IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
(Special Original Jurisdiction)
MONDAY, THE EIGHTH DAY OF FEBRUARY
TWO THOUSAND AND TEN
PRESENT
THE HON'BLE CHIEF JUSTICE SHRI ANIL R. DAVE
THE HON'BLE SMT. JUSTICE T.MEENA KUMARI
THE HON'BLE SHRI JUSTICE B. PRAKASH RAO
THE HON'BLE SHRI JUSTICE D.S.R. VARMA
THE HON'BLE SHRI JUSTICE A. GOPAL REDDY
THE HON'BLE SHRI JUSTICE V. ESHWARAIAH
AND
THE HON'BLE SHRI JUSTICE GODA RAGHURAM
Writ Petition Nos.15267, 15268, 15269, 15270, 15330, 16562, 17086, 18494, 25852 of 2007 and 17679 of 2008
Writ Petition No.15267 of 2007
Between:
1) T. Muralidhar Rao S/o. Ananthasain Rao, R/o. Esamiya Bazar, Hyderabad.
2) K. Sriteja, Minor Rep. by her natural mother K. Saisri R/o. A-38, Singapore Township , Uppal Mandal, R.R. District.
... PETITIONERS
AND
1) The State of Andhra Pradesh, Rep. by its Secretary, Legislative Affairs and Justice, Law Department, Secretariat, Hyderabad.
The Court made the following:
COMMON ORDER: (per the Hon’ble Shri Anil R. Dave, Chief Justice and on behalf of Shri A. Gopal Reddy, Shri V. Eshwaraiah and Shri G. Raghuram, Justices)
1. The cases on hand project another facet of reservations to Backward Classes in the State of Andhra Pradesh. The Legislature of the State of Andhra Pradesh has enacted “The Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007” (A.P. Act 26 of 2007) (hereinafter referred to as ‘the 2007 Act’) for providing reservations to the extent of 4% of total seats to backward classes among Muslims in the matter of admissions in educational institutions and in public employment for their upliftment. We, therefore, feel it expedient to briefly trace the history of reservations in the State.
Background of reservations in Andhra Pradesh
2. Even before the State of Andhra Pradesh had been formed, reservations to backward classes in educational institutions and in public services had been provided under G.O. Ms. No. 110 dated 30th May, 1953 to 112 Castes by the State of Nizam. In the year 1963, when the State of Andhra Pradesh had issued a government order providing for reservation of seats in government medical colleges, this Court had nullified the same on the ground that it was violative of Articles 15 and 29 (2) of the Constitution and it had been provided without applying the criteria laid down by the Hon'ble Supreme Court in M.R. Balaji v. State of Mysore. Subsequently, in the year 1964, a list of 112 castes or communities were identified as backward. The validity of the said list was challenged before this Court by filing writ petitions on the ground that the list so prepared was solely on the basis of caste. The writ petitions were allowed by this Court by striking down the reservation for Backward Classes in professional colleges. The invalidation was upheld by the Hon'ble Supreme Court in State of A.P. v. P. Sagar.
3. Thereafter, the State of Andhra Pradesh had appointed a multi-member Commission, initially headed by Justice Manohar Prasad, former Chief Justice of this Court and subsequently by Shri Anantaraman, ICS to investigate into the claims made by certain groups claiming to be belonging to backward classes. In pursuance of the report of Anantaraman Commission, the State issued G.O.Ms.No.1793, Education Department, dated 23.9.1970 providing reservation to Backward Classes under four distinct groups viz., Group A, B, C & D with separate quota for each group. However, subsequently, the government deleted two castes and added 3 more castes to the original list. The said action was challenged in this Court and the same was quashed by this Court. The Hon'ble Supreme Court, in State of A.P. v. U.S.V. Balaram, however, upheld the above Government Order, and the list of backward classes.
4. In 1981 – 82, Muriladhara Rao Commission had recommended that the policy of reservations should be continued for 25 years with periodic re-assessments. Muralidhara Rao Commission had also recommended that some concessions be given to Socially and Educationally Backward Classes (SEBCs) in the State of Andhra Pradesh.
5. The issue of reservation had raised a serious controversy in 1990s which finally led to the historic Mandal Case – Indra Sawhney v. Union of India (hereinafter referred to as “Indra Sawhney I”). The law laid down by the Hon’ble Supreme Court in Indra Sawhney I will be referred to hereinafter in the course of the judgment.
