However, a bench comprising Chief Justice K.G. Balakrishnan and Justices J.M. Panchal and B.S. Chauhan restrained the government from extending the reservation benefit to any other “unidentified” groups of the Muslim community placed in item No. 15 in the scheduled list of groups mentioned in the 2007 law providing reservations to Muslims.
Since the issue involved a vital constitutional question whether the reservation could be provided exclusively to the Muslim groups, by creating separate category for them different from Other Backward Classes (OBCs), the court referred the case to a Constitution Bench, which is likely to assemble in the second week of August to take up the matter.
The interim order came after the bench grilled lawyers for those who had challenged the quota in the high court, asking them what was wrong in taking “affirmative” action to uplift socially and educationally backward (SedB) groups in the Muslim community when similarly placed castes among Hindus are getting the benefit of reservation on the same parameters.
“The state government is of the view that certain sections of Muslims are socially and educationally backward. What is wrong in providing the benefit? It is only a question how you identify them,” the CJI, who headed the bench, observed.
“Merely because they are Muslims, they can’t be denied it. The socially and educationally backward classes (among them) are identified (by the state). For how many years will they be deprived of it?” the CJI asked.
The bench repeatedly pointed out that reservations were not provided to the entire Muslim community, but only to some groups among them.
Senior advocate Harish Salve, appearing for those opposing the quota, admitted there was nothing wrong in taking “affirmative” action to uplift backwards among the Muslims but questioned the manner in which the state government had tried to do it. “It is nothing but religious reservation given in the disguise of social and educational backwardness,” he argued.
“Nobody is saying that backwards should be thrown out but it cannot be allowed to be done in this manner,” Mr Salve said amid the grilling by the court.
Earlier, attorney-general Goolam E. Vahavati and Andhra Pradesh government counsel K. Prasaran defended the state law — Andhra Pradesh Reservation for Socially and Educationally Backward Classes of Muslims Act 2007 — saying that it was brought after identification of 14 SEdB groups among Muslims.
Mr Vahanvati also referred to the Sachar Committee and Ranganath Mishra Commission reports, which had favoured “affirmative” action for upliftment of Muslims, saying their general social condition was far worse than the other communities.
“Exclusion of better-off groups like Syed, Mushaik, Mughal, Pathan, Irani and Arab and several others from the beneficiary list by the state, showed that the reservation is not based on religion,” the A-G said, adding that “no one among those who are opposing it had seriously denied that the identified groups are not backward.”
According to the Andhra government’s appeal against the high court order, there are about 24 Muslim groups in the state, of which the 14 listed in the schedule were the most backward and needed affirmative action like their counterparts among Hindus.
S.S. Negi