By Kartikeya Tanna on
At a seminar on ‘7 Years After Sachar’, External Affairs Minister Salman Khurshid said that the UPA will try to convince the SC that carving out 4.5% sub-quota for minorities within the 27% OBC quota was not on religious consideration, but on the basis of backwardness. According to this Outlook report, he added, in a rather circuitous manner, that while reservation is not granted to a particular caste, if all people of that particular caste are backward, they could be granted reservation.
While the judiciary as well as constitutional experts have long battled with the idea of special entitlements for religious minorities, the trends of late have encouraged the UPA to appease vote-banks in this election season. The recent Gujarat High Court’s 3-2 verdict in the matter concerning a scheme which provided scholarship to poor students belonging to five minority religions is an illustration of this trend that has far reaching consequences.
As is known, Gujarat government refused to implement this scheme, initiated under the Prime Minister’s 15-Point Programme for the Welfare of Minorities, on the grounds that it discriminated between students on the basis of religion. Due to contradictory HC rulings on the constitutionality of this Scheme, the question of its constitutionality is now before the SC.
So, how does Salman Khurshid have hope in the SC validating UPA’s plans to carve out minority sub-quota?
Our Constitution contains two crucial provisions which, on first look, seem relatively straightforward. Article 15(1) prohibits the state from discriminating against any citizen on grounds only of religion. Article 14 provides for equal protection/application of laws.
Considering the vast inequalities present in India, courts have consistently held that Article 14 does not mean that the state cannot discriminate in any situation. However, any such ‘differentiation’ has to be based on ‘reasonable classification’. The questions that apply to such ‘reasonable classification’ are: (a) whether there is an intelligible point of difference which distinguishes one group from another; and (b) if this differentiation bears a rational relation to the object which a scheme seeks to achieve.
The judges who have ruled in favour of the scheme have held that the ‘intelligible point of difference’ that the scheme makes is not religion, but backwardness. They argue that special treatment is being given to children not because they belonged to those minority religions, but because, as a class of citizens, they lagged behind the national average in development.
The problem with this reasoning is that to identify people who have lagged behind the national average in development, religious groups are earmarked. This is crucial – the first yardstick for identifying people who have lagged behind is the group they belong to. The majority Bench of Gujarat HC clearly stated that minorities as a group were used ‘only for the purpose of identifying a class of citizens who have lagged behind in progress’. Once such groups are identified, benefits are given to them not because they are religious minorities, but because they have ‘lagged behind in progress’.
That a determination of who has ‘lagged behind in progress’ is very problematic can be better understood by examining criteria other than religion in both schemes.
Under the scholarship scheme, the criteria are that the annual income of parents of such children had to be less than Rs. 1 lac and the child had to secure a minimum grade of 50%. The criterion for sub-quota reservation is pure backwardness.
How does one logically argue that a Muslim child whose parents earn less than Rs 1 lac and who scores 50% needs a scholarship more than a Hindu child who is in the same exact situation? Similarly, how does one logically argue that in the 27% quota created for the backward, religious minorities among them need special reservation?
How does one say that one among them has ‘lagged behind in progress’ and the other has not? Aren’t they all similarly situated in an unfortunate set of circumstances standing to benefit from governmental assistance?
The majority Bench of Gujarat HC distinguished Andhra HC judgment in the sub-quota reservations matter by stating that the minority sub-quota was a ‘special classification’ in an otherwise common group, i.e., OBCs. This special classification in a common group was based solely on religion. Why, one wonders, are children whose parents earn less than Rs. 1 lac and who score 50% not a ‘common group’ and plucking religious minorities out of them a ‘special classification’ based on religion?
The other issue is that, while UPA has relied on the Sachar Committee report to conclude that minorities have lagged behind the national average, that report almost exclusively outlines the backwardness among Muslims. These governmental schemes however, provide benefits to Christians, Sikhs, Parsis and Buddhists as well. Where then is the evidence that these four communities have also ‘lagged behind’ more than the non-minorities?
That these programmes would encourage religious conversions is another serious problem. A Muslim child applying for scholarship is not going to be asked when his family converted to Islam. Voluntary conversions are fine, but the realistic possibility that conversions may happen due to the lure of state largesse has dangerous implications on the fabric of our nation.
As Niti Central reports, UPA has signaled its intention to quickly implement this religion-based sub-quota. One cannot blame it for this optimism. Given the recent trends in the judiciary’s reasoning, almost any separate entitlement given to religious minorities can be constitutionally justified as a differentiation aimed at ameliorating the socio-economic backwardness among them rather than one based on religion.
We are on a very slippery slope.