6. In 1993, the respondent State had enacted the
Andhra Pradesh Commission for Backward Classes Act, 1993 (hereinafter referred to as, 'the 1993 Act') and in the year 1994, the Andhra Pradesh Commission for Backward Classes (hereinafter referred to as ‘the Commission’) was constituted on permanent basis so as to examine the requests for inclusion of any class of citizens as a backward class in the list of backward class of citizens and to hear the complaints in relation to inclusion or exclusion of any backward class from such a list and to give suitable advice to the Government in relation thereto.
7. On 25.8.1994, the Backward Classes Welfare (P.II) Department, vide G.O.Ms.No.30, referred the requests of persons belonging to certain castes and communities, including the Muslim community, to the Commission for their inclusion in the list of Backward Classes. The same is still pending with the Commission.
8. In the year 2000, the Government of Andhra Pradesh extended the reservations, which were proposed to be implemented only for ten years initially, till the revision that might be suggested by the Commission. Pending revision by the Commission, on 4.6.2004, the respondent State, vide G.O.Ms.No.15, directed the Commissionerate of Minority Welfare to submit a report on the social, economic and educational backwardness of the Muslim community in the State so as to opine whether the community could be included in the list of backward classes so as to give them the benefit under Articles 15 (4) and 16 (4) of the Constitution. On the basis of a report dated 5.7.2004 submitted by the Commissionerate, the Government issued G.O.Ms.No.33, Backward Classes Welfare (C-2) Department, dated 12.7.2004 providing 5% reservation to the entire Muslim community in the State of Andhra Pradesh in educational institutions and public employment, over and above the reservations provided to the backward classes, by treating them as Backward Class and by including them in the existing list of Backward Classes as Category ‘E’. When the said G.O. was challenged, a Larger Bench of this Court in T. Muralidhar Rao v. State of A.P., set aside the same by holding that consultation with the Commission, before undertaking any revision of the Backward Classes List, was mandatory under the provisions of the 1993 Act and yet there was no such consultation. It was also held that in the absence of any criteria laid down for ascertaining backwardness, the entire report of the Commissionerate was bad in law and that the approach adopted by the Sate was improper and invalid. It was also held that the impugned Government Order amounted to providing reservation on the basis of religion, which is prohibited by Articles 15 (1) and 16 (2) of the Constitution. Thus, it was held that for the afore-stated and other reasons stated in the said judgment, Muslims could not have been classified as persons belonging to Backward Class either for the purpose of Article 15 (4) or 16 (4). The Government Order was struck down.
9. Subsequently, the matter was referred by the State to the Commission vide G.O.Ms.No.57, Backward Classes Welfare (C-2) Department, dated 18.11.2004 seeking its opinion under Section 9 (1) of the 1993 Act, whether the Muslim community could be included in the list of the Backward Classes. Basing on the recommendation by the Commission, the State issued an Ordinance dated 20.6.2005 being the A.P. Reservation of Seats in the Educational Institutions and of appointments/posts in Public Services under the Muslim Community Ordinance, 2005 declaring the whole Muslim community as backward class and providing 5% reservation to them in educational institutions and public employment. The said Ordinance was challenged before this Court and this Court, in B. Archana Reddy v. State of A.P., declared the same as unconstitutional being violative of Articles 15 (4) and 16 (4) of the Constitution on the ground that the Muslim community as a whole, based on religion, was declared as backward class without there being any identification of the social backwardness of Muslims by the Commission.
10. The respondent State has challenged the above judgment before the Hon’ble Supreme Court vide SLP (Civil) Appeal No.7513 of 2005 and the same is pending adjudication. While so, the State again referred the matter to the Commission for identifying socially and educationally backward groups among Muslims and basing on the recommendations received from the Commission, the Legislature has enacted the 2007 Act.
11. Thus, the respondent State, as a matter of policy, had decided to provide reservation to the Muslim groups, who were socially and educationally backward and accordingly added such groups to the existing lists of Backward Classes as Group 'E' by virtue of the impugned Act.
