Muslims as a whole were educationally backward,it had used data regarding enrollment in only the general educational institutions—it had totally shut out data about students enrolled in minority institutions,when these are legion in the state!

‘From the text and texture of the report of the Commission,’ the High Court was compelled to conclude,‘it is apparent that the Commission considered that it had to record a conclusion regardless of whether time and organizational constraints permit a degree of exercise relevant to the goal obligated by the Constitution and the provisions of the 1993 Act.’

Such was the ‘performance on command’ that the backward Classes Commission of the state had turned in—and the state had justified its decision solely by the report of this Commission. But,the Court noted,the Government had gone one better!

While the Commission recommended 5% of reservation to all Muslims including those distinct classes/ groups of Muslims already included as Backward Classes (Laddaf,Dudekula etc),the Ordinance provided 5% reservation only in favour of Muslims excluding those already included in the list of Backward Classes. The existing Groups of Backward Classes A,B,C and D remain undisturbed.

As a result,Muslims would get reservations for more than the 5 per cent that the Ordinance/Act had provided!!

For these,and other reasons of the kind we encountered in the case of the first round,the 5-judge Bench of the High Court struck down the Ordinance/Act as wholly violative of the Constitution and wholly contrary to what the Supreme Court had laid down in its decisions.

The High Court handed down this stinging rebuke on 7 November 2005. The Government requested that it be given leave to appeal to the Supreme Court. Leave was granted.

That leave petition remains pending to this day. But how could that mere fact come in the way of that go-getter’s Government?

The third slap

17 April 2007: The Andhra Government asked the Backward Classes Commission to do the exercise again,and,this time,identify the socially and educationally backward groups among Muslims. Incidentally,in making that request the Government quoted the wrong section of the relevant Act!

18 May 2007: Even as the Commission was ostensibly carrying out the exercise,the Government appointed a retired IAS officer,P.S. Krishnan as Advisor and asked him to identify the backwards among Muslims.

11 June 2007: A month had not passed,and Krishnan submitted his report to the Government.

11 June 2007: The same day,the Government sent Krishnan’s report to the Backward Classes Commission.

23 to 26 June 2007: The Commission declared that it would conduct its own state-wide survey during these—all of three—days. Even on its own telling,this state-wide survey was to be done in—the easily accessible areas,chiefly towns—of just six of the state’s 23 districts.

29 June 2007: The Commission completed ‘the collection of the data,compilation of the survey material and discussion on the collected material.’

2 July 2007: That is,within two days of completing the collection,compilation and discussion of the data,the Commission handed its 204-page report to the Government!

6 July 2007: The Government issued an Ordinance—once again decreeing 5 per cent reservations for Muslims in educational institutions and in government services.

13 August 2007: The Andhra legislature passed the corresponding Act—The Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act,2007.

There was one manifest improvement! While the title of the 2005 Act had stated that the reservations were being made for the ‘Muslim Community,’ the 2007 Act maintained these were for ‘Socially and Educationally Backward Classes of Muslims’!

The Act was challenged in the High Court. The case was heard by a seven judge Bench. By a majority judgment,the Court struck down the Act as ‘unsustainable’. Apart from the other reasons which the Court set out in detail,and which traversed the grounds that we have already encountered,there were others. Among these was the basic one: the Act had proceeded to classify beneficiaries and non-beneficiaries in an unconstitutional way—that is,on the basis of religion only. To take just two instances,examination showed that the identification of backward classes among Muslims was both irrational and unsustainable,and thereby ‘exclusively religion specific’; and,second,in a give-away,the Act had prescribed benefits for ‘other Muslim groups’.

Apart from the fact that the Act was unconstitutional for this basic reason,the High Court drew attention to another consequence of this religion-specific identification of beneficiaries. The point is best considered by reading what the Court itself said:

If a person,who is not a Muslim and who belongs to a forward caste embraces Islam,then the question would arise as to in which group he would fall. If he does not belong to any of the groups specifically narrated in the Schedule appended to the impugned Act,he would be included in ‘other Muslim groups’ i.e. he would be in Item No. 15; but as he would not be in groups which have already been referred to in Item No. 15 (i.e. the excluded communities),he would be a member of ‘other Muslim groups’ and would be eligible for the reservation provided he is not a member of a creamy layer. In such an event,in our opinion,anyone can avail of the benefit of reservation under the impugned Act and that would be against the spirit of secularism and in equal measure subversive of the purposes for which the 2007 Act has been enacted as well. This is a significant aspect which has not been considered at all while enacting the impugned Act and this would have disastrous consequences. Not only unscrupulous persons embracing Islam would get the benefit of reservations,but that would result in depletion of opportunities of enjoying reservations by those Muslim groups who are otherwise entitled to the benefit of reservation in pursuance of the impugned enactment.

