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C/WPPIL/20/2011 CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

WRIT PETITION (PIL) NO. 20 of 2011

With


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/-

With

HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/-

With

HONOURABLE MR.JUSTICE RAVI R.TRIPATHI

With

HONOURABLE MR.JUSTICE AKIL KURESHI Sd/-

and

HONOURABLE MR.JUSTICE J.B.PARDIWALA

================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

YES2 To be referred to the Reporter or not ?

YES3 Whether their Lordships wish to see the fair copy of the judgment ?

NO4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

NO===============================================================

=

ADAM B CHAKI....Applicant(s)

Versus

GOVERNMENT OF INDIA THROUGH SECRETARY & 3....Opponent(s)================================================================

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Appearance:

MR EKRAMA QURESHI and MR HASHIM QURESHI, ADVOCATES for the Applicant.MR PARAS KUHAD, ADDITIONAL SOLICITOR GENERAL with MR PS CHAMPANERI, ASSISTANT SOLICITOR GENERAL with MR HRIDAY BUCH, SENIOR CENTRAL GOVERNMENT COUNSEL with MR IQBAL A SHAIKH with MS SWATI VIJAYERGIYA for Respondent No.1.

MR KAMAL B TRIVEDI, ADVOCATE GENERAL with MR PK JANI, GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for Respondent No.2.MR YATIN OZA, SENIOR ADVOCATE with MS SRUSHTI A THULA, ADVOCATE for Respondent Nos.3-4.

MR YH MUCHHALA, SENIOR ADVOCATE with MR MTM HAKIM, ADVOCATES for Intervenors.MR DUSHYANT DAVE, SENIOR ADVOCATE with MR ANAND YAGNIK, ADVOCATE for Intervenors.

WP (PIL) No.191 of 2012

Appearance :MR SHALIN MEHTA, SENIOR ADOVDATE with MS SRUSHTI A THULA, ADVOCATE for the applicants. MR PARAS KUHAD, ADDITIONAL SOLICITOR GENERAL with MR PS CHAMPANERI, ASSTT. SOLICITOR GENERAL with MR HRIDAY BUCH, SENIOR CENTRAL GOVERNMENT COUNSEL, with MR IQBAL A SHAIKH with MS SWATI VIJAYERGIYA for Respondent No.1.MR KAMAL B TRIVEDI, ADVOCATE GENERAL WITH MR PK JANI, GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for Respondent No.2.

MR YH MUCHHALA, SENIOR ADVOCATE with MR MTM HAKIM, ADVOCATES for Intervenors.MR DUSHYANT DAVE, SENIOR ADVOCATE with MR ANAND YAGNIK, ADVOCATE for Intervenors.

==========================================================

CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAIandHONOURABLE MR.JUSTICE D.H.WAGHELAandHONOURABLE MR.JUSTICE RAVI R.TRIPATHIandHONOURABLE MR.JUSTICE AKIL KURESHIandHONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 15/02/2013

CAV JUDGEMNT

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI

FOR SELF AND FOR

HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI

HONOURABLE MR.JUSTICE D.H.WAGHELA)

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11. This reference involves the question of validity of Prematric

Scholarship Scheme (奏he Schemefor short) framed by the Government

of India. Such a scheme was formulated as part of Prime Minister 奏

New 15 Point Programme for the welfare of Minorities. The Scheme

was made effective from 1st April 2008. Those students who had

secured not less than 50 per cent marks in the previous final

examination and the annual income of whose parents/guardians from

all sources did not exceed Rs.1 lac were eligible for the scholarship.

The scholarship was made available to the students of minorities as

notified under section 2(c) of the National Commission for Minorities

Act, 1992. 30 per cent of the scholarship was earmarked for girl

students. Since the scholarships that would be made available in a

year was fixed, for interse selection of all eligible students, weightage

was to be given to poverty rather than marks. Funding of the

scholarships would be shared by the Central and State Governments in

the ratio of 75% as to 25% whereas in case of Union Territories, 100

per cent funding was to be provided by the Central Government.

2The said scheme came to be challenged before this Court in Special

Civil Application No.2245 of 2008 filed by one Shri Vijay H. Patel in the

nature of public interest litigation. The grievance of the petitioner

therein was that diverting national resources in favour of minority

communities was discriminatory, arbitrary and violative of the

constitutional provisions. The Court traced the origin of the Scheme

which was framed bearing in mind the findings of the High Level

Committee constituted by the Government of India under notification

dated 9th March 2005 headed by Justice Rajender Sachar (popularly

known as Sachar Committee Report), which was constituted to prepare

a comprehensive report on the socioeconomic and educational status

of Muslim community in India. The petition was dismissed holding that

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the Scheme does not suffer from any constitutional invalidity as the

funds used to minimise inequalities among minority communities by

adopting various social and welfare activities like public safety, health,

slum development, improving the deficiencies in civic amenities,

economic opportunities, improving standard of education, skill and

entrepreneurship development, employment opportunity, eradication of

poverty, etc. would in no way violate the constitutional principles of

equality or affect any of the fundamental rights guaranteed to the

members of the other communities. For coming to such a conclusion,

the Division Bench made following observations :

“Welfare of the people is ultimate goal of the State actions. State if finds

that a minority community is not equally placed with the majority

community, socially or economically, can take steps to minimise

inequalities and bring that community at par with those communities

which are otherwise well placed in the social fabrics of the society.

Principal aim of socialist State is to eliminate inequalities in income,

status and standard of life. Concept of equality contemplates

minimizing the inequality in income and eliminating inequality in

status, facilities, and opportunities for which it is at times necessary to

adopt some affirmative actions. Government have decided to open

more branches of public sector banks in Muslim concentrated areas and

also to take measures to promote microfinance amongst minorities and

special literacy drive has also been undertaken in the areas where

substantial population of minorities reside. Decision to establish Block

Institutes of Teacher Education (BITEs) to impart preservice and in

service training to primary, upper primary and secondary level teachers

in such areas would no way affect our Constitutional objectives. On the

other hand, actions of the State to minimise inequality in income and

status and the endeavour to eliminate poverty and to provide

opportunities in employment would only uphold constitutional

objectives. Sachar Committee report reveals that Muslim community

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concentrated areas, with poor infrastructure facilities, affect their access

to basic services like civil amenities, education, health facilities etc.

Government on the basis of the report took steps to identify the

minorities concentrated areas which are backward and also initiated

steps to improve deficiency in civil amenities and socio economic

opportunities and monitor the implementation of a comprehensive

programme for skill and entrepreneurship development among the

Muslim community.

xxxx

xxxx

Government should, however, observe complete religious neutrality.

Religious tolerance and fraternity are basic features and postulates of

the Constitution and no action of the Government should directly or

impliedly offends the religious sentiments or freedom or conscience of

other religions. Madarsas have played an important role in providing

religious education to the Muslim population. Policy envisages a

mechanism whereby Madarsas are linked with a Higher Secondary

School Board, so that the students wanting to shift to a regular

mainstream education can also do so after having passed from

Madarsas. Further it is also stipulated that recognition of degrees from

Madarsas for eligibility in competitive examinations, desirable.

Government would ensure that the aid or services rendered by it, be

secular in nature and not utilised by any institution for inculcating

religion or for the advancement of religious teaching, lest it may violate

religious neutrality to be maintained by the Government. State would

while implementing those programmes, ensure that the funds be

utilised only for social welfare activities and not directly or indirectly

used for promotion of any religious activities or advancement of

religious teaching of a particular minority community.”

2For the time being, so far as the constitutional validity of the Scheme

was concerned, the matter rested there. Since despite such declaration,

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the State Government did not implement the Scheme, a public interest

petition Writ Petition (PIL) No.20 of 2011 was filed praying for a

direction in the nature of mandamus or any other appropriate writ

against the State of Gujarat for implementing the said Scheme.

3

4Before the said public interest petition could be decided by this Court,

another public interest petition being Writ Petition (PIL) No.191 of

2012 came to be filed. Petitioner No.1 therein belongs to the

Scheduled Caste category and petitioner No.2 belongs to Other

Backward Class (OBC) category. They have challenged the validity of

the Scheme. They have prayed for a declaration that the said Scheme

is discriminatory being violative of Article 14 of the Constitution. In

the petition, they have pleaded that the members of Scheduled Castes

and OBC communities are a disadvantaged lot, despite which the

Government of India has not framed any scheme of scholarship for the

students of such communities. This, according to them, violates the

equality clause enshrined in Article 14 of the Constitution.

5

6When these petitions were pending, this very Scheme along with

another scheme of the Government of India for scholarships to Post

Matriculation Course for Minorities came up for consideration before

the Bombay High Court in the case of Sanjay Gajanan Punalekar v.

Union of India, in Writ Petition No.84 of 2008. A Division Bench of

the Bombay High Court, by judgment dated 6th June 2011, upheld the

vires of the Scheme. The Court held as under:

“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 impugned scholarship schemes for students of minority

communities whose parents/guardians income does not exceed Rs.1

lakh (for prematric scholarship) or Rs.2.50 lakh (for professional/

technical education) and who are required to obtain at least 50% marks

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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.”

In the process the Court observed as under :

“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 prematric 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 undergraduate courses, only

one is a Muslim, that out of every 50 students in postgraduate 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 ghettoisation, identity related

concerns and security concerns which are already indicated in paras 16

and 19 hereinabove. The differentia that poor students belonging to

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minority communities face social barriers which poor students

belonging to the majority community do not have to face, is therefore,

an intelligible differentia.

39We, 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

41Both the public interest petitions filed before this High Court came

up for consideration before a Division Bench. Judgments of this Court

in the case of Vijay H. Patel (supra) as well as by the Bombay High

Court in the case of Sanjiv Gajanan Punalekar (supra) were brought to

the notice of the Court. The Bench, however, found itself unable to

accept the same view. The Bench was of the opinion that the Scheme

was violative of Article 15 of the Constitution, and in exercise of writ

jurisdiction under Article 226 of the Constitution, the court would not

issue a writ or direction upon the State to violate constitutional

provisions. The Court placed heavy reliance on a decision of the

Supreme Court in the case of State of Rajasthan v. Thakur Pratap

Singh, AIR 1960 SC 1208. It was a case wherein the State of

Rajasthan had issued a notification levying cost from the inhabitants

of certain areas declared as disturbed area for deployment of additional

police force. This was done pursuant to the powers under section 15 of

the Police Act which authorizes the State Government for proclamation

to notify to declare any area as a disturbed area. This, in turn, would

authorize the Inspector General of Police to employ additional force.

Subsection (3) of section 15 of the Police Act provided that subject to

the provisions of subsection (5), the cost of such additional police

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force shall be borne by the inhabitants of such disturbed area. Sub

section (5) of section 15 of the Police Act in turn provided that it shall

be lawful for the State Government to exempt any persons or class or

section of such inhabitants from liability to bear any portion of such

cost.

6.1The notification issued by the State of Rajasthan which was under

challenge had, while ordering collection of cost of such additional

police force from the inhabitants of the disturbed area exempted the

Harijan and Muslim inhabitants of the said area. The Constitution

Bench of the Supreme Court considered the validity of such a

notification and held that the same was contrary to the provisions of

Article 15(1) of the Constitution on the ground that it was not even the

case of the State that there were no persons belonging to other

communities who were peaceloving and law abiding. In that view of

the matter, it was observed that the notification discriminated against

law abiding members of other communities and in favour of Muslim

and Harijan communities.

7Basing heavy reliance on the said decision, the Division Bench, in its

detailed judgment dated 8.10.2012, found itself unable to accept the

view of this Court in the case of Vijay H. Patel (supra) or that of the

Bombay High Court in the case of Sanjay Gajanan Punalekar (supra).

The Bench was of the opinion that the decision of the Supreme Court

in the case of Thakur Pratap Singh (supra) and the ratio laid down

therein was not considered in the aforementioned judgments. It was

observed in the referring judgment as under :

“30. The phrase any person appearing in Article 14 or the expression

any citizen appearing in Article 15 having been interpreted by the

constitutional Bench in the case of State of Rajasthan (supra), as even a

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single person or citizen respectively, any interpretation taking the view

that word any means 奏ubstantial number of persons or citizensmust be

rejected so long as the said decision is not varied or upset by any Larger

Bench decision of the Apex Court.

31. It is now a settled law, that a writcourt in exercise of power

conferred under Article 226 of the Constitution of India should not issue

any writ or pass direction upon the State which violates the

Constitutional provision. In our opinion, to pass a direction upon the

State to implement the scheme as suggested by Mr. Qureshi will

amount to passing direction upon the State Government to violate

Article 15(1) of the Constitution. Similarly, a writcourt cannot pass a

direction upon the Union of India to implement the scheme to all

children as it is within its province to take such a decision. But this

much this court can hold that the scheme in question can be upheld

only if it is made applicable to all the citizen of this country irrespective

of the religion they belong.”

In the ultimate analysis, the Court was of the opinion that the Scheme

which provided scholarship only to the students of minority

communities to the exclusion of other communities was discriminatory.

In this respect, it is observed as under :

“34.1 Let us now consider a situation where two citizens of this

country, one belonging to any of those five religions and the other, not

belonging to those five religions, due to their misfortune are reduced to

the lowest ebb of poverty and distress and earning their livelihood as

streetbeggars, having the same meagre amount of annual income

which is much less than Rs.1 lakh. Both the aforesaid persons have a

son each and they want that their respective son should complete

education so that he is not forced to undergo a life of misery. The son of

the person not belonging to any of those five religions has secured 90%

marks in the last final examination whereas the son of the other, who

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belongs to one of those five religions, has obtained 60% marks.

According to the Scheme in question, the son of the former one who

does not belong to any of those five religions will be deprived of the

benefit only on the ground that he does not belong to those five

religions whereas the son of the other person, who belongs to one of

those five religions, will be entitled to the benefit only because he

belongs to one of those five religions and no other ground although he

is less meritorious than the former and the socio economic condition of

his father is the same as that of the father of the former. The Scheme in

question, therefore, clearly discriminates against a citizen only on the

ground of religion.”

Since the previous Division Bench in the case of Vijay H. Patel (supra)

upheld the validity of the Scheme, the Court referred the question of

validity of the Scheme to a Larger Bench. The questions formulated by

the Division Bench are as follows:

“36. We, therefore, formulate the questions to be referred as

follows:

1Whether the scheme in question violates Article 15(1) of the

Constitution and a direction should be given to the State

Government to implement the scheme.

23Whether the decision of the Division Bench of this court in Special

Civil Application No.2245 of 2008 (Vijay Harishchandra Patel vs.

Union of India) disposed on March 20, 2010 lays down the correct

proposition that the scheme in question does not violate Article 15

of the Constitution of India.”

8The questions framed have two basic parameters. First portion of the

first question refers to the constitutional validity of the Scheme.

Though the precise question framed refers to the possible violation of

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Article 15(1) of the Constitution, we have considered the validity of

the Scheme as a whole and not confined our scrutiny to clause (1) of

Article 15 alone since obviously that was not the intention of the

referring Bench. The second aspect of the reference which emerges

from later portion of question No.1 framed by the referring Bench

pertains to the issue whether even if the Scheme is constitutionally

valid, should direction be issued to the State Government to implement

the same. This aspect emerges from the opposition of the State to the

prayers made by the petitioner in Writ Petition (PIL) No.20 of 2011

seeking direction of the Court to implement the Scheme. The stand of

the State is that the court cannot issue a direction to the State

Government to implement the Scheme since the Union Government

cannot issue a binding direction to the State Government in form of

an executive instruction particularly when implementation of such a

decision involves expenditure by the State Government. Second

question pertaining to the correctness of the decision of this Court in

the case of Vijay H. Patel (supra), the moment we answer the question

of the validity of the same would stand answered.

9

10We may, briefly, record the stand of different parties to these

proceedings.

6.19.1 In Writ Petition No.20 of 2011, the petitioner 奏case is that

despite validity of the said Scheme having been upheld by this Court,

the State Government has refused to implement the same. This

amounts to depriving the rights of underprivileged minority

communities. After several years of formation of the Scheme, the same

is yet to be implemented in the State. The apprehension is that if the

funds allocated by the Union of India are not utilized by the State, the

same may be diverted to other States thereby causing grave injustice

to deserving students of the State.

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6.2

6.39.2In the subsequent public interest petition filed by Shri Rajesh G.

Solanki and another, the case of the petitioners is that the Scheme

which provides scholarships for minority students is violative of Article

14 of the Constitution. As noted earlier, petitioner No.1 belongs to

Scheduled Caste community and petitioner No.2 belongs to OBC

community. They contend that the scheme which excludes other

underprivileged sections of the society is unconstitutional. Though in

the petition itself, major thrust is on noninclusion of Scheduled

Caste students within the purview of the Scheme, before us, learned

counsel appearing for such petitioners had contended that non

inclusion of all the communities irrespective of race, caste or religion,

would be violative of Article 15 of the Constitution. It was argued that

the scheme which separates students of minority communities for a

special treatment causes hostile discrimination against the excluded

class of students, which includes not only Schedule Castes, Scheduled

Tribes and OBCs, but also other nonminority religious groups and

citizens of the country. Their stand was that the Scheme which

classifies minorities into one group is in conflict with clause (1) of

Article 15 of the Constitution. It was submitted that clause (4) of

Article 15 alone would permit the State to make provisions for any

socially and educationally backward classes. The stand was that

minority communities in general cannot be categorized as socially

and educationally backward classes. In any case, before any such

categorization can be made, detailed examination of their social and

educational backwardness must be undertaken. This can be done only

in terms of Article 340 of the Constitution, which, in turn, can be done

only by setting up a Commission at the State level by the State

Government. In the present case, no such systematic exercise was

undertaken either by the Union of India or the State Government.

There is no declaration made including all minorities into the socially

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and educationally backward classes. In that view of the matter,

granting any special benefits in favour of members of these

communities is wholly impermissible under Articles 15(1) and 15(4)

of the Constitution.

6.4

6.59.3 The stand of the Union of India, in both these cases, is that the

Scheme is constitutionally valid. It makes special provisions for the

underprivileged class of the society. The classification made is

reasonable and does not offend Articles 14 or 15(1) of the Constitution.

Through several affidavits filed by the Union of India in these petitions

and written submissions presented previously and during the course of

arguments before us, the stand that has been adopted by the Union of

India is that the Scheme grants prematric scholarship to students

belonging to the minority communities as defined in section 2(c) of the

National Commission for Minorities Act, 1992. The Scheme was

introduced with effect from 1.4.2008, as part of the Prime Minister 奏

15 Point Programme for upliftment of the minorities. The Scheme was

introduced as a consequence of the report by the Sachar Committee.

The Scheme is implemented all over India except in the States of

Gujarat, Arunachal Pradesh and Lakshadeep. Since the inception of the

Scheme till 31.12.2012, total number of scholarships awarded across

the country comes to 1,74,01,844/. Through oral submissions, it was

strongly urged on behalf of the Union of India that the Scheme in

question is in no way violative of any of the constitutional provisions.

It was submitted that after detailed examination of the socioeconomic

conditions of the minorities and in particular Muslim community of the

country, it was decided that to uplift this underprivileged class of the

society, scholarships should be made available to the students at pre

matric level and postmatric level. Such classification cannot be said to

be either unreasonable or amounting to hostile discrimination. It was

urged that clause (4) of Article 15 is not the only source of power for

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giving benefits to the underprivileged class of the society. Article 14

read with Article 15(1) permits reasonable classification in favour of

any class or section of the society. What Article 15(1) prohibits is

making special provisions only on the basis of religion and in the

present case, religion was not the sole or even the predominant factor.

Several factors were taken into consideration before framing the

Scheme. In the alternative, it was submitted that even on the anvil of

Article 15(4) of the Constitution, the Union had the power to make

special provisions for upliftment of the minority communities. It was

submitted that merely because such communities were not formally

declared as socially and educationally backward classes would not in

any manner, make it impermissible for the Union of India to make

special provisions for their betterment.

On behalf of the Union of India, it was also pointed out that

there are several scholarship schemes launched by the Union of India

for various underprivileged classes of the society, which include,

besides others, Centrally sponsored scheme for prematric and post

matric scholarships for Scheduled Caste students, prematric and post

matric scholarship schemes for OBC students, prematric scholarship

for the children of those engaged in unclean occupation and national

scholarship for the persons with disabilities.

6.1

6.29.4 The State Government, on the other hand, has taken a

stand that the Scheme is unconstitutional. It was argued at length by

the learned Advocate General that no special provisions can be made

only in favour of religious minorities since the same would be violative

of Articles 15(1) and 15(4) of the Constitution. It was the firm stand

of the State Government projected before us through the learned

Advocate General that the Scheme suffers from hostile discrimination

inasmuch as the same excludes the students of all communities other

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than notified minorities from the purview of scholarship. This,

according to the learned Advocate General, was wholly impermissible

under Article 15(1) of the Constitution. It was also his stand that the

Scheme would be hit by Article 15(4) of the Constitution and would

in no manner be saved under Article 15(1) of the Constitution.

9.5 Before framing the Scheme, the Union of India had called for the

response from the State Government. In response to the same, the

State Government had on 4th March 2008, conveyed as under:

“Hon. Chief Minister of Gujarat had in his speech to the National

Developmental Council held on 19th December 2007 reiterated the

stand that various minority welfare programmes focus on earmarking

certain outlays solemnly based on the criteria of minority community

status. This is required to be reviewed in the interest of maintaining

the social fabric of the nation. Such discrimination amongst the

eligible beneficiaries for flow of funds, based on minority status will not

help the cause of taking the people of India together on the path of

development. The correct criteria for flow of funds for various schemes

and programmes should be based on principles of equity by taking only

socio economic criteria alone and leaving the implementation of such

schemes to the States. The State Government is not in favour of Pre

matric scholarship where 25% state share is envisaged since this scheme

is not based on the principles of equity. The State Government is also of

the opinion that Central Government need not start any scheme for the

minority welfare where state 奏share is envisaged.”

Thus, the stand of the State Government was that the State is not in

favour of such a scheme since the Scheme is not based on the principle

of equality. In other words, the State Government did not approve of

any such scheme which gave scholarship only to minority community

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students.

6.19.6 In Writ Petition No.20 of 2011, the State has filed its replies. In

one such reply affidavit dated 26th April 2011, the stand of the State

further clarified is that in the first year, the Central Government had

allowed 10460 scholarships under the said scheme for the year 2008

09. The same was revised from time to time until the year 201011,

when the number was increased to 52260. For such purpose, the

Central Government announced grant of Rs.9.82 crores which would

require the State to bear the burden of Rs.4 crores for one year. It is

pointed out that the State already has various welfare schemes for

several categories of students. Noticeably, the State already has a pre

matric scholarship for minority students since the year 1979 under

which eligible student is granted Rs.150 per annum for standard 5 to 7

and Rs.300 per annum for standard 8 to 10. It is pointed out that the

income limit for availing such scheme is Rs.20,000/ per annum for

rural areas and Rs.25,000/ per annum for urban areas.

In the said affidavit, it is further stated that the State Government

is not desirous of implementing the Central Scheme. Since there would

be as many as 6 lacs eligible students as per the income eligibility

prescribed under the Central Scheme and since as per the fund

allocation only 52,260 students would be covered, there would be

heartburning amongst those students who are left out. It is further

stated that :

“11. It is further respectfully stated that as aforesaid, the Scheme is

extended only to 52,260 students as against the total number of

approximately 6,00,000 eligible students belonging to the minority

communities. In that event, it will be the responsibility of the State

Government to extend the benefit to the remaining students which is

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likely to incur the financial expenditure to the tune of Rs.168 crores

excluding to other scholarship schemes prevailing in the State of

Gujarat.”

It is also stated that if the criteria laid down by the Central Scheme is

applied in the scholarship schemes of the State Government, there

would be additional burden on the exchequer to the tune of

Rs.2091.38 crores per annum. In the said affidavit, it is further

pointed out that in the year 201011, as many as 2.25 lacs students

have received the benefits of the State Scheme for Prematric

scholarship for minority students. It is, therefore, stated that :

“14. Owing to the aforesaid difficulties, the State Government would

not like to discriminate amongst the students belonging to the minority

communities since the Scheme in question floated by the Ministry of

Minority Affairs can be extended only to an extent of limited students

i.e. 52,260 in the State Government as against the 6,00,000 eligible

students falling within the income criteria of Rs.1,00,000/ per annum.”

In a further affidavit dated 14th November 2011, filed by Shri

Harish Sheth, I/c. Joint Secretary, Social Justice and Empowerment

Department, reiterated the State 奏stand that giving scholarship only to

52,260 students of minority community out of approximately 6 lacs

eligible students would lead to heartburning amongst the left out

minority students. It is further stated as under :

“4. With reference to para 8.1.1., I respectfully say that the stand taken

by State Government in this regard is same today as it was in the letter

dated 4.3.2008, which reflects the policy matter of the State. I reiterate

and respectfully say that the State Government is implementing the Pre

matric Scholarship Scheme for Minorities as State Funded Scheme and

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that the same scheme is implemented for Economically Backward Class

(EBC), Socially and Economically Backward Class (SEBC), Scheduled

Castes (SC) and Scheduled Tribes (ST) as stated in para and thus, it

does not create any discrimination amongst any community. I

respectfully say that the amount of scholarship and income criteria for

Prematric Scholarship for students of Minorities, EBC and SEBC are

common and as aforesaid, the same do not lead to any discrimination.

Yet another affidavit came to be filed on 29 th January 2013 on

behalf of the State Government. In that affidavit, the State has outlined

the steps taken for declaring certain castes and communities as

socially and educationally backward through various Commissions

appointed by the State Government starting with Baxi Commission. It

is pointed out that even presently, a Commission headed by Justice

Sugnaben Bhatt is in office. It is clarified that the income criteria for

availing the benefit of the State for prematric scholarship schemes has

been revised to Rs.27,000/ and Rs.36,000/ for rural and urban areas

respectively with effect from 1.4.2012.

9.7 It can thus be seen that in reply to the Union of India

inviting State 奏response to the Prematric minority scholarship Scheme,

the stand adopted was that discriminating amongst the eligible

beneficiaries for flow of funds based on minority status will not help

the cause of taking the people of India together on the path of

development. In the replies that were filed before this Court, however,

the main thrust of the State 奏opposition was that there is already a pre

matric scholarship in force for minorities as framed by the State

Government since the year 1979. The Central Scheme for such

purpose envisages much higher income criteria of Rs.1 lac. On the

basis of such criteria, there would be close to 6 lacs minority students

eligible for the scholarships. Since the scholarship is made available

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only for 52260 students, there would be heartburning amongst the

left out students of the minority communities. The State would be

forced to increase the income limits for its own schemes which would

create huge financial burden of recurring nature. Significantly, in the

affidavits filed by the State Government, there is no stand taken that

the Central Scheme is unconstitutional and violative of Article 15(1) or

any other constitutional provisions.

10. On the basis of such material and the different stands adopted

by the rival parties, we need to judge first and foremost the

constitutional validity of the Scheme.

11. The Constitution of India was framed by the Constituent

Assembly after lengthy debates. Many of the members of the

Constituent Assembly themselves were actively and directly involved

in the freedom struggle. They, therefore, brought in framing the

Constitution their experience of movement for liberation from the

colonial rule. The Constitution was framed at the time when the

memories of violation of human and fundamental rights at the hands of

colonial rulers were fresh. So was fresh in the mind of the people the

Nazi excesses during the time of Second World War. Declaration of

separate chapter of fundamental rights with special focus on equality

and personal liberties was thus inevitable. The framers of the

Constitution, thus, dedicated a whole chapter (Part III) for

fundamental rights. While doing so, important provisions were made

in Part IV pertaining to Directive Principles of State Policy, making

detailed provisions laying down a roadmap for bringing about a

peaceful social revolution through Constitutional means and for the

Governments to bear in mind those principles while framing future

governmental policies. Article 37 contained in Part IV provides that

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the provisions contained in that part shall not be enforceable by any

court, but it makes it clear that the principles laid down therein are

nevertheless fundamental in the governance of the country and it shall

be the duty of the State to apply those principles in making laws.

Interplay of fundamental rights and directive principles of state policy

have occupied the minds of the highest Court of the country on several

occasions.

12. Before adverting to some of the fundamental rights having direct

application in the discussion on hand, we may recall that the

Preamble to the Constitution of India contains a solemn resolve of the

people of India to secure to all its citizens social, economic and

political justice and also equality of status and opportunity. Article 14,

as is well known, is a fundamental right guaranteeing equality before

law and the equal protection of the laws within the territory of India.

Article 15 prohibits discrimination on grounds of religion, race, caste,

sex or place of birth and reads as under:

“15. Prohibition of discrimination on grounds of religion, race, caste,

sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only

of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place

of birth or any of them, be subject to any disability, liability, restriction

or condition with regard to

(a) access to shops, public restaurants, hotels and places of public

entertainment;

or

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(b) the use of wells, tanks, bathing ghats, roads and places of public

resort maintained wholly or partly out of State funds or dedicated to the

use of the general public.

3Nothing in this article shall prevent the State from making any special

provision for women and children.

4

(4) Nothing in this article or in clause (2) of article 29 shall prevent the

State from making any special provision for the advancement of any

socially and educationally backward classes of citizens or for the

Scheduled Castes and the Scheduled Tribes.

5(5) Nothing in this article or in subclause (g) of clause (1) of article

19 shall prevent the State from making any special provision, by law,

for the advancement of any socially and educationally backward classes

of citizens or for the Scheduled Castes or the Schedule's Tribes in so far

as such special provisions relate to their admission to educational

institutions including private educational institutions, whether aided or

unaided by the State, other than the minority educational institutions

referred to in clause (1) of article 30.”

Article 15, as originally framed, did not contain clauses (4) and (5).

Clause (4) in fact was introduced through the First Constitution

Amendment in the year 1951. This was necessitated due to a judicial

pronouncement of the Supreme Court in the case of State of Madras

v. Champakam, AIR 1951 SC 226. In the said decision, the action

of the State fixing proportionate seats for different communities came

to be called in question. Such prescription was held to be

unconstitutional. It was observed that classification proceeds on the

basis of religion, race and caste and that was opposed to the

fundamental rights guaranteed to the citizens under Article 29(2) of

the Constitution.

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13. Article 16 of the Constitution guarantees equality of

opportunity in matters of public employment to all the citizens.

Article 16(1) provides that there shall be equality of opportunity for

all the citizens in matters relating to employment or appointment to

any office in the State. Clause (2) of Article 16 further amplifies this

equality of opportunity in public employment, by providing that no

citizen shall on grounds only of religion, race, caste, sex, descent, place

of birth residence or any of them be ineligible or discriminated against

in respect of any employment or office under the State. Clause (4) of

Article 16 which would be useful in our study of corresponding clause

(4) of Article 15 reads thus :

“(4) Nothing in this article shall prevent the State from making any

provision for the reservation of appointments or posts in favor of any

backward class of citizens which, in the opinion of the State, is not

adequately represented in the services under the State.”

Article 21 pertains to protection of life and personal liberty and

provides that no person shall be deprived of his life or personal liberty

except according to procedure established by law. This important

guarantee, though seemingly plain, has been interpreted by various

courts and in particular, the Supreme Court as to include variety of

rights which would form part of right to life and personal liberty,

without enjoyment of which rights, the right to life and personal liberty

would be meaningless and nugatory. Right to education has been

recognized as one of the facets of Article 21 long before it was codified

as one of the fundamental rights separately guaranteed under Article

21A of the Constitution.

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1514. The Constitution of India was amended by the Eightysixth

Amendment Act 2002, to include right to education as a fundamental

right under Article 21A providing that 奏he State shall provide free and

compulsory education to all children of the age of six to fourteen years

in such manner as the State may, by law, determine.”

16

17Article 29 guarantees protection of interest of minorities and reads

as under :

“29. Protection of interests of minorities (1) Any section of the

citizens residing in the territory of India or any part thereof

having a distinct language, script or culture of is own shall have

the right to conserve the same.

(2) No citizen shall be denied admission into any educational

institution maintained by the State or receiving aid out of State

funds on grounds only of religion, race, caste, language or any

of them.”

Article 30 pertains to right of minorities to establish and administer

educational institutions. Clause (1) thereof provides that all

minorities, whether based on religion or language, shall have the right

to establish and administer educational institutions of their choice.

Article 46 contained in Part IV provides that the State shall

promote with special care the educational and economic interests of

the weaker sections of the people and in particular, of the Scheduled

Castes and the Scheduled Tribes, and shall protect them from social

injustice and all forms of exploitation.

16. The Constitution of India places immense importance on the

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fundamental rights for which a separate chapter was dedicated while

framing the Constitution itself. The fact that Article 32 guaranteeing

the right to move the Supreme Court for appropriate proceedings for

enforcement of rights conferred in Part III itself is contained in the

fundamental rights and thus made a fundamental right is a strong

indication that such rights were considered sacrosanct. However, it

has always been recognized while framing the Constitution as well as

while interpreting the same that no right of a citizen can be absolute

and every right would have reasonable restriction. Article 19, for

example, while guaranteeing various individual freedoms to citizens

contains various clauses limiting enjoyment of such rights under

specified conditions. Likewise, though Article 14 in plain terms

provides that the State shall not deny any person equality before the

law or the equal protection of laws, since the earliest days of

interpretation of the Constitution, it has been recognized that this

does not imply that there shall be one law which must apply to every

person and that every law framed must correspondingly cover every

person. In legal terminology, it means though Article 14 prohibits class

legislation, the same does not prevent reasonable classification. It is,

of course, true that for the classification to be valid and to pass the

test of reasonableness twin tests laid down by the Supreme Court, time

and again, must be fulfilled. Such tests are that the classification must

be founded on an intelligible differentia which distinguishes persons

or things that are grouped together from others left out of the group

and that the differentia must have a rational relation to the object

sought to the achieved by the statute in question.

In the case of Kathi Raning v. State of Saurashtra, AIR 1952

SC 123, S.R.Das, J. observed as under :

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“45. After referring to our previous decisions in Chiranjit Lal v. Union of

India, (1950 S. C. R., 869) and State of Bombay v. F. N. Balsara, A. I. R.

1951 S. C. 318 a p. 396, I summarised the meaning, scope and effect of

Art. 14 of our Constitution, as I understand it, in my judgment in the

West Bengal case which I need not repeat but to which I fully adhere. It

is now well established that while Art. 14 forbids class legislation it does

not forbid reasonable classification for the purposes of legislation. In

order, however, to pass the test of permissible classification, two

conditions must be fulfilled, namely, (1) that the classification must be

founded on an intelligible differentia which distinguishes persons or

things that are grouped together from others left out of the group and

(2) that that differentia must have a rational relation to the object

sought to be achieved by the Act. What is necessary is that there must

be a nexus between the basis of classification and the object of the Act.”