The Writ Petitions
12. In Writ Petition No.15267 of 2007, the constitutional validity of the 2007 Act and the consequent order vide G.O.Ms.No.23, BC Welfare (C2) Department, dated 7.7.2007 issued by the respondent State have been challenged. By virtue of the impugned Act and the G.O., certain Muslim groups have been declared as socially and educationally backward and these were included in the list of Backward Classes under a separate category-E whereby they have been provided 4% reservation. The petitioners have also prayed that G.O.Ms.No.3, Backward Classes Welfare Department, dated 04.4.2006 issued by respondent No.2 be declared as arbitrary and illegal. They have further prayed for a direction to respondent No.2 and the Commission for excluding the creamy layer by fixing criteria and for carrying out a revision of the lists as per Section 11 of the 1993 Act.
13. Likewise, some other petitions viz., Writ Petition Nos. 15268, 15269, 15270, 15330, 17086, 18494, 25852 of 2007 & 7520 and 17679 of 2008 have been filed praying for an identical relief.
14. In Writ Petition No.16562 of 2007, the petitioner has prayed for quashing G.O.Ms.No.231, Health, Medical and Family Welfare (E1) Department, dated 11.7.2007 issued as a sequel to G.O.Ms.No.23, dated 07.7.2007.
15. Writ Petition Nos.15267, 18494 and 25852 of 2007 have been filed in public interest whereas Writ Petition Nos.15268, 15269, 15270, 15330, 16562, 17086 of 2007 and 7520 and 17679 of 2008 have been filed in individual capacity questioning the validity of the 2007 Act. In the writ petitions filed in public interest, the petitioners have challenged the 2007 Act on the ground that the Act and the subsequent G.O.Ms.No.23, dated 07.7.2007 issued by the respondent State were affecting the fundamental rights of various students and unemployed persons in the State with regard to their admissions in educational institutions and appointments in public employment respectively. It is also their case that inclusion of Muslim community in the list of backward classes would adversely affect the legitimate interest of the already listed backward classes.
16. In the writ petitions filed in individual capacity, the petitioners, some of whom are students, assert to be aggrieved by the impugned Act because, prior to the enactment of the impugned Act, they were hopeful of obtaining admission to MCA, MBBS or BDS and LL.B. Courses, either on merit or under sports quota, but, by virtue of the impugned Act, the total number of seats available to the general pool would be reduced proportionately thereby decreasing their chances of getting admissions to courses of their choice.
17. The petitioner in Writ Petition No.15269 of 2007, who belongs to “Kurma” caste, which is included in Group “B” in the existing list of backward classes, is aggrieved because he and his community would be adversely affected by the impugned Act.
18. The petitioners in Writ Petition Nos.25852 and 15269 of 2007 had filed objections before the Commission opposing inclusion of Muslim community in the backward classes list on the ground that the community did not satisfy the criteria for inclusion in the list.
19. Though the object behind providing reservations to the SEBCs. among Muslims is not in dispute, the main grievance of the petitioners is that the 2007 Act is religion specific and the State, by the impugned Act, has inserted a separate group viz., Group 'E' in the list of backward classes by providing 4% reservation to them. It is their case that the State did not explain why some more groups should be provided reservation when there are already included some Muslim groups in Groups 'A' and 'B' of the Backward Classes list.
The challenge
20. It is the case of the petitioners that when the revision had to be done by the Commission in pursuance of G.O.Ms.No.30, dated 25.8.1994, the respondent State ought to have waited till the revision was completed, or ought to have requested the Commission to expedite the revision and submit its report. It has been further submitted that the State Government had hastily taken up the issue of providing reservation to SEBCs among Muslims alone when claims of 112 other castes/groups were pending before the Commission.
21. It is also the case of the petitioners that the Commission had shown undue haste while making its recommendation with regard to inclusion of certain groups of Muslims in the list of backward classes. According to them, due care was not taken while collecting data for arriving at a conclusion that the persons belonging to the groups referred to in the Schedule appended to the impugned Act were socially and educationally backward and the Commission had blindly relied upon the data collected by other bodies and no proper survey was undertaken by the Commission. Moreover, no criteria had been fixed for coming to a conclusion whether a particular group was socially and educationally backward and even without defining the word ‘Muslim’, Muslim groups were indicated by the Commission. It has also been alleged that the impugned Act is religion specific and this would induce people to convert to Islam and that is against secularism.