The other reason on account of which the judgment declared the Act to be unsustainable was that it was based exclusively on the report of the Backward Classes Commission,and this report,it turned out,was even more of a farce than the previous so-called reports on which the Government had ostensibly based its largesse.

To begin with,even the Advocate General admitted that ‘in certain cases there was perhaps no justification for including certain Muslim groups in the list of Backward Classes,except for the reason that their Hindu counterparts were already included as SEBCs,and for this reason,the Commission,without any survey to ascertain their way of living,level of education and economic condition,had recommended certain groups to be included in the list of Backward Classes.’

And what of the cases in which the Commission had actually conducted a survey?

The Court found,to begin with,that in the overwhelming proportion of cases,the Commission had in fact not conducted any survey at all. It had just reproduced passages and narrative from the study by the Anthropological Survey of India and that report of P.S. Krishnan! And even in doing so,it had both mis-stated facts,and worse.

In regard to a group—‘Atchukatlavandlu (Muslims)’—the Commission stated that it had conducted a survey in Kadapa and Adilabad districts of the state. But the Anthropological Survey study on which it was relying contained no discussion about this group of Muslims! What the latter had described was the Hindu counterparts of this group!

In regard to another group—‘Faqir/Fhakir Budbudki’—the Commission had stated that they reside in certain areas,which it had listed,of the Rayalseema Region. But the staff of the Commission had conducted their survey of this group in the Telangana Region! And that survey,did not establish backwardness to boot.

As regards another group—‘Siddi’—the only justification that the Commission could come up with for their being included in the list of backwards was that a group with the same name in Gujarat was recognized as a Scheduled Tribe,and one in Karnataka of that same name had been included in that state’s list of backwards!

In regard to another group—‘Garadi’—the Commission had indeed conducted a survey. It had surveyed all of seven households comprising 40 persons in one district, Medak! And,surprise of surprises,‘Of those who had been surveyed,100 per cent of them had stated that they were not given any discriminatory treatment by the society and they were also not in their traditional occupation. Moreover,they had all submitted that they were treated as normal social beings by the other members of the society.’ ‘In spite of the above facts gathered by the Commission,’ the High Court observed,‘it had recommended that “Garadi” community be treated as socially and educationally backward.’ ‘It is also pertinent to note,’ the High Court continued,‘that the total population of the Garadi community was not known…’

In regard to the ‘Gosangi’ community which too the Commission had anointed as backward,‘data from only one family had been gathered by the Commission in Nizamabad district…’

Similarly,the Commission had recommended the inclusion of ‘Chakketakare community’ among backwards on the strength of having surveyed six households comprising 29 persons in one district.

As for the ‘Guddi Eluguvallu’ whom also the Commission declared should be recognized as backward,‘no survey whatsoever had been conducted and no data had been collected by the Commission.’

‘Likewise,’ the High Court noted in conclusion,‘with regard to other communities also,we find that the Commission had not conducted the survey objectively to justify its recommendations.’ The Commission just could not have conducted a survey in the extremely short time between its being asked to examine the matter,and the date on which it submitted its report,the High Court noted. As already pointed out,the records of the Commission themselves showed that some of the so-called data had been gathered by it on 28 and 29 June 2007. And within two days the Commission had not just analyzed the data,and had discussions on it. The Commission had completed and submitted a written report covering 204 pages!