This principle has been consistently followed in subsequent decisions.

Reference may be made in this respect in the case of Ashutosh Gupta

v. State of Rajasthan, AIR 2002 SC 1533. It is not necessary to refer

to all of them.

17. Article 14 guarantees equality in very wide terms and is worded

in negative term preventing the State from denying any person

equality before law or the equal protection of the laws within the

territory of India. Article 15(1), on the other hand, prevents the State

from discriminating against any citizen on the grounds only of

religion, race, caste, sex, place of birth or any of them. Clause (2) of

the Article further provides that no citizen shall, on grounds only of

religion, race, caste, sex, place of birth or any of them be subject to any

disability, liability, restriction or condition with regard to access to

shops, public restaurants, use of wells, tanks, bathing ghats, etc.

Article 16, in turn, pertains to equality of opportunity in matters of

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public employment. Clause (1) of Article 16, as already noted,

guarantees equality of opportunity to all citizens in matters of

employment or appointment to any office under the State. Clause (2)

thereof, further amplifies that no citizen shall, on grounds only of

religion, race, caste, sex, descent, place of birth, residence or any of

them, be ineligible for or discriminated against in respect of any

employment or office under the State.

1918. Thus, Articles 14, 15 and 16 are all different facets of concept

of equality. In different forms, such articles guarantee equality of

opportunity and equal treatment to all the citizens while specifically

mandating that the State shall not discriminate against the citizens

only on the grounds of religion, race, caste, sex, descent, place of birth

or any of them. Like Article 14, neither Article 15(1) nor Article 16(1)

prohibit reasonable classification. In other words, the clauses of

Articles 15 and 16 respectively guaranteeing nondiscrimination on the

grounds alone of religion, race, caste, sex, place of birth or equality of

opportunity for all citizens in matters of public employment prohibit

hostile discrimination but not reasonable classification. As in Article

14, as well in Article 15(1), if it is demonstrated that special

treatment is meted out to a class of citizens, not only on the ground of

religion, race, caste, sex, place of birth or any of them, but due to some

special reasons and circumstances, the enquiry would be, does such a

classification stand the test of reasonableness and in the process, it

would be the duty of the court to examine whether such classification

fulfills the above noted twin conditions, namely, it must be founded

on an intelligible differentia which distinguishes persons or things that

are grouped together from others left out of the group and that the

differentia must have a rational relation to the object sought to be

achieved by the statute in question.

20

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21In the case of Mohd. Sujat Ali v. Union of India, AIR 1974 SC

1631, a Constitution Bench of the Supreme Court in the context of

concept of equality flowing from Articles 14 and 16 of the Constitution

observed that Article 16 is an instance or incident of guarantee of

equality enshrined in Article 14. It gives effect to the doctrine of

equality in the spheres of public employment. The constitutional code

of equality and equal opportunity, however, does not mean that the

same laws must be applicable to all persons. It was held and observed

as under:

“23. Now we proceed to consider the challenge based on infraction of

Article 14 and 16 of the Constitution. Article 14 ensures to every person

equality before law and equal protection of the laws and Article 16 lays

down that there shall be equality of opportunity for all citizens in

matters relating to employment or appointment to any office under the

State. Article 16 is only an instance or incident of the guarantee of

equality enshrined in Article 14. It gives effect to the doctrine of

equality in the spheres of public employment. The concept of equal

opportunity to be found in Article 16 permeates the whole spectrum of

an individual's employment from appointment through promotion and

termination to the payment of gratuity and pension and gives

expression to the ideal of equality of opportunity which is one of the

great socioeconomic objectives set out in the Preamble of the

Constitution. The constitutional code of equality and equal opportunity,

however, does not mean that the same laws must be applicable to all

persons. It does not compel the State to run "all its laws in the channels

of general legislation". It recognises that having regard to differences

and disparities which exist among men and things, they cannot all be

treated alike by the application of the same laws. "To recognise marked

differences that exist in fact is living law; to disregard practical

differences and concentrate on some abstract identities is lifeless logic."

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Morey v. Doud, 354 U.S. 457, p. 473. The Legislature must necessarily,

if it is to be effective at all in solving the manifold problems which

continually come before it, enact special legislation directed towards

specific ends and limited in its application to special classes of persons

or things. "Indeed, the greater part of all legislation is special, either in

the extent to which it operates, or the objects sought to be attained by

it." (1889) 134 US 594.

24We thus arrive at the point at which the demand for equality

confronts the right to classify. For it is the classification which

determines the range of persons affected by the special burden or

benefit of a law which does not apply to all persons. This brings out a

paradox. The equal protection of the laws is a "pledge of the protection

of equal laws." But laws may classify. And, as pointed out by Justice

Brewer, "the very idea of classification is that of inequality''. The court

has tackled this paradox over the years and in doing so, it has neither

abandoned the demand for equality nor denied the legislative right to

classify. It has adopted a middle course of realistic reconciliation. It has

resolved the contradictory demands of legislative specialization and

constitutional generality by a doctrine of reasonable classification. This

doctrine recognises that the legislature may classify for the purpose of

legislation but requires that the classification must be reasonable. It

should ensure that persons or things similarly situated are all similarly

treated. The measure of reasonableness of a classification is the degree

of its success in treating similarly those similarly situated. "The Equal

Protection of the Laws'', 37 California Law Review, 341.

25

25. But the question is : what does this ambiguous and crucial phrase

"similarly situated'' mean? Where are we to look for the test of similarity

of situation which determines the reasonableness of a classification?

The inescapable answer is that we must look beyond the classification

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to the purpose of the law. A reasonable classification is one which

includes all persons or things similarly situated with respect to the

purpose of the law. There should be no discrimination between one

person or thing and another, if as regards the subjectmatter of the

legislation their position is substantially the same. This is sometimes

epigrammatically described by saying that what the constitutional code

of equality and equal opportunity requires is that among equals, the law

should be equal and that like should be treated alike. But the basic

principle underlying the doctrine is that the legislature should have the

right to classify and imposed special burdens upon or grant special

benefits to persons or things grouped together under the classification,

so long as the classification is of persons or thing similarly situated with

respect to the purpose of the legislation, so that all persons or things

similarly situated are treated alike by law. The test which has been

evolved for this purpose is and this test has been consistently applied

by this Court in all decided cases since the commencement of the

Constitution that the classification must be founded on an intelligible

differentia which distinguishes certain persons or things that are

grouped together from others and that differentia must have a rational

relation to the object sought to be achieved by the legislation.”

While doing so, it was, of course, cautioned that the fundamental

guarantee is of equal protection of the laws and the doctrine of

classification only a subsidiary rule evolved by courts to give a

practical content to that guarantee by accommodating it with practical

needs of the society and it should not be allowed to submerge and

drown the precious guarantee of equality.

2120. In the case of State of Kerala v. N.M.Thomas, [(1976) 2 SCC

310], Mathew, J. observed that Articles 16(1) and 16(2) of the

Constitution do not prohibit prescription of a reasonable classification

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for appointment or for promotion. Any provision as to qualification

for employment or appointment to an office reasonably fixed and

applicable to all would be consistent with the doctrine of equality of

opportunity under Article 16(1). It was observed that classification is

reasonable if it includes all persons who are similarly situated with

respect to the purpose of the law.

22

23In the case of Indra Sawhney v. Union of India, (AIR 1993 SC

477), B.P.Jeevan Reddy, J. in his majority opinion, observed in para 54

that Article 16(1) is a facet of Article 14. Just as Article 14 permits

reasonable classification so does Article 16(1).

2122. In a judgment of the Constitution Bench of the Supreme Court in

the case of E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555,

Bhagwati, J. in the context of corelation between Article 14 and

Article l6 of the Constitution observed as under:

“85. The last two grounds of challenge may be taken up together for

consideration. Though we have formulated the third ground of

challenge as a distinct and separate ground it is really in substance and

effect merely an aspect of the second ground based on violation of Arts.

14 and 16. Article 16 embodies the fundamental guarantee that there

shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State. Though

enacted as a distinct and independent fundamental right because of its

great importance as a principle ensuring equality of opportunity in

public employment which is so vital to the building up of the new

classless egalitarian society envisaged in the Constitution, Art. 16 is only

an instance of the application of the concept of equality enshrined in

Article 14. In other words, Art 14 is the genus while Art. 16 is a species.

Article 16 gives effect to the doctrine of equality in all matters relating

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to public employment. The basic principle which, therefore, informs

both Arts. 14 and 16 is equality and inhibition against discrimination.

Now, what is the content and reach of this great equalising principle ? It

is a founding faith, to use the words of Bose, J., "a way of life'', and it

must not be subjected to a narrow pedantic or lexicographic approach.

We cannot countenance any attempt to truncate its all embracing scope

and meaning, for to do so would be to violate its activist magnitude.

Equality is a dynamic concept with many aspects and dimensions and it

cannot be "cribbed, cabined and confined'' within traditional and

doctrinaire limits. From a positivistic point of view, equality is antithetic

to arbitrariness. In fact equality and arbitrariness are sworn enemies;

one belongs to the rule of law in a republic while the other, to the whim

and caprice of an absolute monarch. Where an act is arbitrary, it is

implicit in it that it is unequal both according to political logic and

constitutional law and is therefore violative of Article 14 and if it affects

any matter relating to public employment, it is also violative of Art. 16.

Articles 14 and 16 strike at arbitrariness in State action and ensure

fairness and equality of treatment. They require that State action must

be based on valid relevant principles applicable alike to all similarly

situate and it must not be guided by any extraneous or irrelevant

considerations because that would be denial of equality. Where the

operative reasons for State action, as distinguished from motive

inducing from the antechamber of the mind, is not legitimate and

relevant but is extraneous and outside the area of permissible

considerations, it would amount to mala fide exercise of power and that

is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness

are different lethal radiations emanating from the same vice : in fact the

latter comprehends the former. Both are inhibited by Arts. 14 and 16.

Similar observations were made also in the context of corelation

between Articles 14 and 16 in the case of Govt. of A.P. v.

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P.B.Vijaykumar , AIR 1995 SC 1648. It was observed thus:

“6. This argument ignores Article 15(3). The interrelation between

Articles 14, 15 and 16 has been considered in a number of cases by this

Court. Art. 15 deals with every kind of State action in relation to the

citizens of this country. Every sphere of activity of the State is controlled

by Article 15(1). There is, therefore, no reason to exclude from the

ambit of Article 15(1) employment under the State. At the same time

Article 15(3) permits special provisions for women. Both Arts. 15(1)

and 15(3) go together. In addition to Art. 15(1) Art. 16(1), however,

places certain additional prohibitions in respect of a specific area of

State activity viz. employment under the State. These are in addition to

the grounds of prohibition enumerated under Article 15(1) which are

also included under Article 16(2). There are, however, certain specific

provisions in connection with employment under the State under Article

16. Article 16(3) permits the State to prescribe a requirement of

residence within the State or Union Territory by parliamentary

legislation; while Article 16(4) permits reservation of posts in favour of

backward classes. Article 16(5) permits a law which may require a

person to profess a particular religion or may require him to belong to a

particular religious denomination, if he is the incumbent of an office in

connection with the affairs of the religious or denominational

institution. Therefore, the prohibition against discrimination of the

grounds set out in Article 16(2) in respect of any employment or office

under the State is qualified by clauses 3,4 and 5 of Article 16.

Therefore, in dealing with employment under the State, it has to bear in

mind both Articles 15 and 16 the former being a more general

provision and the latter, a more specific provision. Since Article 16 does

not touch upon any special provision for women being made by the

State, it cannot in any manner derogate from the power conferred upon

the State in this connection under Article 15(3). This power conferred

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by Article 15(3) is wide enough to cover the entire range of State

activity including employment under the State.”

2223. What we are, therefore, trying to derive through the above

discussion is that under Article 15(1) of the Constitution, while any

discrimination against any citizen on ground only of religion, race,

caste, sex, place of birth of any of them is prohibited, a reasonable

classification is not. It was on this ground that the Apex Court in the

case of State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 while

disapproving the reservation of seats in educational institutions for

rural areas in the State of U.P. upheld such reservation for the students

of hill and Uttrakhand areas. The Supreme Court accepted the

contention that hill and Uttrakhand areas are inaccessible. It is well

recognized principle under Article 14, which can as well safely be

applied whenever cases arise under Articles 15 and 16 of the

Constitution that there can be equality of treatment only among

equals and not among unequals. In other words, the equality

guaranteed under Articles 14, 15 and 16 of the Constitution is equal

treatment to equals and not equal treatment to unequals. In case of St.

Stephens College v. University of Delhi, reported in (1992) 1 SCC

558, the Supreme Court observed that 奏 t is now an accepted

jurisprudence and practice that the concept of equality before the law

and the prohibition of certain kinds of discrimination do not require

identical treatment. The equality means the relative equality, namely

the principle to treat equally what are equal and unequally what are

unequal. To treat unequals differently according to their inequality is

not only permitted but required It is this concept of equal treatment

only for equals which permits the Courts to examine the State action

on the anvil of reasonable classification whenever a special class is

carved out, and the State offers as a defence in doing so, that such

classification is an instance of permissible classification satisfying the

twin requirements of reasonableness.

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23

2424. In the case of State of Kerala v. N.M.Thomas, (supra),

A.N.Ray, CJ also advanced this theory, observing that there is no

denial of equality of opportunity unless the person who complains of

discrimination is equally situated with the person or persons who are

alleged to have been favoured. Article 16(1) does not bar a

reasonable classification. It was observed as under :

“27. There is no denial of equality of opportunity unless the person who

complains of discrimination is equally situated with the person or

persons who are alleged to have been favoured. Article 16 (1) does not

bar a reasonable classification of employees or reasonable tests for their

selection (State of Mysore v. V. P. Narasinga Rao, (1968) 1 SCR 407 =

(AIR 1968 SC 349)).

28This equality of opportunity need not be confused with absolute

equality. Article 16 (1) does not prohibit the prescription of reasonable

rules for selection to any employment or appointment to any office. In

regard to employment, like other terms and conditions associated with

and incidental to it, the promotion to a selection post is also included in

the matters relating to employment and even in regard to such a

promotion to a selection post all that Article 16 (1) guarantees is

equality of opportunity to all citizens. Article 16 (1) and (2) gives effect

to equality before law guaranteed by Article 14 and to the prohibition of

discrimination guaranteed by Article 15 (1). Promotion to selection post

is covered by Article 16 (1) and (2).

xxxx

30. Under Article 16 (1) equality of opportunity of employment means

equality as between members of the same class of employees and not

equality between members of separate, independent class. The Road

side Station Masters and Guards are recruited separately, trained

separately and have separate avenues of promotion. The Station

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Masters claimed equality of opportunity for promotion visavis the

guards on the ground that they were entitled to equality of opportunity.

It was said the concept of equality can have no existence except with

reference to matters which are common as between individuals,

between whom equality is predicated. The Roadside Station Masters

and Guards were recruited separately. Therefore, the two form distinct

and separate classes and there is no scope for predicating equality or

inequality of opportunity in matters of promotion. (See All India Station

Masters and Asst. Station Masters' Association v. General Manager,

Central Rlys, (1960) 2 SCR 311 = (AIR 1960 SC 384)). The present

case is not to create separate avenues of promotion for these persons.”

31. The rule of parity is the equal treatment of equals in equal

circumstances. The rule of differentiation is enacting laws

differentiating between different persons or things in different

circumstances. The circumstances which govern one set of persons or

objects may not necessarily be the same as those governing another set

of persons or objects so that the question of unequal treatment does not

really arise between persons governed by different conditions and

different sets of circumstances. The principle of equality does not mean

that every law must have universal application for all persons who are

not by nature, attainment or circumstances in the same position and the

varying needs of different classes of persons require special treatment.

The legislature understands and appreciates the need of its own people,

that its laws are directed to problems made manifest by experience and

that its discriminations are based upon adequate grounds, The rule of

classification is not a natural and logical corollary of the rule of

equality, but the rule of differentiation is inherent in the concept of

equality. Equality means parity of treatment under parity of conditions.

Equality does not connote absolute equality. A classification in order to

be constitutional must rest upon distinctions that are substantial and

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not merely illusory. The test is whether it has a reasonable basis free

from artificiality and arbitrariness embracing all and omitting none

naturally falling into that category.”

2625. We, therefore, need to examine whether the Scheme in question

passes the test of permissible classification. In order to do so, we may

take a closer look at the background in which the Scheme was framed

and the detailed provisions contained in the Scheme. On 9 th March

1995, the Government of India, issued a notification constituting a

High Level Committee headed by Justice Rajender Sachar to prepare

a report on the social, economic and educational status of the Muslim

community in India. The notification records that there was lack of

authentic information about the social, economic and educational

status of the Muslim community in India, which comes in the way of

planning, formulating and implementing specific interventions, policies

and programmes to address the issues relating to socioeconomic

backwardness of this community. The Government, therefore,

constituted a High Level Committee to prepare a comprehensive report

covering these aspects. The terms of the reference of the Committee

were as follows :

“(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:

iIn which States, Regions, Districts and Blocks do Muslims

of India mostly live?

iiiiiWhat is the geographical pattern of their economic

activity, i.e. what do they mostly do for a living in various

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States, Regions and Districts?

ivvWhat is their asset base & income levels relative to other

groups across various States and Regions?

viviiWhat is the level of their socioeconomic development

in terms of relevant indicators such as literacy rate,

dropout rate, MMR, IMR etc? How does this compare with

other communities in various States?

viiiix 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?

xxiWhat 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?

xiixiiiDoes 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

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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.

Sachar Committee collected voluminous data and ultimately

submitted its report on 17th September 2006. From the said report, we

can gather that the Committee collected voluminous information with

respect to the social, economic and educational status of the Muslim

community in particular as also other minorities (page 5 of the report).

In Chapter 2 titled as Public Perceptions and Perspectives, it was noted

that fearing for their security, Muslims are increasingly resorting to

living in ghettos across the country. This is more pronounced in

communally sensitive towns and cities. The living in ghettos has

impacted the Muslim women the most because they are reluctant to

venture beyond the confines of 奏afeneighbourhoods. Increasing

ghettoisation of the community implies a shrinking space for it in the

public sphere (page 14 of the report). In the same Chapter, it was also

mentioned that education is an area of grave concern for the Muslim

community and how high drop out rates amongst Muslim students

were worrisome (page 15 of the report).

The Committee collected data of population size and

distribution of health conditions of Muslims as also educational

conditions of such minority community. It was noted that literacy rate

amongst Muslims in the year 2001 was far below the national average

(page 52 of the report). Attainment levels of Muslims were close to or

slightly higher than those of SCs/STs and much lower than those of

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other SRCs (Socio Religious Categories). The disparity in graduation

attainment rates was widening since 1970 奏between Muslims and all

other categories in both urban and rural areas ( page 67 of the report).

The Committee also examined the economic and employment

conditions of the community. The Committee dedicated a full chapter

in the report to the Poverty, Consumption and Standards of Living of

the community. It was noted that incidence of poverty among

Muslims in urban areas was the highest followed by SCs/STs (page

157 of the report). It was observed that the abysmally low

representation of Muslim OBCs suggests that the benefits of

entitlements meant for the backward classes were yet to reach them

(page 213 of the report).

2726. After comprehensive survey and processing voluminous data

collected, the Sachar Committee made detailed recommendations in

chapter 12 of the report, some of which were as under :

“3.1 Criticality of Education. Access to education is critical for

benefiting from emerging opportunities that are accompanied by

economic growth. The report brings out clearly the educational

deprivation experienced by the Muslim community. From lower

levels of enrollment to a sharp decline in participation in higher

levels of education, the situation of Indian Muslims is indeed very

depressing as compared to most other SRCs, in fact their situation

seems to have worsened in relative terms. And the problem is

more acute for girls/women. Reasons for this are varied ranging

from poverty to perceived discrimination resulting in alienating

school environment. While the overall situation remains bad, the

enrolment rates of Muslims have picked up in recent years and the

policies should help sustain the momentum that can get created

through this change. Our analysis also shows that the major

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problems lie in school education; the likelihood of Muslim children

completing school education is significantly lower than other SRCs,

except SCs/STs, once factors like household expenditure, place of

residence, gender etc. are controlled for. Once the 奏urdleof school

education is crossed, the differences across most SRCs in the

likelihood of completing graduate studies narrow down and are at

times not very significant. Therefore, a sharper focus on school

education is desirable.

Free and compulsory education upto the age of 14 is the responsibility

of the State. And the fulfillment of this obligation is critical for the

improvements in the educational conditions of Muslims, in fact, of all

socioeconomically deprived children. In addition, a sharper focus on a

few areas listed below is desirable.”

xxxx

“Initiative in School Education. Muslims have the largest percentage

share of children in the age group of less than 10 years with 27 per cent

falling in this range as compared to the 23 per cent for the country as a

whole. However, the current enrollment and continuation rates at

elementary level (though picking up in recent years) are the lowest

for the Muslims. These facts make primary education particularly

important for the community and the need to ensure that all

children in the age group of 014 have access to free and high

quality education more urgent.”

xxxx

Last but no the least, although there are many Centrally Sponsored

Schemes (CSS) and Central Plan Schemes (CPS) available for the

welfare of SCs, STs and OBCs, such schemes for the welfare of

minorities are rare. Even the available schemes are inadequately

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funded. Overall, targeting backward districts and clusters where special

artisanal groups exist, will ensure a sharp reduction in disparities of

access and attaining. The Central Government should introduce a

few schemes with large outlays for welfare of minorities with an

equitable provision for Muslims.”

“Improving Employment opportunities and conditions: The country is

going through a high growth phase. This is the time to help the

underprivileged to utilize new opportunities through skill development

and education. A large segment of the Muslim community is engaged

in selfemployment activities. Besides, a significant proportion,

specially women, is actually engaged in homebased work. While some

of these workers are engaged in sectors that have experienced growth,

many are engaged in occupations/sectors that are stagnant. The policy

intervention needs to help workers engaged in growthoriented sectors

to become part of the larger network or market oriented firms engaged

in that sector. For those caught in the stagnant sectors, a transition

path will have to be evolved. Skill upgradation, education and credit

availability, referred to earlier will have an important role in both these

strategies. The other deficit is in regular employment as a very

small proportion of Muslim workers are engaged in regular work,

especially in salaried jobs with the public sector or the large

private sector. The conditions of work of not only the self

employed Muslim workers but also the regular workers are

precarious.(emphasis added).

27. The Sachar Committee Report noted in its first Chapter that the

United Nations declaration on the rights of persons belonging to

national, ethnic, religious and linguistic minorities says that promotion

and protection of the rights of persons belonging to such minorities

contribute to the political and social stability of the countries in which

they live. Meeting their aspirations and ensuring their rights

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acknowledges the dignity and equality of all individuals and furthers

participatory development........ As the processes of economic

development unfold, pressures are likely to build up and intensify when

there is unequal development and some groups of minorities lag behind

in the development process. In an interesting survey of distribution of

population of each religion by caste categories placed in Table 1.2 in

the Sachar Committee Report, it was seen that, as against 74% of

Hindu population being covered in SC/ST and OBC categories,

percentage of Muslims covered by those categories was 40.5 as per the

61st round survey of NSSO. Similarly, percentage of people not covered

by SC/ST and OBC categories among Christians was 66.7, which

indicated how unequal number of members of certain minorities could

not be the recipients of several poverty alleviating measures and

privileges of reservation. The Sachar Committee Report has also noted

in Chapter II that many of the problems enumerated in the earlier part

were not specific to Muslims; all the disadvantaged socioreligious

communities face them. The sense of insecurity and the crisis of identity

made the Muslims perceive these problems as community specific and

they needed to be attended to. .........There was a widespread demand

for affirmative action, especially in the form of reservations. Some

argued that policies for equality must aim at a substantive equal

outcome, not merely formal, equal or identical treatment..........Still

others argue that coeducational facilities combined with non

discriminatory practices were adequate for Muslims to compete.

.......Finally, there were voices that questioned nonavailability of the SC

quota for Muslims, while it was available for Mazhiabi Sikhs and Neo

Buddists.

28. This Report forms the basis for formation of the Scheme. The

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Scheme records that the Prime Minister 奏New 15 Point Programme for

the Welfare of Minorities was announced in June 2006, which

provided that a prematric scholarship scheme for meritorious students

from minority communities would be implemented. The Scheme was

framed with the following objective :

“The scholarship at prematric level will encourage parents from

minorities 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 the 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.emphasis added)

Para 3 of the Scheme provides that the scholarship will be awarded

for studies in India in a government or private school from class I to 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. Para 4 of

the Scheme pertains to eligibility and provides thus:

“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.”

Para 5 pertains to distribution and provides as under:

“Muslim, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) have

been notified as minority communities under Section 2(c) of the

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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 of

Census 2001.”

Para 6 provides that 30 per cent of the scholarship will be earmarked

for girl students and if sufficient number of eligible girl students are

not available, the balance earmarked scholarships would be awarded

to eligible boy students. Para 7 pertains to criteria for selection and

reads as under:

“As the number of scholarships for minorities available in a year is fixed

and limited it is necessary to lay down preference for selection. Interse

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.”

Para 9 pertains to rate of scholarship and reads as under:

“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.ItemHostellersDay Scholars1Admission fee from class VI to XRs.500/ p.a.

subject to actualsRs.500 p.a. subject to actuals2Tuition fee from class VI to

XRs.350/ p.m. subject to actuals.Rs.350/ p.m. subject to

actuals.3Maintenance allowance will be payable for a period not exceeding 10

months in an academic year.(i) Class I to VNilRs.100/ p.m.(ii) Class VI to

XRs.600/ p.m. subject to actualsRs.100/ p.m.

Para 11 lays down conditions for scholarships. Relevant conditions

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read as under:

“(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.

xxxx

(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.

(xvi)The State Government/Union Territory Administrations shall constitute

a committee of the Departments implementing such scholarships schemes to

ensure that the student from the minority community, who may also belong to

children of those engaged in unclean occupation and OBC do not avail

scholarship from other sources for the same purpose and avail only one

source.”

29. The Scheme thus provides for scholarship to students belonging

to minorities notified under section 2(c) of the National Commission

for Minorities Act, 1992. However, there were other criteria to be

satisfied before a student would be granted such scholarship. Firstly,

the annual income of his/her parents/guardians from all sources

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should not exceed Rs.1 lac. Secondly, such scholarship would be

awarded to only those students who have secured not less than 50%

marks in the previous final examination. Even after awarding such

scholarship, continuance thereof would be subject to securing 50 per

cent marks in the previous examination. 30 per cent of the scholarships

would be earmarked for girl students. In case, there were more

number of students eligible than the available scholarships, interse

selection would be on the basis of poverty and not marks. A student

seeking to avail such scholarship would not be eligible for any other

scholarship from any other source.

30. It is, of course, true that such scholarship is earmarked for

students of minorities communities. However, there are several other

eligibility criteria required to be satisfied. Principally, the Scheme

provided for an income ceiling criteria, minimum educational

performance criteria and continued level of such performance

throughout the span of the Scheme and also provided for no dual

scholarship. Significantly, in case of competition for such scholarship,

weightage has to be given to poverty rather than marks in interse

selection of eligible candidates. These aspects are significant because

in addition to fulfilling the first criterion of belonging to minority

community, the student would have to satisfy several other criteria.

While providing for the scholarship only to children or wards of

parents/guardians whose annual income does not exceed Rs.1 lac, the

Scheme further provided that in case of competing claims, selection

would be made on the basis of poverty interse and not marks. This, to

our mind, is a very significant aspect of the Scheme which makes it

amply clear that the Scheme aims at poverty alleviation through

educational means. To put it differently, if two candidates otherwise

fulfilling all other conditions of the Scheme apply for one scholarship

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available, not the one having higher marks in the previous result, but

the one whose parentsguardian 奏 annual income is less than the other

would be given the scholarship. The Scheme thus puts considerable

force on poverty being a handicap to pursue basic education.

31. Education, by now it is well recognized through judicial

pronouncements and outside, is perhaps the most fundamental

requirement of development. Without access to quality basic

education, it would be impossible in the modern world to expect any

individual, race, class or community to make any real advancement.

While recognizing the role of education to achieve development and to

provide equality of opportunity, the Courts have also recognized that

the State has an important role, in fact an obligation to provide quality

basic education to all the citizens. Long before the Constitution was

amended by introduction of Article 21A, providing for free and

compulsory education to children between age of 6 and 14 years, the

Supreme Court had been expanding this principle through purposive

interpretation and meaningful construction of guarantee to life and

liberty enshrined under Article 21 of the Constitution. In case of

Mohini Jain vs. State of Karnataka, (1992) 3 SCC 666, the Supreme

Court observed as under :

“9. The directive principles which are fundamental in the governance of

the country cannot be isolated from the fundamental rights guaranteed

under Part III. These principles have to be read into the fundamental

rights. Both are supplementary to each other. The State is under a

constitutional mandate to create conditions in which the fundamental

rights guaranteed to the individuals under Part III could be enjoyed by

all. Without making "right to education" under Art. 41 of the

Constitution a reality the fundamental rights under Chapter III shall

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remain beyond the reach of large majority which is illiterate.

xxxx

12"Right to life" is the compendious expression for all those rights

which the Courts must enforce because they are basic to the dignified

enjoyment of life. It extends to the full range of conduct which the

individual is free to pursue. The right to education flows directly from

right to life. The right to life under Art. 21 and the dignity of an

individual cannot be assured unless it is accompanied by the right to

education. The State Government is under an obligation to make

endeavour to Provide educational facilities at all levels to its citizens.

1314The fundamental rights guaranteed under Part III of the Constitution

of India including the right to freedom of speech and expression and

other rights under Art. 19 cannot be appreciated and fully enjoyed

unless a citizen is educated and is conscious of his individualistic

dignity.

1516The "right to education", therefore, is concomitant to the

fundamental rights enshrined under Part III of the Constitution. The

State is under a constitutionalmandate to provide educational

institutions at all levels for the benefit of the citizens. The educational

institutions must function to the best advantage of the citizens.

Opportunity to acquire education cannot be confined to the richer

section of the society. Increasing demand for medical education has led

to the opening of large number of medical colleges by private persons,

groups and trusts with the permission and recognition of State

Governments. The Karnataka State has permitted the opening of several

new medical colleges under various private bodies and organisations.

These institutions are charging capitation fee as a consideration for

admission. Capitation fee is nothing but a price for selling education.

The concept of "teaching shops" is contrary to the constitutional

scheme ,and is wholly abhorrent to the Indian culture and heritage. As

back as December, 1980 the Indian Medical Association in its 56th All

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India Medical Conference held at Cuttack on December 2830, 1980

passed the following resolutions:

17

"The 56th All India Medical Conference views with great concern

the attitude of State Governments particularly the State

Government of Karnataka in permitting the opening of new

Medical Colleges under various bodies and organisations in utter

disregard to the recommendations of Medical Council of India

and urges upon the authorities and the Government of Karnataka

not to permit the opening of any new medical college, by private

bodies.

It further condemns the policy of admission on the basis of capitation

fees. This commercialisation of medial education endangers the

lowering of standards of medical education and encourages bad

practice."

In case of Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC

645, the decision in the case of Mohini Jain (supra) came up for

consideration before Larger Bench of the Supreme Court. While not

approving the judgment in toto, the above concept was further

expanded and refined. It was observed as under :

“168. In Brown v. Board of Education (1953) 98 Law Ed 873, Earl

Warren, C. J., speaking for the U. S. Supreme Court emphasised the

right to education in the following words :

"Today, education is perhaps the most important function of

State and local governments..........It is required in the

performance of our most basic responsibilities, even service in

the armed forces. it is the very foundation of good citizenship.

Today it is the principal instrument in awakening the child to

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cultural values, in preparing him for later professional training,

and in helping him to adjust normally to his environment. In

these days, it is doubtful any child may reasonably be expected

to succeed in life if he is denied the opportunity of an education."

169. In Wisconsin v. Yoder (1972) 32 Law Ed 2d 15, the Court

recognised that :

"Providing public schools ranks at the very apex of the function of a State."

The said fact has also been affirmed by eminent educationists of

modern India like Dr. Radhakrishnan, J. P. Naik, Dr. Kothari and others.

170. It is argued by some of the counsel for the petitioners that Article

21 is negative in character and that it merely declares that no person

shall be deprived of his life or personal liberty except according to the

procedure established by law. Since the State is not depriving the

respondentsstudents of their right to education, Article 21 is not

attracted, it is submitted. If and when the State makes a law taking

away the right to education, would Article 21 be attracted, according to

them. This argument, in our opinion, is really born of confusion; at any

rate, it is designed to confuse the issue. The first question is whether the

right to life guaranteed by Article 21 does take in the right to education

or not. It is then that the second question arises whether the State is

taking away that right. The mere fact that the State is not taking away

the right as at present does not mean that right to education is not

included within the right to life. The content of the right is not

determined by perception of threat. The content of right to life is not to

be to determined on the basis of existence or absence of threat of

deprivation. The effect of holding that right to education is implicit in

the right to life is that the State cannot deprive the citizen of his right to

education except in accordance with the procedure prescribed by law.

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171. In the above state of law, it would not be correct to contend that

Mohini Jain (1992 AIR SCW 2100) was wrong in so far as it declared

that "the right to education flows directly from right to life." But the

question is what is the content of this right? How much and what level

of education is necesary to make the life meaningful? Does it mean that

every citizen of this country can call upon the State to provide him

education of his choice? In other words, whether the citizens of this

country can demand that the State provide adequate number of medical

colleges, engineering colleges and other educational institutions to

satisfy all their educational needs? Mohini Jain seems to say, yes. With

respect, we cannot agree with such a broad proposition.The right to

education which is implicit in the right to life and personal liberty,

guaranteed by Article 21 must be construed in the light of the directive

principles in Part IV of the Constitution. So far as the right to education

is concerned, there are several articles in Part IV which expressly speak

of it. Article 41 says that the "State shall, within the limits of its

economic capacity and development, make effective provision for

securing the right to work, to education and to public assistance in cases

of unemployment, old age, sickness and disablement, and in other cases

of undeserved want". Article 45 says that "the State shall endeavour to

provide, within a period of ten years from the commencement of this

Constitution, for free and compulsory education for all children until

they complete the age of fourteen years." Article 46 commands that "the

State shall promote with special care the educational and economic

interests of the weaker sections of the people, and, in particular, of the

Scheduled Castes and Scheduled Tribes, and shall protect them from

social injustice and all forms of exploitation." Education means

knowledge and "knowledge itself is power." As rightly observed by

John Adams, "the preservation of means of knowledge among the

lowest ranks is of more importance to the public than all the property of

all the rich men in the country" (Dissertation on canon and fuedal law,

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1765). It is this concern which seems to underline Article 46. It is the

tyrants and bad rulers who are afraid of spread of education and

knowledge among the deprived classes. Witness Hitler railing against

universal education. He said : "Universal education is the most

corroding and disintegrating poison that liberalism has ever invented

for its own destruction." (Rauschning, The voice of destruction : Hitler

speaks). A true democracy is one where education is universal, where

people understand what is good for them and the nation and know how

to, govern themselves. The three Articles 45, 46 and 41 are designed to

achieve the said goal among others. It is in the light of these articles

that the content and parameters of the right to education have to be

determined. Right to education, understood in the context of Articles 45

and 41, means : (a) every child/ citizen of this country has a right to

free education until he completes the age of fourteen years, and (b)

after a child /citizen completes 14 years, his right to education is

circumscribed by the limits of the economic capacity of the State and its

development. We may deal with both these limbs separately.