The Defence
22. It is the case of the State that even prior to the 2007 Act, all the Scheduled Caste converts were placed under one group viz., Group 'C' and simply because the 14 identified groups belonging to Muslim community were included in the list under a separate Group 'E', the impugned Act cannot be termed as religion specific. If the newly identified groups were included in the already existing groups, they could not have competed with the other backward classes and, therefore, they were shown in a separate group. It is their further case that the process of revising the existing lists of backward classes under Section 11 of the 1993 Act is different from the process of identifying backward classes under Section 9 (1) of the Act, which does not prohibit consideration of new groups or classes for inclusion in the list, pending revision. According to the respondent authorities, claims of Brahmin, Vaishya, Velama and several other well-known socially advanced castes were also included in the 112 claims and though claims of the said groups were pending, it was open to the Commission to consider other groups of backward class persons. The cases of the above claimants were considered and enquired into by the Commission and an advice in respect of those castes/ communities had been forwarded to the State Government and the respondent State had duly considered the said advice and in pursuance thereof, the impugned Act was enacted whereby members of some Muslim groups were declared as belonging to socially and educationally backward class. It is also the case of the respondents that the claimants, whose cases were pending before the Commission, had not approached this Court, and as the petitioners were not representing those 112 claimants, the petitioners could not have argued on behalf of those claimants. Moreover, it has also been submitted that looking to the fact that the impugned Act has been enacted so as to give effect to the constitutional provisions, which enable the State to do the needful for upliftment of social and educational backwardness among Muslim groups, the Act should not be subjected to judicial review.
Chronology of the present litigation
23. On 24.7.2007, a Division Bench of this Court admitted Writ Petition Nos. 15267, 15268, 15269, 15270 and 15330 of 2007 and passed an interlocutory order directing the respondents that admissions given after the filing of the writ petitions by implementing the provisions of the 2007 Act would remain subject to the final adjudication and directed the respondents to incorporate this fact in the letters of admission or otherwise notify to the students. The Division Bench, at the same time, keeping in view the fact that the issue raised in the writ petitions was of substantial public importance, felt that the matter should be heard by a Larger Bench.
24. Subsequently, on 29.8.2007, a Bench of five Judges heard Writ Petition Nos. 15267, 15268, 15269, 15270, 15330, 16562 and 17086 of 2007 and taking into consideration the fact that some of the questions considered by the Constitution Bench of the Hon’ble Supreme Court in Ashoka Kumar Thakur v. Union of India might have direct impact on the challenge thrown by the petitioners to the 2007 Act and the subsequent Government Orders, deferred the hearing of the petitions till the reference pending before the Constitution Bench of the Supreme Court is finally decided and directed that the interim order passed earlier should remain operative, subject to the adjudication of the writ petitions.
25. Challenging the interlocutory order passed by this Court on 24.7.2007 in WPMP No. 19265 of 2007 in Writ Petition No.15267 of 2007, the petitioners therein filed Petitions for Special Leave to Appeal (Civil) Nos.17195-17196 of 2007 with SLP (C) Nos. 18052 and 18118 of 2007 and Writ Petition (C) No.535 of 2007 before the Hon’ble Supreme Court, which, on 28.9.2007, had passed an interim order directing the respondent State that no further admissions shall be made under the impugned Act. However, on 12.10.2007, the Hon’ble Supreme Court, while disposing of the above petitions, observed that this Court should proceed with the hearing of the writ petition and finally dispose of the same by 31.10.2007; if the writ petition could not be disposed of by 31.10.2007, this Court might consider passing an appropriate order regarding admissions of students and, till then the interim order granted on 28.9.2007 should continue.
26. Subsequently, on 02.11.2007, when it was brought to the notice of the 5-Judge Bench of this Court that admissions to B.Ed. and B.Pharmacy (Bi.P.C. stream) courses were not taken up as the admissions were stayed by the Hon’ble Supreme Court and as the Bench had opined that it would take sometime to hear the writ petitions and finally decide them, it had ordered that the respondent State might proceed with the counselling of those courses and other courses and consider the admission of the reserved category, including the reservation to B.C. ‘E’, finalise the selections, but the selection lists should not be given effect to. The Bench had observed that if the respondent State finalises the counselling and the process of admission before the writ petitions were decided, it would be at liberty to move appropriate applications before this Court.
