R Jagannathan in the DNA:
Slowly and cynically our politicians have started laying the groundwork for the next communal buildup. First, we had the Sachar report, which has now become the basis for the Muslim community’s claim to victimhood. Next, we have had state governments using quotas to woo the Muslim voter. On the same day on which the Andhra Pradesh high court struck down the state government’s orders on Muslim quotas, the West Bengal government rushed in to announce 10 per cent job reservations.
Nobody is saying that Muslims don’t need jobs, education and other support systems to develop. But what is the need to help them as Muslims? When below-poverty-line (BPL) families can be helped without communal identification and NREGA benefits can be given on socio-economic grounds, Muslims can be helped the same way.
He makes a very clear point. Apart from the constitutional issues, even in terms of implementation, it would be far more preferable to revisit the whole quotas and reservations debate. It is time to do away with all caste based quotas as well, instead of coming up with religious based ones. Building consensus for affirmative action -- which need not just be quotas or reservations -- only on measurable indices such as income, education level of families etc would be far easier and effective.
Also See: Andhra Pradesh High Court judgment of February 8 striking down quotas for Muslims, which goes on to say:
91. Turning to the present case, there is no material placed before this court by the State Government to prove the valid classification which has got nexus with its policy and object to be achieved. The material is not sufficient to show that such a classification is based on intelligible differentia and the basis has rational nexus with the policy and object to be achieved under the statute. In view of the above, the impugned Act has to be struck down as violative of Art.14 of the Constitution being irrational and illegal.
92. Further, the standards applied to the data by the Commission are equally applicable when the Government determines to provide benefit of such an inquiry. The State should produce material before the Court to show that there was a proper inquiry and relevant criteria adopted and the decision is reasonable, but mere expression is not sufficient. In the absence of any data with regard to social backwardness or educational backwardness, the action of the State Government in providing reservation to socially, educationally backward classes among Muslims have to be struck down as the data lacks the criteria of the material for determining social backwardness and criteria for educational backwardness. The Commission has utterly failed to have a statewide social and economic survey combined with educational survey and also failed in conducting test of income and occupation for selecting the individuals who compose a backward class. In the absence of criteria basing on the inaccurate data, it can be said that the Commission has not formulated any standards for the application of income or occupation tests and also in respect of the educational backwardness. Further there is no correct data furnished either by the State Government or by the B.C Commission that whether in the opinion of the Government, the present identified classes of Muslims are inadequately represented in the services of the State. Even in the counter filed on behalf of State Government with reference to the state average in determining the educational backwardness, it did not disclose the group wise percentage of literacy. On the basis of meager data collected by the Commission for the assessment of educational/employment backwardness, it can be said that the data is unsatisfactory. It is un-understandable as to how the Commission could prepare a report within two days and it shows that the Commission has acted in haste and without proper application of mind. As the B.C Commission has acted in a hasty manner and without any scientific survey, I am of the opinion that the data collected is not sufficient for the Government to come to the conclusion that specific classes of Muslims can be classified as ‘backward class’ for the purpose of Articles 15(5) and 16(4) of the Constitution of India. The Commission has not proceeded on correct lines to assess the social and educational backwardness as indicated in other cases or has followed any criteria for such assessment. In the absence of any such material, it has to be held that the State Government has utterly failed to discharge its onus of proof to establish that the reservations are for socially and educationally backward classes of citizens and that the enactment is based on sufficient material to support the classification. If the court perceives that the identified classes exist, then the Court will uphold such law for the purpose of doing social justice, but in the instant case the exercise of identifying specific group of backward classes is not rational; therefore the Court cannot uphold the law made by the State. The same has to be struck down for want of sufficient material or appropriate data.
93. For the above said reasons, it has to be held:
(1) the State Government has got the power to refer to the State Commission for identifying backward classes to provide reservation to socially and educationally backward classes under the provisions of the said Act;
(2) the State has got power for making any special provision, by enactment, for the advancement of any socially and educationally backward classes of citizens relating to their admission to educational institutions and public employment;
(3) in the present case the investigation made by the Statutory Commission is not sufficient, and the report submitted by it is not based on real facts, data or analysis and is without any proper survey. The Commission limited its’ survey to 6 Districts only (within 3 days from 23-6-2007 to 26-6-2007) leaving the other parts of the State;
(4) the report should be held to be mechanical, perfunctory in nature and is without application of mind as the Commission followed the report of Mr P.S. Krishnan in verbatim.
(5) The principle of strict scrutiny and intermediary scrutiny as laid down in Archana Reddy’s case is not in conformity with the guidelines framed in Indra Sawhney & Ashok Kumar Thakur’s case;
(6) the impugned Act No.26 of 2007, dated 13-8-2007, which is based on the said report of the Commission is invalid, unconstitutional, being violative of Articles 14, 15(4), 15(5) and 16(4);