172. Right to free education for all children until they complete the

age of fourteen years. (45A). It is noteworthy that among the several

articles in Part IV, only Article 45 speaks of a timelimit; no other article

does Has it no significance? Is it a mere pious wish, even after 44 years

of the Constitution? Can the State flout the said direction even after 44

years on the ground that the article merely calls upon it to "endeavour

to provide" the same and on the further ground that the said article is

not enforceable by virtue of the declaration in Article 37. Does not the

passage of 44 years more than four times the period stipulated in

Article 45 convert the obligation created by the article. into an

enforceable right? In this context, we feel constrained to say that

allocation of available funds to different sectors of education in India

discloses an inversion of priorities indicated by the Constitution. The

Constitution contemplated a crash programme being undertaken by the

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State to achieve the goal set out in Article 45. It is relevant to notice

that Article 45 does not speak of the "limits of its economic capacity and

development" as does Article 41, which inter alia speaks of right to

education. What has actually happened is more money is spent and

more attention is directed to higher education than to and at the cost

of primary education. (By primary education, we mean the education,

which a normal child receives by the time he completes 14 years of

age). Neglected more so are the rural sectors, and the weaker sections

of the society referred to in Article 46. We clarify, we are not seeking to

lay down the priorities for the government we are only emphasising

the constitutional policy as disclosed by Articles 45, 46 and 41. Surely

the wisdom of these constitutional provisions is beyond question. This

inversion of priorities has been commented upon adversely by both the

educationists and economists.

173. Gunnar Myrdal, the noted economist and sociologist, a

recognised authority on South Asia, in his book "Asian Drama"

(abridged Edition published in 1972) makes these perceptive

observations at page 335 :

"But there is another and more valid criticism to make. Although

the declared purpose was to give priority to the increase of

elementary schooling in order to raise the rate of literacy in the

population, what has actually happened is that secondary

schooling has been rising much faster and tertiary schooling has

increased still more rapidly. There is a fairly general tendency for

planned targets of increased primary schooling not to be

reached, whereas targets are overreached, sometimes

substantially, as regards increases in secondary and, particularly,

tertiary schooling. This has all happened in spite of the fact that

secondary schooling seems to be three to five times more

expensive than primary schooling, and schooling at the tertiary

level five to seven times more expensive than at the secondary

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level. What we see functioning here is the distortion of

development from planned targets under the influence of the

pressure from parents and pupils in the upper strata who

everywhere are politically powerful. Even more remarkable is the

fact that this tendency, to distortion from the point of view of the

planning objectives is more accentuated in the poorest countries,

Pakistan, India, Burma and Indonesia, which started out with far

fewer children in primary schools and which should therefore

have the strongest reasons to carry out the programme of giving

primary schooling the highest priority. It is generally the poorest

countries that are spending least, even relatively, on primary

education, and that are permitting the largest distortions from

the planned targets in favour of secondary and tertiary

education."

174. In his other book "Challenge of World Poverty" (published in

1970) he discusses elaborately in chapter 6 'Education' the reasons for

and the consequences of neglect of basic education in this country. He

quotes J. P. Naik, (the renowned educationist, whose Report of the

Education Commission, 1966 is still considered to be the most

authoritative study of education scene in India) as saying "Educational

development..........is benefitting the "haves" more than the "have nots".

This is a negation of social justice and 'planning' proper." and our

Constitution speaks repeatedly of social justice (Preamble and Article

38(1)). As late as 1985, the Ministry of Education had this to say in

para 3.74 of its publication "Challenge of Education a policy

perspective". It is stated there :

"3.74. Considering the constitutional imperative regarding the

universalisation of elementary education it was to be expected

that the share of this sector would be protected from attribution

(sic). Facts, however, point in the opposite direction. From a

share of 56 per cent in the First Plan, it declined to 35 per cent in

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the Second Plan, to 34 per cent in the Third Plan, to 30 per cent

in the Fourth Plan. It started going up again only in the Fifth

Plan, when it was at the level of 32 per cent,, increasing in Sixth

Plan to 36 per cent, still 20 per cent below the First Plan level.

On the other hand, between the First and the Sixth Five Year

Plans, the share of university education went up from 9 per cent

to 10 per cent."

175. Be that as it may, we must say that at least now the State should

honour the command of Article 45. It must be made a reality at least

now. Indeed, the 'National Education Policy 1986' says that the

promise of Article 45 will be redeemed before the end of this century.

Be that as it may, we hold that a child (citizen) has a fundamental right

to free education up to the age of 14 years.”

We are conscious that the decision of the Supreme Court in the case of

Unnikrishnan (supra) was later on overruled in a Larger Bench

decision in the case of TMA Pai Foundation v. State of Karnataka,

(2002) 8 SCC 481, but not on this point.

32. In case of Society for Unaided Private Schools of Rajasthan v.

Union of India, (2012) 6 SCC 1, the Supreme Court considered the

validity of Right of Children to free and compulsory Education Act,

2009 insofar as it made provisions therein applicable to unaided non

minority schools. Hon 奏le Chief Justice speaking for the majority,

observed as under :

“27. At the outset, it may be stated, that fundamental rights have two

aspects they act as fetters on plenary legislative powers and, secondly,

they provide conditions for fuller development of our people including

their individual dignity. Right to live in Article 21 covers access to

education. But unaffordability defeats that access. It defeats the State奏

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endeavour to provide free and compulsory education for all children of

the specified age. To provide for free and compulsory education in

Article 45 is not the same thing as to provide free and compulsory

education. The word 奏orin Article 45 is a preposition. The word 奏

ducationwas read into Article 21 by the judgments of this Court.

However, Article 21 merely declared 奏ducationto fall within the

contours of right to live.

28To provide for right to access education, Article 21A was enacted to

give effect to Article 45 of the Constitution. Under Article 21A, right is

given to the State to provide by law 奏ree and compulsory education

Article 21A contemplates making of a law by the State. Thus, Article

21A contemplates right to education flowing from the law to be made

which is the 2009 Act, which is childcentric and not institutioncentric.

Thus, as stated, Article 21A provides that the State shall provide free

and compulsory education to all children of the specified age in such

manner as the State may, by law, determine. The manner in which this

obligation will be discharged by the State has been left to the State to

determine by law. The 2009 Act is thus enacted in terms of Article 21A.

It has been enacted primarily to remove all barriers (including financial

barriers) which impede access to education.”

29

33. Importance of quality basic education for upliftment of any

socially, educationally or economically backward or weaker sections of

the society thus cannot be overstressed. Financial constraint, besides

other handicaps, of any class of citizens would certainly be a major

barrier in securing primary education. Lack of primary education

would, in turn, be a strong factor liming progress or advancement of

such section of the society. If considering such aspects of the matter,

after collecting voluminous data on the condition of the minority and

collating such data in a scientific manner on the basis of report of the

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High Level Committee, the Government frames a scholarship scheme

for such minority, can it be stated that the same is prohibited under

Article 14 or for that matter under Article 15(1) of the Constitution?

To our mind, the answer is in the negative. Such carving out a class of

citizens for such special treatment would not amount to hostile

discrimination. In the context of general condition of minorities and

in the context of access to education if it is found that certain class of

citizens need a special attention, to our mind, it is certainly not

impermissible for the policy framers to provide for the same by

diverting a small portion of public funds for such purpose.

34. The fact that students of minority communities, who otherwise

fulfill the criteria laid down under the Scheme, form a class

providing an intelligible differentia distinguishing them as one group

as opposed to those who are left out, can hardly be disputed. More

complex question, however, is: does this classification satisfy the

second condition of the same being reasonable, i.e. does the differentia

have a rational relation to the object sought to be achieved? The

differentia in the present case are that the student must belong to a

minority community, his parent or guardians should not have income

of more than Rs.1 lac, that he must have secured minimum 50 percent

marks in the previous year and that in case of competing claims, his

parentsguardian 奏annual income should be less than the other eligible

candidates. The purpose sought to be achieved through the Scheme is

to provide an impetus for basic education to students of minorities

whose parents are otherwise, on account of unequal socioeconomic

conditions, unable to provide them. If the Government of India, on

the basis of report of the High Level Committee found that certain

minority communities, because of various social factors, have lagged

behind the national growth in terms of economic and educational

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development and consequently in employment, can it be stated that

carving out a separate class of such sections in addition to providing

for stringent conditions for availing scholarship is not a differentia

having a rational relation to the objects sought to be achieved?

35. The Constitution of India was framed with an aim of bringing

about a peaceful social change. Preamble to the Constitution aimed at

achieving social, political and economic justice for all the citizens. For

achieving such goals, the policy framers must be allowed a certain

degree of latitude in experimentation in framing policies and

allocation of funds. The courts neither have a mandate, nor the

wherewithal, nor the expertise to evaluate such policies

microscopically. It is the framers of the policy who have public

mandate and who once in every five years, unlike the Judges, seek a

fresh mandate from the people of this country, who may and must be

allowed free hand in policy framing. The Government of the day

would have its own socioeconomic ideology. We must also remember

that the Scheme pertains to scholarship in primary education and

cannot be equated with any kind of reservation. In other words, as an

affirmative action or as is often referred to as a reverse discrimination,

it amounts to preferential diversion of public funds in favor of a class

of citizens. It is true that such diversion of funds leaves out students of

all communities other than the notified minorities and in that sense, if

it otherwise fails to satisfy the twin tests of reasonableness may still be

seen as hostile discrimination against those who have been left out.

Nevertheless, the impact of such a scheme is vastly different from any

reservation in education or public employment.

36. The last aspect is significant, because it was strenuously urged

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on behalf of the parties challenging the Scheme as well as the State

Government that any welfare measure exclusively in favour of

minority communities is wholly impermissible. They stress heavily on

Article 15(4) of the Constitution in this respect and cite instances and

decisions rendered by different courts in the context of Article 16(4) of

the Constitution. It is their combined stand that minorities in general

are neither notified Scheduled Castes nor Scheduled Tribes as

envisaged under Articles 341 and 342 of the Constitution. They argue

that the minorities also cannot be enbloc treated as socially and

educationally backward class (SEBC) and in any case, no such

classification would be permissible without taking steps as envisaged in

Article 340 of the Constitution. The other limb of this argument is that

unless and until the community, be it minority or otherwise, is

classified as an SEBC community or caste, any preferential treatment in

favour of such a class would not be permissible under Article 15(4) of

the Constitution. They argue that admittedly when no such declaration

has been made with respect to minority communities, granting any

preferential treatment by the State would not be permissible. They

point out that such SEBC status can be granted only by a State level

Commission, as provided by the Supreme Court in the case of Indra

Sawhney (supra) in para 123(A) of the decision. They point out that

such Commissions are in existence and have been regularly fulfilling

the task of categorizing different castes and communities as SEBC

whenever sufficient material is available in this respect.

37. Article 340 of the Constitution provides, inter alia, that the

President may, appoint a Commission to investigate the conditions of

socially and educationally backward classes and the difficulties under

which they labour and make recommendations as to the steps that

should be taken by the Union or State to remove such difficulties and to

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improve their conditions.

38. In the case of M.R.Balaji v. State of Mysore, AIR 1963 SC 649,

the Supreme Court negatived the contention that unless a commission

has been appointed under Article 340 of the Constitution and the report

of the Commission is laid down before the Parliament, it is not

competent for the State to make an order under Article 15(4). The

Apex Court observed as under:

“...... In our opinion, this contention is misconceived. It is true that the

Constitution contemplated the appointment of a Commission whose

report and recommendations, it was thought, would be of assistance to

the authorities concerned to take adequate steps for the advancement of

Backward Classes; but it would be erroneous to assume that the

appointment of the Commission and the subsequent steps that were to

follow it constituted a condition precedent to any action being taken

under Art. 15(4). Besides, it would be noticed that Art. 340(1) provides

that recommendations had to be made by the Commission as to the

steps that should be taken by the Union or any State, inter alia, to

improve that means that the recommendations were to be made which

would be implemented in their discretion by the Union and the State

Government and not by the President. Thus, Art.340(1) itself shows

that it is the Union or the State that has to take action in pursuance of

the recommendations made, and so, the argument that the President

alone has to act in this matter cannot be accepted.”

We are conscious that the decision in the case of Balaji (supra) was not

approved in its entirety in later decisions, particularly in case of Indra

Sawhney (supra). However, here we are not directly concerned with

that aspect of the matter. The fact that minorities are not declared as

SEBCs for the purpose of Article 15(4) of the Constitution is

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undisputed. But to our mind, while judging the validity of the Scheme,

this would not be of any consequence. We may notice that Article

16(4) of the Constitution refers to backward class of citizens, which in

the opinion of the State, is not adequately represented in the services

under the State. In such a case, it is provided that nothing in the

Article shall prevent the State from making any provisions for the

reservation of appointments or posts in favour of such backward

class of citizens. On the other hand, Article 15(4) refers to socially and

educationally backward classes of citizens along with Scheduled Castes

and Scheduled Tribes and provides that nothing in the Article or Article

29(2) shall prevent the State from making any special provision for the

advancement of such classes. Article 16(4) thus pertains to backward

classes of citizens for the purpose of making reservation in public

employment. Article 15(4), on the other hand, refers to socially and

educationally backward classes for the purpose of making any special

provisions by the State for advancement of such classes. While

affirmative action implied in Article 16(4) is restricted to reservation in

employment, Article 15(4) has a wider canvass and reach by virtue of

the pronounced purpose of making special provisions.

39. Such a distinction between two provisions was noticed by the

Supreme Court in the case of Indra Sawhney (supra) wherein Jeevan

Reddy, J. speaking for the majority, observed as under :

"Whether the backwardness in Art" 16(4) should be both social and

educational?

85. The other aspect to be considered is whether the backwardness

contemplated in Art. 16(4) is social backwardness or educational

backwardness or whether it is both social and educational

backwardness. Since the decision in Balaji (AIR 1963 SC 649), it has

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been assumed that the backward class of citizens contemplated by Art.

16(4) is the same as the socially and educationally backward classes,

Scheduled Castes and Scheduled Tribes mentioned in Art. 15(4).

Though Art. 15(4) came into existence later in 1951 and Art. 16(4)

does not contain the qualifying words 奏ocially and educationally'

preceding the words "backward class of citizens" the same meaning

came to be attached to them. Indeed, it was stated in Janaki Prasad

Parimoo (AIR 1973 SC 930) (Palekar, J. speaking for the Constitution

Bench) that:

"Article 15(4) speaks about socially and educationally backward

classes of citizens." However, it is now settled that the expression

"backward class of citizens" in Art. 16(4) means the same thing

as the expression "any socially and educationally backward class

of citizens" in Article 15(4). In order to qualify for being called a

'backward class citizen' he must be a member of a socially and

educationally backward class. It is social and educational

backwardness of a class which is material for the purposes of

both Arts. 15(4) and 16(4).”

It is true that no decision earlier to it specifically said so, yet such an

impression gained currency and it is that impression which finds

expression in the above observation. In our respectful opinion, however,

the said assumption has no basis. Clause (4) of Art. 16 does not contain

the qualifying words' "socially and educationally" as does clause (4) of

Art. 15. It may be remembered that Art. 340 (which has remained

unamended) does employ the expresion 'socially and educationally

backward classes' and yet that expression does not find place in Art.

16(4). The reason is obvious: "backward class of citizens" in Art. 16(4)

takes in Scheduled Tribes, Scheduled Castes and all other backward

classes of citizens including the socially and educationally backward

classes. Thus, certain classes which may not qualify for Art. 15(4) may

qualify for Art. 16(4). They may not qualify for Art. 15(4) but they may

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qualify as backward class of citizens for the purposes of Art. 16(4). It is

equally relevant to notice that Art. 340 does not expressly refer to

services or to reservations in services under the State, though it may be

that the Commission appointed thereunder may recommend reservation

in appointments/ posts in the services of the State as one of the steps

for removing the difficulties under which SEBCs are labouring and for

improving their conditions. Thus, SEBCs referred to in Art. 340 is only

one of the categories for whom Art. 16(4) was enacted; Art. 16(4)

applies to a much larger class than the one contemplated by Art. 340. It

would, thus, be not correct to say that 'backward class of citizens' in Art.

16(4) are the same as the socially and educationally backward classes

in Art. 15(4). Saying so would mean and imply reading a limitation into

a beneficial provision like Art. 16(4). Moreover, when speaking of

reservation in appointments/ posts in the State services which may

mean, at any level whatsoever insisting upon educational backwardness

may not be quite appropriate.”

Despite such legal distinction drawn by the Supreme Court between

the backward classes referred to in Article 16(4) and socially and

educationally backward classes referred to in Article 15(4) of the

Constitution, in the practice which has developed over a period of

time, such distinction has been virtually obliterated. It is an

undisputed position that the State has been categorizing various classes

and communities as socially and educationally backward classes (SEBC)

often referred to in popular term as Other Backward Classes or OBC.

Such list is common for both the benefits envisaged under Article

16(4) of the Constitution as well as Article 15(4). In other words, it is

this very list of SEBC which is utilized by the State organs for the

purpose of granting reservation in public employment in terms of

Article 16(4) of the Constitution. This very classification of SEBC status

also qualifies the member of the community to reservation in

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education including professional courses which would flow from the

provisions made in Article 15(4) of the Constitution. The matter on

hand, however, is neither one of reservation in public employment nor

in education field or any other purpose. The present case involves

granting of scholarship to a class of citizens who, as noted above, were

found to be socially, educationally and economically disadvantaged on

account of their minority status which was ascertained through a

report of the High Level Committee. Therefore, even if

constitutionality of the Scheme cannot be upheld on the anvil of Article

15(4) of the Constitution, when we hold that the same satisfies the test

of reasonable classification, the same would still be permissible in

terms of Article 15(1) of the Constitution. We are unable to accept the

line of argument that either the Scheme must clear the test of Article

15(4) or be condemned as unconstitutional. This argument has many

fallacies. It proceeds on the presumption that Article 15(4) is an

exception to Article 15(1) and along with Article 15(3), the sole

exceptions. The argument implies that any slightest classification,

even if reasonably made, from the plain language of Article 15(1) of

the Constitution will be impermissible unless it satisfies the

requirement of Article 15(4) or Article 15(3), as the case may be.

40. Though previously Articles 15(4) and 16(4) were seen as

exception of the equality enshrined in Article 15(1) and 16(1)

respectively, this understanding of the constitutional provisions

underwent a major change in the decision in N.M.Thomas (supra).

Mathew J, observed as under :

“78. I agree that Art. 16 (4) is capable of being interpreted as an

exception to Article 16 (1) if the equality of opportunity visualised in

Article 16 (1) is a sterile one, geared to the concept of numerical

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equality which takes no account of the social, economic, educational

background of the members of Scheduled Castes and Scheduled Tribes.

If equality of opportunity guaranteed under Article 16 (1) means

effective material equality, then Article 16 (4) is not an exception to

Article 16 (1). It is only an emphatic way of putting the extent to which

equality of opportunity could be carried viz., even upto the point of

making reservation.”

41. This change in the approach was noticed and amplified by the

Supreme Court in the Larger Bench judgment in the case of Indra

Sawhney (supra). It was observed as under :

“57. In Balaji (AIR 1963 SC 649) it was held "there is no doubt that

Article 15(4) has to be read as a proviso or an exception to Articles

15(l) and 29(2)". It was observed that Article 15(4) was inserted by the

First Amendment in the light of the decision in Champakam (AIR 1951

SC 226), with a view to remove the defect pointed out by this Court

namely, the absence of a provision in Article 15 corresponding to Clause

(4) of Article 16. Following Balaji (AIR 1963 SC 649) it was held by

another Constitution Bench (by majority) in Devadasan (AIR 1964 SC

179) "further this Court has already held that clause (4) of Article 16

is by way of a proviso or an exception to Clause (1)". Subbarao, J.,

however, opined in his dissenting opinion that Article 16(4) is not an

exception to Article 16(l) but that it is only an emphatic way of stating

the principle inherent in the main provision itself. Be that as it may,

since the decision in Devadasan, it was assumed by this Court that

Article 16(4) is an exception to Article 16(l). This view, however,

received a severe setback from the majority decision in State of Kerala

v. N. M. Thomas, 1976 (1) SCR 906 : (AIR 1976 SC 490). Though the

Minority (H. R. Khanna and A. C. Gupta, JJ,) stuck to the view that

Article 16(4) is an exception, the majority (Ray, C. J., Mathew, Krishna

Iyer and Fazal Ali, JJ.) held that Article 16(4) is not an exception to

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Article 16(l) but that it was merely an emphatic way of stating a

principle implicit in Article 16(l). (Beg, J. took a slightly different view

which it is not necessary to mention here). The said four learned Judges

whose views have been referred to in para 41 held that Article 16(l)

being a facet of the doctrine of equality enshrined in Article 14 permits

reasonable classification just as Article 14 does. In our respectful

opinion, the view taken by the majority in Thomas is the correct one.

We too believe that Article 16(l) does permit reasonable classification

for ensuring attainment of the equality of opportunity assured by it. For

assuring equality of opportunity, it may well be necessary in certain

situations to treat unequally situated persons unequally. Not doing so,

would perpetuate and accentuate inequality. Article 16(4) is an instance

of such classification, put in to place the matter beyond controversy.

The "backward class of citizens" are classified as a separate category

deserving a special treatment in the nature of reservation of

appointments/ posts in the services of the State. Accordingly, We hold

that clause (4) of Article 16 is not exception to clause (1) of Article 16.

It is an instance of classification implicit in and permitted by clause (1).

The speech of Dr. Ambedkar during the debate on draft Article 10(3)

(corresponding to Article 16(4) in the Constituent Assembly referred

to in para 28 shows that a substantial number of members of the

Constituent Assembly insisted upon a "provision (being made for the

entry of certain communities which have so far been outside the

administration", and that draft clause (3) was put in in recognition and

acceptance of the said demand. It is a provision which must be read

along with and in harmony with clause (1). Indeed, even without clause

(4), it would have been permissible for the State to have evolved such a

classification and made a provision for reservation of appointments/

posts in their favour. Clause (4) merely puts the matter beyond any

doubt in specific terms.

Regarding the view expressed in Balaji (AIR 1963 SC 649) and

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Devadasan (AIR 1964 SC 179), it must be remembered that at time it

was not yet recognised by this Court that Article 16(l) being a facet of

Article 14 does implicitly permit classification. Once this feature was

recognised the theory of clause (4) being an exception to clause (1)

became untenable. It had to be accepted that clause (4) is an instance

of classification inherent in clause (1). Now, just as Article 16(l) is a

facet or an elaboration of the principle underlying Article 14, clause (2)

of Article 16 is also an elaboration of a facet of clause (1). If clause (4)

is an exception to clause (1) then it is equally an exception to clause

(2). Question then arises, in what respect is clause (4) an exception to

clause (2), if 'class' does not mean 'caste'. Neither clause (1) nor clause

(2) speak of class. Does the contention mean that clause (1) does not

permit classification and therefore clause (4) is an exception to it. Thus,

from any point of view, the contention of the petitioners has no merit.”

In that context, the Supreme Court answered the question whether

Article 16(4) is exhaustive of the very concept of reservations. It was

held that though Article 16(4) is exhaustive for reservation in favour

of backward classes and no further special treatment is permissible in

their favour outside of Article 16(4), Article 16(4) itself is not

exhaustive of the concept of reservation. It was held that Article 16(1)

itself, of course, in very exceptional situations and not for all and

sundry reasons permits reservations. The contention that Article 16(1)

permits preferential treatment and not reservation was thus rejected.

42. We may apply the above conclusions of the decision in the case

of Indra Sahwany (supra) to the contention under consideration. Article

15(4) not being an exception, but only an emphatic manifestation of

equality flowing from Article 15(1) of the Constitution cannot be the

litmus test for deciding the constitutional validity of the Scheme. As

observed by the Apex Court, if the contention that Article 15(4) along

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with Article 15(3) are exceptions to the rule of equality enshrined in

Article 15(1) is accepted, it would lead to a situation where outside of

such exceptions, there would be no further flexibility of reasonable

classification under Article 15(1). Such a theory, therefore, must be

rejected. We, therefore, hold that even if minorities are not so

classified as socially and educationally backward classes, any

classification made in their favour which is otherwise reasonable and

stands the twin tests of permissible classification, can still be sustained

under Article 15(1) of the Constitution.

4243. The Scheme is also attacked on the ground that the same is

based on religion and therefore, impermissible under Article 15(1).

To our mind, such a contention is also not valid. The Scheme is not

framed on the basis of religion. Of course, five minorities notified

under section 2 (c) of the National Commission for the Minorities Act

are grouped together for common treatment. However, the scheme for

scholarship was framed to give encouragement to the students of such

minorities to secure primary education when it was found that certain

minorities were suffering from social handicaps which had led to

their growth retardation as compared to the national average in the

areas of social, educational and economic advancement. Thus, the

basis for framing of the Scheme is not religion, but improvement of

the conditions of such disadvantaged group. If religion were the sole

basis for grouping the minorities for a preferential treatment and

excluding the rest, that would be another issue. In the present case,

minorities as a group was used only for the purpose of identifying a

class of citizens who have lagged behind in progress. The fact that they

belong to a common community may be a reason for their slow

progress but is not the reason for providing the scholarship. The reason

for providing the scholarship is their slow progress as compared to the

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national average.

44. It was also argued before us that the special treatment envisaged

under the Constitution in favour of minority communities are only

those flowing from Articles 29 and 30 of the Constitution. In other

words, the contention was that unless and until the provision made in

favour of such communities is saved either by Article 29 or Article 30,

the same cannot be validly made. Article 29 pertains to protection of

interests of minorities. Clause (1) thereof provides that any section of

the citizens residing in the territory of India or any part thereof having

a distinct language, script or culture of its own shall have the right to

conserve the same. Article 30 pertains to right of minorities to

establish and administer educational institutions. These articles do

recognize certain special rights and privileges of the minorities.

However, it would be incorrect to say that the Constitution prohibits

bunching of minorities for the purpose of drawing a reasonable

classification even if the requirement so demands. Grouping together

the minorities for the purpose of drawing a class by itself is vastly

different issue from protection of their interests and right to establish

and administer educational institutions. If otherwise such a

classification is validly made, it cannot be frowned upon merely on the

premise that the State action is not covered either under Article 29(1)

or Article 30 of the Constitution.

Much reliance was placed on the decision of Division Bench of

the Andhra Pradesh High Court dated 28.5.2012 in the case of

R.Krishnaiah v. Union of India. In the said case, the petitioner had

challenged a decision of the Central Government to carve out sub

quota of 4.5 percent for socially and educationally backward classes of

citizens belonging to minorities as defined under section 2(c) of the

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National Commission for Minorities Act, 1992 from within the 27 per

cent reservation for other backward classes notified by the Government.

The Division Bench relying upon the decision in the case of Triloki

Nath Tiku v. State of Jammu & Kashmir, AIR 1969 SC 1, observed

that the resolution of the Government carved out a subquota for the

minorities. The very use of the words 奏elonging to minoritiesor 奏or

minoritiesindicates that a subquota has been carved out only on

religious lines and not on any other intelligible basis. It was observed

that :

“Absolutely no material is placed before us to demonstrate that persons

belonging to the religious groups mentioned above are more backward

than any other category of backward classes or that they need any

preferential treatment as compared to other OBCs.

24In the absence of any material before us (and we must emphasize

this), and on the plain language of the OMs, it seems to us quite clear

that the subquota has been created only on grounds of religion and

nothing else. This is clearly impermissible in view of the specific

language of Article 15(1) of the Constitution as well as Article 16(2) of

the Constitution. In the absence of any factual basis, it seems to us that

by making a special provision for religious minorities with regard to

admission in some central educational institutions and with regard to

employment in appointments and posts under it, the Central

Government has exceeded the constitutional boundaries. Ex facie, the

petitioners must succeed on this basic ground of challenge.”

25

From the above, it can be seen that the case before the Andhra

Pradesh High Court involved an entirely different issue for

consideration. What was under challenge was a subquota carved out

for minorities out of 27 per cent total reservation for admission in

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Central Educational Institutions. Such special classification was found

to be discriminatory on the ground that the same was based only on

religion. While doing so, the Court observed that no material was

placed before it to demonstrate that persons belonging to such groups

were more backward than the other category of backward classes and

that therefore they needed preferential treatment. It was in this

context observed that in absence of any material placed before the

Court, 奏t seems clear that the subquota has been created only on the

ground of religion and nothing else Clearly, the ratio laid down therein

on the basis of aforesaid findings is distinguishable. Firstly, the issue

on hand was pertaining to special classification in an otherwise

common group forming OBCs. Secondly, the same was struck down

since no material was placed before the Court to demonstrate that

persons belonging to such minorities require any preferential

treatment.

45. In addition to our above legal conclusions, we also cannot quite

follow the standpoint of the State. As noted earlier, before the Scheme

was framed, the State took a stand that framing of such a Scheme

which discriminates between different religious groups would not be

appropriate. In the replies filed before us in these petitions, the stand

adopted was that the Central Scheme makes provision only for 52000

odd students against the eligible 6 lacs students as per the income limit

of Rs.1 lac per annum. This, if not remedied, would lead to heart

burn for the students of minority community who are left out of the

benefits of the Scheme. If the State were to remedy the same, and also

increase the income limit to Rs.1 lac in various scholarship schemes, it

would create a financial burden of Rs.2000 crores. What is, however,

argued before us on behalf of the State is that the Scheme itself is

unconstitutional.

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46. Firstly, we do not see how allocating funds to a limited number

of otherwise eligible students on the basis of availability of such funds

can either be discriminatory or lead to any dissatisfaction amongst

those who are left out. Whenever State funds fall short of covering all

eligible beneficiaries, any reasonable criteria for allocating available

fund to the priority group is not impermissible or unknown. We also

do not see how the State would be compelled to cover the rest of the

left out students. Further the State itself has framed prematric

scholarship for minority students which is in existence since the year

1979. Such a scheme is still in operation. Is it not somewhat

incongruent for the State which frames and sustains a scheme for

decades together to argue that any such scheme which is meant only

for minority students is constitutionally invalid? We may hasten to

add that we have not decided any of the issues on demurrer, but

purely on our legal understanding. We, however, cannot accept the

State 奏stand that it being a policy of the State not to accept such a

scheme, the Court should not interfere. Can the State which itself has

been operating the prematric scholarship scheme for minorities

without any further justification avoid a similar scheme only on the

basis of policy decision?

47. Equally, the stand of the petitioners also is somewhat perplexing.

Petitioner No.1 belongs to Scheduled Caste community and petitioner

No.2 belongs to OBC category. In the petition, they have mainly taken

up the contention that the Scheme in question discriminates the

Scheduled Castes students. It has come on record that Central as well

as the State Governments have framed various schemes specially

covering Scheduled Castes and Scheduled Tribes and OBC students.

They have now taken before us a different stand altogether, namely,

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that they also espouse the cause of all other students including those

belonging to general category.

48. This Court in the case of Vijay H. Patel (supra) had examined the

Scheme and found it constitutionally valid. It was observed that

welfare of the people is ultimate goal of the State actions and the if

State finds that a minority community is not equally placed with the

majority community, socially or economically, it can take steps to

minimise inequalities and bring that community at par with rest of the

population. It was observed that the principal aim of socialist State is

to eliminate inequalities in income, status and standard of life.

49. Bombay High Court also in the case of Sanjiv Gajanan Punalekar

(supra) upheld the validity of this very Scheme along with similar

Central scheme for postmatric scholarship for minorities. The Bombay

High Court also upheld the scheme as part of affirmative action of the

State under Article 15(1) of the Constitution. The High Court referred

to a decision of the Supreme Court in the case of Praful Goradia v.

Union of India, (2011) 2 SCC 568 which is a case pertaining to

challenge to Haj subsidy being given by the Government of India.

50. The above views of different Courts commend themselves. We

also record our reasons for coming to similar conclusions though may

be through a slightly different route.

51. Findings of the Sachar Committee Report are not under

challenge before us. We have, therefore, proceeded on the basis of

such findings which, inter alia, highlight the fact that minority

community has lagged behind the national average in several

parameters of advancement. It is found that in certain respects of

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education, economic development and other relevant parameters of

socioeconomic advancement, such community hovers around and, in

some cases, even lags behind the national average for other

disadvantaged group of citizens such as SCs/STs. Their performance

is far behind the national average in various fields. If that be the

situation, would it be impermissible for the Union to frame a Scheme

taking a small step providing scholarship to a limited number of

otherwise eligible students of such communities? The strict scrutiny

test adopted by the US courts in case of State 奏affirmative action is not

accepted by the Indian Supreme Court.

52. In the case of Saurabh Chaudhri v. Union of India, AIR 2004

SC 361, Constitution Bench of the Supreme Court observed as under :

“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. The Courts

always lean against a construction which reduces the statute to a

futility. A statute or any enacting provision therein must be so construed

as to make it effective and operative "on the principle expressed in the

maxim : ut res magis valeat quam pereat." (See CIT v. Teja Singh (AIR

1959 SC 352) and Tinsukhia Electric Supply Co. Ltd. v. State of Assam

(AIR 1990 SC 123).

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In the case of Ashok Kumar Thakur v. Union of India, (2008) 6 SCC

1, Hon 奏le Chief Justice of India discussed this issue at considerable

length and concluded that:

“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 "suspect'

legislation" and we have been following the doctrine that every

legislation passed by the 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 Chaudhari vs.

Union of India.”