27. On 27.11.2007, WPMP No.32844 of 2007 filed by respondent No.2 in Writ Petition No.15267 of 2007 seeking permission to give effect to the select lists pertaining to B.C. ‘E’ category for admission to B.Ed., B. Pharmacy (Bi.P.C. stream), M.E./M.Tech./M. Planning/M. Pharmacy Planning/ M. Pharmacy courses for the academic year 2007-2008 in order to save the academic year, came up for hearing before the Bench.
28. On 24.1.2008, during the course of arguments, it was brought to the notice of the Bench that the specific direction/ criteria, as pointed out in paragraphs 114, 279, 293, 378 and 379 of Archana Reddy (that the Commission had to evolve criteria for identifying social backwardness), had not been adhered to by the Commission. Keeping in view the aforesaid submission, the Bench opined that the matters were required to be heard and re-considered by a 7-Judge Bench and accordingly passed an order. The operative portion of that order reads:
“… In view of the aforesaid judgment emanated from a coordinate bench of five judges of this Court and in the absence of any provision in the statute for publication of the criteria whether this Court can supplant the provisions of the Act and the Rules by making publication mandatory as per the observations as contained in paras stated supra and other observations made by the coordinate bench, are contrary to the observations made by the Supreme Court in Indra Sawhney v. Union of India – 1992 Supp. (3) SCC 217 - where it was left open for the concerned authorities to lay down the criteria, apart from contrary to principles laid down in regard to strict scrutiny approach, as laid in Saurabh Chaudri v. Union of India and also the principles laid down in other decisions of the Apex Court.
After hearing the counsel on either side appearing on behalf of respondents, we are of the view that the matters are required to be heard and reconsidered by a 7-Judge bench.
Accordingly, we direct the registry to place these matters before the Hon’ble the Chief Justice for passing appropriate orders.”
29. That is how the matters were listed before this 7-Judge Bench for hearing.
30. On 29.4.2008, this Bench extended the interim stay granted by the Hon’ble Supreme Court on 28.9.2007 with regard to admissions under the 2007 Act relating to Category-E till the hearing of these writ petitions.
31. On 19.8.2008, after hearing the submissions of the parties, this Bench opined that the writ petitions should be heard de novo on merits and, accordingly, arguments were advanced by the counsel appearing on behalf of the respective parties on merits of the case, both on facts and law.
32. We have heard Shri K. Ramakrishna Reddi, Shri D. Prakash Reddy, learned Senior Advocates, and Shri B. Adinarayana Rao, Shri G. Vidyasagar, Shri S. Sriram, Shri L. Ravichander, Shri K.S. Murthy, advocates appearing for their respective petitioners, and Shri K. Kondal Rao and Shri P.S.N. Murthy, parties-in-person. We have also heard the learned Advocate General for the State, Shri S. Satyanarayana Prasad, Standing Counsel for the Commission, Shri K.G. Kannabhiran, Shri Anoop George Chowdary and Shri Rajeev Dhavan, learned Senior Advocates appearing for some of the private respondents and Shri Hashmi appearing in person in support of the 2007 Act. We have also carefully considered the judgments referred to by them.
33. The challenge in all the writ petitions is mainly to the 2007 Act and the Government Orders issued pursuant to the said Act. We, therefore, do not consider it necessary to narrate the facts in each of the writ petitions in detail. Since common questions of fact and law are involved, we have heard all the writ petitions together and are deciding them by this common order.
Issues
34. In the context of the rival contentions, qua the 2007 Act, the following broad issues fall for our consideration:
i) What are the appropriate parameters for judicial review; on whom lies the burden of proof and what is the appropriate standard of scrutiny of legislative action?;
ii) Whether the recommendations of the Commission are sustainable?
i) Judicial Review – Extent – level of scrutiny
35. The learned Advocate General appearing for the State of Andhra Pradesh and other learned advocates supporting the validity of the impugned Act and the G.O. issued in pursuance thereof have submitted that as the State has exercised its legislative power to enact the 2007 Act and having regard to the noble purpose for which the impugned Act has been enacted, this Court has no power to review the same, whereas, the learned advocates appearing for the petitioners have submitted that it is open to this Court to examine the legality and validity of the impugned Act. The learned advocates have also supported their version by referring to several authorities, which have been referred to hereinbelow.
36. The people of India declared the country as a democratic republic and the Constitution guards our democratic system. It reflects the hopes and aspirations of the people. It is fundamental, superior or paramount and its authority and sanction are higher than those of ordinary laws.