After a detailed analysis of the so-called survey that the Commission had claimed to have conducted,the judges concluded that the Commission had failed to evolve and spell out proper and relevant criteria for identifying those who were socially and educationally backward,and for those who were inadequately represented in public employment; that it had failed to obtain even the figures of total population of the groups it was ostensibly identifying; that it had failed to utilize any scientific and statistically rational method of sampling the groups—the size of the sample,the locations where it would be conducted,etc.; that it had failed to apply uniformly such criteria or even standards as it had alighted upon; and that,instead,it had relied on the study of the Anthropological Survey of India which ‘had no relevance or nexus with the affirmation action/reservation under Articles 15(4) and 16(4); that ‘no material’ had been placed before the Court to prove that the classifications on which the Act was based had any nexus with the policy and objectives that had to be achieved; that,in the absence of such material,the state Government ‘has utterly failed to discharge its onus of proof to establish that the reservations are for socially and educationally Backward Classes of citizens and that the enactment is based on sufficient material to support the classification . . .’ And hence that the investigation carried out by the Commission ‘is not sufficient,and the report submitted by it is not based on real facts,data or analysis and is without any proper survey…’, and,therefore,that the report should be held to be mechanical,and perfunctory in nature and to have been prepared without application of mind . . .

A portent

Incidentally,before we move on we have to note one feature of the judgments in this case as it presages what is to come. In a case such as this,they were bound to examine the basis on which the legislature and the Government had acted,the judges pointed out. They had to subject the provisions of the law and the basis on which benefits under it had been assigned to ‘rigorous’ or ‘strict’ scrutiny,they pointed out,citing a number of Supreme Court judgments and even weightier reasons. One judge demurred. Such scrutiny is not warranted,he maintained. When the legislature passes an Act,we must proceed on the presumption of constitutional validity of the enactment. The others pointed out that ‘All the judgments touching upon reservations consistently applied exacting scrutiny. In Indra Sawhney’s case… the Hon’ble Supreme Court analysed the Mandal Report minutely,which,in our view,exemplifies application of rigorous and exacting standard of scrutiny.’ They agreed that,yes,in the normal course,there should be a presumption of constitutionality,‘However,such a presumption of constitutionality of a statute is not available if it can be shown that facially [sic. the law or the surrounding circumstances on which the classification is based did not warrant such a classification and the statute made an invidious discrimination among citizens similarly situated . . .’ And when the constitutionality is challenged and a prima facie case is made out regarding the defectiveness of the statute,the burden of establishing constitutionality shifts to the state . . .

Both the fact that the classification in the Act was based on religion only,as well as the cavernous lacunae in the survey on which the list of backwards had been drawn up established the infirmity of the Act prima facie. But that judge’s response was astonishing.

As for the identification of groups being religion-specific—something that is expressly forbidden by the Constitution—the judge held,that is no flaw,in fact it is justice being done at last! Here is how he put his conclusion:

When the state of A.P.,holds the view that coverage under Articles 15 and 16 of the Constitution in respect of certain social groups among Muslims have [sic. been missed until the impugned Act even while the same coverage in respect of other religious communities have [sic. been in existence since long time,the Court cannot accept any challenge to the Act on the ground that it is religion-specific. On the contrary,the impugned Act is an act of delayed rectification of injustice done to them all along and extending justice to the now included social groups who have been identified not on the basis of their religion but on the parameters of social and educational backwardness…

And as for the gross infirmities in the ‘survey’,as for the Commission having relied—to the extent of having reproduced verbatim—reports that had no nexus with the question it had to examine and the identification it had to carry out,the judge was equally large-hearted! He declared,

Irrespective of any inadequacies or deficiencies in the APCBC [Andhra Pradesh Commission for Backward Classes report and other materials

In the light of what we have seen were the facts regarding the report of the Commission and its ‘survey’,how tender are the words the judge had chosen,‘inadequacies or deficiencies’!

once a legislation is enacted the judiciary has to take into account the principle of presumption of constitutional validity of any legislation under the Indian Constitution and set it aside only if there is anything in the legislation which strikes the conscience and strikes the eye as totally unreasonable. This is not the position in the present case.

If only such large-hearted judges were an exception.

The second,and even more ominous portent came from the way the matter moved in the Supreme Court itself.

The Andhra Pradesh Government had accepted the judgment of the High Court in the first round. In the second round,when the High Court struck the Ordinance and Act down as unconstitutional,it sought leave to appeal. As we noted above,the appeal was granted.

