Minority scholarship constitutional, says Gujarat HC in split verdict


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15 Feb 2013

 
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Minority scholarship constitutional: HC

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.



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  • T90

    All poor should get education irrespective of religion. Quotas should not be carried forever generations after generations. Unless we remove quota, caste-ism and appeasement based on religion will carry on forever. Remove quota based on religion and we all will feel the same. The only criteria should be poor or rich/socially backward or socially progressed.

  • Vikas

    Shameless Akil Qureshi….he should have been a maulana or imam somewhere guiding his religion of peace followers to kill the kaffirs and not in a responsible position of a judge in a court…muslims are anti-hindu and this judge shows it…shame shame shame…they are turning indian courts into Shariat courts..thu…laanat in jaise haivano pe…

  • BAPTY.S

    Good comments by T 90. after 65 yrs we still have quotas, reservations, freebies, etc etc. what does all this show? How do courts accept 7 approve all this?
    So in perpetuity the centre aided by some judiciary wants to keep some people backward.

  • umashankar singh

    A clear case of judges getting influenced by their religious backgrounds. Look at the bench composition and it becomes clear. From Altamas Kabir to this one the influence of Islam on judiciary is obvious. The judges must declare a conflict of interest. Care must be taken about the background of judges while composing such judge-benches.

  • Pingback: All Muslims are not ‘backward’ | Niti Central

  • The Truth

    The SC/ST/OBC communities of whome 90%+ are Hindus get reservations and reserved sub-plans and this is not considered discriminatory because it helps them come out of backwardness

    SC, Muslims and Christians are explicitly singled out from SC benefits of reservations, quotas, elections and jobs and this is not considered discrimination.

    When only 50,000 scholarships are given to out of which maybe 70-80% will goto Muslims all hell breaks loose and worries about the integrity of the country are raised. Despite the fact that all data shows that the preferential tremtent to SC/OBC have got them above and now Muslims on average are at the bottom just above ST. And ST gets 10 times as much monetary befits as minorities as a whole

    ALREADY, SC/ST/OBC students get all kinds of benefits AND are above Muslims on the socio-economic scale. The Upper Caste are much much higher as well. So just a simple case of targetting the weak sections

  • munaf mastan

    MUSLIM WAS ASKED FOR RESERVATION WHEN INDIA BECOME INDEPENDENT. OUR LEADER REFUSE TO OBTAIN RESERVATION AND PUT A FAITH ON NATIONAL LEADERSHIP TO GIVE EQUAL OPPORTUNITY TO MUSLIM WITH THEIR BROTHER.BUT AFTER 60 YEARS WE FOUND THAT MUSLIM HAVE BEEN BADLY NEGLECTED BY GOVERNMENT MACHINERY AND OFFICER.SO IN SPITE OF HAVING QUALITY AND CALIBER MUSLIM YOUNGSTER LOOSE A CHANCE TO OBTAINED GOOD QUALITY EDUCATION AND JOB.NOW EDUCATION BECOME COSTLY AND COMMERCIALIZE AND COMPETITIVE.UNDER THIS SITUATION POOR MUSLIM STUDENT LOST THEIR CHANCE DUE TO THE LAC OF MONEY AND OPPORTUNITY.WE HAVE A GOOD QUALITY BACKGROUND OF OUR RELIGION FAITH AND WAY OF LIFE SO WE REQUIRE ONLY FINANCIAL HELP SO WE CAN SERVE TO NATION HONESTLY WITHOUT CORRUPTION.