37. The Constitution provides the framework for the three great wings of the State viz., the executive, the legislature and the judiciary. It recognises and gives effect to the concept of equality among these three wings and the concept of “checks and balances” is inherent in the scheme. Each wing has to perform the functions entrusted to it and respect the functioning of others. The Constitution entrusts the task of interpreting and administering the law to the judiciary whose view on the subject is made legally final and binding on all till it is changed by a permissible legislative measure. Thus, in order to discharge its duty of safeguarding the Constitutional scheme, the Courts are empowered to interfere with the acts of the executive or legislature, if they are found transgressing the constitutional spirit.
38. While the fundamental rights of citizens enumerated in Part III of the Constitution are justiciable, Part IV deals with the 'Directive Principles of State Policy' that largely enumerates objectives pertaining to socio-economic entitlements. The Directive Principles aim at creating an egalitarian society whose citizens are liberated from the abject social, economic and physical conditions that had hitherto prevented them from establishing their identities. They are the creative part of our Constitution and fundamental to the governance of the country. However, the key feature is that the Directive Principles are 'non-justiciable', but still they can be the basis of executive and legislative actions.
39. The ideal of social justice, which has invited frequent judicial intervention, is that of 'affirmative action'. The framers of the Constitution not only included the guarantee of 'equal protection before the law' in Article 14, but also permitted 'differential treatment' in order to advance the interests of the historically or otherwise disadvantaged sections, which came to be designated as Scheduled Castes and Scheduled Tribes. The 'affirmative action' policies took the form of reservation of seats in legislatures, public employment and in educational institutions. As observed in M.R. Balaji and Indra Sawhney I by the Hon’ble Supreme Court, while the judiciary has steadfastly supported the principle of 'affirmative action', there has been frequent litigation pertaining to the specific application of the same in different settings. There has also been a significant litigation over questions that involve an interface between the fundamental rights enshrined in the Constitution and the broad objectives of ensuring social justice. In certain instances, there has also been a clash between the understanding of fundamental rights on one hand and the governmental objectives of ensuring social justice on the other. However, the most important feature is that the fundamental rights provided the Supreme Court and the High Courts with a clear set of criteria to regulate relations between citizens and the Government (i.e. vertical application of rights) as well as among citizens themselves (i.e. horizontal application of rights). Furthermore, the Supreme Court and the High Courts have interpreted these rights both in 'negative' and 'positive' dimensions.
40. Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, class and gender – but, at the same time, permits the State to make special provision for the advancement of women as well as 'socially and educationally' backward sections of the society. Hence, Article 15 forms the basis of 'affirmative action' policies. Article 16 creates obligations on the State to ensure fairness in matters pertaining to public employment. We are not dealing with the other rights guaranteed to the citizens under Part III as they are not relevant for the purpose of this judgment.
41. In Ramkrishna Dalmia v. Justice S.R. Tendolkar, the Hon'ble Supreme Court observed that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is however essential is that there must be a nexus between the basis of the classification and the object of the Act under consideration. It is also well established by the decisions of our Courts that Article 14 prohibits discrimination not only by a substantive law but also by a law of procedure.
42. The concern with maintaining the independence of the judiciary is interlinked with two core features of a constitutional democracy – i.e. 'separation of powers' between the wings of Government and the vigorous exercise of 'judicial review' over executive and legislative action. The fundamental rights enumerated in the Constitution hence equip the constitutional courts with tangible criteria to exercise 'judicial review' over governmental action. The power of ‘judicial review’ in Article 13 is explicit. In the words of Dr. B.R. Ambedkar, this provision forms the heart and soul of the Constitution.
43. In Golaknath v. State of Punjab, the Hon'ble Supreme Court had ruled that the power of the Parliament to amend the Constitution was limited, and that the Courts were within their power to inquire into such amendments. In Kesavananda Bharati v. State of Kerala, when an amendment was made to the Constitution extending the power of the Parliament to amend any part of the Constitution by means of the process prescribed under Article 368, the Hon'ble Supreme Court has laid down the doctrine of the inviolable ‘basic structure’ of the Constitution which limited the power of the Parliament to amend the Constitution. In separate but concurring opinions, majority of the judges (7-6) ruled that certain features of the Constitution were integral to its existence and could not be altered by way of amendments by the legislature. They also defended the power of the judiciary to inquire into legislative actions for safeguarding this ‘basic structure’. This decision holds immense significance since it re-asserted the role of the judiciary as the sentinel on the qui vive.