53. Thus viewed from any angle, the Scheme cannot be held to be

unconstitutional. It is true that along with Muslim minority, the

Scheme clubs together rest of the notified minorities also. The Sachar

Committee report is based predominantly on the conditions of the

Muslim minority in the country. However, we notice that Muslim

community is predominant amongst such minorities since numerical

strength of rest of the other minorities, in particular, Buddhists and

Parsis is minuscule. From the decision of the Bombay High Court in

the case of Sanjiv Gajanan Punalekar (supra), we gather that position

of different communities in the country is as follows:

CommunityPercentageHindus81.89%Muslims13.40%Christians2.00%Sikhs1.90%Buddhists0.80%ParsisLess than 0.01%

These minorities are those notified under section 2(c) of the National

Commission for Minorities Act,1992. The said Act was enacted to

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constitute a National Commission for Minorities. Statement of its

objects and reasons suggests that previously Minority Commission was

set up in the year 1978 for providing institutional arrangement for

evaluating the safeguards provided in the Constitution for protection of

the minorities and to make recommendations for ensuring

implementation of the safeguards and the laws. It was held that

Minorities Commission with statutory status would infuse confidence

among the minorities about the working and effectiveness of the

Commission. The same would carry more weight with the State

administration. It was, therefore, decided to give statutory status to

the Minorities Commission. The main task of the Commission is to

evaluate the progress of the development of the minorities, monitor the

working of the safeguards provided in the Constitution for the

protection of interests of minorities and in laws enacted by the Central

Government and the State Government, besides looking into the

specific complaints regarding deprivation of rights and safeguards of

the minorities. The Commission should also cause studies, research

and analysis relating to socioeconomic and educational development

of the minorities and make recommendations for the effective

implementation of the safeguards for the protection of interests of

minorities by the Central as well as the State Governments. Functions

of the Commission have been described in section 9 of the said Act.

Section 2(c) defines 奏inorityfor the purposes of the Act to mean that a

community notified as such by the Central Government. It can thus be

appreciated that five minorities so notified by the Central Government

under section 2(c) of the Act after proper examination of the relevant

factors for doing so, are those in favour of which the Scheme has been

framed. Different democracies attempt in different ways to protect the

identity and interests of minority communities, be it religious or

linguistic. The Constitution of India makes special provisions for

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protection of such minorities under Article 29 and 30 of the

Constitution. Interpretation and width of these Articles came up for

consideration before the Supreme Court in the case of Ahmedabad St.

Xavier 奏College Society v. State of Gujarat, (1974) 1 SCC 717 and

in the case of St. Stephens College (supra). For the purpose of

deciding the issue before us, we are not required to enter into various

issues arising in such decisions. Suffice it to conclude that grouping of

such minorities do not form a heterogeneous class and particularly

when numerically predominant minority is shown on the basis of

research to be falling behind in overall national development in fields

of education, employment and economy, the Scheme in our opinion,

can not be struck down on the premise that such detailed material was

not collected in case of other minorities who form a much smaller

group of minorities. The status of such small groups as 奏inoritieswith

all the concomitant rights and handicaps in the diverse and stratified

society is, however not in controversy. We have noticed earlier that

Sachar Committee also called for data with respect to other minorities,

of course, without any special focus on detailed analysis of their social

and economic conditions. However, solely on that basis, we would not

be justified in annulling otherwise a valid scheme.

54. The Referring Bench was of the opinion that the Scheme is

constitutionally invalid and the question requires consideration by the

Larger Bench. That opinion was primarily based on two

considerations. Firstly, the Scheme excludes a student from any

community other than the notified minorities from seeking benefits of

the Scheme. This according to the Bench, was an example of hostile

discrimination. In our opinion, the Scheme is based not only on

religion, but draws a classification on the basis of class of citizens

grouped together who have been identified as underprivileged and

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suffering from certain handicaps. The starting point for finding out

their conditions may be a religious tag attached to them. However,

special treatment is being meted out not because they belong to a

certain religion, but because as a class of citizens, they have lagged

behind the national average in development.

55. The second aspect on which the Referring Bench found it

appropriate to make a reference to the Larger Bench was that the

decision in the case of Thakur Pratap Singh (supra) was not considered

either by the Gujarat High Court in the case of Vijay H. Patel (supra) or

by the Bombay High Court in the case of Sanjiv Gajanan Punalekar

(supra). To recall, it was a case where on the premise that certain

villages in the district of Jhunjhunu in the State of Rajasthan

harboured dacoits and receivers stolen properties leading to trouble

and riots, the State Government took action under section 15 of the

Police Act. The said section authorized the Inspector General of Police

to deploy additional police force in such disturbed area and provided

that cost of such additional police force shall be borne by the

inhabitants of the disturbed area. While issuing such an order, the

State Government provided that the residents of the area belonging to

Muslim and Harijan communities would be exempt from paying such

cost. It was in this context, the Supreme Court found that such an

action was violative of Article 15 of the Constitution. We are of the

opinion that the decision in the case of Thakur Pratap Singh (supra)

was rendered in an entirely different factual background. The ratio

laid down therein is not applicable in the present case.

56. This leads to the question whether a writ of mandamus should

be issued. The stand of the State Government, in this respect, is two

fold. Firstly, it is contended that the Scheme does not vest any right

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in an eligible candidate. Without a vested legal right in favour of a

person and corresponding legal duty on the part of the State, no

mandamus could be issued. It is pointed out that the Scheme is only an

enabling provision and there being no corresponding duty on the part

of the beneficiary, the principles of promissory estoppel cannot be

applied. The second limb of the State 奏opposition is that it is a

matter of Union and State relations whether the Scheme should be

adopted or not by the State Government. Particularly when 25 per cent

of the contribution is to flow from the State Government coffers, the

State cannot be compelled to agree to implement the Scheme. Our

attention was drawn to Articles 256, 257 and 73 of the Constitution to

argue that in absence of any law framed by the Parliament, Union

cannot give any executive direction to the State in the matter of

education which is part of the concurrent list in Schedule VII of the

Constitution.

57. If the Union Government as a framer of the Scheme had either

withdrawn or after framing the Scheme not implemented it at all, for

whatever internal reasons, the question whether mandamus can be

issued for implementing such a scheme would have required the

examination of applicability or otherwise of the concept of promissory

estoppel. In the present case, however, the Union of India, as framer

of the Scheme has not resiled from such a scheme. In fact, the Union

has already made necessary allocation for implementation of the

Scheme all throughout the country including in the State of Gujarat. It

is stated that the Scheme is implemented across the country except in

the State of Arunachal Pradesh, Gujarat and Lakshwadeep. We are

informed that nonimplementation of the Scheme in Lakshwadeep was

owing to the fact that there is large tribal population in the said

region. Be that as it may, we see no inhibition in giving suitable

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directions, if not strictly in the nature of mandamus, for carrying out

the effect of the Scheme.

58. The question of the State opposition must be viewed in the

peculiar facts of this case. From the record, we gather that before the

Scheme was framed, view of the State Government was called for. It is

in this respect that the State 奏 first response came in the form of a

communication dated 4th March 2008, contents of which we have

already noticed earlier. Ultimately, when the Scheme was framed and

circulated amongst the State Governments for its implementation, the

State Government did not oppose the same. The learned Advocate

General stated under instructions that periodically the Government of

India would send communications for implementing the Scheme every

year. The State Government, he conceded that, had not responded to

any such communications.

5859. Before us also, the State Government has not sought any

declaration that the Scheme is not binding on the State or that the

same cannot be implemented. Simultaneously, we also find that the

State itself has framed a prematric scholarship scheme for minority

students without any limit on the number of students who can avail of

such a scheme. Under such scheme, large number of minority students

are already taking benefit of the State 奏 scholarships. If the Central

scholarship Scheme is also implemented, some of the students who are

currently covered under the State scholarship scheme would shift to

such a Central Scheme, the same being more advantageous. The

Central Scheme itself makes it clear that no student shall be entitled to

avail of more schemes than one from any source for the same purpose.

Thus those minority students who would be switching over to Central

Scheme would be eliminated from the State list. Simultaneously, we

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also notice that the State has also implemented the postmatric

scholarship scheme of the Central Government without any opposition.

Such Scheme is in operation since some time now. The State 奏

opposition in the present case may be on account of 25 per cent State

participation that the Scheme envisages. However, as already noted,

implementation of the Central Scheme would result into reduction in

number of beneficiaries under the State Scheme and to that extent,

the State allocation would certainly be reduced. If as per the Central

Scheme around 52260 students receive such scholarships, such

students who would be receiving State scholarships would cease to

qualify for such State scholarship. Merely because a small portion of

the spending comes from the State 奏exchequer does not commend to

us that we should hold that no mandamus should or could be issued.

Therefore, keeping open the larger question of CentralState relations

and true interpretation of the relevant provisions of Articles 256, 257

and 73 of the Constitution, we would suitably answer the questions

referred to us in view of the above discussion. According to the

constitutional scheme, right to education forms part of the right to life

under Article 21 and the right to education is incorporated separately

and in clear terms as an independent fundamental right in the form of

Article 21A. That article is couched in the language which is

mandatory insofar as the State is obliged to provide free and

compulsory education to all children of the age of 6 to 14 years. The

matter of free and compulsory primary education has been perceived to

be so important even at the time of drafting of the Constitution that

Articles 45 and 46 were incorporated in Chapter IV of the Constitution

to lay the principles fundamental in the governance of the country and

they were made the duty of the State to apply those principles in

making laws by virtue of Article 37. Now that right to education is not

only declared as fundamental right of every child, but the State has

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been obliged to provide free and compulsory education, no authority

which is 奏he Statewithin the definition contained in Article 12 could

legitimately renege on the constitutional covenant. The phrase 奏ree

and compulsory educationin Article 21A clearly makes it obligatory on

the State to not only provide necessary funds and facilities for free, but

also compulsory education. The State already under obligation to apply

the provisions contained in Articles 45 and 46 to provide child care and

primary education and promote with special care the educational and

economic interests of the weaker sections of the people and protect

them from social injustice could not be heard to advance the argument

of its own policy of not implementing a welfare measure calculated to

fulfill its obligations, either on the ground of financial implication or

the other measures being taken by itself. We have already noticed that

under the Scheme, burden on the State exchequer is not very large. In

a related provision under Article 51A of the Constitution, it is also the

duty of every citizen, who is a parent or guardian, to provide

opportunities for education to his child or, as the case may be, ward

between the age of 6 and 14 years. With such background of

constitutional provisions, realization of the goal of universal literacy by

compulsory education could be achieved not just by penal provisions,

but by incentive schemes impelling the parents to send their children to

schools and enforcement of such schemes, consistent with other articles

of the Constitution, could be treated as having the mandate of the

Constitution itself for its enforcement. In fact, the Division Bench

referring the aforesaid issues to the Larger Bench has already observed

in para 33.10.1, without any difference of opinion from any earlier

judgment, that, “.....we do not, for a moment, dispute the power of the

Central Government to issue executive directions upon the State within the

scope of the Constitution....... However, even without a formal direction

of the Central Government and reference to the provisions of Articles

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73, 256 and 257 of the Constitution, the High Court must exercise its

extraordinary jurisdiction for issuing appropriate direction subservient

to the aforesaid constitutional mandate. We may remind ourselves of

the observations made by Mathew, J. in the case of N.M.Thomas

(supra), as under:

“73. There is no reason why this Court should not also require the

State to adopt a standard of proportional equality which takes account

of the differing conditions and circumstances of a class of citizens

whenever those conditions and circumstances stand in the way of their

equal access to the enjoyment of basic rights or claims.”

60. In conclusion, we answer the questions referred to us in

following manner :

(i)The Scheme in question does not violate Article 15(1) of the

Constitution and that direction should be given for its implementation.

(ii)Decision of this Court in the case of Vijay H. Patel (supra) laid down

the correct proposition of law.

61The matters be now placed before appropriate Division Bench.

62

(V.M.SAHAI, J.)

(D.H.WAGHELA, J.)

(AKIL KURESHI, J.)

(vjn)

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


With


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI

With

HONOURABLE MR.JUSTICE D.H.WAGHELA

With

HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Sd/-

With

HONOURABLE MR.JUSTICE AKIL KURESHI

and

HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-

================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

YES

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy of the judgment ?

NO

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

YES

5 Whether it is to be circulated to the civil judge ? NO

================================================================

ADAM B CHAKI....Applicant(s)

Versus

GOVERNMENT OF INDIA THROUGH SECRETARY & 3....Opponent(s)

Page 1 of 164

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Appearance in WPPIL 20 of 2011:

MR EKRAMA QURESHI for MR HASHIM QURESHI, ADVOCATE for the Applicant(s)

No. 1

MR KAMAL B.TRIVEDI, ADVOCATE GENERAL with MR PRAKASH JANI,

GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for the Opponent(s)

No. 2

MR PARASH KUHAD, ADDL.SOLICITOR GENERAL OF INDIA with MR PANKAJ

S.CHAMPANERI, ASST.SOLICITOR GENERAL OF INDIA with MR HRIDAY BUCH,

ADVOCATE for the Opponent(s) No. 1

MR YATIN OZA, SR.ADVOCATE with MS SRUSHTI A THULA, ADVOCATE for the

Opponent(s) No. 3 – 4

MR YH MUCHHALA, SR.ADVOCATE with MR MTM HAKIM, ADVOCATE for

INTERVENER.

MR DUSHYANT DAVE, SR.ADVOCATE with MR AJ YAGNIK, ADVOCATE for

INTERVENER.

Appearance in WPPIL 191 of 2012:

MR SHALIN MEHTA, SR.ADVOCATE with MS SHRUSTI THULA, ADVOCATE for the

Applicant(s) No. 1

MR HASIM QURESHI, ADVOCATE for the Opponent.

MR KAMAL B.TRIVEDI, ADVOCATE GENERAL with MR PRAKASH JANI,

GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for the Opponent(s).

MR PARASH KUHAD, ADDL.SOLICITOR GENERAL OF INDIA with MR PANKAJ

S.CHAMPANERI, ASST.SOLICITOR GENERAL OF INDIA with MR HRIDAY BUCH,

ADVOCATE for the Opponent(s) No. 1

MR YH MUCHHALA, SR.ADVOCATE with MR MTM HAKIM, ADVOCATE for

INTERVENER.

MR DUSHYANT DAVE, SR.ADVOCATE with MR AJ YAGNIK, ADVOCATE for

INTERVENER.

Page 2 of 164

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================================================================

CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAIandHONOURABLE MR.JUSTICE D.H.WAGHELAandHONOURABLE MR.JUSTICE RAVI R.TRIPATHIandHONOURABLE MR.JUSTICE AKIL KURESHIandHONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 15/02/2013

CAV JUDGEMENT

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

(For Self and Hon’ble Mr. Justice Ravi R.Tripathi)

I have had the benefit of going through a very erudite

and lucid judgment prepared by my esteemed learned brother

Justice Akil Kureshi, holding that the Scheme in question is

valid and not discriminatory in terms of Article 15(1) of the

Constitution of India. My learned brother has also held that the

State Government is legally bound to implement the same. It is

with deep and sincere regret that I express my inability to

persuade myself to agree with the views expressed by my

esteemed learned brother. I admit that on the question

referred to this Full Bench, there is room for difference of

opinion, but I would like to express my own views to ensure

that the scope of fundamental right conferred by any provision

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contained in Part-III of the Constitution of India is not allowed

to be belittled or restricted. I am of the view that the Scheme

in question is discriminatory and is hit by Article 15(1) of the

Constitution of India for the reasons I shall assign hereafter.

The facts have been elaborately stated in the majority

judgment and, therefore, they are not being repeated for the

sake of convenience.

“Four score and seven years ago our fathers brought

forth on this continent a new nation conceived in liberty and

dedicated to the proposition that all men are created equal.

We are engaged in a great civil war, testing whether that

nation, or any nation so conceived and so dedicated, can long

endure.”

– Abraham Lincoln: Gettysbug Address

The idea of equality is the heart and soul of the Indian

Constitution system. The Preamble of our Constitution

promises equality, which is explained in detail in Articles 14

and 15 as enshrined in Part-III of the Constitution. Equality as

contemplated under our Constitution system is among equals

and similarly situated. Equality in general cannot be universally

applied and is subject to conditions and restrictions as spelt

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out in the Constitution itself. The Constitution of India has an

elaborate Preamble. The purpose of the Preamble is to clarify

who has made the Constitution, what is its source, what is the

ultimate sanction behind it; what is the nature of the polity

which is sought to be established by the Constitution and what

are its goals and objectives ?

The Preamble does not grant any power but it gives a

direction and purpose to the Constitution. It outlines the

objectives of the whole Constitution. The Preamble contains

the fundamentals of the Constitution. It serves several

important purposes, as for example:

(1) It contains the enacting clause which brings the

Constitution into force.

(2) It declares the great rights and freedoms which the

People of India intended to secure to all its citizens.

(3) It declares the basic type of Government and polity

which is sought to be established in the country.

(4) It throws light on the source of the Constitution, viz.

the People of India.

Articles 14, 15 and 16 deal with the various facets of the

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right to equality. Article 14 provides for equality before law and

prohibits the State from denying to any person, equality before

law or equal protection of laws. Article 15 provides for

prohibition of discrimination against any citizen on grounds

only of religion, race, caste, sex or place of birth or any of

them, but permits special provisions being made for women

and children or for the advancement of any socially and

educationally backward classes of citizens or for the Scheduled

Castes and Scheduled Tribes. Article 16 guarantees equality of

opportunity in matters of public employment to the citizens of

India.

These three Articles form part of the same Constitutional

code of guarantees and, in the sense, supplement to each

other. Article 14 on the one hand, and Articles 15 and 16 on

the other, have frequently been described as being the genesis

and the species respectively.

In the light of the constitutional guarantee of equality in

the matter of making special provision for the advancement of

any socially and educationally backward class of citizens, I am

called upon to test the constitutional validity of a centrally

sponsored scheme of “Pre-Matric Scholarship” for the students

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belonging to the minority communities. Few salient features of

the Scheme in question which require a mention are as

under :-

(1) The Scheme provides scholarship for meritorious

students from religion based minority communities.

(2) Under Section 2(c) of the National Commission for

Minorities Act, 1992, the Muslims, Sikhs, Christians,

Buddhists and Zoroastrians (Parsis) have been notified as

minority communities.

(3) The object of the Scheme is to encourage parents

from minority communities to send their school-going

children to schools, lighten their financial burden on

school education and sustain their efforts to support their

children to complete school education.

(4) According to the eligibility criteria prescribed in the

said Scheme, the scholarship would be awarded to the

students who have secured not less than 50% marks in

the previous final examination and the annual income of

their parents/guardians from all sources should not

exceed Rs.1 lakh.

(5) The distribution of scholarship among the

State/Union Territory will be made on the basis of the

population of minorities in the State/Union Territory

indicated in the Census 2001.

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Thus, it is abundantly clear that the benefit of the Pre-

Matric Scholarship is available only to the students of five

minority communities, namely, Muslims, Sikhs, Christians,

Buddhists and Zoroastrians (Parsis) and that too, only to those

students who have secured not less than 50% marks in the

previous final examination and the annual income of their

parents/guardians from all sources is not exceeding Rs.1 lakh.

In the circumstances referred to above, the question that

falls for my consideration is, whether the scheme introduced

by the Central Government is violative of Article 15(1) of the

Constitution of India as only on the ground of religion the

children of all other communities except the five communities

indicated in the Scheme are deprived of the said benefit,

however meritorious the children of other communities may be

and however lower ebb of poverty and distress they are

suffering from.

Before I proceed to examine this main question, it will be

profitable to take brief note of the various submissions which

have been made on either side :

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Gist of the submissions made on either side

I. Submissions to uphold the validity of the

Scheme:

Mr.Paras Kuhad, the learned Assistant Solicitor General of

India appearing for the Union of India, Mr.Ekrama Qureshi, the

learned advocate appearing for the petitioner of Writ Petition

(PIL) No.20 of 2011, Mr.Y.H.Muchhala, the learned senior

counsel appearing for the Intervener and Mr.Dushyant Dave,

the learned senior counsel appearing for another Intervener, in

one voice, submitted that the impugned Scheme promulgated

by the Union of India is to fulfill its obligation to minimize

inequalities in income and to eliminate inequalities in status,

facilities and opportunities amongst group of people in India

and thereby to ensure social order in which justice, social,

economic and political shall inform all institutions of national

life. The impugned Scheme comprises of ‘special steps’ to

promote educational and economical interests of the religious

minorities who constitute weaker sections of the people and

thereby Union of India has discharged its constitutional

obligation under Article 46 of the Constitution of India. The

Scheme in question is not based only on religion or poverty but

is based on variety of factors, namely, economic, poverty, sex,

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minority status and State-wise population.

It is constitutionally permissible to treat religious

minorities as specified in the National Commission for

Minorities Act, 1992 as a separate class. The burden of proof to

assail constitutional validity of the impugned Scheme lies on

the party who challenges the same.

Article 15(4) also permits special provisions to be made

for socially and educationally backward classes. The State of

Gujarat is under a constitutional obligation to implement the

Scheme and its refusal to do so amounts to breach of its

obligation and fundamental rights read with socio-economic

rights of the religious minorities.

One of the submissions was that if the decision of the

Supreme Court in the case of Indra Sawhney v/s. Union of

India, reported in AIR 1993 SC 477 is read closely, then so far

as the Hindus are concerned, caste can be a starting point

while for other religions where there is no caste system,

occupation can be the starting point. Thus, emphasis in so far

as Hindus are concerned, should be for ‘caste’, and for others,

‘occupation’.

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Relying on the decision of the Division Bench of the

Andhra Pradesh High Court rendered in the case of

R.Krishnaiah v/s. Union of India (PIL Nos.1, 22 and 56 of

2012 decided on 28th May 2012), it was submitted that

clubbing certain minorities such as Muslims, Christians, Sikhs,

Buddhists and Zoroastrians (Parsis) into one group does not

per se lead to any conclusion of homogeneity among them –

on the contrary, the presumption is of diversity. It was also

submitted that the five minority communities do not form a

homogeneous group but a heterogeneous group.

It was sought to be contended by the learned Assistant

Solicitor General of India Mr.Kuhad that Court should take a

wholesome balanced view of the entire scheme and not a

pedantic view. According to him, the decision rendered by the

Supreme Court in the case of Prafull Goradia vs. Union of

India, reported in (2011) 2 SCC 568 is the complete answer to

the question of constitutional validity of the Scheme and that it

is not hit in any manner by Article 15(1) of the Constitution of

India.

It was also submitted that the decision of the Central

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Government to float such a scheme for the five minority

communities could be termed as a policy decision of the

Government, and unless it is shown by adducing some

evidence that such policy decision violates fundamental right,

only then Court should interfere in exercise of powers under

Article 226 of the Constitution of India.

Drawing distinction between differentiation and

discrimination, it was submitted that the Scheme is in

consonance with the Second Part of Article 14 of the

Constitution of India.

It was also submitted that the basis for introducing such

a Scheme was the Report of Justice Sachar Committee

constituted by the Central Government as a part of Prime

Minister’s 15 point programme.

It was submitted that the benefit is not being extended to

a member of a particular religion but a class of citizens who

have been declared as a minority under a notification issued

under Section 2(c) of the National Commission for Minorities

Act, 1992.

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It was also submitted that Article 15(4) of the

Constitution of India is one of the sources of power to introduce

such a scheme for the minorities and not the only source of

power.

Reliance was mainly placed on the following decisions in

support of the Scheme :

(1) Indra Sawhney and others v/s. Union of India and others, reported in AIR 1993 SC 477;

(2) State of Kerala and another v/s. N.M.Thomas and others, reported in (1976)2 SCC 310;

(3) Ashoka Kumar Thakur v/s. Union of India and others, reported in (2008)6 SCC 1;

(4) Praful Goralia vs. Union of India, reported in (2011) 2 SCC 568.

II. Submission to declare the Scheme invalid being

hit by Article 15(1) of the Constitution of India.

Mr.Kamal B.Trivedi, the learned Advocate General

appearing for the State of Gujarat, Mr.Prakash K.Jani, the

learned Government Pleader, assisted by Ms.Sangeeta Vishen,

the learned AGP, Mr.Y.N.Oza, the learned senior counsel

appearing for the respondents in Writ Petition (PIL) No.20 of

2011, Mr.Shalin Mehta, the learned senior counsel appearing

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for the petitioner in Writ Petition (PIL) No.191 of 2012, in one

voice, submitted that the Scheme in question is violative of

Article 15(1) of the Constitution of India, since it seeks to

discriminate on the ground only of religion. There is no other

consideration coupled therewith which could have permitted

the said discrimination based on the ground of religion.

So far as Scheduled Castes and Scheduled Tribes are

concerned, the same are to be specified by the President in

consultation with the Governor for a particular State as

provided under Articles 341 and 342, respectively. So far as

SEBC is concerned, there is no such provision in the

Constitution. Article 340 does not envisage a Commission for

finding out and classifying the citizens who are socially and

educationally backward. What it envisages is that for the

removal of difficulties of citizens who are socially and

educationally backward, the Commission may investigate facts

and submit recommendations. In the case of Indra Sawhney

(supra), while dealing with the challenge against

recommendation of Mandal Commission appointed under

Article 340, mandated in paragraphs 117, 123A, 123B, 366(17)

and 471(9) that the the Central Government as well as State

Governments should create a permanent machinery in form of

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Commission or Tribunal for examining request of inclusion in or

exclusion from backward class, while keeping in mind various

factors like caste, education, occupation, habitat, poverty, etc.

Apropos the above, the Central Government enacted

National Commission for Backward Classes Act, 1993, whereas

the State Government constituted a permanent Commission

vide G.R. dated 18th March 1993 (page 83 in the Writ Petition

(PIL) No.20 of 2011) for specifying backward classes of citizens

in the State. As a result of the exercise undertaken by the said

State Commission, in all 146 castes and communities have

been specified to be SEBCs in the State of Gujarat, which

include 31 castes which belong to the minority communities of

Muslims and Christians. Except the above, the said

Commission has not identified any other caste relating to any

religious minority community as SEBC. Similarly, at the Union

level also, the National Commission for Backward Classes

constituted under the NCBC Act, 1993 has never specified all

the said five religious minorities as a backward class or as

SEBC.

Unless religious minorities referred to in the Scheme in

question are so specified as Scheduled Castes or Scheduled

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Tribes or SEBC or any other backward class, any preferential

treatment sought to be given to them only on the ground of

their being the religious minorities, would be discriminatory in

nature and hit by Article 15(1) of the Constitution.

The determination of socio-economic backwardness of

Muslim community and other socio-religious categories in India

by Justice Sachar Committee, vide Report dated 17th November

2006, cannot, by any stretch of imagination, be called

identification of the said Muslim community and other socio-

religious categories as belonging to ‘Socially and Educationally

Backward Classes’ within the State of Gujarat. Unless the said

communities are so identified and declared by the permanent

Commission working in the State of Gujarat as belonging to

Socially and Economically Backward Class, they cannot per se

be recognized as SEBCs.

Reliance was mainly placed on the following decisions :

(1) T.M.A.Pai Foundation v/s. State of Karnataka, reported in (2002)8 SCC 481;

(2) S.R.Bommai v/s. Union of India, reported in (1994)3 SCC 1;

(3) Bal Patil v/s. Union of India, reported in (2005)6 SCC 690;

(4) State of Rajasthan v/s. Thakur Pratap Singh,

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reported in AIR 1960;

(5) E.V.Chinnaiah v/s. State of Andhra Pradesh and others, reported in AIR 2005 SC 162.

A N A L Y S I S :-

In Constitutional Law of India (by H.M.SEERVAI, 4th Edn.,

Vol.I at page 439) what is meant by equal protection of laws is

answered thus :- “If all men are created equal and remained

equal throughout their lives, thus the same laws would apply

to all men. But “we know” that men are unequal;

consequently, a right conferred on persons that they shall not

be denied “the equal protection of the laws”, cannot mean the

protection of the same laws for all. It is here that the doctrine

of classification steps in and gives content and significance to

the guarantee of the equal protection of the laws. According to

that doctrine, equal protection of the laws must mean the

protection of equal laws for all persons similarly situated. To

separate persons similarly situated from those who are not, we

must ‘discriminate’, that is, act on the basis of a differences

between persons, or, observe distinctions carefully between

persons who are and persons who are not, similarly situated.

But as the distinction is to be made for the purpose of making

a law, how must the distinction be related to the law ?

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This is answered by the Central List for a permissible

classification: “Permissible classification must satisfy two

conditions, namely : (1) it must be founded on an intelligent

differentia which distinguishes persons or things that are

grouped together from others left out of the group; and (2) the

differentia must have a rational relation to the object sought to

be achieved by the statute in question with the qualification

that the differentia and the object are different, so that the

object by itself cannot be the basis of classification. A law

based on a permissible classification, fulfills the guarantee of

the equal protection of the laws and is valid.”

The expression “equal protection of the laws” is now

being read as a positive obligation of the State to ensure equal

protection of the laws by bringing in necessary social and

economic changes, so that everyone may enjoy equal

protection of the laws and nobody is denied such protection. If

the State leaves the existing inequalities untouched by the

laws, it fails in its duty of providing equal protection of its laws

to all persons.

On plain reading of Articles 14, 15 and 16, it is very clear

that the right to equality and the prohibition against

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discrimination provided for under Articles 15 and 16 of the

Constitution of India are in a sense narrower than the

guarantee of equality before law incorporated in Article 14.

Both Articles 15 and 16 confined the guarantee as well as the

corresponding prohibition, in relation to citizens alone and

have, therefore, no application to non-citizens. The operation

of these two Articles is, therefore, narrower in that sense than

the terms of Article 14. In a sense the guarantee provided

under these two Articles is more unqualified than the terms in

which Article 14 guarantees the rights. While Article 14 permits

reasonable classification provided such classification is

permissible on an application of the principle referred to

above, the scope of such classification under Articles 15 and

16 is restricted by the terms of these two Articles because any

classification based solely on the grounds set out in these

Articles, which would be permissible under Article 14 would

nevertheless be outside these Articles. For example, if a

person is discriminated against solely on the ground of

religion, race, caste, sex or place of birth or any of them, the

discrimination would not be struck down under Article 14 if

such classification is founded on an intelligible differentia

which distinguishes persons that are grouped together from

others who are outside the group and such differentia has a

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rational relation to the object sought to be achieved. Such a

classification, however, would nevertheless militate against

Article 15 and in case of any matter of public employment,

Article 16 as well, unless in the case of Article 15, such a

classification could be justified with a reference to clause (3) of

Article 15, which provides that “nothing in this Article shall

prevent the State from making any special provision for

women and children”, and in the case of Article 16, relating to

matters of public employment, such a classification or

discrimination is saved by clauses 3, 4 and 5 of that Article.

It follows, therefore, that while discrimination on the

basis of caste or religion, as in the present case, may be

justified under Article 14 of the Constitution of India, if caste or

religion, on the facts and circumstances of this case, could be

said to be an intelligible differentia which distinguishes

students of the five minority communities with similarly placed

students of any other community i.e. other than the minority

community, and such differentia has a rational relation to the

object that was sought to be achieved by the Scheme in

question, such a classification would not be permissible either

under Article 15 of the Constitution of India or under Article 16

of the Constitution of India, unless it was saved by clause (4) of

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that Article.

The moot question which emerges from the aforesaid

discussion is, whether the benefits of the Scheme are

conferred only on the basis of religion or there are any other

rational factors on the basis of which it could be said that the

Scheme is not discriminatory in nature violating Article 15(1) of

the Constitution of India.

Before answering the above referred question, it would

be profitable to look into few relevant provisions of the

Constitution of India:

Article 14

14. Equality before law. - The State shall not deny to any

person equality before the law or the equal protection of the

laws within the territory of India.

Article 15

15. Prohibition of discrimination on grounds of

religion, race, caste, sex, place of birth. - (1) The State

shall not discriminate against any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste,

sex, place of birth or any of them, be subject to any disability,

liability, restriction or condition with regard to -

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(a) access to shops, public restaurants, hotels and

places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and

places of public resort maintained wholly or partly

out of State funds or dedicated to the use of

general public.

(3) Nothing in this article shall prevent the State from

making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall

prevent the State from making any special provision for the

advancement of any socially and educationally backward

classes of citizens or for the Scheduled Castes and Scheduled

Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of

article 19 shall prevent the State from making any special

provision, by-law, for the advancement of any socially and

educationally backward classes of citizens or for the Scheduled

Castes or the Scheduled Tribes in so far as such special

provisions relate to their admission to educational institutions

including private educational institutions, whether aided or

unaided by the State, other than the minority educational

institutions referred to in clause (1) of Article 30.

Article 16

16. Equality of opportunity in matters of public

employment. - (1) There shall be equality of opportunity for

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all citizens in matters relating to employment or appointment

to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste,

sex, descent, place of birth, residence or any of them, be

ineligible for, or discriminated against in respect of, any

employment or office under the State.

(3) Nothing in this article shall prevent Parliament from

making any law prescribing, in regard to a class or classes of

employment or appointment to an office under the

Government of, or any local or other authority within, a State

or Union territory, any requirement as to residence within that

State or Union territory prior to such employment or

appointment.

(4) Nothing in this article shall prevent the State from

making any provision for the reservation of appointments or

posts in favour of any backward class of citizens which, in the

opinion of the State, is not adequately represented in the

services under the State.

4(A) Nothing in this article shall prevent the State from making

any provision for reservation in matters of promotion, with

consequential seniority, to any class or classes of posts in the

services under the State in favour of the Scheduled Castes and

Scheduled Tribes which, in the opinion of the State, are not

adequately represented in the services under the State.

4(B) Nothing in this article shall prevent the State from

considering any unfilled vacancies of a year which are

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reserved for being filled up in that year in accordance with any

provision for reservation made under clause (4) or clause (4A)

as a separate class of vacancies to be filled up in any

succeeding year or years and such class of vacancies shall not

be considered together with the vacancies of the year in which

they are being filled up for determining the ceiling of fifty per

cent, reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any

law which provides that the incumbent of an office in

connection with the affairs of any religious or denominational

institution or any member of the governing body thereof shall

be a person professing a particular religion or belonging to a

particular denomination.

Article 21 A

21A. Right to education - The state shall provide free and

compulsory education to all children of the age of six to

fourteen years in such manner as the state may, by law,

determine.

Article 25

25. Freedom of conscience and free profession, practice

and propagation of religion - (1) Subject to public order,

morality and health and to the other provisions of this part, all

persons are equally entitled to freedom of conscience and the

right freely to profess, practise and propagate religion.

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(2) Nothing in this article shall affect the operation of

any existing law or prevent the state from making any

law -

(a) regulating or restricting any economic, financial,

political or other secular activity which may be

associated with religious practice;

(b) providing for social welfare and reform or the

throwing open of Hindu religious institutions of a

public character to all classes and sections of

Hindus.

Explanation I. - The wearing and carrying of kirpans shall

be deemed to be included in the profession of the Sikh

religion.

Explanation II. - In sub-clause (b) of clause (2), the

reference to Hindus shall be construed as including a reference

to persons professing the Sikh, Jaina or Buddhist religion, and

the reference to Hindu religious institutions shall be construed

accordingly.

