Thursday, June 21, 2012

Minority Quotas: Failed Lessons


The Hindu today published an article on their Editorial Page authored by me on minority quotas. Have reproduced it here
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Lessons on how not to pitch for a Quota
 Reservation on the basis of religion has always raised serious constitutional concerns and recent ruling of the Andhra Pradesh High Court (which the Supreme Court refused to stay) declaring the sub-quota for minorities as unconstitutional only illustrates this constitutional tension. This is not the first time that the Andhra Pradesh High Court has declared reservations for religious minorities as constitutionally invalid. In 2005, a five-judge-bench of the Andhra Pradesh High Court struck down the Government Order giving the reservation of 5% to Muslims on the ground that it was given without consulting the Backward Class Commission. (T.Muralidhar Rao) Subsequently when the A.P. State Legislature passed an Act giving 5% reservations for Muslims, the same was struck down by another five-judge-bench, inter alia, on the ground that the said reservation was purely on religious lines and was therefore constitutionally impermissible (Archana Reddy 2007). The State legislature again passed another legislation giving reservation to specified Muslim religious group and declared them as backward class. A bench of Seven Judges of the A.P. High Court declared the legislation as constitutionally invalid on the ground that the entire exercise of investigation and identification of backwardness was done on religious lines and was also not done in a scientific manner. The string of judicial setbacks makes one wonder whether the Government is announcing minority quotas largely as a symbolic exercise with the knowledge it will not pass judicial muster. Contrary to popular perception, the Andhra Pradesh High Court struck down the minority sub-quota in admission into Educational Institutions and Central Government employment not just on religious discrimination, but also on other significant constitutional illegalities. It is important to understand and analyze the implications of each dimension on which the minority sub-quota was struck down.

First and foremost, the sub-quota violated the constitutional injunction that state action should not be based on religion alone. The High Court did not say that a sub-quota could not be created for the more backward classes among the OBC’s, including minority OBC’s. It only said that such a sub-quota cannot be created on the grounds of religion. The Supreme Court in Indira Sawhney held that further classification among backward classes based on the extent of backwardness was constitutionally permissible. In Tamil Nadu, Andhra Pradesh and various other states, backward classes are further classified into various categories based on the extent of backwardness. There are various minority backward classes which already form part of these categories based on their backwardness. If the Government had demonstrated that the minority backward classes forming part of sub-quota were more backward then the other backward classes (OBC’s), it may have been constitutionally permissible to carve out a sub-quota. However the Government just clubbed all minority backward classes into one sub-group without any material to show that the minority backward classes were more backward among the OBCs. Thus on the face of it, the sub-quota seemed to be based on religion alone. If the Central Government had placed material which showed that they evaluated the condition of minority OBCs vis-à-vis other OBCs and then carved out a sub-quota, the sub-quota may have been justified. On the contrary, as the High Court observed, the substantial variance in the economic, educational and social indicators of various minority groups itself demonstrated that the sub-quota was based only on religion and not on backwardness.

Second, the basic flaw that vitiated sub-quota in admissions to educational institutions was lack of legislative authorization. The Supreme Court in Indira Sawhney held that reservation could be made even by way of a Government Order since Article 15(4) stated that reservation could be made by a “special provision”. However, the Parliament by the 93rd Constitution Amendment introduced a new provision Article 15 (5) which mandated that reservation for admission in educational institutions could only be provided by way of a “special provision, by law”. The Supreme Court has constitutionally held that whenever constitution uses the phrase “by law”, it means a law passed by a legislature. Thus, if any rights are being curtailed, it would require legislative authorization. A quota assigned by Parliament for other backward classes enmasse as a group cannot be disturbed merely by an executive instruction. The proper course for the Central Government would have been to amend the parliamentary law providing quota for backward classes. This would have ensured that it was duly debated in the parliament.

Third, the creation of sub-quota also violated a major procedural safeguard – failure to consult the National Backward Class Commission (NCBC). Recognizing that several communities were being included in the list of backward class on extraneous grounds and not based on backwardness, the Supreme Court in Indira Sahwney case directed that any revision backward class list should be done only after a prior consultation with the Backward Class Commission and its opinion is ordinarily binding. This judicial direction of the Supreme Court was given statutory recognition by the Parliament by passing a National Commission for Backward Classes Act, 1993. However, the Central Government failed to comply with this requirement by carving out a sub-quota without consulting the NCBC. The Central Government asserted that consultation is required only when you are adding a new community and does not required when you are creating a sub-class among the existing backward classes. Not only does this assertion violate the Supreme Court’s direction, but also undermines the entire rationale for consultation with the Backward Class Commission. The Backward Class Commission was meant to be an expert body which would independently evaluate claims of backwardness and not based on populist compulsions. The NCBC as an expert body would have examined the claims of other backward classes vis-à-vis the minority backward classes. The need for consulting the NCBC was all the most justified for minority sub-quotas, since there were conflicting methodologies in determining the quantum of reservation (4.5%). Justice Lokur observed that when confronted with two conflicting methodologies, the method adopted by the Central Government may have been accepted had it consulted the NCBC before carving out a sub-quota.

Fourth, the Report of the National Commission for Religious and Linguistic Minorities (NCRLM) on which the Central Government placed extensive reliance also does not justify the creation of a sub-quota. The NCRLM is a not statutory body to investigate backwardness and neither did it investigate the backwardness of the minority backward classes vis-à-vis other backward classes forming part of the 27% quota. That function falls within the exclusive realm of NCBC, which is a statutory body to investigate backwardness. Even the NCRLM Report questioned the present OBC list as unscientific and not based on proper data and sought for an overhaul of entire OBC reservation. The NCRLM Report did recommend an 8.4% for minorities out of the 27% OBC quota in Central Government employment on the ground that 8.4% is total population of minorities with reference to the OBC population. However the NCRLM recommendation will not pass the constitutional standard since the OBC reservation was given not on the basis of population, but on the extent of backwardness. And more importantly, neither the NCLRM nor the Central Government failed to consider the issue of inadequate representation before creating a sub-quota in employment. The Constitution in Article 16(4) mandates reservation for backward classes who are “inadequately represented in the services of the State”. Merely concluding that a class is backward would not suffice. The Central Government failed to consider whether the minority religious communities forming part of the sub-quota were inadequately represented in the services of the Central Government in comparison to other backward classes. The key lesson that successive governments have failed to learn is that affirmative action programs that are narrowly tailored and ensure that benefits of quota reach the intended beneficiaries are more likely to be judicially upheld. By creating a sub-quota without following the rigorous constitutional requirements, the Government indeed has done a disservice to the minorities.

(Disclosure: I represented the Petitioners before the AP High Court)
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