The Government went to the Supreme Court and asked that the judgment be reviewed and in the interim its operation be stayed. A three-judge Bench of the Supreme Court,headed by the Chief Justice,directed that,in view of the substantial questions of public importance that are involved,the matter be placed before a Constitution Bench. It turned down the Andhra Government’s request to stay the operation of the judgment of the High Court. From the order of the Supreme Court,you will see the sort of specious arguments that are advanced.

The Government said,in effect,identification of social and educational backwardness is a precondition only when it comes to giving reservations in educational institutions under Article 15(4). Article 16(4) allows us to make reservations in public employment for classes that are not adequately represented. So,we should be allowed to proceed at least with the latter,and the High Court judgment should be stayed.

Of course,Article 16(4) lays down two conditions: not just that the classes for whom reservations are being made in government services are inadequately represented but also that they are ‘backward’. Hence,determination that the classes for whom reservations are being made are backward is as essential in the context of Article 16(4) as it is in regard to reservations being made under Article 15(4). The Supreme Court focused on another telling point. The Ordinance which was in question itself stated the objective for which the reservations were being made. In doing so it referred to “social,educational and economic backwardness” of the members of the Muslim community residing in Andhra. Hence,identification of the groups that are actually backward was of the very essence of the exercise in this instance also.

“Having heard the learned counsel and having perused the Constitutional provisions and the report [of the Andhra Pradesh Commission for Backward Classes as also the impugned judgment,we are not inclined to stay the operation of the impugned judgment and make operational a law which has been invalidated by the High Court,as an interim measure.”

That was the second round — the appeal of the Andhra Government has remained where it was,pending before the Supreme Court for the last five years.

It is the third round in which the portentous thing happened. As we have seen,the High Court had again struck down the 2007 Act as unsustainable and unconstitutional. The Andhra Government went to the Supreme Court in appeal-it requested that the High Court judgment be reviewed,and that pending the review,it be stayed. The Bench headed by the then Chief Justice K.G. Balakrishnan,did the opposite of what the Bench headed by the then Chief Justice of the same Supreme Court had done earlier. It referred the case to a Constitution Bench all right,but,even as it did so-that is,even as it concluded that the constitutionality of the Act had to be determined and “several constitutional issues are involved” — it stayed the judgment of the High Court: thereby,to use the words of the earlier Bench,making operational a law which the High Court had found to be wholly unconstitutional. “As an interim measure,” it said,the 4 per cent reservations that have been given to Muslims listed in the Schedule of the Act shall continue-save that they shall not be extended to “Other Muslim groups.” “This is a temporary measure,” it said,“till the matter is decided.’

The order of the Supreme Court concluded with the words,“These matters are referred to the Constitution Bench to be listed in the 2nd week of August 2010 along with C.A. 7513/2005 for appropriate directions.”

We are in January 2012 as I write this — hence,a two-year-long foot-in-the-door! And the argument will be that,reservations having been available to Muslims now for over two years and their having got accustomed to availing of them,reversing course now will inflict great injustice and lead to massive resentment and backlash…

For the present,it will be enough to bear two points in mind.

First,The prohibition against basing largesse and classification on religion alone is so stern and so patent,it has been reiterated by the courts so very often that one is left wondering as to what the Andhra Government was doing,and that too repeatedly. Was it just being audacious and proud—‘I am the State. Who can come in the way of what I decree?’ Or was it being cleverer than we imagine? Was it the case that it did not really care whether or not it lived up to its promise of giving reservations to Muslims and,therefore,did not care that it was going about the matter in a way that was certain to be struck down by the courts?

Second,the same question arises with the new announcements that have been made on behalf of the Congress now. The occasion speaks volumes: elections in U.P. are round the corner,and the Congress is wooing the Muslims again. Similarly,while the largesse will be camouflaged in the well-known ways,the fact is under the promise the Congress has made nine per cent reservations are to be set aside for the Muslims. That is clearly based on religion—something explicitly prohibited by the Constitution. Is the Party again counting on amenable judges? Or is cynicism in command again? Who cares if the courts strike down the promise later? By that time those who have to be fooled,would have been fooled; what is to be won,would have been won.

(Extracted from the expanded edition of Arun Shourie’s FALLING OVER BACKWARDS,that is being published by HarperCollins in April,2012)

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