Article 26

26. Freedom to manage religious affairs - Subject to

public order, morality and health, every religious denomination

or any section thereof shall have the right -

(a) to establish and maintain institutions for religious

and charitable purpose;

(b) to manage its own affairs in matters of religion;

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(c) to own and acquire movable and immovable

property; and

(d) to administer such property in accordance with law.

Article 29

29. Protection of interests of minorities. - (1) Any

section of the citizens residing in the territory of India or any

part thereof having distinct language, script or culture of its

own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational

institution maintained by the State or receiving aid out of State

funds on grounds only of religion, race, caste, language or any

of them.

Article 30

30. Right of minorities to establish and administer

educational institutions. - (1) All minorities, whether based

on religion or language, shall have the right to establish and

administer educational institutions of their choice.

(1A) In making any law providing for the compulsory

acquisition of any property of an educational institution

established and administered by a minority, referred to in

clause (1), the State shall ensure that the amount fixed by or

determined under such law for the acquisition of such property

is such as would not restrict or abrogate the right guaranteed

under that clause.

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(2) The State shall not, in granting aid to educational

institutions, discriminate against any educational institution on

the ground that it is under the management of a minority,

whether based on religion or language.

Article 46

46. Promotion of educational and economic interests

of Scheduled Castes, Scheduled Tribes and other

weaker sections. - The State shall promote with special care

the educational and economic interests of the weaker sections

of the people, and, in particular, of the Scheduled Castes and

the Scheduled Tribes, and shall protect them from social

injustice and all forms of exploitation.

In Article 15 there are two words of very wide import – (1)

“discrimination” and (2) “only”. The expression “discriminate

against”, according to the Oxford Dictionary means, “to make

an adverse distinction with regard to; to distinguish favourably

from others”. The true purport of the word “discrimination” has

been very well explained by the Supreme Court in a

Constitution Bench decision of five judges in Kathi Raning

Rawat v/s. State of Saurashtra, reported in AIR 1952 SC

123.

“All legislative differentiation is not necessarily

discriminatory. In fact, the word ‘discrimination’ does not

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occur in Article 14. The expression ‘discriminate against’

is used in Article 15(1) and Article 16(2), and it means,

according to the Oxford Dictionary, “to make an adverse

distinction with regard to; to distinguish unfavourably

from others”. “Discrimination” thus involves an element

of unfavourable bias and it is in that sense that the

expression has to be understood in this context. If such

bias is disclosed and is based on any of the grounds

mentioned in Articles 15 and 16, ‘it may well be that the

statute will, without more, incur condemnation’ as

violating a specific constitutional prohibition unless it is

saved by one or other of the provisos to those Articles.

But the position under Article 14 is different.”

A very important decision on the significance of the word

"only" (as used in Article 29(2) also relating to fundamental

rights) is that of the Full Bench in – 'Srimati Champakam

Dorairajan and another v/s. The State of Madras',

reported in AIR 1951 Madras 120. In that case the Madras

Government, finding that there were not sufficient vacancies

for admission of students to Medical College, issued a circular

making, what it considered, an equitable division of the

vacancies available among the various classes of citizens of

the State. Out of every 14 seats, 6 were to be filled by non-

Brahmin Hindus, 2 to backward Hindu communities, 2 to

Brahmins, 2 to Harijans, 1 to Anglo-Indians and Indian

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Christians and 1 to Muslims. The circular was challenged by

various persons on the ground that it decided admission to

persons only on the ground of religion or caste. It was sought

to support the circular on the ground that the denial was not

only on the ground of religion or caste, but as a matter of

public policy based upon the provisions of Article 46 together

with the paucity of the vacancies. It was held that much

significance could not be attached to the word 'only' because

even reading the Article without that word, the result would be

the same. It was further held that the circular was bad because

it infringed the clear and unambiguous terms of Article 15(1)

since it discriminated against citizens only on the ground of

religion, race, caste, sex, place of birth or any of them. The

judgment states :

"’Discriminate against' means 'make an adverse

distinction with regard to'; 'distinguish unfavourably from

others' (Oxford Dictionary). What the article says is that,

no person of a particular religion or caste shall be treated

unfavourably when compared with persons of other

religions and castes merely on the ground that they

belong to a particular religion or caste. Now what does

the Communal G.O. purport to do ? It says that a limited

number of seats only are allotted to persons of a

particular caste, namely Brahmins. The qualifications

which would enable a candidate to secure one of those

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seats would necessarily be higher than the qualifications

which would enable a person of another caste or religion,

say, Harijan or Muslim to secure admission.”

It was, therefore, held that the Communal G.O. was void.

This decision was upheld by the Supreme Court on

appeal in - 'State of Madras v. Champakam Dorairajan',

reported in AIR 1951 SC 226. Their Lordships say :

"It is argued that the petitioners are not denied

admission only because they are Brahmins but for a

variety of reasons, e.g. (a) they are Brahmins, (b)

Brahmins have an allotment of only two seats out of 14

and (c) the two seats have already been filled as by more

meritorious Brahmin candidates. This may be true so far

as these two seats reserved for the Brahmins are

concerned, but this line of argument can have no force

when we come to consider the seats reserved for

candidates of other communities, for so far as those

seats are concerned, the petitioners are denied

admission into any of them not on any ground other than

the sole ground of their being Brahmins and not being

members of the community for whom these reservations

have been made. 'The classification in the Communal

G.O. proceeds on the basis of religion, race and caste'. In

our view, the classification made in the Communal G.O. is

opposed to the Constitution and constitutes a clear

violation of the fundamental rights guaranteed to the

citizen under Art. 29(2)."

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Thus, the decisions of the Supreme Court in Champakam

Dorairajan (supra) and Kathi Raning Rawat (supra) establish

the proposition that, while classification is permissible, it

cannot be based on any of the factors mentioned in Articles 15

and 16. So far as this proposition of law is concerned, it still

holds good even after the pronouncement of the Supreme

Court in the case of Indra Sawhney (supra).

In the present case, the complaint is that the Scheme is

based on caste or religion only, which is a factor on which

discrimination is forbidden by Article 15(1) of the Constitution

of India. In my opinion, the two decisions referred to above are

based upon the language of the Constitution and are also in

accordance with its spirit. The founding fathers of the

Constitution were citizens of India hailing from all parts of the

country. They were fully aware of the difficulties, disabilities

and prejudices which existed at the relevant point of time in

various parts of the country. It was with this object that Articles

15 and 16 were given a place in the Part relating to

fundamental rights. The framers of the Constitution knew fully

well that women were, in many parts of the country, still

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backward – that is why under Article 15(3) legislation

discriminating in their favour is permitted – and yet they

forbade discrimination ‘against’ them. No evasion of the

Constitution can be permitted merely by calling an Act

“classification” and not “discrimination”.

Article 15, as originally enacted, did not contain Article

15(4). It was inserted by the Constitution (First Amendment)

Act, 1951, as a result of the decision in the case of

Champakam Dorairajan (supra), setting aside reservation of

seats in educational institution on the basis of caste and

community. The Court observed that the Government’s order

was violative of Article 15 or Article 29(2). It said in paragraph

9 at page 228 as under :

“Seeing, however, that clause 4 was inserted in Article

16, the omission of such an express provision from

Article 29 cannot but be regarded as significant.”

The object of the First Amendment was to bring Articles

15 and 29 in line with Article 16(4). After the introduction of

Article 15(4), reservation of seats in educational institution

came to be upheld in the case of M.R.Balaji and others v/s.

State of Mysore and others, reported in AIR 1963 SC 649.

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Justice Gajendragadkar, speaking for the Bench, observed in

paragraph 22 as under :

“Therefore, in dealing with the question as to whether

any class of citizen is socially backward or not, it may not

be irrelevant to consider the caste of the said group of

citizens. In this connection, it is, however, necessary to

bear in mind that the special provision is contemplated

for class of citizens and not for individual citizens as

such, and so, though the caste of the group of citizens

may be relevant, its importance should not be

exaggerated. If the classification of backward classes of

citizens was based solely on the caste of the citizen, it

may not always be logical and may perhaps contain the

vice of perpetuating the castes themselves.”

Thus, the Supreme Court in M.R.Balaji (supra) made it

very clear that caste could be one of the considerations in

determining the extent of backwardness but it could not be the

sole consideration. Accordingly, it held that the order passed

by the State of Mysore “was a fraud on the constitutional

power conferred on the State by Article 15(4)” and was liable

to be quashed, because the order categorized, contrary to the

plain intendment of Article 15(4), the backward classes on the

sole basis of caste.

What then exactly shall be understood by the term ‘class’

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as appearing in Article 15(4) of the Constitution ? The

expression ‘class’ has been well explained by the Supreme

Court in State of Andhra Pradesh and another v/s.

P.Sagar, reported in AIR 1968 SC 1379. Late Justice J.C.Shah

(as His Lordship then was), speaking for the Bench, has very

eruditely explained by observing in paragraph 6 of the

judgment as under:

“6.In the context in which it occurs the expression "class"

means a homogeneous section of the people grouped

together because of certain likenesses or common traits

and who are identifiable by some common attributes

such as status, rank, occupation, residence in a locality,

race, religion and the like. In determining whether a

particular section forms a class, caste cannot be

excluded altogether. But in the determination of a class a

test solely based upon the caste or community cannot

also be accepted. By Clause (1), Article 15 prohibits the

State from discriminating against any citizen on grounds

only of religion, race, caste, sex, place of birth or any of

them. By Clause (3) of Article 15 the State is,

notwithstanding the provision contained in Clause (1),

permitted to make special provision for women and

children. By Clause (4,) a special provision for the

advancement of any socially and educationally backward

classes of citizens or for the Scheduled Castes and

Scheduled Tribes is outside the purview of Clause (1). But

Clause (4) is an exception to Clause (1). Being an

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exception, it cannot be extended so as in effect to

destroy the guarantee of Clause (1). The Parliament has

by enacting Clause (4) attempted to balance as against

the right of equality of citizens the special necessities of

the weaker sections of the people by allowing a provision

to be made for their advancement. In order that effect

may be given to Clause (4), it must appear that the

beneficiaries of the special provision are classes which

are backward, socially and educationally and they are

other than the Scheduled Castes and Scheduled Tribes,

and that the provision made is for their advancement.

Reservation may be adopted to advance the interests of

weaker sections of society, but in doing so, care must be

taken to see that deserving and qualified candidates are

not excluded from admission to higher educational

institutions. The criterion for determining the

backwardness must not be based solely on religion. race,

caste, sex, or place of birth, and the backwardness being

social and educational must be similar to the

backwardness from which the Scheduled Castes and the

Scheduled Tribes suffer.”

What is discernible from the judgment of the Supreme

Court in the case of State of Andhra Pradesh (supra) is that,

‘class’ means ‘a homogeneous section of the people grouped

together because of certain likenesses or common traits and

who could be identifiable by some common features such as

race, religion, etc. It once again reiterated the principle

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enunciated in M.R.Balaji’s case (supra) that in the

determination of a class, a test solely based upon the class or

community could not be accepted. Still, the important part of

the observations is that clause (4) has been enacted to

balance the right of equality of citizens, more particularly, the

special necessities of the weaker sections of the people by

allowing a provision to be made for their advancement. But in

doing so, care must be taken to see that deserving and

qualified candidates are not excluded.

In State of Andhra Pradesh (supra), the Court proceeded

further to observe that :

“Article 15 guarantees by the first clause a fundamental

right of far-reaching importance to the public generally.

Within certain defined limits an exception has been

engrafted upon the guarantee of the freedom in clause

(1), but being in the nature of an exception, the

conditions which justify departure must be strictly shown

to exist.”

Very important observations fell from the Bench, stating

that when a dispute is raised before a Court (like in the present

case) that a particular law which is inconsistent with the

guarantee against discrimination is valid on the plea that it is

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permitted under clause (4) of Article 15, the assertion by the

State that the officers of the State had taken into consideration

the criteria which had been adopted by the Courts for

determining who the socially and educationally backward

classes of the Society are, or that the authorities had acted in

good faith in determining the socially and educationally

backward classes of citizens, would not be sufficient to sustain

the validity of the claim. The Courts of the country are invested

with the power to determine the validity of the law which

infringes the fundamental rights of citizens and others, and

when a question arises whether a law which prima facie

infringes a guaranteed fundamental right is within an

exception, the validity of that law has to be determined by the

Courts on materials placed before them.

The Supreme Court held by observing that, by merely

asserting that law was made after full consideration of the

relevant evidence and criteria which have a bearing on them,

and which was within the exception, the jurisdiction of the

Courts to determine whether by making the law a fundamental

right has been infringed is not excluded.

After M.R.Balaji (supra) and State of Andhra Pradesh

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(supra), the third decision in line is the case of Triloki Nath

Tiku and another v/s. State of Jammu & Kashmir and

others, reported in AIR 1969 SC 1. In the said decision, the

Supreme Court said that the members of an entire caste or

community may, in the social, economic and educational scale

of values at a given time, be backward and may, on that

account, be treated as a backward class, but that is not

because they are members of a caste or community, but

because they form a class.

The three decisions referred to above viz. M.R.Balaji

(supra), State of Andhra Pradesh (supra) and Triloki Nath

(supra) were considered by a three-judge Bench of the

Supreme Court in the case of State of Uttar Pradesh and

others v/s. Pradip Tandon and others, reported in AIR

1975 SC 563. In that case, the instructions framed by the State

in making reservation in favour of candidates from rural areas,

hilly areas and Uttarakhand were challenged on the ground

that they were constitutionally invalid. While upholding the

reservation for the hill and Uttarakhand areas and declaring

the reservation for rural areas as unconstitutional, the

Supreme Court made the following observations in paragraphs

15 and 17 as under :

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“15. Broadly stated, neither caste nor race nor religion

can be made the basis of classification for the purposes

of determining social and educational backwardness

within the meaning of Article 15 (4). When Article 15 (1)

forbids discrimination on grounds only of religion, race,

caste, caste cannot be made one of the criteria for

determining social and educational backwardness. If

caste or religion is recognised as a criterion of social and

educational backwardness Article 15 (4) will stultify

Article 15 (1). It is true that Article 15 (1) forbids

discrimination only on the ground of religion, race, caste,

but when a classification takes recourse to caste as one

of the criteria in determining socially and educationally

backward classes the expression "classes" in that case

violates the rule of expressio unius est exclusio alterius.

The socially and educationally backward classes of

citizens are groups other than groups based on caste.

17. The expression “Classes of citizens" indicates a

homogeneous section of the people who are grouped

together because of certain likeliness and common traits

and who are identifiable by some common attributes.

The homogeneity of the class of citizens is social and

educational backwardness. Neither caste nor religion nor

place of birth will be the uniform element of common

attributes to make them a class of citizens.”

After Pradip Tandon’s case (supra) came, the decision of

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the Supreme Court in the case of State of Kerala and

another v/s. N.M.Thomas and others, reported in (1976)2

SCC 310, which marked the beginning of a new thinking on

Article 16. In the said decision, the Supreme Court took the

view that if classification was permissible under Article 14, it

was equally permissible under Article 16 because both the

Articles lay down equality. The Court proceeded further to

observe that Article 16(1) permitted classification on the basis

of object and purpose of law or State action, except

classification involving discrimination prohibited by Article

16(2). The Court clarified that although Article 16(1) permitted

classification just as Article 14 does, but by the classification

there should not be any discrimination on the ground only of

race, caste and other factors mentioned in Article 16(2). The

important observations in N.M.Thomas (supra) are that,

assuming it is permissible to identify different categories only

on the ground of religion, for such a classification to be

constitutionally permissible, it must rest upon a distinction that

is substantial and not illusory.

In the year 1993, a nine-judge Constitution Bench of the

Supreme Court, in the case of Indra Sawhney v/s. Union of

India and others, reported in AIR 1993 SC 477 (known as

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Mandal Commission Case), delivered a very significant

pronouncement on the question of reservation of posts for

backward classes.

In Indra Sawhney’s case (supra), the Court considered all

the earlier judgments of the Supreme Court which have been

referred to above. The majority took the view that Article 16(1)

permits reasonable classification for ensuring attainment of

the equality of opportunity assured by it. For assuring equality

of opportunity, it may well be necessary in certain situations to

treat unequally situated persons unequally. The Court

proceeded to observe that by not doing so, it would perpetuate

and accentuate inequality. The Court took the view that Article

16(4) was one such instance of such classification. It also took

the view that clause (4) of Article 16 was not an exception to

clause (1) of Article 16. While referring to M.R.Balaji’s case

(supra) and T.Devadasan v/s. Union of India, reported in AIR

1964 SC 179, the Court held that at the time when Balaji’s

case (supra) and Devadasan’s case (supra) were decided, the

Supreme Court had not recognized that Article 16(1) being a

facet of Article 14 implicitly permitted classification. It clarified

that once the said feature was recognized, the theory of clause

(4) being an exception to clause (1) became untenable, and if

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clause (4) of Article 16 is an exception to clause (1), then it is

equally an exception to clause (2).

While commenting on identification of ‘backward class of

citizens’, the Bench made the following observations in

paragraph 83 of the decision. The relevant part is quoted

hereinbelow :

“83. Now, we may turn to the identification of "backward

class of citizens". How do you go about it? Where do you

begin? Is the method to vary from State to State, region

to region and from rural to urban? What do you do in the

case of religions where caste system is not prevailing?

What about other classes, groups and communities which

do not wear the label of caste? Are the people living

adjacent to cease-fire line (in Jammu and Kashmir) or

hilly or inaccessible regions to be surveyed and identified

as backward classes for the purpose of Art. 16(4)? And so

on and so forth are the many questions asked of us. We

shall answer them. But our answers will necessarily deal

with generalities of the situation and not with problems

or issues of a peripheral nature which are peculiar to a

particular State, district or region. Each and every

situation cannot be visualised and answered. That must

be left to the appropriate authorities appointed to

identify. We can lay down only general guidelines.

At the outset, we may state that for the purpose of

this discussion, we keep aside the. Scheduled Tribes and

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Scheduled Castes (since they are admittedly included

within the backward classes), except to remark that

backward classes contemplated by Art. 16(4) do

comprise some castes - for it cannot be denied that

Scheduled Castes include quite a few castes.

Coming back to the question of identification, the

fact remains that one has to begin somewhere - with

some group, class or section. There is no set or

recognised method. There is no law or other statutory

instrument prescribing the methodology. The ultimate

idea is to survey the entire popue. If so, one can well

begin with castes, which represent explicit identifiable

social classes/groupings, more particularly when Art.

16(4) seeks to ameliorate social backwardness. What is

unconstitutional with it, more so when caste, occupation,

poverty and social backwardness are so closely

intertwined in our society? (Individual survey is out of

question, since Art. 16(4) speaks of class protection and

not individual protection. This does not mean that one

can wind up the process of identification with the castes.

Besides castes (whether found among Hindus or others)

there may be other communities, groups, classes and

denominations which may qualify as backward class of

citizens. For example, in a particular State, Muslim

community as whole may be found socially backward. (As

a matter of fact , they are so treated in the State of

Karnataka as well as in the State of Kerala by their

respective State Governments). Similarly, certain

sections and denominations among Christians in Kerala

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who were included among backward communities

notified in the former princely State of Travancore as far

back as in 1935 may also be surveyed and so on and so

forth. Any authority entrusted with the task of identifying

backward classes may well start with the castes. It can

take caste 'A', apply the criteria of backwardness evolved

by it to that caste and determine whether it qualifies as a

backward class or not. If it does qualify, what emerges is

a backward class, for the purposes of clause (4) of Art.

16. The concept of 'caste' in this behalf is not confined to

castes among Hindus. It extends to castes, wherever

they obtain as a fact, irrespective of religious sanction for

such practice. Having exhausted the castes or

simultaneously with it, the authority may take up for

consideration other occupational groups, communities

and classes. For example, it may take up the Muslim

community (after excluding those sections,, castes and

groups, if any, who have already been considered) and

find out whether it can be characterised as a backward

class in that State or region, as the case may be. The

approach may differ from State to State since the

conditions in each State may differ, Nay, even within a

State, conditions may differ from region to region.

Similarly, Christians may also be considered. If in a given

place, like Kerala, there are several denominations,

sections or divisions, each of these groups may

separately be considered. In this manner, all the classes

among the popue will be covered and that is the central

idea. The effort should be to consider all the available

groups, sections and classes of society in whichever

order one proceeds. Since caste represents an existing,

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identifiable, social group spread over an overwhelming

majority of the country's population, we say one may well

begin with castes, if one so chooses, and when go to

other groups, sections and classes. We may say, at this

stage, that we broadly commend the approach and

methodology adopted by Justice O.Chinnappa Reddy

Commission in this respect.

We do not mean to suggest - we may reiterate --

that the procedure indicated hereinabove is the only

procedure or method/approach to be adopted. Indeed,

there is no such thing as a standard or model

procedure/approach. It is for the authority (appointed to

identify) to adopt such approach and procedure as it

thinks appropriate, and so long as the approach adopted

by it is fair and adequate, the Court has no say in the

matter. The only object of the discussion in the preceding

para is to emphasis that if a Commission/ Authority

begins its process of identification with castes (among

Hindus) and occupational groupings among others, it

cannot by that reason alone be said to be constitutionally

or legally bad. We must also say that there is no rule of

law that a test to be applied for identifying backward

classes should be only one and/or uniform. In a vast

country like India, it is simply not practicable. If the real

object is to discover and locate backwardness, and if

such backwardness is found in a caste, it can be treated

as backward; if it is found in any other group, section or

class, they too can be treated as backward.

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83A. The only basis for saying that caste should be

excluded from consideration altogether while identifying

the Backward Class of Citizens for the purpose of Art.

16(4) is clause (2) of Article 16. This argument, however,

overlooks and ignores the true purport of clause (2). It

prohibits discrimination on any or all of the grounds

mentioned therein. The significance of the word "any"

cannot be minimised. Reservation is not being made

under clause (4) in favour of a 'caste' but a 'backward

class'. Once a caste satisfies the criteria of

backwardness, it becomes a backward class for the

purposes of Art. 16(4). Even that is not enough. It must

be further found that that backward class is not

adequately represented in the services of the State. In

such a situation, the bar of clause (2) of Art. 16 has no

application whatsoever. Similarly, the argument based

upon secular nature of the Constitution is too vague to be

accepted. It has been repeatedly held by the U. S.

Supreme Court in School desegregation cases that if race

be the basis of discrimination, race can equally form the

basis of redressal. In any event, in the present context, it

is not necessary to go to that extent. It is sufficient to say

that the classification is not on the basis of the caste but

on the ground that that caste is found to be a backward

class not adequately represented in the services of the

State. Born heathen, by baptism, it becomes a Christian -

to use a similie. Baptism here means passing the test of

backwardness.”

While answering the question, whether the backwardness

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in Article 16(4) should be both, socially and educationally, the

Bench, in paragraph 88A, made the following observations :

“88A. We may now summarise our discussion under

Question No. 3(a), a caste can be and quite often is a

social class in India. If it is backward socially, it would be

a backward class for the purposes of Art. 16(4). Among

non-Hindus, there are several occupational groups, sects

and denominations, which for historical reasons are

socially backward. They too represent backward social

collectives for the purposes of Art. 16(4). (b) Neither the

Constitution nor the law prescribes the procedure or

method of identification of backward classes. Nor is it

possible or advisable for the court to lay down any Such

procedure or method. It must be left to the authority

appointed to identify. It can adopt such

method/procedure as it thinks convenient and so long as

its survey Covers the entire popue, no objection can be

taken to it. Identification of the backward classes can

certainly be done with reference to castes among, and

along with, other groups, classes and sections of people.

One can start the process with the castes, wherever they

are found, apply the criteria (evolved for determining

backwardness) and find out whether it satisfies the

criteria. If it does - what emerges is a "backward class of

citizens" within the meaning of and for the purposes of

Article 16(4). Similar process can be adopted in the case

of other occupational groups, communities and classes,

so as to cover the entire popue. The central idea and

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overall objective should be to consider all available

groups, sections and classes in society. Since caste

represents an existing, identifiable social group/class

encompassing an overwhelming majority of the country's

population, one can well begin with it and then go to

other groups, sections and classes. (c) It is not necessary

for a class to be designated as a backward class that it is

situated similarly to the Scheduled Caste/Scheduled

Tribes. (d) 'Creamy layer' can be, and must, be excluded.

(e) It is not correct to say that the backward classes

contemplated by Article 16(4) is limited to the socially

and educationally backward classes referred to in Article

15(4) and Article 340. It is much wider. The test or

requirement of social and educational backwardness

cannot be applied to Scheduled Castes and Scheduled

Tribes, who indubitably fall within the expression

"backward class of citizens." The accent in Article 16(4)

appears to be on social backwardness. Of course, social,

educational and economic backwardness are closely

intertwined in the Indian context. The classes

contempated by Article 16(4) may be wider than those

contemplated by Article 15(4).”

The another important issue which was decided in the

said case was, as to whether caste by the name of which a

group of persons are identified, could be taken as a criterion in

determining as to whether that caste is a socially and

educationally backward class, and if so, could it be the sole or

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dominant or one of the factors in the determination of ‘social

and educational backwardness’. The Court answered the said

question, stating that in the effort to ascertain social

backwardness, it would be a misnomer and fallacious to say

that the caste should be considered only at the end point. The

Court proceeded further to hold that after identifying and

classifying a group of persons belonging to a particular caste

by testing with the application of the relevant criteria other

than the caste criterion, the identification of the caste of that

class of persons would no longer be required as in the case of

identification of caste-less society as a backward class.

Justice Sawant (as His Lordship then was), speaking for

the majority view, made very important observations in

paragraph 388 of the judgment. Paragraph 388 is quoted

hereinbelow :

“388. The various provisions in the Constitution relating

to reservation, therefore, acknowledge that reservation is

an integral part of the principle of equality where

inequalities exist. Further they accept the reality of

inequalities and of the existence of unequal social groups

in the Indian society. They are described variously as

"socially and educationally backward classes" (Article

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15(4) and Article 340), "backward' class" (Article 16(4))

and "weaker sections of the people" (Article 46). The

provisions of the Constitution also direct that the unequal

representation in the services be remedied by taking

measures aimed at providing employment to the

discriminated class, by whatever different expressions

the said class is described. How does one identify the

discriminated class is a question of methodology. But

once it is identified, the fact that it happens to be a

caste, race, or occupational group, is irrelevant. If the

social group has hitherto been denied opportunity on the

basis of caste the basis of the remedial reservation has

also to be the caste. Any other basis of reservation may

perpetuate the status quo and may be inappropriate and

unjustified for remedying the discrimination. When, in

such circumstances, provision is made for reservations,

for example, on the basis of caste, it is not a reservation

in favour of the caste as a "caste" but in favour of a class

or social group which has been discriminated against,

which discrimination cannot be eliminated, otherwise',

What the Constitution forbids in discrimination "only" on

the basis of caste, race etc. However, when the caste

also happens to be a social group which is "backward" or

"socially and educationally backward" or a "weaker

section", this discriminatory treatment in its favour, is not

only on the basis of the caste.”

Thus, what is discernible from a long line of decisions of

the Apex Court referred to above is that caste can be used for

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identifying socially and educationally backward classes. It is

also made amply clear that no classification can validly be

made only on the basis of caste, just as it cannot be made only

on the basis of religion, race, sex, descent, place of birth or

any of them, the same being prohibited by Article 15(1) of the

Constitution of India. If any affirmative action is to be taken to

give the special advantage envisaged by Article 15(4) and

Article 16(4), it must be given to such class of citizens because

they belong to such discriminatory caste.

State has a power to make a provision for women and

children under Article 15(3) of the Constitution of India, which

is to be read as an enabling provision to Article 15(1) of the

Constitution of India. Discrimination on the ground of sex is

permissible if it is found that the women were not equal with

the men and are lagging behind the men in the field where the

reservation is sought to be made. For the purposes of

providing opportunities in the matters of appointment in

service, such a discrimination cannot be held to be between

equals but is a discrimination between unequals, which is not

hit even by Articles 14 and 15(1) of the Constitution of India.

What is prohibited under the Constitution of India is, that

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discrimination cannot be made among equals and that equals

are required to be treated equally. At this stage, it would not

be out of context to state that the prohibition in Article 15(1) is

against differentiation between one citizen and another citizen

on the grounds of caste, race or religion. Thus, the rights that

are protected and guaranteed by this Article are the personal

rights of each individual citizen, irrespective of his caste, race

or religion. It is not the rights of a caste or community or the

rights of citizens, as representing or forming integral parts of a

caste or community, that Article 15(1) deals with and

guarantees. As observed by the Full Bench of the Madras High

Court in Smt.Champakam (supra), the right guaranteed under

Article 15(1) is the personal right of every individual citizen

qua citizen, and not as belonging to a particular class or

professing a particular religion.

In this context, it is apposite to quote the observations of

the Supreme Court in the case of Nain Sukh Das and others

v/s. State of Uttar Pradesh and others, reported in AIR

1953 SC 384. Chief Justice Patanjali Sastri, speaking for the

Bench, made the following observations in paragraph 7:

“It is plain that the fundamental right conferred by Article

15(1) is conferred on a citizen as an individual and is a

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guarantee against his being subjected to discrimination

in the matter of the rights, privileges and immunities

pertaining to him as a citizen generally.”

EXAMINATION OF THE SCHEME :-

I propose at this stage now to examine the validity of the

Scheme in question on the anvil of Article 15(1) only as if

Article 15(4) is not there in the Constitution. I propose to

undertake this exercise because the learned Additional

Solicitor General of India appearing for the Union of India and

learned Senior Advocate Mr.Dushyant Dave appearing for the

Interveners very forcefully submitted that the Scheme is valid

even without taking recourse to Article 15(4), which empowers

the State to make any special provision for the advancement

of any socially and educationally backward classes of citizens.

The Scheme is sought to be defended on the premise

that it is for the benefit of the minority communities who have

been identified as socially and educationally backward and,

therefore, it is with this laudable object that the Scheme was

introduced by the Central Government. I have already

observed in the earlier part of my judgment that Articles 14

and 15 must be read together and the effect of these two

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Articles is not that the State cannot discriminate or cannot

pass unequal laws, but if they do discriminate or they do pass

unequal laws, the discrimination or the inequality must be

based on some reasonable ground, and Article 15(1) expressly

states that discrimination merely on the ground of religion,

race, caste, sex or place of birth is not and cannot be a

reasonable ground. Therefore, if the Government takes any

action which is discriminatory in nature and the discrimination

is based merely on the ground of religion, race or a caste of a

person or of a section of a public, then the action can be

successfully challenged under Article 15. As the Scheme

stands, there can be no doubt that the Scheme has been

floated with an intention to encourage parents from minority

communities to send their school-going children to schools,

lighten their financial burden on school education and sustain

their efforts to support their children to complete school

education. It was vociferously submitted that the Court may

also take judicial notice of the problems which the Muslims as

a whole are facing in the country and who deserve the support

and sympathy of the Government.

Undoubtedly, this is a very laudable object. But, is there

any reason why that laudable object should be confined only to

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the members of the five communities ? There are members of

the public all over the country belonging to the other

communities who are in an equally sad plight, and if such

scheme is introduced to meet the needs of people in a

particular position or belonging to a particular strata of the

society, then undoubtedly, it would be a public purpose which

would not, in any way, be discriminatory under Article 15(1).

But, when the Government picks up members of a particular

community or caste, may be declared as a minority, and

wishes to give those members particular facilities, although

other members of the public may equally be in need of those

facilities, then undoubtedly, the action is discriminatory. It is

for this obvious reason that the test of reasonable classification

based on intelligible differentia fails in the present case. The

present case, in my opinion, is nothing but discrimination in

the name of classification. The minorities cannot be per se

regarded as weaker sections or unprivileged segments of the

society as held by the Supreme Court in the case of T.M.A.Pai

Foundation v/s. State of Karnataka, reported in (2002)8

SCC 481. Therefore, under the garb of an affirmative action

for the advancement of the minorities, in my opinion, it cannot

be construed as a reasonable classification for the purpose of

Article 14 of the Constitution of India so as to violate Article

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15(1) of the Constitution of India.

It was also sought to be contended that when the

Government takes a discriminatory step and the discrimination

is in favour of five minority communities who could be termed

as socially and educationally backward, it is doing something

which is reasonable because it is doing what the Constitution

itself envisages and directs the State to do.

I am not impressed with this submission for the simple

reason that Article 15, or indeed, any article conferring

fundamental right, cannot be permitted to be defeated or

qualified by anything that is contained in Part-IV of the

Constitution.

The fundamental rights are justiciable, the directive

principles enumerated in Part-IV are not justiciable and the

provisions of Part-IV must be read as subsidiary to the

fundamental rights contained in Part- III. Under Article 46 the

State is enjoined to promote with special care the educational

and economic interests of the weaker sections of the people

does not mean that the State is permitted to discriminate in

favour of a particular community so as to contravene the

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fundamental right conferred upon citizens by Article 15(1).

Let me go back to the Scheme and once again look into

the objective of the Scheme with which the Central

Government has floated. The main object appears to be to see

that the parents send their school-going children to schools,

lighten their financial burden on school education and sustain

their efforts to support their children to complete school

education. But, this is to encourage only the parents from five

minority communities. It was sought to be contended very

vociferously that once any community is declared as a minority

community under Section 2(c) of the National Commission for

Minorities Act, 1992, that community is deemed to be a

weaker section of the society compared to the majority and,

therefore, for the upliftment of such minority community the

Government can come out with a programme for the

betterment or the advancement of such community. It was

also sought to be contended that religious minority need not

be equated solely with religion. Thus, taking shelter of

‘minority’, the Government has tried its best to come out of

the rigours of the word ‘only’, which mitigates the

constitutional prohibition. According to the Government, the

affirmative action could not be said to be based only on

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religion as, coupled with the religion, other factors are also

taken into consideration.

What is a ‘minority’, and to what extent protection has

been afforded by the Constitution so far as the minorities are

concerned is a question which I shall answer at a little later

stage. However, what I want to convey is that the basic

concept emanating from Article 15(1) of the Constitution of

India cannot and should not be permitted to be diluted by

taking cover under the guise of ‘minorities’. The only escape

route for the Government to save the Scheme from being hit

by Article 15(1) is the shelter of ‘minorities’. At this stage, I

would like to quote the observations of R.M.Sahai, J. in Indra

Sawhney’s case (supra) as contained in paragraph 658 of the

Report. I am conscious of the fact that the judgment delivered

by R.M.Sahai, J. is one of the minority views in Indra Sawhney

(supra) but the observations which I propose to rely upon could

not be made any exception because, in my opinion, there

cannot be any debate on what fell from the learned Judge and

there does not appear to be any dissent with these

observations so far as the majority view is concerned. The

observations assume significance as the same are aptly

applicable to the facts of the present case are concerned. The

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learned Judge has observed in paragraph 658 as under :

“When it comes to any State action on race, religion or

caste etc. the word, 'only' mitigates the constitutional

prohibition. That is if the action is not founded,

exclusively, premerely, on that which is prohibited then it

may not be susceptible to challenge. What does it mean?