Source: http://www.niticentral.com/2013/06/06/the-slippery-slope-of-minority-focused-entitlements-85933.html
At a seminar on ‘7 Years After Sachar’, External Affairs Minister Salman Khurshid said that the UPA will try to convince the SC that carving out 4.5% sub-quota for minorities within the 27% OBC quota was not on religious consideration, but on the basis of backwardness. According to this Outlook report, he added, in a rather circuitous manner, that while reservation is not granted to a particular caste, if all people of that particular caste are backward, they could be granted reservation.
While the judiciary as well as constitutional experts have long battled with the idea of special entitlements for religious minorities, the trends of late have encouraged the UPA to appease vote-banks in this election season. The recent Gujarat High Court’s 3-2 verdict in the matter concerning a scheme which provided scholarship to poor students belonging to five minority religions is an illustration of this trend that has far reaching consequences.
As is known, Gujarat government refused to implement this scheme, initiated under the Prime Minister’s 15-Point Programme for the Welfare of Minorities, on the grounds that it discriminated between students on the basis of religion. Due to contradictory HC rulings on the constitutionality of this Scheme, the question of its constitutionality is now before the SC.
So, how does Salman Khurshid have hope in the SC validating UPA’s plans to carve out minority sub-quota?
Our Constitution contains two crucial provisions which, on first look, seem relatively straightforward. Article 15(1) prohibits the state from discriminating against any citizen on grounds only of religion. Article 14 provides for equal protection/application of laws.
Considering the vast inequalities present in India, courts have consistently held that Article 14 does not mean that the state cannot discriminate in any situation. However, any such ‘differentiation’ has to be based on ‘reasonable classification’. The questions that apply to such ‘reasonable classification’ are: (a) whether there is an intelligible point of difference which distinguishes one group from another; and (b) if this differentiation bears a rational relation to the object which a scheme seeks to achieve.
The judges who have ruled in favour of the scheme have held that the ‘intelligible point of difference’ that the scheme makes is not religion, but backwardness. They argue that special treatment is being given to children not because they belonged to those minority religions, but because, as a class of citizens, they lagged behind the national average in development.
The problem with this reasoning is that to identify people who have lagged behind the national average in development, religious groups are earmarked. This is crucial – the first yardstick for identifying people who have lagged behind is the group they belong to. The majority Bench of Gujarat HC clearly stated that minorities as a group were used ‘only for the purpose of identifying a class of citizens who have lagged behind in progress’. Once such groups are identified, benefits are given to them not because they are religious minorities, but because they have ‘lagged behind in progress’.
That a determination of who has ‘lagged behind in progress’ is very problematic can be better understood by examining criteria other than religion in both schemes.
Under the scholarship scheme, the criteria are that the annual income of parents of such children had to be less than Rs. 1 lac and the child had to secure a minimum grade of 50%. The criterion for sub-quota reservation is pure backwardness.
How does one logically argue that a Muslim child whose parents earn less than Rs 1 lac and who scores 50% needs a scholarship more than a Hindu child who is in the same exact situation? Similarly, how does one logically argue that in the 27% quota created for the backward, religious minorities among them need special reservation?
How does one say that one among them has ‘lagged behind in progress’ and the other has not? Aren’t they all similarly situated in an unfortunate set of circumstances standing to benefit from governmental assistance?
The majority Bench of Gujarat HC distinguished Andhra HC judgment in the sub-quota reservations matter by stating that the minority sub-quota was a ‘special classification’ in an otherwise common group, i.e., OBCs. This special classification in a common group was based solely on religion. Why, one wonders, are children whose parents earn less than Rs. 1 lac and who score 50% not a ‘common group’ and plucking religious minorities out of them a ‘special classification’ based on religion?
The other issue is that, while UPA has relied on the Sachar Committee report to conclude that minorities have lagged behind the national average, that report almost exclusively outlines the backwardness among Muslims. These governmental schemes however, provide benefits to Christians, Sikhs, Parsis and Buddhists as well. Where then is the evidence that these four communities have also ‘lagged behind’ more than the non-minorities?
That these programmes would encourage religious conversions is another serious problem. A Muslim child applying for scholarship is not going to be asked when his family converted to Islam. Voluntary conversions are fine, but the realistic possibility that conversions may happen due to the lure of state largesse has dangerous implications on the fabric of our nation.
As Niti Central reports, UPA has signaled its intention to quickly implement this religion-based sub-quota. One cannot blame it for this optimism. Given the recent trends in the judiciary’s reasoning, almost any separate entitlement given to religious minorities can be constitutionally justified as a differentiation aimed at ameliorating the socio-economic backwardness among them rather than one based on religion.
We are on a very slippery slope.
Source: http://www.niticentral.com/2013/06/06/the-slippery-slope-of-minority-focused-entitlements-85933.html
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