The decisions in I.R. Coelho v. State of T.N. and Raja Ram Pal v. Hon'ble Speaker, Lok Sabha,was found to be the was observed
“”
46. In Raja Ram Pal, which is popularly known as the “cash for query in Parliament” case, the question was he Hon'ble Supreme Court decided the issue regarding the unconstitutionality of the expulsion of Members of Parliament and simultaneously upheld the principles of judicial review. While observing that the Constitution was the “suprema lex in this country”, the Hon'ble Supreme Court held:
“Parliament is a coordinate organ and its views do deserve deference while its acts are amenable to judicial scrutiny … mere coordinate constitutional status … does not disentitle this Court from exercising its jurisdiction of judicial review.”
47. In the afore-stated case, the Hon'ble Supreme Court has accepted that though it may not question the truth or correctness of the material nor substitute its opinion for that of the legislature, the proceedings of the Parliament, which may be tainted on account of substantive or gross illegality or unconstitutionality, could still be reviewed by the judiciary.
48. The above cases have re-asserted the constitutional scheme of a balance of power between the legislative and judicial branches, and ensured that the political and executive branches will no longer be able to evade the scrutiny of the judicial branch.
49. S.R. Bommai v. Union of Indiaare some other cases in which the Hon'ble Supreme Court had interfered when legislations/orders by the Legislature were found unconstitutional.
50. Thus, so as to limit or put a check on the arbitrary actions of the Legislature, this Court can examine validity of any statute if it is in violation of any of the provisions of the Constitution i.e., if it violates the rule with regard to distribution of powers or violates the fundamental rights of a citizen etc. In the circumstances, the submission made by the learned Advocate General to the effect that the 2007 Act has been enacted with a noble object and, therefore, it cannot be subjected to judicial review, does not merit acceptance.
Extent of Review
51. It has been submitted by the learned advocates appearing for the petitioners that identification of backward classes is an objective process and should be based on objective material and, therefore, the exercise so conducted by the State for identifying the backwardness – social, educational and economic – among some of the Muslim groups should be subjected to careful, intensive and in-depth scrutiny.
52. The learned Advocate General urged that the Constitution mandates the State to take measures for social justice including by providing reservation for SCs, STs and BCs to attain equality among its citizens. If social justice measures taken either by the executive or the legislature are challenged, the judiciary has to examine the same and determine whether the same are constitutionally valid, but there are no special standards of judicial scrutiny of such social justice measures and Courts are bound by normal standards laid down for judicial scrutiny of any administrative or legislative action.
53. According to the learned Advocate General, the Courts may examine whether there is no material or there is some relevant material; the sufficiency of the material cannot, however, form the basis for judicial scrutiny. According to him, the Courts should not pick holes in the process of decision making and should give due deference to such policy decision in the path of social justice action by co-equal wings i.e. the executive or the legislature.
54. It is undisputed that judicial review can operate, both, in the narrow as well as in the wider sense. In the narrow sense, it does not go into the merits of the impugned decision, but examines only the constitutionality or the basic legality. In the wider sense, judicial review would be like an appeal to be decided on the merits of the decision by an administrative or a judicial authority. All questions of fact and/or of law i.e. the merits of the whole case would be open to review. The review in the wider sense may be of a dispute between private parties or between a private party and the State or a public authority and is, therefore, mostly a question of private law. But the narrower view is essentially a question of public law. It is directed against administrative or legislative action as being without jurisdiction or unconstitutional. For all practical purposes, judicial review has acquired narrow usage to signify the power of the Courts to determine the constitutionality of legislative acts which fall within their normal jurisdiction.
55. Judicial review of a legislative act is necessary in order to preserve individual liberties against the rule of the majority and to protect individuals and groups against invidious attacks by the public authorities or the departments of the Government. In our Constitution, we have a list of fundamental rights, which are to be protected by the Courts. As long as the fundamental rights exist and are part of the Constitution, the power of judicial review has to be exercised so as to see that those rights are not violated.