Can a State action founded on race, religion caste etc. be

saved under Article 16(2) if it is coupled -with any factor

relevant or irrelevant. What is to be remembered is that

the basic concept pervading the Constitution cannot be

permitted to be diluted by taking cover under it. Use of

word, 'only' was to avoid any attack on legitimate

legislative action by giving it colour of race, religion or

caste. At the same time it cannot be utilised by the State

to escape from the prohibition by taking recourse to such

measures which are race, religion or caste based by

sprinkling it with something other as well.”

(Emphasis supplied)

In the aforesaid context, it will be profitable to look into

the observations almost on the same line made by His

Lordship Krishna Iyer, J. in paragraph 143 in the case of State

of Kerala (supra).

“If Article 14 admits of reasonable classification, so does

Article 16(1) and this Court has held so. In the present

case, the economic advancement and promotion of the

claims of the grossly underrepresented and pathetically

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neglected classes, otherwise described as scheduled

castes and scheduled tribes consistently with the

maintenance of administrative efficiency, is the object,

constitutionally sanctioned by Articles 46 and 335 and

reasonably accommodated in Article 16(1). The

differentia, so loudly obtrusive, is the dismal social milieu

of Harijans. Certainly this has a rational relation to the

object set out above. I must repeat the note of caution

earlier struck. Not all caste backwardness is recognised

in this formula. To do so is subversive of both Article

16(1) and (2). The social disparity must be so grim and

substantial as to serve as a foundation for benign

discrimination. If we search for such a class, we cannot

find any large segment other than the scheduled castes

and scheduled tribes. Any other caste, securing

exemption from Article 16(1) and (2), by exerting political

pressure or other influence, will run the high risk of

unconstitutional discrimination. If the real basis of

classification is caste, masked as backward class, the

Court must strike at such communal manipulation.”

(Emphasis supplied)

Let me test the validity of the Scheme on the basis of the

classification in the name of minority. What is a ‘minority’ ?

The expression ‘minority’ has been well explained by the

Supreme Court in T.M.A.Pai Foundation(supra). I quote

paragraphs 164, 166 and 167 with profit.

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“164...The expression ‘minority’ has been derived from

the Latin word ‘minor’ and the suffix ‘ity’ which means

‘small in number’. According to Encyclopedia Britannica

‘minorities’ means ‘groups held together by ties of

common descend, language or religious faith and feeling

different in these respects from the majority of the

inhabitants of a given political entity’. J.A.Laponce in his

book ‘The Protection of Minority’ describes ‘minority’ as a

group of persons having different race, language or

religion from that of the majority of inhabitants.

166. We find that the expression ‘minorities’ has been

employed only at four places in the Constitution of India.

The headnote of Article 29 uses the word minorities.

Then again the expressions of minorities or minority have

been employed in the headnote of Article 30 and clauses

(1) and (2) of Article 30.....At this stage, it may be noted

that the expression ‘minorities’ has been used in Article

30 in two senses – one based on religion and the other on

the basis of language. However, prior to coming into

force of the Constitution, the expression minority was

understood in terms of a class based on religion having

different electorates. When India attained freedom, the

framers of the Constitution threw away the idea of having

separate electorates based on religion and decided to

have a system of joint electorates so that every

candidate in an election would have to seek support of all

sections of the constituency. In turn, special safeguards

were provided to minorities and they were made part of

Chapter III of the Constitution with a view to instill a

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sense of confidence and security to the minorities.

167. But the question arises, what is the test to

determine minority status based on religion or language

of a group of persons residing in a State or Union

Territory ? Where minority status of a given group of

persons has to be determined in relation to the

population of the whole of India or population of the State

where the said group of persons is residing. When the

Constitution of India was being framed, it was decided

that India would be a Union of States and the

Constitution to be adopted would be of federal character.

India is a country where many ethnic or religious and

multi-language people reside. Shri K.M.Munshi, one of the

Members of the Constituent Assembly in his note and

draft article on right to religion and cultural freedom

referred to minorities as national minorities. The said

Draft Article VI(3) runs as under :

“3. Citizens belonging to the national minorities in a

State whether based on religion or language have

equal rights with other citizens in forming,

controlling and administering at their own expense,

charitable, religious and social institutions, schools

and other educational establishments with the free

use of the language and practice of their religion.””

While dealing with a controversy as to whether

Theosophical Society is a minority based on religion, the

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Division Bench of the Patna High Court in the case of

Chaudhary Janki Prasad and others v/s. State of Bihar,

reported in AIR 1974 Patna 187, held to the effect that the said

Theosophical Society was merely an organization to bring

about harmony between religions and was not a new religion.

While so holding, it was observed as under :

“9. The word ‘religion’ to my mind, has been used in

Article 30 of the Constitution in the same sense in which

an ordinary man in this country understands. The word

was not used in the abstract philosophical sense. It

means what we understand by the word ‘religion’ in

common parlance, for example, Islam or Buddhism. The

question is whether the Society is covered by the

term....”

10. I have gone through the various portions of the

Book cited on behalf of the petitioners and I find that the

founders of the Society did not establish another religion,

rather they were interested in bringing about a cordial

relation amongst adherents of different religions and

foster love amongst the mankind throughout the

world....It is manifest that the Society did not intend to

bring about a new religion. It endeavoured to eliminate

the hostility existing between different religions and

promote goodwill...”

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13...Having regard to all the circumstances which have

been placed before us in this case, I think that the

Society is not a minority based on religion within the

meaning of Article 30 of the Constitution.”

In the case of Firdaus Amrut Higher Secondary

School v/s. M.M.Dave, reported in AIR 1992 Gujarat 179, this

Court had an occasion to deal with the guidelines framed by

the Minorities Commission for determining the minority status

of educational institutions under the Constitution of India,

wherein the stress laid by this Hon’ble Court was on religion

and religion alone, i.e. Parsi Zoroastrian without there being

any reference to the aspect relating to social and/or

educational backwardness.

Any minority declared as per Section 2(c) of the National

Commission for Minorities Act, 1992 is either based on

language or religion and the minority community, in my

opinion, cannot be conceived independent of language or

religion. I fail to understand as to in what manner Parsis,

Christians, Buddhists and Sikhs could be described as weaker

sections of the society or socially, educationally and

economically backward, and if yes, in what context and further

what is the material on record ? Is the Union trying to suggest

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that once a religion based minority always a socially and

educationally backward community.

It was sought to be argued that even though Article 15

does not mention minorities in specific terms, minorities who

are socially and educationally backward are clearly within the

ambit of the term ‘any socially and educationally backward

class’ in Article 15. It was also argued that the Central

Government and State Governments have included sections of

religious minorities in the list of backward classes and have

provided for reservation for them.

The onus of establishing that a particular class is

‘backward’ within the meaning of Article 15(4) is on the

Government – be it State or Central Government. When

protective discrimination for promotion of equalisation is

pleaded, the burden is on the party who seeks to justify ex

facie deviation from equality. Merely to say that in its opinion a

class of citizen is ‘socially and educationally backward’ will not

discharge that onus. The Government must produce materials

to satisfy the Court that : (a) there was a proper inquiry, (b)

relevant criteria were adopted and (c) the Government dealt

with this matter objectively, and applied its mind to relevant

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and proper materials. A mere averment in the affidavit filed by

the Government that it has acted in good faith and has taken

into consideration relevant criteria for determining the

backwardness of a class will not suffice. The Government is

obliged to place before the Court the materials upon which

such determination was made, and the Court is entitled to

decide whether the determination was made in conformity

with the requirements of clause (4) of Article 15 and

consistently with the rights guaranteed by clause (1) of Article

15 of the Constitution of India. (See State of Andhra Pradesh and

another v/s. P.Sagar, AIR 1968 SC 1379, and R.Chitralekha v/s. State

of Mysore and others, AIR 1964 SC 1823)

When the determination of a class as ‘socially and

educationally backward’ is challenged by a person aggrieved,

it is for the Government to show the basis or test by which

they have been held to be ‘socially and educationally

backward’. (See M.R.Balaji and others v/s. The State of Mysore and

others, AIR 1963 SC 649).

In my opinion, there is not an iota of material to atleast

show that any inquiry or survey was undertaken to identify

Parsis, Christians, Buddhists and Sikhs as socially and

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educationally backward classes of citizens. They have not been

so declared by the Central Government even under the

provisions of the National Commission for Backward Classes

Act, 1993. The reason is also simple. The survey was only for

the Muslim community. This is precisely the reason why there

is no reference of Justice Sachar Committee in the Scheme. In

such circumstances, it could not be said that the Scheme has

passed the test of reasonable classification based on

intelligible differentia.

In so far as Muslims are concerned, it is sought to be

contended that there is material in the form of Report of the

Sachar Committee which was constituted by the Government

to undertake a survey of the social, economic and educational

status of only the Muslim community in India. So far as Sachar

Committee Report is concerned, I shall deal with it a little

later. The point which I am trying to drive at is that the object

which is sought to be achieved is to give relief to the parents

of the five minority communities so that their children could go

to schools. This problem could be of any other class or classes

of citizens in the country irrespective of the five minority

communities. However, what is the material available on

record to even remotely suggest that this problem is being

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faced by Parsis, Sikhs, Christians and Buddhists so that the

help which the Government wants to render by way of the

Scheme will serve the objective with which the Scheme has

been floated. There is none. Thus, it necessarily suggests that

in absence of any material to even remotely suggest that such

a problem was identified and with a view to take care of such

problem, the Scheme has been floated, the only consideration

would be religion and nothing beyond religion.

When the Government makes a special provision for the

advancement of the weaker sections of the society referred to

in Article 15 of the Constitution of India, it has to approach its

task objectively and in a rational manner. Undoubtedly, it has

to take reasonable and even generous steps to help the

advancement of the weaker elements, but the extent of the

problems must be weighed, the requirements of the

community at large must be borne in mind and a formula must

be evolved which would strike a reasonable balance between

the several relevant considerations. As held in Indra Sawhney

(supra), the survey also has to be State-wise. What may be

true in one State, may not be true in any other State. What is

necessary in order to pass a test of permissible classification

under Article 14 is that the classification must not be ‘arbitrary,

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artificial or evasive’ but must be based on some real and

substantial distinction bearing a just and reasonable relation to

the object sought to be achieved by the Legislature.

While replying to one of the questions raised as regards

minority in this behalf in the case of T.M.A.Pai Foundation

(supra), the Apex Court observed as under:

“Q.1 What is the meaning and content of the expression

‘minorities’ in Article 30 of the Constitution of India ?

(a) Linguistic and religious minorities are covered by the

expression ‘minority’ under Article 30 of the

Constitution.....

Thus, the availability of the benefit of the Scheme in

question is confined to five religious minority communities or

in other words, five religions. Therefore, it is not permissible to

argue that the Scheme in question has no connection with

‘religion’, since the ‘religion’ is the main and only qualifying

factor for being eligible to the benefit of the Scheme in

question.

India is a secular country and secularism is the main

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feature of our Constitution. By insertion of the word ‘secular’ in

the Preamble of the Constitution along with the word ‘socialist’

by 42nd Constitution Amendment Act, 1976, what was implicit

came to be made explicit. Simple meaning of the word

‘secular’ is something which is not related to any particular

religion. In this behalf, it would be apt to quote the following

words of Dr.Radhakrishnan from his book entitled ‘World

Perspectives – Recovery of Faith’ (page 202), which is quoted

by the Hon’ble the Apex Court in the case of S.R.Bommai v/s.

Union of India, reported in (1994)3 SCC 1.

“no one religion should be given preferential status, or

unique distinction, that no one religion should be

accorded special privileges in national life or

international relations for that would be a violation of the

basic principles of democracy and contrary to the best

interest of religion and Government.”

While quoting the aforesaid words of Dr.Radhakrishnan,

the Apex Court in the case of S.R.Bommai (supra), observed as

under :

“...Article 14 guarantees equality before the law or equal

protection of laws. Discrimination on grounds of religion

is prohibited by Article 15. Article 16 mandates equal

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opportunity to all citizens in matters relating to

employment or appointment to any office or post under

the State and prohibits discrimination on grounds only of

inter-alia religion.....It would thus be clear that

Constitution made demarcation between religious part

personal to the individual and secular part thereof. The

State is neither pro-particular religion nor anti-particular

religion. It stands aloof, in other words, maintains

neutrality in matters of religion and provides equal

protection to all religions subject to regulation and

actively acts on secular part.”

In furtherance of the above, the following observations of

the Apex Court in the case of Bal Patil v/s. Union of India,

reported in (2005)6 SCC 690 are worth referring to (relevant

paragraphs 32 to 36):

“32. We have traced the history of India and its struggle

for independence to show how the concept of minority

developed prior to and at the time of framing of

Constitution and later in the course of its working. History

tells us that there were certain religious communities in

India who were required to be given full assurance of

protection of their religious and cultural rights. India is a

country of people with the largest number of religions

and languages living together and forming a Nation. Such

diversity of religions, culture and way of life is not to be

found in any part of the world. John Stuart Mill described

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India as "a world placed at closed quarters". India is a

world in miniature. The group of Articles 25 to 30 of the

Constitution, as the historical background of partition of

India shows, was only to give a guarantee of security to

the identified minorities and thus to maintain integrity of

the country. It was not in contemplation of the framers of

the Constitution to add to the list of religious minorities.

The Constitution through all its organs is committed to

protect religious, cultural and educational rights of all.

Articles 25 to 30 guarantee cultural and religious

freedoms to both majority and minority groups. Ideal of a

democratic society, which has adopted right of equality

as its fundamental creed, should be elimination of

majority and minority and so-called forward and

backward classes. Constitution has accepted one

common citizenship for every Indian regardless of his

religion, language, culture or faith. The only qualification

for citizenship is a person's birth in India. We have to

develop such enlightened citizenship where each citizen

of whatever religion or language is more concerned

about his duties and responsibilities to protect rights of

the other group than asserting his own rights. The

constitutional goal is to develop citizenship in which

everyone enjoys full fundamental freedoms of religion,

faith and worship and no one is apprehensive of

encroachment of his rights by others in minority or

majority.

33. The constitutional ideal, which can be gathered

from the group of articles in the Constitution under

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Chapters of Fundamental Rights and Fundamental

Duties, is to create social conditions where there remains

no necessity to shield or protect rights of minority or

majority.

34. The above-mentioned constitutional goal has to be

kept in view by the Minorities Commissions set up at the

Central or State levels. Commissions set up for minorities

have to direct their activities to maintain integrity and

unity of India by gradually eliminating the minority and

majority classes. If, only on the basis of a different

religious thought or less numerical strength or lack of

health, wealth, education, power or social rights, a claim

of a section of Indian society to the status of 'minority is

considered and conceded, there would be no end to such

claims in a society as multi-religious and multi-linguistic

as India is. A claim by one group of citizens would lead to

a similar claim by another group of citizens and conflict

and strife would ensue. As such, the Hindu society being

based on caste, is itself divided into various minority

groups. Each caste claims to be separate from the other.

In a caste-ridden Indian society, no section or distinct

group of people can claim to be in majority. All are

minorities amongst Hindus. Many of them claim such

status because of their small number and expect

protection from the State on the ground that they are

backward. If each minority group feels afraid of the other

group, an atmosphere of mutual fear and distrust would

be created posing serious threat to the integrity of our

Nation. That would sow seeds of multi-nationalism in

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India. It is, therefore, necessary that Minority Commission

should act in a manner so as to prevent generating

feelings of multi-nationalism in various sections of people

of Bharat.

35. The Commission instead of encouraging claims

from different communities for being added to a list of

notified minorities under the Act, should suggest ways

and means to help create social conditions where the list

of notified minorities is gradually reduced and done away

with altogether.

36.These concluding observations were required after

the eleven-Judges' Bench in TMA Pai Foundation case

(supra) held that claims of minorities on both linguistic

and religious basis would be each State as a unit. The

country has already been reorganized in the year 1956

under the States Reorganization Act on the basis of

language. Differential treatments to linguistic minorities

based on language within the State is understandable

but if the same concept for minorities on the basis of

religion is encouraged, the whole country, which is

already under class and social conflicts due to various

divisive forces, will further face division on the basis of

religious diversities. Such claims to minority status based

on religion would increase in the fond hope of various

sections of people getting special protections, privileges

and treatment as part of constitutional guarantee.

Encouragement to such fissiparous tendencies would be

a serious jolt to the secular structure of constitutional

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democracy. We should guard against making our country

akin to a theocratic State based on multi-nationalism.

Our concept of secularism, to put it in a nutshell, is that

'State' will have no religion. The States will treat all

religions and religious groups equally and with equal

respect without in any manner interfering with their

individual rights of religion, faith and worship.”

(Emphasis supplied)

It is in the spirit of the aforesaid religious impartiality

provided in our Constitution that one does not find reference of

the words ‘religion’ or ‘religious minority’ in Article 15, which

provide for prohibition against discrimination on the sole

ground of religion, race, caste, place of birth, sex or any one of

them or in Article 16, which ensures equal opportunities in the

matter of public employment. Both these Articles speak about

the affirmative actions to be taken by the States for the

Scheduled Castes, Scheduled Tribes and Socially and

Educationally Backward Classes.

However, as far as the minorities are concerned, the

Constitution envisages only following three distinctive rights

flowing from Articles 29 and 30 viz.

(i) Right of any section of citizens to conserve its language,

script or culture,

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(ii) Right of all religious and linguistic minorities to establish

and administer educational institutions of their own

choice, and

(iii) Right of any educational institution run by religious or

linguistic minority not to be discriminated against in the

matter of receipt of State Aid on the ground that it is

under the management of minority.

In the aforesaid context, I may state that during the

course of hearing of the reference, a specific question was put

by me to the learned Additional Solicitor General of India as to

whether solely on issuance of notification under Section 2(c) of

the National Commission for Minorities Act, 1992, the five

minority communities could be termed as socially and

educationally backward per se. The answer was very fairly

‘No’. Although the learned Additional Solicitor General of India

appearing on behalf of the Central Government contended that

one cannot go behind the said notification, he did not submit

that apart from the minuscule nature of the said five

communities based on religion against the majority, there were

any other factors taken into consideration for declaring them

as minority communities under the Minorities Act. As against

this, the contention on behalf of the respective counsel,

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challenging the notification, is that the declaration of their

being minority communities vide the aforesaid notification,

does not ipso facto confer the status of socially and

educationally backward class on the said five minority

communities based on religion.

A lot of emphasis was sought to be placed on the

observations of the Supreme Court made in paragraph 116 of

Indra Sawhney’s case (supra). The observations sought to be

relied upon to meet with the complaint of discrimination under

Article 15(1) of the Constitution of India are as under :

“...But it may not be entirely right to say that Article

15(4) is a provision envisaging programmes of positive

action. Indeed, even programmes of positive action may

sometimes involve a degree of discrimination. For

example, if a special residential school is established for

Scheduled Tribes or Scheduled Castes at State expense,

it is a discrimination against other students, upon whose

education a far lesser amount is being spent by the

State. Or for that matter, take the very American cases -

Fullilove (1980 (65) Law Ed 2d 902) or Metro

Broadcasting (1990 (111) Law Ed 2d 445) - Can it be said

that they do not involve any discrimination? They do. It is

another matter that such discrimination is not

unconstitutional for the reason that it is designed to

achieve an important governmental objective.”

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(Emphasis supplied)

In my respectful opinion, the aforesaid observations of

the Supreme Court should be read in conjunction with very

important observations as contained in paragraph 57, which

are as under :

“...We too believe that Article 16(l) does permit

reasonable classification for ensuring attainment of the

equality of opportunity assured by it. For assuring

equality of opportunity, it may well be necessary in

certain situations to treat unequally situated persons

unequally.”

Thus, for the purpose of assuring equality of opportunity

for the advancement of weaker sections of the society, law

permits by way of reasonable classification to treat unequally

situated persons unequally but, law does not permit two

equally situated persons unequally in the name of reasonable

classification with a colour of religion or minority.

(Emphasis supplied)

The entire judgment of Indra Sawhney (supra) is based

on Articles 16(1), 16(2) and 16(4) of the Constitution of India.

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But, as held by the Supreme Court in Indra Sawhney (supra)

itself that what is said about Article 16(4) would equally hold

good and valid for the purpose of Article 15(4). The

observations in paragraph 116 should not be construed to

convey that even at the cost of Article 16(2) of the Constitution

of India ‘discrimination’ is permissible, if the same could be

termed as a reasonable classification based on intelligible

differentia.

Thus, I am of the opinion that by mere conferment of

minority status under a notification issued under Section 2(c)

of the National Commission for Minorities Act, 1992, by itself

will not be sufficient to consider the five communities as

weaker sections of the society or backward classes of the

society or socially, economically and educationally backward.

Status of minority is and could be conferred for many reasons.

Minority mainly is religious and linguistic. It is true that till this

date, there has been no challenge so far as the notification

issued under Section 2(c) of the Act is concerned, notifying five

communities as minorities. But at the same time, to confer the

status of being a class by itself which needs upliftment at the

end of the Government at the exclusion of similarly situated

persons of communities other than the five communities, there

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has to be some cogent and convincing material to show that

having regard to the peculiar problems and other drawbacks

that the five minority communities deserve some special

treatment at the end of the Government for their advancement

to compete with the other sections of the society.

I am of the opinion that if any benefit is to be extended to

the weaker sections of the citizens in the name of affirmative

action for their advancement, then the problem as a whole

should have been looked into and then the Government could

have come up with some solution. For example, the problems

which the Muslims may be facing in each of the States or in the

country as a whole may not be the problems which the other

four communities as minorities may be facing. If the problem is

religious, then accordingly it has to be solved. If it is

educational, then accordingly it should be taken care of. The

Constitution itself has limited the protection to the minorities

to a certain extent, which I have referred to in the preceding

paragraphs. However, to treat and consider the five

communities as a whole to be weaker sections of the society or

socially and educationally backward and take affirmative

action discriminating similarly situated other persons, would be

nothing but perpetuating the very distinction which the

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Constitution seeks to abolish. What is envisaged by the

Constitution is a secular state under which no distinction is

made between man and man with reference to his religion or

his caste. To honour and effectuate this laudable principle

embodied in the Constitution, it is necessary that classification

should not be made on the basis of religion, like in the present

case in the name of minorities.

In this context, the decision of the Supreme Court

rendered in the case of State of Rajasthan v/s. Thakur

Pratap Singh, reported in AIR 1960 SC 1208 is required to be

looked into, which, in my opinion, deals with very similar issue.

The facts of the said case can be summarised as under:

The Appeal before the Supreme Court by the State of

Rajasthan raised for considering the constitutional validity of

one paragraph of a notification issued by the State of

Rajasthan under Section 15 of the Police Act (Central Act V of

1861) under which “the Harijan” and “Muslim” inhabitants of

the villages, in which an additional police force was stationed,

were exempted from the obligation to bear any portion of the

cost of that force.

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It was stated that the inhabitants of certain villages in the

district of Jhunjhunu in the State of Rajasthan, harboured

dacoits and receivers of stolen property, and were besides

creating trouble between landlords and tenants, as a result of

which, there were serious riots in the locality in the course of

which some persons lost their lives. The State Government,

therefore, took action under Section 15 of the Police Act. The

relevant portion of the said Section is quoted below:

"Quartering of additional police in disturbed or dangerous

districts-

(1). It shall be lawful for the State Government, by

proclamation to be notified in the official Gazettee,

and in such other manner as the State Government

shall direct, to declare that any area subject to its

authority has been found to be in a disturbed or

dangerous state, or that from the conduct of the

inhabitants of such area, or of any class or section

of them, it is expedient to increase the number of

police.

(2). It shall thereupon be lawful for the Inspector-

General of Police, or other officer authorised by the

State Government in this behalf, with the sanction

of the State Government, to employ any police-

force in addition to the ordinary fixed complement

to be quartered in the areas specified in such

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proclamation as aforesaid.

(3). Subject to the provisions of subsection (5) of this

section, the cost of such additional police force shall

be borne by the inhabitants of such area described

in the proclamation.

(4). The Magistrate of the district, after such enquiry as

he may deem necessary, shall apportion such cost

among the inhabitants who are, as aforesaid, liable

to bear the same and who shall not have been

exempted under the next succeeding sub-section.

Such apportionment shall be made according to the

Magistrate's judgment of the respective means

within such area of such inhabitants.

(5). It shall be lawful for the State Government by order

to exempt any persons or class or section of such

inhabitants from liability to bear any portion of such

cost."

The notification by which these provisions were invoked

and which was impugned in those proceedings was in these

terms:-

"Whereas the Rajpramukh is satisfied that the area

shown in the schedule annexed hereto has been found to

be in a disturbed and dangerous state;

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Now, therefore, in the exercise of the authority

vested in him under Section 15(1) of the Police Act (V of

1861), the Rajpramukh is pleased to declare that the 24

villages included in the said schedule shall be deemed to

be disturbed area for a period of six months from the

date of this notification.

Under sub-section (2) of the said section 15 of the

Police Act (V of 1861), the Rajpramukh is pleased to

authorise the Inspector-General of Police to employ, at

the cost of the inhabitants of the said area any Police

force in addition to the ordinary fixed complement

quartered therein.

Under sub-section (5) of section 15 of the said Act

the Rajpramukh is further pleased to exempt the Harijan

and Muslim inhabitants of these villages from liability to

bear any portion of the cost on account of the posting of

the additional Police force."

Then followed the names of 24 villages mentioned in the

notification.

The respondent, one Thakur Pratap Singh being an

inhabitant of Baragaon, one of these 24 villages, moved the

High Court of Rajasthan for the issue of a writ or direction

under Article 226 of the Constitution, impugning the validity of

Section 15 of the Police Act and in particular, of sub-section (5)

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thereof, and of the notification and praying for appropriate

reliefs.

The High Court repelled the wider contentions urged

regarding the invalidity of Section 15 of the Police Act in

general as also of the powers conferred on the State

Government to order the exemption of "any person or classes

or sections of such inhabitants" from liability to bear the cost

of the additional police force. But the learned Judges held that

paragraph 4 of the notification, which exempted "Harijan and

Muslim inhabitants of the villages" from the levy, was violative

of the guarantee in Article 15(1) of the Constitution against

discrimination on the ground of caste or religion etc., which

reads:

"The State shall not discriminate against any citizen on

grounds only of religion, race, caste, sex, place of birth or

any of them" and struck it down as unconstitutional.

The State of Rajasthan which felt aggrieved by this order

applied to the High Court for a certificate under Art. 132(1) to

enable it to file an appeal to the Supreme Court and such

certificate having been granted, the appeal came up before

the Apex Court.

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The learned counsel for the State made a strenuous

effort before the Supreme Court to show that the exemption of

the Harijan and Muslim inhabitants of the villages, was, in the

impugned notification, not based "only" on the ground of

'caste' or 'religion' or the other criteria set out in Article 15(1),

but on the ground that persons belonging to these two

communities were found by the State not to have been guilty

of the conduct which necessitated the stationing of the

additional police force. It was the same argument as was

addressed to the High Court and was rejected by the learned

Judges who observed:

"Now this is a very strange argument that only persons of

a certain community or caste were law-abiding citizens,

while the members of other communities were not.

Disturbing elements may be found among members of

any community or religion just as much as there may be

saner elements among members of that community or

religion."

In such a case, the Supreme Court while dismissing the

appeal made the following observations:

“The view here expressed by the learned Judges is, in our

opinion, correct. Even if it be that the bulk of the

members of the communities exempted or even all

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of them were law-abiding, it was not contended on

behalf of the State that there were no peaceful

and law-abiding persons in these 24 villages

belonging to the other communities on whom the

punitive levy had been directed to be made. In

paragraph 5(f) of the petition filed before the High Court

the respondent had averred:

"That the aforesaid Notification is ultra vires of the

Constitution of India as it discriminates amongst

the Citizens of a village on the basis of religion,

race or caste, inasmuch as it makes a distinction

between persons professing the Mohammadan

religion and others and also between persons who

are Muslims and Harijans by caste and the rest. It,

therefore, contravenes the provisions of Art. 15 of

the Constitution of India". The answer to this by the

State was in these terms.

"The Harijan and Muslim inhabitants to these

villages have been exempted from liability to bear

any portion of the cost of the additional force not

because of their religion race or caste but because

they were found to be peace-loving and law-

abiding citizens, in the 24 villages additional force

has been posted."

It would be seen that it is not the case of the State

even at the stage of the petition before the High

Court that there were no persons belonging to the

other communities who were peace-loving and

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law-abiding, though it might very well be, that

according to the State, a great majority of these

other communities were inclined the other way. If

so, it follows that the notification has

discriminated against the law-abiding members of

the other communities and in favour of the Muslim

and Harijan communities, - (assuming that every

one of them was "peace loving and law-abiding")

on the basis only of "caste" or "religion". If there

were other grounds they ought to have been stated in

the notification. It is plain that the notification is

directly contrary to the terms of Article 15(1) and

that paragraph 4 of the notification has incurred

condemnation as violating a specific constitutional

prohibition. In our opinion, the learned Judges of the

High Court were clearly right in striking down this

paragraph of the notification.

(Emphasis supplied)

It is in the aforesaid context that a Division Bench, while

referring the matter to the Full Bench, posed three questions

for the consideration of the Central Government. The three

questions are :

“

1. Will the Scheme, if made available to all the Children

in the country irrespective of their religion, not lighten

the financial burden of some similarly or more

precariously placed persons belonging to the other

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communities or of persons having even annual income

of less than Rs. 1 lakh on school education of their

children and sustain their effort to support their

children to complete school education and provide a

level playing field in the competitive employment

arena?

2. Will those persons of other communities whose annual

income is less than Rs. 1 lakh and whose children are

equally or more meritorious, not be deprived of the

Government patronage only because they belong to

different religions than those five religions?

3. By the Scheme in question, has the Central

Government not exposed its idea that there is no

necessity of Socio Economic upliftment of the persons

of even the poorer and socially backward citizen by

Government sponsorship unless they belong to those

five religions?

The only reply of the learned Additional Solicitor General

of India to the aforesaid three questions was, that at the best it

could be said that it is a case of under-classification and not

discrimination only on the ground of religion.

Thus, once again the shelter of the words ‘only’ is being

taken by the Central Government.

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The expression ‘on grounds only’ in Article 15(1) and (2)

and in Article 16(2) has been well explained by reference to

Section 298(1) of the Government of India Act, 1935 which

used that very expression in prohibiting discrimination on

grounds similar to those contained in Articles 15 and 16.

Section 298(1) of the Act of 1935 reads as under :

“No subject of His Majesty domiciled in India shall on

grounds only of religion, place of birth, descent, colour or

any of them be ineligible for office under the Crown in

India, or be prohibited on any such grounds from

acquiring, holding or disposing of property or carrying on

any occupation, trade, business or profession in British

India.”

In Punjab v/s. Daulat Singh [(1946)73 I.A. 59], Section

298(1) was considered under the backdrop of the following

circumstances :

Section 13A, which was added to the Punjab Alienation of

Land Act, 1900, with retrospective effect was impugned as

violating Section 298(1). By majority, the Federal Court held

that the Act contravened Section 298(1) in some cases, and

remanded the case for ascertaining facts in the light of their

directions. Beaumont J., who dissented, emphasised the words

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‘on the ground only’, observing that the true basis of the

impugned Act was not discrimination only, or even principally,

on one or more of the grounds specified in Section 298(1), but

the true object of the Act was to avoid a method of evading the

principal Act though in achieving that object some persons

whose only disqualification was a lack of particular descent

might be affected. The Privy Council decisively rejected this

view, observing that :

“Their Lordships are unable to accept this as the correct

test. In their view, it is not a question of whether the

impugned Act is based only on one or more of the

grounds specified in Section 298 sub-section (1), but

whether its operation may result in a prohibition only on

these grounds. The proper test as to whether there is a

contravention of the sub-section is to ascertain the

reaction of the impugned Act on the personal right

conferred by the sub-section, and, while the scope and

object of the Act may be of assistance in determining the

effect of the operation of the Act on a proper

construction of its provisions, if the effect of the Act so

determined involves an infringement of such personal

right, the object of the Act, however laudable, will not

obviate the prohibition of sub-section (1).”

S.R.Das, J. in Bombay v/s. Bombay Education

Society, [(1955)1 S.C.R. 568], cited the above passage as

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laying down the correct test and added :

“Whatever the object, the immediate ground and direct

cause for the denial is that the mother tongue of the

pupil is not English. Adapting the language of Lord

Thankerton, it may be said that the laudable object of the

impugned order does not obviate the prohibition of

Article 29(2) because the effect of the order involves an

infringement of this fundamental right, and that effect is

brought about by denying admission only on the ground

of language.”

(Emphasis supplied)

Das, J. said that this very test was implicit in an earlier

decision of the Supreme Court, namely, Madras v/s.

Smt.Champakam Dorairajan (supra).

The Division Bench of this Court, while referring the

matter to the Larger Bench, on consideration of the entire

material on record, took note of a very pertinent fact that in

order to get the benefit of the Scheme in question, the

following basic conditions must be complied with :

“(a) The student concerned must not get less than 50%

marks in the previous final examination.

(b) The annual income of his/her parents/guardian

from all sources must not exceed Rs.1 lakh.

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However, inter se selection weightage should be

given to poverty rather than the marks obtained.

(c) The student must be either a Muslim or Christian or

Sikh or Buddhist or Zoroastrian [Parsi].”

After looking into the basic conditions as referred to

above, the Division Bench proceeded to observe as under :

“Let us now consider a situation where two citizens of

this country, one belonging to any of those five religions and

the other, not belonging to those five religions, due to their

misfortune are reduced to the lowest ebb of poverty and

distress and earning their livelihood as street-beggars, having

the same meager amount of annual income which is much less

than Rs.1 lakh. Both the aforesaid persons have a son each

and they want that their respective son should complete

education so that he is not forced to undergo a life of misery.

The son of the person not belonging to any of those five

religions has secured 90% marks in the last final examination

whereas the son of the other, who belongs to one of those five

religions, has obtained 60% marks. According to the Scheme

in question, the son of the former one who does not belong to

any of those five religions will be deprived of the benefit only

on the ground that he does not belong to those five religions

whereas the son of the other person, who belongs to one of

those five religions, will be entitled to the benefit only because

he belongs to one of those five religions and no other ground

although he is less meritorious than the former and the socio-

economic condition of his father is the same as that of the

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father of the former. The Scheme in question, therefore,

clearly discriminates against a citizen only on the ground of

religion.

