THE mask has been ripped apart by a seven-judge bench of the High Court of Andhra Pradesh. The real face of slogan “reservation for Muslims” was exposed. While dealing with the constitutional validity of AP Reservation in favour of Socially Educationally Backward Classes of Muslims Act, 2007, a seven-judge bench of the AP High Court declared: “This 2007 Act is religion specific and potentially encourages religious conversions and is thus unsustainable.” This is the third time the Congress government of AP has faced adverse judgment on the issue of providing reservations to Muslims.
In the year 2004 Dr YS Rajasekhara Reddy provided reservations to Muslims in education and public employment to the extent of five per cent. A five-judge bench said that this is illegal. After this the farce of inquiry by Commission for Backwards Classes was enacted and reservation was given to Muslims and Act was promulgated in 2005. Another five-judge bench declared this 2005 Act is illegal. Thereafter, the YS government issued another Act in 2007. A seven-judge bench on February 8 declared this action illegal.
The bench comprised of Chief Justice Anil Ramesh Dave Justice T Meena Kumari, Justice B Prakasha Rao, Justice DSR Varma, Justice A Gopala Reddy, Justice V Eswariah and Justice Goda Raghuram. The 137-page judgment was given by the Chief Justice AR Dave on behalf of himself, Justice A Gopala Reddy, Justice V Eswariah and Justice Goda Raghuram. They declared the AP Reservation in favour of Socially Educationally Backward Classes of Muslims Act, 2007 unsustainable. Justice T Meena Kumari gave a separate judgment running into 77 pages allowing the writ petitions but gave a different reasoning. Justice B Prakasha Rao said that the seven-judge bench was to answer the reference regarding the method to be adopted. He differed with the findings of the five judges and did not set aside the state action. Justice DSR Varma declared that he is differing with Chief Justice and Justice T Mena Kumari and said that he will give his reasons later.
It may be recalled that the government issued Ordinance 5 of 2007 providing 4 per cent reservations to several selected groups of Muslims in the fields of education and public employment. This was preceded by inquiry by AP Commission for Backwards Classes. The government had appointed Krishnan, a retired civil servant, the advisor who submitted a report, which was sent to the BC Commission. This Ordinance was challenged by Shravanti and several other students. Some persons claimed that this will hurt the backward classes and filed public interest petitions. During the course of hearing the AP Legislative Assembly passed the bill and Act 26 of 2007 came into force. Petitions were amended to bring this act under challenge.
The majority judgment pronounced by the Chief Justice said that the action of the state government is solely based upon the report, findings and recommendations of the commission and the procedural error committed by the commission is fatal to its report and its consequent recommendations. The court said that it is deplorable that the commission was not even aware of total population of persons belonging to groups of Muslims who have been selected to be put into E category among the BC groups. The sample survey was found faulty and the quick survey in the name and style of fast track method was termed as “hit and run method”. This was declared neither legal nor sustainable. The sampling was “opportunity sampling and non-probability sampling”. The court said that the BC Commission failed to formulate criteria for identifying the BC among the Muslims but simply conducted a household survey in places close to its hand. It was declared that the commission did not conduct survey objectively to justify its recommendations.
Justice T Meena Kumari in a separate judgment dealt at length with the report of commission and effect of its copying the report of Krishnan. She said: “The report of the commission should be held to be mechanical, perfunctory in nature and without application of mind as the commission followed the report of PS Krishnan in verbatim.” Justice Meena Kumari said that the report of the commission is not based on real facts, data mechanical perfunctory in nature and without application of mind as the commission followed the report of PS Krishna in verbatim’. Justice MeenaKumari said that the report of the commission is not based upon real facts, data or analysis and is without any proper survey. She reminded that the commission limited its survey to six districts only for three days leaving the other parts of the state. With the report of the commission found as insufficient lacking any objectivity the Act 26 of 2007 which is based upon the report was declared to be invalid and unconstitutional.
The UPA government was planning to provide for reservations to Muslims based on the Ranganath Commission report. The seven judges of the AP High Court have hampered this conspiracy.
‘‘The fast track approach adopted by the commission was nothing but a non-scientific method,’’ Justice Dave said. It was neither ‘‘legal nor sustainable’’, he declared. The action of the panel was also criticised for its reliance on recommendations made by PS Krishnan. The appointment of Krishnan is “protanto invalid”, the bench said and faulted the panel for relying on his findings.
Echoing the majority view in a separate judgment, Justice Meena Kumari said the investigation by the panel was not based on real facts, data or analysis and was without proper survey.
Justice Prakash Rao aired the minority view holding that the bench was not called upon to adjudicate the list but was only required to answer a legal reference. He said that the government had some data before it on which it acted and thus could not be faulted. Justice DSR Varma said he did not agree with the majority view and would give his reasons shortly. The Advocate General sought suspension of the order which was rejected by the bench.
The Andhra government has long struggled to provide quotas for Muslims, who were first given reservation in July 2004, a month after YS Rajasekhara Reddy came to power.
The bench further described findings of the AP Backward Classes Commission – on which the quota law had been based – as “unscientific”. Within hours of the verdict, Chief Minister K Rosaiah said his government would move to the Supreme Court and vowed to restore the AP Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007.
In a 5-2 majority ruling, the court found that the commission neither evolved any criteria nor published these before inviting objections. It had merely stated it had followed the two criteria evolved by the Mandal Commission for identification of Socially Economic Backward Classes (SEBCs) among non-Hindu community.
Chief Justice Dave, speaking for himself and Justices A Gopala Reddy, V Eswaraiah and G Raghuram, faulted the enactment and said it was religion-specific and potentially encouraged conversions and was thus unsustainable.
The bench found fault with the commission for its excessive reliance on data collated by the Anthropological Survey of India. That data, the court ruled, was meant for determining the profile of the Indian population and not for deciding on affirmative action for Muslims.