A five-judge bench of the Gujarat High Court on Friday afternoon held UPA’s pre-matric minority scholarship scheme as constitutional in a 3-2 decision. The five-judge bench was formed after a two-judge bench, which held the scheme to be unconstitutional, referred the matter to a larger bench for finality on its constitutionality.
While the detailed judgement is awaited, Justice Akil Qureshi read out the operative portions of the judgment for the majority side, stating that this scheme does not violate Article 15 of the Constitution. Justice Pardiwala read out the dissenting view that this scheme is discriminatory and unconstitutional.
Under the scheme, the Union Government contributes 75 per cent of the scholarship amount while the State Governments are required to contribute 25 per cent of the amount. The Advocate-General of Gujarat asked the court to grant a stay on the judgement.
Refusing to grant a stay, the court held that this was merely a referral bench which had to judge on the constitutionality or otherwise of the scheme. The final order for implementation thereof is to be made by the two-judge bench which referred this matter to the larger bench.
This matter has a long history. The Congress-led UPA had initiated this scheme under the 15-Point Programme for the Welfare of Minorities wherein poor students belonging to five specific minority communities (Muslims, Christians, Sikhs, Buddhists and Parsis) were to be given scholarships provided they maintained the grades specified under the scheme.
The Government of Gujarat refused to implement the scheme stating that it discriminated between students on the basis of religion. Moreover, the Gujarat Government had a scheme in place since three decades which covered six lakh eligible poor pre-matric students whereas the minority scholarship scheme would be applicable only to 52,260 students.
A Gujarat Congress member Adam Chaki filed a Public Interest Litigation, asking the High Court to issue directions to the Gujarat Government to implement the scheme. The Union Government, through its law officers, supported the stand taken by Chaki.
Apart from arguing on the unconstitutionality of this scheme, the Gujarat Government also argued that the minority communities in Gujarat are more developed and educationally advanced as compared to minorities in many other States and even compared to people belonging to the SC, ST, SEBC and EBC categories.
Therefore, targeting a limited number of communities on the basis of religion alone would create ‘heart-burning’ and discriminatory feeling amongst the other low income students.
Interestingly, in an earlier petition which challenged the 15-Point Programme, another two-Judge Bench of the Gujarat High Court had held that “funds utilised by States for … providing education etc” to specific religions would not violate the Constitution. Even the Bombay High Court has upheld the constitutionality of this scheme.
However, the two-judge Bench of the Gujarat High Court (Chief Justice being one of them) listening to Adam Chaki’s petition held that since the scheme entailed “further classification by way of micro-classification” on the basis of religion alone, it was unconstitutional. In other words, it first classified the eligible applicants on the basis of income and then made a micro-classification on the basis of religion.
In a scathing remark on ‘education secularism’, the two-judge Bench observed that the UPA had, through this scheme, “exposed the idea that there is no necessity of socio-economic upliftment of persons of even the poorer and socially backward strata with the help of Government sponsorship unless they belong to the five minority religions.”
One might ask why the matter was heard by a five-judge bench. Because of the apparent contradiction in the judgement of the earlier two-judge bench which was reviewing the Prime Minister’s 15-Point Programme and the latter two-judge bench holding the scheme unconstitutional, the matter was referred to a larger five-judge bench which gave its judgement on Friday.
The Gujarat Government is very likely to knock on the Supreme Court’s doors once the implementation orders are given by the two-judge bench which referred the judgement.
It would be myopic and needless to see this judgement as a sort of victory of one set of forces over another. The UPA’s view has been that students belonging to some religions need special care and, therefore, such micro-classification serves the purpose of assimilating minorities within the ‘mainstream’. The Gujarat High Court has supported this view today.
The Gujarat Government’s view, on the other hand, is that if meritorious students belonging to poor families need financial assistance for education and if Government coffers are being utilised, they must all be given that regardless of their religion – which is what the Gujarat Government’s existing schemes do.
This debate is an ongoing one that is set in motion since the Constituent Assembly debates while finalising our Constitution. Therefore, it is imperative that the discourses do not drift in unwarranted tangents. The very nature of ramifications of any position in this debate necessitates that needless pandering and outrage be resisted.