We, therefore, hold that if we pass direction upon the

State Government to implement the Scheme in question it will

amount to passing direction upon the State Government to

violate Article 15(1) of the Constitution. Since our above view

is in conflict with the earlier decision of a Division Bench of this

Court in Special Civil Application No. 2245 of 2008 (Vijay

Harishchandra Patel vs. the Union of India) disposed on

March 20, 2010, in our opinion, the judicial decorum

demands that we should refer the question before a Larger

Bench.”

The only reply to the situation envisaged by the Division

Bench as referred to above was that Article 14 does not forbid

reasonable classification of persons for the purpose of

attaining specific ends and affirmative action for the

advancement of SEBCs could be in a phased manner.

I may only state that in determining the constitutional

validity of a measure or a provision therein, regard must be

had to the real effect and impact thereof on the fundamental

rights. The seven-judge Bench of the Supreme Court, in the

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case of Smt. Maneka Gandhi v/s. Union of India and

another, reported in AIR 1978 SC 597, held that the approach

to be adopted by the Court in adjudging the constitutionality of

a statute should be on the touchstone of fundamental rights.

While answering the question, “what is the test or yardstick to

be applied for determining whether the statute infringes a

particular fundamental right”. After considering all earlier

decisions, Their Lordships have concluded :

“68....The pith and substance theory was thus negatived

in the clearest terms and the test applied was as to what

is the direct and inevitable consequence or effect of the

impugned State action on the fundamental right of the

petitioner. It is possible that in a given case the pith and

substance of the State action may deal with a particular

fundamental right but its direct and inevitable effect may

be on another fundamental right and in that case, the

State action would have to meet the challenge of the

latter fundamental right. The pith and substance doctrine

looks only at the object and subject-matter of the State

action but in testing the validity of the State action with

reference to fundamental rights, what the Court must

consider is the direct and inevitable consequence of the

State action. Otherwise, the protection of the

fundamental rights would be subtly but surely eroded.”

(Emphasis supplied)

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In the present case, we are examining the validity of a

scheme floated by the Central Government and the Scheme is

being tested on the touchstone of Article 15 of the Constitution

of India. The direct and inevitable consequences of the Scheme

is that a student who does not belong to any of those five

religious minorities will be deprived of the benefit only on the

ground that he does not belong to those five religious

minorities, even though he possesses all other qualifications of

the Scheme, whereas the other persons who belong to one of

those five religious minorities, will be entitled to benefit only

because they belong to one of those five religious minorities,

although they may be less meritorious than the former and the

socio-economic conditions of the parents would be the same as

that of the parents of the former.

EXAMINATION OF THE SCHEME ON THE ANVIL OF

ARTICLE 15(4):

I shall now examine the Scheme taking into consideration

Article 15(4) of the Constitution of India. It was sought to be

contended that Article 15(4) is a special provision in the

Constitution which is an enabling provision having an

overriding effect over Article 15(1) of the Constitution of India.

At one stage, it was also sought to be contended that

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assuming for the moment that there is a discrimination,

wherein there is some element of religion or caste involved,

then such discrimination is saved and permissible under Article

15(4) of the Constitution of India.

A special provision for the educational advancement of

any backward class of citizens though comprised within the

directive principles of the State policy, can be made only by

way of a permissible abridgment of the fundamental rights

under Articles 15 and 29(2) of the Constitution of India. The

fourth clause of Article 15 comprises two ideas – one, of

classifying citizens as socially and educationally backward and

the other, making a special provision for their advancement.

The former has relevance to the ideas of equality and non-

discrimination and the later to the ambit of the restrain which

could be lawfully be based upon the fundamental right.

What the Constitution really prohibits is a discrimination

based on the grounds only of religion, caste, sex, etc. as

contained in Article 15(1) of the Constitution of India. If,

however, a group of persons or a class of citizens clearly

identifiable by their religion or caste is really backward,

socially and educationally, and is on that basis given the

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benefit of certain schemes like the present one, the ineligibility

of a person belonging to another caste to secure such benefits

may not be clearly based on the ground of religion or caste

but, would be a consequence of the reasonable classification

based on intelligible differentia made in favour of a backward

class. The above is subject to the strict scrutiny or test that

such benefits granted to a class or a group of citizens is not

based only on religion but coupled with some other rational

factors. However, if it can be shown that the criterion adopted

for determining their backwardness is useless as a test of

backwardness, so that the preference given to them virtually

amounts to a preference on the ground of religion alone, the

description as backward will be illusory or fictitious.

The words ‘classes of citizens’ in Article 15(4) are words

of wide significance. If the intention of the Government is to

give benefit to the five minority communities by taking

recourse or with the aid of Article 15(4) of the Constitution of

India, then in such circumstances, the Government will have to

show that minorities by itself constituted a class of citizens on

the basis of a factor which is peculiar for that class only and

not found in majority.

Besides the above, the expression ‘class’ means, a

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homogeneous section of the people grouped together because

of certain likenesses or common traits and who are identifiable

by some common attributes such as status, rank, occupation,

residence in a locality, race, religion and the like. Could it be

said by any stretch of imagination that the five minority

communities constitute a homogeneous section of the people

as a class ? The answer has to be in the negative.

In the aforesaid context, I may take support of a very

recent Division Bench judgment of the Andhra Pradesh High

Court rendered in the case of R.Krishnaiah v/s. Union of

India (PIL Nos.1, 22 and 56 of 2012, decided on 28th May

2012). In the said case, an Office Memorandum was

challenged, which provided a sub-quota of 4.5% for socially

and educationally backward class of citizens belonging to

minorities for reservation in admission in some central

educational institutions. While examining the validity of the

Office Memorandum, the Division Bench observed that the

very use of the words ‘belonging to minorities’ or ‘for

minorities’ indicate that the sub-quota had been carved out on

religious lines and not on any other intelligible basis. In that

case, the identified minorities were Muslims, Christians, Sikhs,

Buddhists and Zoroastrians (Parsis), like in the present case.

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The Court also observed that absolutely no material was

placed before it to demonstrate that persons belonging to the

religious groups were more backward than any other category

of backward classes or that they needed any preferential

treatment as compared to other OBCs. Court also observed

that in the absence of any material, it was very evident that

the sub-quota had been created only on the grounds of religion

and nothing else. According to the Division Bench, the same

was impermissible in view of the specific language of Article

15(1) of the Constitution of India as well as Article 16(2) of the


The Division Bench of the Andhra Pradesh High Court also

took into consideration, whether the groups clubbed together

in the Office Memorandum were homogeneous or not. The

Court held that clubbing certain minorities such as Muslims,

Christians, Sikhs, Buddhists and Zoroastrians (Parsis) into one

group does not per se lead to any conclusion of homogeneity

amongst them. The Court, while striking down the Office

Memorandum under challenge as unconstitutional, held that

Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis)

did not form a homogeneous group but a heterogeneous

group.

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I fully subscribe to the views expressed by the Division

Bench of the Andhra Pradesh High Court.

Until the decision in the case of State of Kerala v/s.

N.M.Thomas (supra), clause (4) of Article 15 as well as clause

(4) of Article 16 were understood as constituting exceptions to

clause (1) of Article 15 and clauses (1) and (2) of Article 16,

respectively. In the said case, however, which was

subsequently relied upon in Indra Sawhney (supra), a majority

of Judges expressed the view that the power to make a special

provision in favour of backward class of citizens was implicit

and inherent in clause (1) of Article 16, itself, and by parity of

same reasoning in Article 15(1) and that clause (4) in each of

those Articles was merely an emphatic way of stating the same

principle. It was held that the principle of reasonable

classification inherent in Article 14 is extended equally to

Article 15(1) and Article 16(1) as well. Even if it is held that

clause (1) of Article 15 permit reasonable classification, the

same cannot be on the basis of religion or caste alone, since

that would be directly in the teeth of the prohibition contained

in Article 15(1) and 16(2) of the Constitution of India.

While providing concessions to the backward classes, the

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fundamental rights of other communities cannot be completely

and absolutely ignored. The judicious relation between the

special concessions given to the backward classes vis-a-vis the

rest of the society cannot be laid down rigidly. The situation

would differ from State to State as I have observed earlier. It

also depends upon the nature of concessions or benefits and

its overall effects on the fundamental rights of others.

I quote with profit the Constitutional Law of India (by

H.M.SEERVAI, 4th Edn., Vol.I at page 557):

“...Can it be said that sub-Art.15(4) is the dominant sub-

Art. and Art.15(1) the subordinate sub-Article ? To ask

this question is to answer it in the negative. For a sub-

Article which confers no right but a discretionary power,

cannot be described as occupying a dominant or primary

position over an enforceable fundamental right. But if

sub-Art.15(4) cannot be treated as the dominant

provision, can the two sub-Articles be treated as

independent of each other ? The answer is, ‘No’. First,

because Art.15(4) opens with the words ‘Nothing in this

Article shall prevent the State...’ which show that

Art.15(4) is in some way connected with Art.15(1).

Secondly, the statement that sub-Art.(1) and sub-Art.(4)

are independent of each other leads to an internal

contradiction and to an absurd result. For, to say that the

two sub-Arts. are independent is to say that sub-

Art.15(1) is not in any way affected by sub-Art.15(4), and

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vice versa. This means that a citizen can enforce his

fundamental right against the State regardless of what is

contained in sub-Art.15(4). Equally, that the State can

exercise its discretionary power under Art.15(4)

regardless of what is contained in sub-Art.15(1). This

leads to the self-contradictory and absurd result that a

citizen cannot exercise his fundamental right not to be

discriminated against on the ground of caste or religion if

the State can discriminate against him on the ground of

caste and religion in favour of Scheduled Castes. And

similarly, the State cannot exercise its discretionary

power to discriminate against a citizen on the ground of

race, caste or religion in favour of Scheduled Castes,

because the citizen has a fundamental right under

Art.15(1) not to be so discriminated against. Therefore it

follows that the two sub-Articles are not independent.

There is no third alternative, which would describe the

relation of Art.15(1) and 15(4) unless it is said that

Art.15(4) has been enacted ex majore cautela, that is, by

way of abundant caution. But to say this is to say that

sub-Art.15(4) was not necessary, and that the result

would have been the same even if it had not been

enacted or was struck out. But the terms of sub-Art.15(4)

show that they were not inserted ex majore cautela,

because if Art.15(4) were struck out, the State would

have no power to make special provision for the

advancement of the classes mentioned in Art.15(4),

because such a provision would violate the prohibition of

Art.15(1). In fact, sub-Art.15(4) was introduced in Art.15

by a Constitutional Amendment to confer on the State a

power which it was held by the Supreme Court the State

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did not possess under the unamended Art.15(1) to (3). It

follows therefore that the theory that Art.15(4) is not an

exception leads to an inherent contradiction in describing

the relation between the two sub-Articles and must

therefore be rejected.”

In one of the recent pronouncements of the Supreme

Court in the case of E.V.Chinnaiah v/s. State of Andhra Pradesh

(supra), in the concurring judgment S.B.Sinha, J. made certain

observations as regards Article 15(4). I may quote with profit

those observations as contained in paragraph 104 of the

judgment :

“It is, therefore, mainfest that the backward class which

may be given the benefit of clause (4) of Article 15 or

Article 16 must consist of a homogeneous group – the

element of homogeneity being the backwardness

characterising the class. The link or the thread holding

the class together, thus, should be the backwardness of

its members which can never be supplemented by

castes. Classification, thus, may be justified on the

ground that it is a backward class but the same may not

stand the scrutiny or the equality clause when

classification is made on the basis of a backward caste or

a section of a backward caste.”

In R.C.Poudyal v/s. Union of India and others,

reported in 1994 Supp (1) SCC 324, S.C.Agrawal, J. held in

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paragraph 191 of the judgment in a partly dissenting opinion

(with no Lordship disagreeing on this issue) as under :

“Clause (1) of Article 15 prohibits discrimination by the

State against any citizen on the ground only of religion,

race, caste, sex or any of them. Clause (3), however,

permits the State to make special provision for women

and children. Similarly, Clause (4) permits the State to

make special provision for the advancement of any

socially and educationally backward classes of citizens or

for the Scheduled Castes and the Scheduled Tribes.

Clauses (3) and (4) do not, however, permit making of

special provisions in derogation of the prohibition against

discrimination on the ground of religion.”

In the aforesaid context, I may also refer to the decision

of the Supreme Court in the case of Triloki Nath Tiku (supra). In

the said case, the petitioners claimed that they had been

discriminated against in the matter of promotion to the

gazetted cadre, solely on the ground of religion and place of

residence. The case that junior officers were promoted to the

gazetted cadre over officers senior to them on the ground

solely that they, the junior members, belonged to the Muslim

community or that they were Hindus belonging to the Jammu

province of the State of Jammu & Kashmir was not denied.

However, the prejudicial treatment of senior officers was

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sought to be supported on the plea that the State had acted in

consonance with the principles of clause (4) of Article 16 of the

Constitution. It was the case of the State that Muslims as a

community in the whole of the State of Jammu & Kashmir

formed a backward class of citizens and they were not

adequately represented in the services under the State.

Similarly, Hindus from the province of Jammu formed as

backward community and were not adequately represented in

the services of the State, and on that account, reservation in

the matter of appointments or posts and promotions in the

services of the State was made in respect of those classes. In

the aforesaid background, the Supreme Court made the

following observations in paragraph 4, which reads as under :

“4. Article 16 in the first instance by Cl. (2) prohibits

discrimination on the ground, inter alia, of religion, race,

caste, place of birth, residence and permits an exception

to be made in the matter of reservation in favour of

backward classes of citizens. The expression "backward

class" is not used as synonymous with "backward caste"

or "backward community". The members of an entire

caste or community may in the social, economic and

educational scale of values at a given time be backward

and may on that account be treated as a backward class,

but that is not because they are members of a caste or

community, but because they form a class. In its ordinary

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connotation the expression "class" means a homogenous

section of the people grouped together because of

certain likenesses or common traits, and who are

identifiable by some common attributes such as status,

rank, occupation, residence in a locality, race, religion

and the like. But for the purpose of Art 16 (4) in

determining whether a section forms a class, a test solely

based on caste, community, race, religion, sex, descent,

place of birth or residence cannot be adopted, because it

would directly offend the Constitution.”

In my opinion, this statement of the law would equally

apply to Article 15(4) of the Constitution of India.

I am of the view that the Scheme cannot be held valid

even on the anvil of Article 15(4) of the Constitution of India.

It was sought to be contended on behalf of the Union that

Article 14 is an umbrella article, wider in its scope and purview

as compared to Articles 15 and 16 which are minor postulates

of Article 14. I am not in a position to agree to this proposition

of law as, in my view, it is not a correct proposition of law. As

observed earlier, the said three Articles form part of a string of

constitutionally guaranteed rights. In this behalf, I may quote

with profit the following observations of the Supreme Court in

the case of State of Karnataka v/s. N.M.Thomas (supra) :-

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“45.....If classification is permissible under Article 14, it is

equally permissible under Article 16, because both the

Articles lay down equally...”

46.....Article 16(1) permits classification on the basis of

object and purpose of law or State action except

classification involving discrimination prohibited by

Article 16(2)..”

Similarly, the following observations from the decision of

the Supreme Court in the case of Indra Sawhney (supra) are

also worth referring :

“68....Though Balaji was not a case arising under Article

16(4), what it said about Article 15(4) came to be

accepted as equally good and valid for the purpose of

Article 16(4). The formulation enunciated with respect to

Article 15(4) were, without question, applied and adopted

in cases arising under Article 16(4).”

In my opinion, Articles 15(4) and 16(4) are enabling

provisions and are not minor postulates of Article 14. The said

two Articles empower the State to take positive affirmative

actions but with a strong caveat that such actions cannot be

taken so as to violate the constitutional mandate flowing from

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Articles 15(1), 16(2) and 29(2) of the Constitution of India

which use almost similar language while imposing positive

obligation on the same.

In the case of Ashok Kumar Thakur (supra), the Court

observed as under :

“126....As has been held in N.M.Thomas case and Indra

Sawhney case Articles 15(4) and 16(4) are not

exceptions to Articles 15(1) and 16(1) but independent

enabling provisions.”

At the same time, one should not lose sight of the

following observations of the Supreme Court in the earlier

judgment in the case of State of Uttar Pradesh v/s. Pradip

Tandon (supra), which was also taken note of by the Apex

Court in its later judgments in the case of Indra Sawhney

(supra) and Ashok Kumar Thakur (supra). The observations are

as under :

“15....If caste or religion is recognized as a criterion of

social and educational backwardness, Article 15(4) will

stultify Article 15(1)...”

I have also examined the Scheme taking into

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consideration Article 15(3) of the Constitution of India which

says that nothing in Article 15 shall prevent the State from

making any special provision for women and children. The

Scheme in question would not get saved under Article 15(3) of

the Constitution of India since the same seeks to create class

within the class, such as sub-classification, which is

constitutionally not permissible. Thus, under Article 15(3),

special provision can be made for women as a class and

children as a class, but not for children of specified religious

minorities as is sought to be done by the Scheme in question.

This could very well be appreciated by considering the

following few illustrations :

(i) Reservation of seats for women as a class in

the election of Jalgaon Municipality – AIR 1953

Bom. 311.

(ii) No punishment for female as a class for the

offence punishable in case of a man under

section 458 of the IPC – AIR 1951 Bom. 470,

AIR 1954 SC 321.

(iii) Reservation of 30% of the posts by way of

direct recruitment for women in A.P. State and

Subordinate Services Rules – (1995) 4 SCC

520 – rel. paras 3, 6, 7.

(iv) Reservation of a woman in the post of

Enquiry-cum-Reservation Clerks in Railways –

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(1997) 11 SCC 638.

(v) Reservation of women in the appointment of

post of Principal, Teacher and Superintendent

in a Women’s College – AIR 2003 SC 3331.

(vi) Reservation of women for the post of Air

Hostesses in Air India – AIR 2004 SC 187.

(vii) Reservation of women for teaching young girls

below the age of 10 years in Primary School –

AIR 2005 SC 2540.

(viii) Enactment of the Juvenile Justice (Care &

Protection of Children) Act, 2000 for the

children as a class.

(ix) Enactment of the Right of Children to Free and

Compulsory Education Act, 2009 for the

Children as a class.

Where a class of children is divided in sub-classification

of the children of only five religious minorities, protection of

Article 15(3) will not be available. In this Context, it will be

profitable to quote the observations of the Apex Court in the

case of E.V.Chinnaiah v/s. State of Andhra Pradesh (supra) :

“The very fact that the members of the Scheduled Castes

are most backward amongst the backward classes and

the impugned legislation having already proceeded on

the basis that they are not adequately represented both

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in terms of clause (4) of Article 15 and clause (4) of

Article 16 of the Constitute, a further classification by

way of micro-classification is not permissible. Such

classification of the members of different classes of

people based on their respective castes would be also

violative of the doctrine of reasonableness.”

The material on record would further suggest that the

Scheme seeks to treat equals as unequals, because similarly

situated SEBCs in Gujarat State are not eligible to have the

benefit of the Scheme in question at par with Muslim SEBCs as

illustrated hereinbelow :

Sr.No. SEBC Caste Eligibility

1. Vanzara(Muslim) Yes2. Vanzara (Hindu) No3. Pinjara(Muslim) Yes4. Pinjara (Hindu) No5. Dafer (Muslim) Yes6. Dafer (Hindu) No7. Hingora (Muslim) Yes8. Hingora (Hindu) No

The materials on record also indicate that the overall

literacy rate of five religious minorities in question is on a

higher side as compared to the literacy rate prevailing

amongst the Scheduled Castes and Scheduled Tribes. The

details are as under:

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Sr.No. Category Population Literacy rate (%)

1. All 50,671,017 69.142. Scheduled Caste 3,592,715 70.5

3. Scheduled Tribe 7,481,160 47.7

Minorities

4. Muslim 4,592,854 73.55. Sikh 45,587 85.16. Parsis *69,601 *97.97. Christian 284,092 77.78. Budhist 17,829 66.9

*Figures shown against serial No.6 pertaining to Parsis community is on All India basis.

JUSTICE SACHAR COMMITTEE REPORT :

On 9th March 2005, the Prime Minister’s Office had issued

a notification for constitution of a High-Level Committee for

preparation of a report on the social, economic and

educational status of the Muslim community of India. A part of

the notification reads thus :

“Notification

Sub : Constitution of a High Level Committee to prepare a

report on the social, economic and

educational status of the Muslim community of India.

As it has been noted that there is lack of authentic

information about the social, economic and educational status

of the Muslim community of India which comes in the way of

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planning, formulating and implementing specific interventions,

policies and programmes to address the issues relating to the

socio-economic backwardness of this community, Government

has constituted a High Level Committee to prepare a

comprehensive report covering these aspects.”

The Committee gave its report on 17th November 2006

which was placed in both the Houses of the Parliament on 30th

November 2006. Although the affidavits filed on behalf of the

Central Government do not categorically say so, an attempt on

the part of the Central Government was to connect the

Scheme in question with the Report of the Justice Sachar

Committee. It was also submitted that though the terms of

reference for the working of Justice Sachar Committee was in

respect of the social and educational backwardness of the

Muslim community, Justice Sachar Committee, after having

made extensive research and study in respect of Muslim

community, also made some observations in its report with

reference to other socio-religious categories and that the

Scheme in question concerning the five minority communities

is the outcome of the findings as regards the social and

educational backwardness of the said minority communities

flowing from the Report of the Justice Sachar Committee.

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It appears that the Scheme for minority was announced

pursuant to the Hon’ble Prime Minister’s 15 point programme

for minority announced in June 2006 and that, therefore, the

Scheme in question has nothing to do with the Report dated

17th November 2006 of Justice Sachar Committee. Apart from

the above, the Scheme in question does not, expressly or

impliedly, make a reference of the said Report of Justice

Sachar Committee.

It was also sought to be argued by the learned Advocate

General that the study undertaken by the Committee was at

the National level and, therefore, the community as a whole

cannot be considered as SEBC in the State of Gujarat as can be

seen from the data furnished in the Committee’s Report. It was

also argued that there has been no survey undertaken for

determining the social and educational backwardness of the

five religious minority communities in the State and that too,

by a permanent commission appointed by the Central

Government under the NCBC Act.

In support of the aforesaid submissions, reliance was

placed on the Division Bench decision of the Andhra Pradesh

High Court in the case of R.Krishnaiah (supra). Paragraphs 39

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and 40 of the judgment were relied upon, which read as

under :

“39. In the case at hand, what the Central

Government has essentially done is to cull out

religious minorities – Muslims, Christians,

Sikhs, Buddhists and Zoroastrians (Parsis)

and “designate” them as more backward

amongst the Other Backward Classes. In view of

the law laid down, in our opinion, one of the

reasons why the OMs should be struck down is that

while issuing them, the NCBC has been totally

ignored and by-passed by the Central

Government in culling out some categories of

citizens from the generic class of OBCs. This

is impermissible. The statutory function of the

NCBC (under Section 9(1) of the NCBC Act) is to

examine requests for inclusion of any class of

citizens as a backward class, formulate a list of

backward classes and advise the Central

Government in this regard. This statutory function

cannot be given a go-bye – the NCBC Act does not

provide for it. On the contrary, in terms of Section

9(2) of the NCBC Act, the advice of the NCBC shall

ordinarily be binding upon the Central Government.

It is only thereafter that the Central Government

may prepare lists for the Scheduled Castes, the

Scheduled Tribes and Other Backward Classes for

making provision for reservations.”

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“40. Section 11 of the NCBC Act provides for the

periodic revision of lists by the Central Government.

In essence, therefore, a reading of Section 9 and

Section 11 of the NCBC Act indicates that the

statute occupies the legislative field and the

Central Government cannot, unilaterally,

issue an OM identifying a backward class of of

citizens for inclusion in the lists to be

prepared by it or to identify a backward class of

citizens already included in the list for any

preferential treatment. As mentioned above, the

advice of the NCBC is mandatorily required to be

taken and since that not been taken, the procedure

adopted by the Central Government while issuing

the first OM is clearly faulty. For this reason and

applying the law laid down by the Supreme Court,

the portion of the first OM objected to by the

petitioners ought to be struck down.”

(Emphasis supplied)

I am not impressed to a certain extent with the

submission of the learned Advocate General appearing for the

State that unless the five religious minority communities are

identified and declared by the permanent commission in terms

of Article 340 of the Constitution of India functioning in the

State as belonging to socially and educationally backward

class, they do not, on their own, acquire the status of being

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socially and educationally backward merely on the basis of

some findings in the Report of Justice Sachar Committee.

Article 340

340. Appointment of a Commission to investigate the

conditions of backward classes.—(1) The President may by

order appoint a Commission consisting of such persons as he

thinks fit to investigate the conditions of socially and

educationally backward classes within the territory of India and

the difficulties under which they labour and to make

recommendations as to the steps that should be taken by the

Union or any State to remove such difficulties and to improve

their condition and as to the grants that should be made for

the purpose by the Union or any State and the conditions

subject to which such grants should be made, and the order

appointing such Commission shall define the procedure to be

followed by the Commission.

(2) A Commission so appointed shall investigate the

matters referred to them and present to the President a report

setting out the facts as found by them and making such

recommendations as they think proper.

(3) The President shall cause a copy of the report so

presented together with a memorandum explaining the action

taken thereon to be laid before each House of Parliament.

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I am of the opinion that appointment of a commission in

terms of Article 340 of the Constitution of India is not

obligatory before making a special provision, or before

providing for reservations under Articles 15(4) and 16(4) of the

Constitution of India. Even apart from the provisions of the

Commission of Inquiry Act, the executive power of the State or

Central extends to appointing a person or a committee by

whatever name it may be called to investigate the social and

educational backwardness of any classes or groups in the

State, and to act upon the report submitted by such person or

committee. It may even be upon the Government to make its

own investigation and take appropriate measures.

However, the moot question which arises in this petition

is as to whether the Union before floating the Pre-Matric

Scholarship scheme for the five minority communities, wanted

some data or material, and for that purpose, it appointed

Justice Sachar Committee, or was it independent of the same.

In other words, whether Justice Sachar Committee Report could

be said to be the foundation of the Scheme or not. I may once

again reiterate that the constitution of a High-Level Committee

to prepare a report on the social, economic and educational

status was confined only to the Muslims of India. As stated

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earlier, the Scheme was announced in June 2006, whereas the

Report of Justice Sachar Committee is dated 17th November

2006. Thus, I have reasons to believe that much before Justice

Sachar Committee Report was laid before both the Houses of

the Parliament, the Pre-Matric Scholarship Scheme was already

announced. Therefore, it could not be said that based on the

materials collected by the Committee, the Union decided to

float the Scheme as one of the measures for advancement of

socially and educationally backward classes of citizens.

However, the point I am trying to drive at is, why was the

survey restricted only for the Muslim community all over the

country. Is it the case of the Union that there are no other

social classes/groupings or communities which may qualify as

socially and educationally backward classes for the purpose of

Article 15(4) of the Constitution of India. The mandate of the

Supreme Court in Indra Sawhney (supra) is otherwise.

According to the Supreme Court, the question of identification

has to begin with some group, class or section as the ultimate

idea is to survey the entire populace. The Supreme Court has

held that if so, one can well begin with castes, which

represented explicit identifiable social classes or groupings,

more particularly, when Article 16(4) seeks to ameliorate social

backwardness. The Supreme Court also laid down that one

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should not wind up the process of identification with the

castes. The Court explained that besides castes (whether

found among Hindus or others) there may be other

communities, groups, classes and denominations which may

qualify as backward class of citizens. The Supreme Court gave

an example that in a particular State, Muslim community as a

whole may be found socially backward as they were treated in

the State of Karnataka as well as in the State of Kerala by their

respective State Governments. The Supreme Court further

explained that any authority entrusted with the task of

identifying backward classes may well start with the castes.

Having exhausted the castes or simultaneously with it, the

authority may take up other occupational groups, communities

and classes. The Supreme Court gave an example that it may

take up the Muslim community (after excluding those sections,

castes and groups, if any, who have already been considered)

and try to ascertain, whether it could be characterised as a

backward class in that State or region, as the case may be.

The Court held that the approach may differ from State to

State since the condition in each State may differ. In paragraph

83 of the judgment, the Supreme Court held that in this

manner all the classes among the populace will be covered

and that is the central idea. The effort should be to consider all

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the available groups, sections and classes of the society in

whichever order one proceeds.

The Supreme Court also clarified that they did not mean

to suggest that the procedure indicated in paragraph 83 of the

judgment was the only procedure or method to be adopted. It

would be for the authority (appointed to identify) to adopt such

approach and procedure as it may think appropriate, and so

long as the approach adopted by it is fair and adequate, the

Court may have no say in the matter.

I am of the opinion that proper identification of social and

educational backwardness should be State-wise. Even,

according to Justice Sachar Committee Report and more

particularly the findings at page-53 of the Report, a general

analysis at the State level presented a better picture for

Muslims. According to the Report, in as many as 10 out of 21

selected States, literacy rate amongst Muslims were found to

be higher than the State average and this included Gujarat.

However, the Report once again changed its stand, stating that

such estimates could be deceptive and hide the low levels of

attainment amongst specific group.

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The position so far as the State of Gujarat, according to

Justice Sachar Committee Report is concerned, is as under :-

Literacy level - (pg. 287)

Sr.No. State All Hindus SCs/STs Muslims All

ors.

1. All India 64.8 65.1 52.2 59.1 70.8

2. Gujarat 69.1 68.3 55.3 73.5 72.8

Literacy level in respect of those who have completedat least primary-school – (pg. 295)

Sr. No. State Muslim SCs/STs All others

1. All India 60.9 61.4 79.3

2. Gujarat 74.9 67.1 78.6

Literacy level in respect of those who have completedat least middle-school – (pg. 297)


1. All India 40.5 41.3 62.7

2. Gujarat 45.3 48.2 60.9

Literacy level in respect of those who have completedat least Matric-school – (pg. 299)


1. All India 23.9 21.1 42.5

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2. Gujarat 26.1 26.0 41.1

I am also of the opinion that the National Commission

constituted under the National Commission for Minorities Act,

1992 should also not have been ignored by the Central

Government. Section 3 of the National Commission for

Minorities Act, 1992, provides that the Central Government

shall constitute a body to be known as "the National

Commission" for Minorities to exercise the powers conferred

on, and to perform the functions assigned to it, under the Act.

Section 9 of the Act in Chapter III envisages the functions of

the Commission. The Commission shall perform all or any of

the following functions, namely, (a) to evaluate the progress of

the development of minorities under the Union and States; (b)

to monitor the working of the safeguards provided in the

Constitution and in law enacted by Parliament and the State

Legislatures; (c) make recommendations for the effective

implementation of safeguards for the protection of the

interests of minorities by the Central Government or the State

Governments ......"Sub-section (2) postulates that the Central

Government shall cause the recommendations referred to in

clause (c) of sub-section (1) to be laid before each House of

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Parliament along with a memorandum explaining the action

taken or proposed to be taken on the recommendations

relating to the Union and the reasons for non-acceptance, if

any, of any of such recommendations.

By operation of Section 3 read with Section 9, it is the

duty of the Central Government to constitute a National

Commission and it shall be the duty and the responsibility of

the National Commission to ensure compliance of the

principles and programmes evaluated in Section 9 of the Act,

protecting the interest of the minorities for their development

and working of the safeguards provided to them in the

Constitution and the law enacted by the Parliament as well as

the State Legislature.

Such being the position, there is no satisfactory reply at

the end of the Central Government as to why, despite there

being a National Commission constituted for the minorities

under the National Commission for Minorities Act, 1992, the

same was bypassed. The National Commission at no point of

time has said that the five religious minorities are socially and

educationally backward. The National Commission at no point

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of time has said that the five religious minorities are socially

and educationally backward.

Whether directions should be given to the State

Government to implement the Scheme.

Even if I were to hold that the Scheme is valid, in my

opinion, no case has been made out for a writ of mandamus on

the State or directions in the nature of mandamus for

implementation of the Scheme.

From the material on record, it appears that prior to the

Scheme in question becoming effective with effect from 1st

April 2008, the Central Government, vide its letter dated 30th

November 2007, had sought the views of the State

Government and the State Government, vide its letter dated

4th March 2008, had conveyed to the Central Government as to

why the State is not agreeable for implementation of the

Scheme in question in the State. Thereafter, although the

Central Government had addressed few letters in the

beginning of every academic year for the release of funds, at

no point of time, any directions were issued by the Central

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Government asking the State Government to implement the

Scheme in question. It is also not the case of the Central

Government that they had ever issued any direction to the

State Government for implementing the Scheme in question.

According to the learned Advocate General appearing for the

State, the State Government is not obliged to implement the

Scheme in question, more particularly, when the same is

optional in nature with a sharing pattern, wherein the State

Government has to contribute to the extent of 25% of the total

amount to be disbursed under the Scheme in question.

To appreciate the aforesaid question, let me look into few

relevant provisions of the Constitution of India :

Article 73:

73. Extent of executive power of the Union.—(1) Subject

to the provisions of this Constitution, the executive power of

the Union shall extend—

(a) to the matters with respect to which Parliament has

power to make laws; and

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(b) to the exercise of such rights, authority and

jurisdiction as are exercisable by the Government of

India by virtue of any treaty or agreement:

Provided that the executive power referred to in

sub-clause (a) shall not, save as expressly provided in

this Constitution or in any law made by Parliament,

extend in any State to matters with respect to which the

Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and

any officer or authority of a State may, notwithstanding

anything in this article, continue to exercise in matters

with respect to which Parliament has power to make laws

for that State such executive power or functions as the

State or officer or authority thereof could exercise

immediately before the commencement of this

Constitution.”

Article 256:

256. Obligation of States and the Union.—The

executive power of every State shall be so exercised as

to ensure compliance with the laws made by Parliament

and any existing laws which apply in that State, and the

executive power of the Union shall extend to the giving

of such directions to a State as may appear to the

Government of India to be necessary for that purpose.

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Article 257 :

257. Control of the Union over States in certain

cases.—(1) The executive power of every State shall be

so exercised as not to impede or prejudice the exercise

of the executive power of the Union, and the executive

power of the Union shall extend to the giving of such

directions to a State as may appear to the Government of

India to be necessary for that purpose.

(2) The executive power of the Union shall also extend

to the giving of directions to a State as to the

construction and maintenance of means of

communication declared in the direction to be of national

or military importance:

Provided that nothing in this clause shall be taken as

restricting the power of Parliament to declare highways

or waterways to be national highways or national

waterways or power of the Union with respect to the

highways or waterways so declared or the power of the

Union to construct and maintain means of

communication as part of its functions with respect to

naval, military and air force works.

