July 3, 2014:The Indian Express
Creating quotas has become the last resort of a non-performing government seeking an alibi for its failure to govern. This is best illustrated in the Maharashtra government’s decision to have 16 per cent reservation for Marathas and 5 per cent reservation for Muslims in employment and in educational institutions. Apart from exceeding the 50 per cent limit stipulated by the Supreme Court, the decision suffers from innumerable constitutional infirmities.
First, it violates the constitutional injunction that state action should not be based on religion. The Andhra Pradesh High Court has repeatedly held that reservation on the basis of religion is constitutionally impermissible. These instances are T. Muralidhar Rao vs State of Andhra Pradesh (2004, five-judge bench), B. Archana Reddy vs State of Andhra Pradesh (2005, five-judge bench), T. Muralidhar Rao vs State of Andhra Pradesh (2010, seven-judge bench) and R. Krishnaiah vs Union of India (2012). The main message from these rulings is that reservation has to be based on backwardness, not religion. The state is entitled to institute quotas for backward groups among minorities, but creating a special quota for one group alone and ignoring the claims of other groups is impermissible. After conducting a survey among the population and considering the claims of all groups, the state can provide for reservation for backward classes/ groups among minorities. But if the assessment of backwardness and the subsequent quota is confined to one religion or group, it violates the equality clause in the Constitution.
Second, the order provides an unconstitutional incentive for religious conversion. Under Article 25, every citizen has the constitutional right to profess, practice and propagate any religion and this includes the right to convert. Consequently, any member of the forward class of other religions can avail of the benefits of the quota by converting. Justice Raghuram, while striking down the AP law on this ground, observed “never in the history of our republic has membership of backward class being so enticing, so easy or so inviting".
Third, the creation of quotas for Marathas and Muslims is not backed by legislative authorisation. The SC in Indira Sawhney held that reservation could be made through a government order since Article 15(4) only requires a “special provision". But by the 93rd amendment, Parliament introduced a new provision, Article 15(5), which mandated that reservation in educational institutions could be instituted only by a “special provision, by law". The SC held that whenever the Constitution uses the phrase “by law," it means a law passed by a legislature. A division bench of the AP high court struck down the sub-quota for minorities announced by the UPA before the Uttar Pradesh elections on the ground that that it was not backed by any law. In Maharashtra, too, the proper course would have been to amend a law, which would have ensured that it was duly debated in the state legislature.
Fourth, the SC has consistently emphasised that reservations must be based on quantifiable data. While the Maharashtra government order acknowledges the need for quantifiable data, it does not disclose the material by which it came to the conclusion that Marathas and Muslims were more backward than the rest of the population of the state. Unlike SCs and STs, the inclusion of a particular group in the list of backward classes has to be on the basis of a comparative assessment.
Fifth, the order does not give any reason for disagreeing with the recommendation of the Maharashtra State Backward Class Commission, which rejected the claim of Marathas to be included in the list of backward classes. Recognising that several communities were put on the list of backward classes for reasons that had nothing to do with backwardness, the SC in Indra Sawhney directed that inclusion in the list should follow consultation with the backward class commission, whose recommendation is ordinarily binding on the government. The SC also mandated that if the state government chose to disagree with the commission, it should give its reasons. Instead of doing so, the Maharashtra government relied on the reports of special committees chaired by politicans. This defeats the very purpose of having an independent commission to investigate backwardness.
Sixth, the order suffers from inadequate and improper assessment of backwardness. The SC has emphasised that identification of backward classes must be preceded by the formulation of certain objective criteria for assessment, which have to be made public. The state government neither formulated criteria nor gave reasons for choosing certain groups over others.
The catena of judicial rulings that have declared certain quotas unconstitutional demonstrates that affirmative action programmes that are devised after an adequate assessment of backwardness are more likely to be judicially upheld. By creating a quota for Marathas and Muslims without following the rigorous constitutional requirements, the state government has done a disservice to both groups.
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