(3) The executive power of the Union shall also extend

to the giving of directions to a State as to the measures

to be taken for the protection of the railways within the

State.

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(4) Where in carrying out any direction given to a State

under clause (2) as to the construction or maintenance of

any means of communication or under clause (3) as to

the measures to be taken for the protection of any

railway, costs have been incurred in excess of those

which would have been incurred in the discharge of the

normal duties of the State if such direction had not been

given, there shall be paid by the Government of India to

the State such sum as may be agreed, or, in default of

agreement, as may be determined by an arbitrator

appointed by the Chief Justice of India, in respect of the

extra costs so incurred by the State.

The Scheme in question floated by the Central

Government could be considered to be in exercise of its

executive powers provided under Article 73 of the Constitution

of India, but as provided in its proviso, the same cannot be

applied to the State Government or foisted upon the State

mandatorily in the absence of any provision in that behalf in

the Constitution or in the absence of any law made by the

Parliament and operating in the State in the matter of grant of

Pre-Matric Scholarship to the students of the minority

communities. Article 56 would apply only when any Law has

been made by the Parliament and the executive powers of the

State is made subservient to it by requiring it to ensure

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compliance with such laws. Where it appears to the

Government of India that it is so necessary to do, directions

can be issued. It was sought to argue very vociferously that

our Constitution is not unitary in nature and the Central

Government must respect the federal status of the State.

In the case of S.R.Bommai (supra), the Supreme Court

made the following observations in paragraph 276 of the

judgment:

“276: The fact that under the scheme of our Constitution,

greater power is conferred upon the Centre vis-à-vis the

States does not mean that States are mere

appendages of the Centre. Within the sphere

allotted to them, States are supreme. The Centre

cannot tamper with their powers. More

particularly, the courts should not adopt an

approach, an interpretation, which has the effect

of or tends to have the effect of whittling down

the powers reserved to the States. It is a matter of

common knowledge that over the last several decades,

the trend the world over is towards strengthening of

Central Governments – be it the result of advances in

technological/scientific fields or otherwise, and that even

in USA the Centre has become far more powerful

notwithstanding the obvious bias in that Constitution in

favour of the States. All this must put the court on guard

against any conscious whittling down of the powers of

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the States. Let it be said that the federalism in the Indian

Constitution is not a matter of administrative

convenience, but one of principle – the outcome of our

own historical process and a recognition of the ground

realities. This aspect has been dealt with elaborately by

Shri M.C. Setalvad in his Tagore Law Lectures “Union and

State relations under the Indian Constitution” (Eastern

Law House, Calcutta, 1974). The nature of the Indian

federation with reference to its historical background, the

distribution of legislative powers, financial and

administrative relations, powers of taxation, provisions

relating to trade, commerce and industry, have all been

dealt with analytically. It is not possible – nor is it

necessary – for the present purposes to refer to them. It

is enough to note that our Constitution has certainly a

bias towards Centre vis-à-vis the States Automobile

Transport (Rajasthan) Ltd. vs. State of Rajasthan. It is

equally necessary to emphasise that courts should

be careful not to upset the delicately crafted

constitutional scheme by a process of

interpretation.”

(Emphasis supplied)

In the aforesaid context, it will be profitable to quote the

following passage pp.1138 and 1139 of Volume VII of Official

Report of Constituent Assembly Debates, wherein

Dr.B.R.Ambedkar explained the reasons for adding the proviso

to draft Article 60, which is corresponding to the present

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Article 73 of the Constitution :

“I was saying that there is no substance in the argument

that we are departing from the provision contained in

Section 126 of the Government of India Act. As I said,

that section was not based upon any principle at all.

In support of the proviso, I would like to say two things.

First, there is ample precedent for the proposition

enshrined so to say in this proviso. My honourable

Friend Mr.T.T. Krishnamachari has dealt at some length

with the position as it is found in various countries which

have a federal Constitution. I shall not therefore labour

that point again. But I would just like to make one

reference to the Australian Constitution. In the Australian

Constitution we have also what is called a concurrent

field of legislation. Under the Australian Constitution it is

open to the Commenwealth Parliament in making any

law in the Concurrent field to take upon itself the

authority to administer. I shall just quote one short

paragraph from a well known book called “Legislative

and Executive Power in Australia” by a great lawyer

Mr.Wynes. This is what he says:

‘Lastly, there are Commonwealth Statutes. Lefroy

states that executive power is derived from

legislature power unless there be some restraining

enactment. This proposition is true, it seems, in

Canada, where the double enumeration commits to

each Government exclusive legislative powers, but

is not applicable in Australia. Where the legislative

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power of the Commonwealth is exclusive-e.g., in

the case of defence – the executive power in

relation to the subject of the grant inheres in the

Commonwealth, but in respect of concurrent

powers, the executive function remains with the

States until the Commonwealth legislative power is

exercised.’

Which means that in the concurrent field, the

executive authority remains with the States so

long as the Commonwealth has not exercised the

power of making laws which it had. The moment it

does the execution of that law is automatically

transferred to the Commonwealth. Therefore, comparing

the position as set out in the proviso with the position as

it is found in Australia, I submit that we are not making

any violent departure from any federal principle that one

may like to quote. Now, Sir, my second submission is

that there is ample justification for a proviso of this

sort, which permits the Centre in any particular

case to take upon itself the administration of

certain laws in the Concurrent list. Let me give one

or two illustrations. The Constituent Assembly has

passed article 11, which, abolishes untouchability. It

also permits Parliament to pass appropriate legislation to

make the abolition of untouchability a reality. Supposing

the Centre makes a law prescribing a certain penalty,

certain prosecution for obstruction caused to the

untouchables in the exercising of their civic rights.

Supposing a law like that was made, and supposing that

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in any particular province the sentiment in favour of the

abolition of untouchability is not as genuine and as

intense nor is the Government interested in seeing that

the untouchables have all the civic rights which the

Constitution guarantees, is it logical, is fair that the

Centre on which so much responsibility has been cast by

the Constitution in the matter of untouchability, should

merely pass a law and sit with folded hands, waiting and

watching as to what the Provincial Governments are

doing in the matter of executing all those particular laws?

As everyone will remember, the execution of such a law

might require the establishing of additional notice,

special machinery for taking down, if the offence was

made cognizable, for prosecution and for all costs of

administrative matters without which the law could not

be made good. Should not the Centre which enacts a law

of this character have the authority to execute it? I

would like to know it there is anybody who can say that

on a matter of such vital importance, the Centre should

do nothing more than enact a law. …….”

(Emphasis supplied)

In the case of Dr.Amin Prakash v/s. State of Gujarat,

reported in 22 GLR 41, a Division Bench of this High Court held

in paragraphs 51 and 52 as under :

“51……The expression… ‘the Legislature of the State has

also power to make laws’ used in proviso to clause (1) of

Article 73 necessarily refers to subjects specified in the

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Concurrent List. Therefore, unless the Constitution

provides otherwise or unless any law made by

Parliament has authorized the Central Government

to do so, the executive power of the Central

Government does not extend to matters in respect

of subjects specified in the Concurrent List.”

(Emphasis supplied)

“52... ……. Therefore, we are unable to uphold the

argument raised on behalf of the petitioners that Entry

25 in the Concurrent List in its present form disables the

State Government from exercising its executive power in

relation to matters falling under Entry 25 in the

Concurrent List as amended.”

In M/s.Sharma Transport v/s. State of Andhra

Pradesh and others, reported in AIR 2002 SC 322, the

Supreme Court, while explaining the scope and ambit of

Articles 256, 257 and 73 of the Constitution of India, held in

paragraphs 8 and 9 as under:

“8. This is not a case where the theory of occupied field

can be made applicable. The Taxation Act essentially

deals with fares charged from passengers and freight

collected from them. On the contrary, the Act deals with

levy on vehicles. They are conceptually different.

Whatever has been stated above in the background of

Article 73 is equally applicable to Articles 256 and 257 of

the Constitution. Article 256 provides that the executive

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power of every State shall be so exercised as to ensure

compliance with the laws made by Parliament and any

existing laws which apply in that State and the executive

power of the Union shall extend to the giving of such

directions to a State as may appear to the Government of

India to be necessary for that purpose. This Article has

application only when any law has been made by

Parliament and the executive power of the State is made

subservient to it by requiring it to ensure compliance

with such laws. Where it appears to the Government of

India that it is so necessary to do, directions can be

issued. Article 257 provides that the executive power of

every State shall be so exercised as not to impede or

prejudice the exercise of the executive power of the

Union. Where the Government of India feels it so

necessary to do so, it can issue a direction. At the cost of

repetition it may be noted that there is no law specifying

the principles of taxation on the subject matter of

controversy so as to bring in application of either article

256 or Article 257 of the Constitution.

9. It has to be noted that clause (b) in Article 73 cannot

apply to legislative powers of the State. The expression

'agreement' referred to in the said clause has to be

considered in terms of Article 299 of the Constitution.

Article 246 deals with subject matter of laws made by

Parliament and Legislatures of State. Clause (1) of the

said Article gives exclusive power to deal with the

matters enumerated in List II of the Seventh Schedule.

The expression 'for that purpose' in Article 256 refers to

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the requirement of compliance with the laws made by

Parliament. Article 256 operated if the Government of

India feels that the executive power of the State is being

exercised in a manner which may amount to impediment

with the executive power of the Union. It has to be noted

that Entry 56 of List II of the Seventh Schedule deals with

passengers and the Union has no power to levy taxes in

respect of passengers. Above being the position, there is

no substance in the plea of the appellants that the letter

of the Joint Secretary to the Government of India dated

30th August, 1993 was in the nature of a direction.”

In T.P.George v/s. State of Kerala, reported in

(1992)Supp.3 SCC 191, the Supreme Court, while dealing with

a UGC Scheme, inter alia, fixing 60 years as an age of

superannuation was not implemented by the State of Kerala

which gave rise to a petition, held as under:

“Though clause 26 of the scheme provides that an age of

superannuation for teachers should be 60 years and the

scheme contemplates certain improvements in providing

for assistance in that behalf, it is not a scheme which

is statutorily binding. … … Firstly, as already stated,

the UGC Scheme does not become applicable

because of any statutory mandate making it

obligatory for the Government and the Universities

to follow the same. Therefore, State Government

had a discretion either to accept or not to accept

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the scheme … … as long as the superannuation

remains fixed at 55 years and as long as the State

Government has not accepted the UGC’s

recommendation to fix the age of superannuation as 60

years, teachers cannot claim as a matter of right that

they are entitled to retire on attaining the age of 60

years.”

(Emphasis supplied)

Thus, Articles 256 and 257 of the Constitution of India

though provided for exercise of the executive power of the

State, the same is required to be read with Article 73, and if so

read, it clearly conveys that the executive power of the State is

to be exercised so as to ensure compliance with the laws made

by the Parliament and that they shall be so exercised as not to

impede or prejudice the exercise of the executive power of the

Union, although the executive power of the Union shall extend

to the giving of such directions to a State as may appear to the

Government of India to be necessary for that purpose. In the

present case, in my opinion, although it was sought to argue

that the Scheme was placed before both the Houses of the

Parliament and is a part of Prime Minister’s 15 point

programme, there is no law in the matter of grant of Pre-Matric

Scholarship under the Scheme in question so as to bring any

application of either Article 256 or Article 257 of the

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The powers of the High Court under Article 226 of the

Constitution of India though are discretionary and no limits can

be placed upon such discretion, they must be exercised in

accordance with law and subject to certain self-imposed

restrictions. The expression ‘for any other purpose’ in Article

226 makes the jurisdiction of the High Courts more extensive

but yet the Courts must exercise the same with certain

restraints and within some parameters. It is a settled position

of law that one of the conditions for exercising power under

Article 226 of the Constitution of India for issuance of a

mandamus is that the Court must come to the conclusion that

the aggrieved person has a legal right, which entitles him to

any of the rights and that such right has been infringed. To put

it in other words, existence of a legal right of a citizen and

performance of any corresponding legal duties by the State or

any public authority, could be enforced by issuance of a writ of

mandamus. But, the most important aspect of the mandamus

is that the duty that may be enjoined by mandamus may be

one imposed by the Constitution, a statute, common law or by

rules or orders having the force of law. When the aforesaid

principle is applied to the case in hand, I am of the opinion that

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no case has been made out for issuance of writ of mandamus

or directions in the nature of mandamus.

Let me now deal with few decisions of the Supreme

Court, relied upon by the respective counsel in support of their

submission (which are found to be relevant) that the Scheme

in question is not based only on religion, but on reasonable

classification based on intelligible differentia.

State of Punjab v/s. Ajaib Singh, AIR 1953 SC 10

In that case, the question which had come up for

consideration before the Constitution Bench was whether

Abducted Persons (Recovery and Restoration) Act, 1949 was

discriminatory. The attack on the constitutionality was

advanced on the ground that that Act applied only to a male or

female child if he or she be a Muslim, as would appear from

the definition of the expression "abducted person" given in

Section 2(1)(a). In repelling the attack on the anvil of Article

14, it was stated that Muslim abducted persons constitute a

well defined class for the purposes of legislation. Therefore,

the Act even though it applied only to the Muslims was not

held violative of the equality clause. The ratio propounded in

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this judgment would not help to save the scheme which is hit

by Article 15(1) of the Constitution of India. Relying on this

decision, the Punjab High Court in Raghbir Singh Vs. Union

of India, AIR 1954 Punjab 261, upheld the validity of the

Evacuee Interest (Separation) Act, 1951, which had declared

that certain mortgages of the property belonging to Muslims

who had migrated to Pakistan shall stand extinguished under

certain circumstances. The Court, however, stated that the

mortgages of the property of Muslim evacuees constitute a

well defined class for the purposes of legislation and it was

pointed out that if substantial differences exist among persons

who are included and those who are excluded, the

classification would not be bad. It was then held that the

Muslims who had migrated to Pakistan substantially differed

from other persons. It was further observed that the Act made

no discrimination between one person and another in the

group and each one of them was treated alike under similar

circumstances and conditions. The classification was said to

be neither capricious nor arbitrary and was held to be based on

the fact that the situation and circumstances of persons who

are mortgages of evacuee property are different from the

situation and circumstances of persons who are mortgages of

the other property; and there was a clear and distinct

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connection between the classification and the object of the

Act. The validity of the Act was, therefore, upheld. This

judgment was based on peculiar facts of the case and would

not help the counsel in any manner.

Mahant Moti Das v/s. S.P. Sahi, AIR 1959 SC 949

In that case the validity of the provisions contained in

Sections 2, 5, 6, 7 and 8 of Bihar Hindu Religious Trusts Act

was assailed on the ground that the definition of the word

'Hindu' in Section 2 does not include Sikhs; and Section 5

constitutes a Board for religious trusts other than Jain religious

trusts. As to Sections 6, 7 and 8, it was alleged that the

constitution of the Board for religious trusts other than Jain

religious trusts differs in material particulars from the

constitution of the two Boards for Jain religious trusts. The

challenge was, however, not accepted by pointing out that

there are some differences between Hindus, Sikhs and Jains in

some of the essential details of the faith which they profess

and the religious practices they observe. The Court held that

in view of these differences, it could not be said that in the

matter of religious trusts in the State of Bihar, Sikhs, Hindus

and Jains are situated alike or that the needs of the Jains and

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Hindus are the same in the matter of the administration of

their respective religious trusts; and so, the classification was

held to be not ultra vires. This judgment would also not help

the counsel in any manner.

Lingappa Pochanna Appealwar v/s. State of

Maharashtra, AIR 1985 SC 389

In the said case, the validity of Sections 3 and 4 of the

Maharashtra Restoration of Lands to Scheduled Tribes Act,

1974 was, inter alia, challenged on the ground that it is

violative of Article 14 of the Constitution, inasmuch as the

same seek to treat members belonging to Scheduled Caste

unfavourably, as compared to members of Scheduled Tribes.

The impugned provisions provided annulment of transfer of

lands effected by the tribals during the specified period and for

restoration thereof to the said tribals. Some of the members of

Scheduled Tribes who were not getting the said benefit of

specified period, challenged the said provisions as violative of

Article 14 of the Constitution on the ground that similar benefit

is not available to the members of Scheduled Castes.

However, on a detailed inquiry, the Apex Court found that the

petitioner - members of the Scheduled Tribes were not eligible

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to get the benefit of the provisions of the Act and that they

could not plead the cause of members of Scheduled Caste who

were different from those of Scheduled Tribes more

particularly when members of Scheduled Tribes were

aboriginals, constituting a distinct class, required a special

protection of the State. In view of this, the Apex Court upheld

the validity of the provisions under challenge.

Balbir Kaur v/s. Steel Authority of India Ltd.,

(2000) 6 SCC 493

In the said case, the claim of the appellant for

compassionate appointment was dismissed by the High Court

while upholding the validity of the family benefit scheme

floated by Steel Authority of India. In this context, the Apex

Court observed to the effect that constitutional philosophy

should be allowed to become a part of everymen's life in this

country and then only the constitution will reach everyone

more particularly when the employer was Steel Authority of

India which was expected to be a model employer.

Dalmia Cement Ltd. v/s. Union of India, (1996) 10

SCC 104

In this case, the petitioners who were the manufacturers

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of cement, sugar and other commodities and plastic bags,

challenged the constitutionality of Sections 3 to 5 of the Jute

Packaging Material Compulsory Use in Packing Commodities)

Act, 1987, and the orders issued by the Central Government on

the anvil of Articles 14, (19)(1)(g) and 301 of the Constitution

of India. One of the main contentions on behalf of the

appellant was to the effect that compulsory packing of the

finished goods in gunny bags was an unreasonable restriction.

It was the further argument of the petitioners that preference

to the jute sector at the cost of and in total disregard of other

sectors like cement, sugar and alternative industry or general

public would be unreasonable and arbitrary. While dealing

with the said challenge, the Apex Court broadly discussed

about the Fundamental Rights and Directives of State Policy

and Principles and observed that the main objective behind the

enactment of the Act was to provide livelihood to nearly four

million rural agricultural families, which will provide upliftment

of the vast number of people and that is how, the Apex Court

upheld the validity of the Act while discussing the concept of

socio and economic justice.

Zee Telefilims Limited v/s. Union of India, (2005) 4

SCC 649

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The challenge before the Apex Court under Article 32 was

the termination of the contract by the BCCI wherein a

preliminary objection was raised by BCCI to the effect that it is

not covered within the purview of 'other authority' within the

definition of Article 12 of the Constitution of India. The Apex

Court by majority judgments held that the BCCI cannot be held

to be a 'State' for the purpose of Article 12 and the petition

was dismissed. The Apex Court in para 35 has observed that

the Constitution of our country is a living organism and it is the

duty of the Courts to interpret the same to fulfil the needs and

aspirations of the people, depending on the needs of the time.

However, while so observing, the Apex Court categorically held

that there is no need to further expand the scope of Article 12

by judicial interpretation for covering BCCI, at least for the

time being.

P. Rajendran v/s. State of Madras, AIR 1968 SC

1012

In the said case, Rule 5 of Madras Educational Rules for

selection of candidates for admission to First year M.B.B.S

Course was challenged on the ground that the same provided

for reservation on the sole ground of castes, violating Article

15(1). However, the State Government successfully

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established that reservation was not based solely on the caste

of the persons referred to in the list, inasmuch as the members

of the castes referred to in the list were found to be socially

and educationally backward. That is how they were placed in

the list right from 1906, which was finally adopted for the

purpose of Article 15(4) as a result of detailed inquiry. This

was not controverted by the petitioner and that therefore,

challenge to Rule 5 came to be failed in the Hon'ble Supreme

Court.

Air India v/s. Nergesh Meerza, AIR 1981 SC 1289

In the said case one of the main challenges was with

reference to differential treatment as between Assistant Flight

Pursers ('AFPs' for short) and Air Hostess ('AH' for short) more

particularly in the matter of payment of salary allegedly on the

ground of sex only. Before the Apex Court, it was proved that

discrimination between the said two categories of employees

was based on sex coupled with other considerations. It was

not disputed that at the time of initial recruitment,

qualifications for appointment of AFPs and AH were essentially

different, the classification and conditions of service for both

the posts were different. Apex Court rejected the plea that

both being members of the same cabin crew must belong to

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the same class on the ground that AHs form an absolutely

separate category from that of AFPs in all respects and

therefore it was a valid classification.

Prafull Goradia v/s. Union of India (2011) 2 SCC

568

In Goradia's case, the Supreme Court was mainly

concerned with Article 27 of the Constitution of India. The

challenge by the petitioner before the Supreme Court was that

he was a Hindu but he had to pay direct and indirect taxes,

part of whose proceeds go for the purpose of the Haj pilgrims,

which is only done by the Muslims. It was contended that his

fundamental right under Article 27 of the Constitution was

being violated. The Supreme Court observed that if only a

relatively small part of the tax collected is utilized for providing

some convenience or facilities or concessions to any religious

denominations, that would not be violative of Article 27 of the

Constitution. The Supreme Court clarified that it was only

when a substantial part of the tax was utilized for any

particular religion that Article 27 would be violated. The Court

also observed that one must not be too rigid in such matters

and must give some free play to the joints of the State

machinery. The Court observed that a balanced view has to be

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taken and one should not say that even if one paisa of the

Government money is spent for a particular religion, there will

be violation of Article 27.

I fail to understand how this judgment would help in

defending the scheme. It appears that the respective counsel

laid much emphasis on the words 'some free play to the joints

of the State machinery'. Relying on those observations, it was

sought to argue that even if there is some discrimination in the

form of an affirmative action, then the Government must be

given some discretion in that regard. In my opinion, it is

complete misreading of the judgment. It was also observed by

the Supreme Court that there was no violation of Articles 14

and 15 because facilities were also given and expenditures

were also incurred by the Central and the State Governments

in India for other religions. Relying on such observations, it

was sought to be contended that the persons who are not able

to take the benefit of the scheme as the same is confined only

to the five minority communities, there are other schemes of

the similar nature which take care for the advancement of

other socially and educationally backward class. I am afraid to

apply the ratio of Goradia's case in the manner as suggested

by the respective counsel. It is like saying that, ‘permit us to

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discriminate and we shall compensate for the discrimination’.

Sanjiv Gajanan Punalekar v/s. Union of India, 2011

(5) ALLMR 282

The Division Bench of the Bombay High Court had an

occasion to examine the same scheme, which is the subject

matter of the present petition. While upholding the validity of

the scheme, the Division Bench took the view that Article 14

and 15(1) of the Constitution permits reasonable classification

i.e. classification between two classes of people treated

differently based upon intelligible differentia and the

differentia must have rational nexus with the object sought to

be achieved. According to the Division Bench, Article 15(4)

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. The Court proceeded further to

take the view that the scholarship schemes giving incentive

are based on reasonable classification supported by Article 14

and 15(1) and since the impugned schemes do not have any

adverse impact on the other communities, Article 15(4) would

not come into play. The Court also took the view that it was

not necessary to give any finding on the petitioner's contention

that minority communities per-se cannot be treated as socially

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and educationally backward classes falling under Article 15(4)

of the Constitution. Thus, the entire judgment of the Division

Bench proceeded on the footing of reasonable classification

based on intelligible differentia permissible under Article 15(1)

of the Constitution. This judgment also, in my opinion, would

not help in any manner, and with profound respect, I am

unable to subscribe to the views expressed in the said

judgment.

Javed and ors. v/s. State of Haryana and ors., AIR

2003 SC 3057

In that case, the challenge was to the vires of the

provisions of Sections 175(1)(q) and 177(1) of the Haryana

Panchayati Raj Act, 1994. The provision in question

disqualified a person who was having more than two living

children from holding the specified offices in Panchayat.

Several persons were disqualified or were proceeded against

for disqualification either from contesting the elections for, or

from continuing in the office of Panchayats/Sarpanch, in view

of they having incurred the disqualification as provided by

Section 175(1)(q) or Section 177(1) read with Section 175(1)(q)

of the Act. It was argued before the Supreme Court that the

provision was arbitrary and violative of Article 14 of the

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Constitution. It was also argued that the provision was

discriminatory. While deciding the main issue as regards the

constitutional validity of the two Sections referred to above,

some observations fell from the Court, which are sought to be

relied upon in the present case. The Supreme Court observed

that a uniform policy may be devised by the Central or the

State, but there was no constitutional requirement that any

such policy should be implemented in one-go. The Court

observed that the policies are capable of being implemented in

a phased manner. The Court also observed that when the

policies have far-reaching implications and are dynamic in

nature, their implementation in a phased manner is welcome

for it receives gradual willing acceptance and invites lesser

resistance. The Supreme Court further observed that the

implementation of policy decision in a phased manner is

suggestive neither of arbitrariness nor of discrimination. The

Supreme Court relied on its earlier decision in the case of Lalit

Narayan Mishra Institute of Economic Development and

Social Change, Patna Vs. State of Bihar, (1988) 2 SCC

433, wherein the policy of nationalising educational institutes

was sought to be implemented in a phased manner. It was

sought to argue relying on those observations that in the

present case also if the Central Government has decided to

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float a scholarship scheme in favour of five minority

communities, then such schemes for other communities could

be introduced after some time. I am afraid that the ratio laid

down in this case cannot be applied to the facts of the present

case in such a mechanical manner. I have yet to come across

a single judgment of the Supreme Court or any other High

Court taking a view that even if a policy is clearly

discriminatory in terms of Article 15(1) of the Constitution

being based only on religion such a policy should not be struck

down as a similar policy for the discriminated class could be

evolved in a phased manner.

Vijay Harishchandra Patel v/s. The Union of India

and another, (2009)3 GLR 2153

In this case, the same scheme which is the subject

matter of challenge in the present petition was considered by

the Division Bench of this Court. While upholding the validity of

the scheme, the Division Bench took the view that our nation

has no religion of its own and we are living in a secular nation

being secular in character. The actions of the State to minimise

inequality in income and status and the endeavour to eliminate

poverty and to provide opportunities in employment would

only uphold constitutional objectives. The Division Bench also

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took into consideration Article 27 of the Constitution of India.

I am of the opinion that in the entire judgment, there is

no discussion as regards Article 15 of the Constitution of India.

This is precisely the reason why the Division Bench of this

Court did not agree with the views expressed by the Division

Bench in Vijay Harishchandra Patel (supra) and thought fit to

refer the matter to a Larger Bench.

The State of Bombay v/s. Narasu Appa Mali, AIR

1952 Bombay 84

In this case, the challenge was to the validity of the

Bombay Prevention of Hindu Bigamous Marriages Act, 1946 on

the ground that it contravened the fundamental rights

guaranteed under Articles 14, 15 and 25 of the Constitution of

India. The argument before the Division Bench of the Bombay

High Court was that the Hindu community in Bombay had been

picked out for the legislation in question prohibiting polygamy.

It was pointed out that polygamy was prevalent and

permissible among Muslims living in the State of Bombay and

yet could marry more than one wife while Hindu doing the

same was made liable to severe penalty. It was also argued

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that our Constitution sets up a secular State and that Article 44

contained a directive to the State to secure for the citizens a

uniform Civil Code throughout the territory of India. In repelling

the argument, the Court took the view that there could be no

doubt that Muslims have been excluded from the operation of

the Act in question but the exclusion was not based only on

religions as polygamy was recognized as a valid institution

when a Muslim male marries more than one wife. The Court

thereafter considered whether there was any reasonable basis

for creating the Muslim as a separate class to which the laws

prohibiting polygamy would not apply. The Court thereafter

considered the historic fact that both the Muslims and the

Hindus in the country had their own personal laws which were

based upon their respective religious texts and which embody

their own distinctive evolution and which were coloured by

their own distinctive backgrounds. The Court further held that

one community might be prepared to accept and work social

reform; another may not yet be prepared for it; and Article 14

did not lay down that any legislation that the State might

embark upon must necessarily be of an all-embracing

character. The Court held that the State may rightly decide to

bring about social reform by stages and the stages could be

territorial or they could be community-wise. From such

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considerations, if there was a discrimination against the Hindus

in the applicability of the Hindus Bigamous Marriages Act, that

discrimination, according to the Court, was not based only

upon ground of religion.

Gajendragadkar, J. in his concurring judgment also

observed that the equality before the law guaranteed by

Article 14 would not get offended by the impugned Act if the

classification which the Act made was based on reasonable

and rational considerations.

This judgment was heavily relied upon by the learned

senior counsel Mr.Muchhala as well as by Mr.Ekrama Qureshi,

the learned advocate appearing for the interveners and

petitioners respectively.

The emphasis laid is on the observations of the Court that

social reform or welfare could be in steps and in phased

manner. In my opinion, this judgment would also not help in

any manner in defending the Scheme because the manner in

which the ratio of this judgment is sought to be interpreted,

would lead to an inference that discrimination is there but

since it is a discrimination in the form of an affirmative action,

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the same could be in a phased manner and the discriminated

class could be considered at a later stage. In my opinion, the

important observations which are sought to be overlooked

are :-

“...So long as the State Legislature in taking gradual

steps for social welfare and reform does not introduce

distinctions or classifications which are unreasonable,

irrational or oppressive, it cannot be said that the

equality before law is offended.”

That is to say, unless a class is created within a class, it

will not be violative of Article 15(1) of the Constitution of India.

In the present case, I have reached to the conclusion that

the distinctions or classifications are unreasonable and not

based on intelligible differentia.

I may only state that plethora of decisions were relied

upon on both sides, however, it is not necessary to deal with

each of those decisions. I have discussed few decisions, which,

in my opinion, are relevant being very close to the point

involved in this petition. I may further state that it is well

established that a judgment is a precedent for what it decides

and not what may appear to logically flow from it. In this

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context, I may with profit refer to the decision of the Supreme

Court in the case of Ashwani Kumar Singh v/s. U.P Public

Service Commission and others, reported in (2003) 11 SCC

584, in which the apex Court has explained as to how Courts

should place reliance on precedents. The observations made

in paragraphs 10, 11, 12 and 13 are reproduced hereinbelow:

“10. Courts should not place reliance on decisions without

discussing as to how the factual situation fits in with the fact

situation of the decision on which reliance is placed.

Observations of Courts are not to be read as Euclid's theorems

nor as provisions of the statute. These observations must be

read in the context in which they appear. Judgments of Courts

are not to be construed as statutes. To interpret words,

phrases and provisions of a statute, it may become necessary

for Judges to embark into lengthy discussions, but the

discussion is meant to explain and not to define. Judges

interpret statutes, they do not interpret judgments. They

interpret words of statutes; their words are not to be

interpreted as statutes. In London Graving Dock Co. Ltd. v.

Horton (1951 AC 737 at p. 761), Lord Mac Dermot observed :

“The matter cannot, of course, be settled merely

by treating the ipsissima vertra of Willes, J. as

though they were part of an Act of Parliament and

applying the rules of interpretation appropriate

thereto. This is not to detract from the great weight

to be given to the language actually used by that

most distinguished Judge.”

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“11. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294)

Lord Reid said, "Lord Atkin's speech . . . . . . . . is not to be

treated as if it was a statute definition. It will require

qualification in new circumstances.”

Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) ((1971)

1 WLR 1062) observed :

“One must not, of course, construe even a

reserved judgment of Russell, L. J. as if it were an

Act of Parliament.”

SCA/14600/2011 53/54 JUDGMENT

In Herrington v. British Railways Board (1972 (2) WLR 537) Lord

Morris said :

“There is always peril in treating the words of a

speech or judgment as though they are words in a

legislative enactment, and it is to be remembered

that judicial utterances made in the setting of the

facts of a particular case.”

12. Circumstantial flexibility, one additional or different fact

may make a world of difference between conclusions in two

cases. Disposal of cases by blindly placing reliance on a

decision is not proper.

13. The following words of Lord Denning in the matter of

applying precedents have become locus classicus :

“Each case depends on its own facts and a close

similarity between one case and another is not

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enough because even a single significant detail

may alter the entire aspect. In deciding such cases,

one should avoid the temptation to decide cases

(as said by Cordozo) by matching the colour of one

case against the colour of another. To decide,

therefore, on which side of the line a case falls, the

broad resemblance to another case is not at all

decisive.”

xxx xxx xxx xxx xxx

“Precedent would be followed only so far as it

marks the path of justice, but you must cut the

dead wood and trim off the side branches, else you

will find yourself lost in the thickets and branches.

My plea is to keep the path to justice clear of

obstructions which could impede it."

For the foregoing reasons, my answer to the two

questions referred by the Division Bench in reference vide

order dated 8th October 2012 is as under:

(1) I hold that the Scheme in question violates Article

15(1) of the Constitution of India and no direction should

be given to implement the Scheme as any direction upon

the State Government to implement the Scheme in

question will amount to passing direction upon the State

Government to violate Article 15(1) of the Constitution of

India.

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(2) The decision of the Division Bench of this Court in

Special Civil Application No.2245 of 2008 (Vijay

Harishchandra Patel v/s. The Union of India) disposed of

on 20th March 2009 does not lay down the correct

proposition that the Scheme in question is not violative of

Article 15 of the Constitution of India.

The matters be now placed before appropriate Division

Bench.

(RAVI R.TRIPATHI, J.)

(J.B.PARDIWALA, J.) /MOIN

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PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI

After the judgment was pronounced, learned Advocate

General Mr. Kamal B. Trivedi appearing with Government Pleader Mr.

P.K. Jani assisted by Ms. Sangeeta Vishen, learned Assistant Government

Pleader appearing for the State Government made an oral request for

grant of Certificate under Article 134 A of the Constitution of India for

leave to appeal before the Apex Court, which is opposed by learned

counsel Mr. Hasim Qureshi appearing with Mr. Ekrama Qureshi

appearing for the petitioner, Mr. P.S. Champaneri, learned Assistant

Solicitor General appearing with Mr. Hriday Buch, learned Senior

Central Government Counsel appearing for the Central Government as

well as learned counsel appearing for the interveners.

We have considered this request and we are of the prima

facie opinion that the case involves a substantial question of law as to the

interpretation of Article 15 of the Constitution of India. But since we

have only answered the questions referred to us by the Division Bench

and we have not finally decided the petitions, in our opinion, such a

request should be made before the Division Bench once such petitions

are disposed of which shall consider the request that may be made by

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either of the parties.

Learned Advocate General also requested for staying the

operation of the majority opinion delivered today. We do not see any

reason to stay our majority opinion as after the reference has been

answered, the proceedings shall be placed before the Division Bench.

Only after the public interest petitions are disposed of, question of stay

may arise.

For the aforesaid reasons, oral request made by learned

Advocate General for grant of certificate envisaged under Article 134 A

of the Constitution of India for fitness to appeal before the Apex Court is

disposed of.

(V.M.SAHAI, J.)

(D. H. WAGHELA, J.)

(RAVI R. TRIPATHI, J.)

(AKIL KURESHI, J.)

(J. B. PARDIWALA, J.)(savariya)

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