56. In Narendra Kumar v Union of India, it has been observed that a law would be valid, if the interference with the fundamental right was reasonable, but would be invalid if the test of reasonableness was not passed. It has also been observed therein that while applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the law was enacted, taking into account the nature of the evil that was sought to be remedied by such law, the degree of harm which might be caused to individual citizens and the benefit which might be gained by the general public. It has been further observed that it would also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interest of the general public.
57. In Kesavananda Bharati, Justice P. Jaganmohan Reddy has explained the two concepts that are inherent in Article 14:
“Two concepts are inherent in the guarantee in Article 14 – one of “equality before law”, a negative one similar to that under the English common law; and the other “equal protection of laws”, a positive one under the United States Constitution. The negative aspect is in the prohibition against discrimination and the positive content is the equal protection under the law to all who are situated similarly and are in like circumstances. The impact of the negative content on the positive aspect has not so far been clearly discerned in the decision of this Court, which has been mostly concerned with the positive aspect.”
58. In Anuj Garg, the Hon’ble Supreme Court has observed that any legislation with pronounced “protective discrimination” serves as a double-edged sword. Therefore, strict scrutiny test should be employed while assessing the implications of this variety of legislation. The Legislation should not be only assessed on its proposed aims, but rather on the implications and the effects. In this case, the Hon’ble Supreme Court, while determining the issues arising out of the biological differences between the sexes, has observed that such legislations deserve deeper judicial scrutiny and that the test to review such a protective discrimination statute would entail a two-pronged scrutiny viz., a) the legislative interference should be justified in principle, and b) the same should be proportionate in measure.
59. In Kesavananda Bharathi, the Hon’ble Supreme Court has held that the Directive Principles embodied in Part IV of the Constitution also deals with important rights of individuals. Parts III and IV of the Constitution form a basic element of the Constitution without which its identity will be completely changed. It was to give effect to the main objectives of the Preamble, Parts III and IV were enacted. The dignity of an individual can be achieved only when Parts III and IV are balanced and harmonized. The Hon’ble Supreme Court has observed as follows:
“… The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfill the basic deeds of the common man and to change the structure of our society. It aims at making the Indian masses free in the positive sense. … Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution. ... Equally, the danger to democracy by an over-emphasis on duty cannot be minimised. … Indeed the balancing process between the individual rights and the social needs is a delicate one. This is primarily the responsibility of the “State” and in the ultimate analysis of the courts as interpreters of the Constitution and the law.” (paras 712 to 715)
60. Thus, it is clear from the judgments of the Hon’ble Supreme Court since Ramakrishna Dalmia that administrative/legislative action is susceptible to judicial review when it is found that the administrative action of the State or the legislation enacted by a State Legislature/Parliament has not passed the test of reasonableness. The Hon’ble Supreme Court has also observed that the Courts, while considering the validity of a legislation touching Article 14 of the Constitution, have to determine whether the classification satisfies the test of reasonableness and whether the classification proposed to be made by such legislation is based on some differentia which distinguishes such persons in whose favour the legislation is made, and whether such differentia have a reasonable relation to the object sought to be achieved by the statute.
61. It is also well settled that the scope of judicial review depends on the nature of the subject matter and there is no special or distinct standard of judicial review when a beneficial legislation like the one under challenge is under consideration. The law is well settled on this aspect and the decisions of the Hon’ble Supreme Court are uniform. It is apt to quote the observations by Justice Jeevan Reddy in Indra Sawhney I:
“It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, the Court would normally extend due deference to the judgment and discretion of the executive — a co-equal wing — in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.” (Paras 842 and 859)
62. Justice Reddy had also observed in paragraph 737 of the said judgment that any determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction and if, for collateral reasons, the executive includes groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on its power.
63. The principles that would emerge from the judgments of the Hon’ble Supreme Court are that any interference by the State with the fundamental rights of the citizens should be reasonable and such interference must stand the scrutiny of the Court. When there is a challenge to a legislative action of the State as offending Articles 14, 15 (4) or 16 (4), the Court can and should verify whether the level of discrimination is excessive and whether the asserted classification has a nexus with the objective intended to be achieved by the State; and in applying the test of reasonableness, the Court has to consider the background of the facts and circumstances under which the legislation was made, and in particular, when a legislation aims to discriminate the citizens on the basis of religion, race etc., the Courts have to make a careful and deeper scrutiny to test such legislation.
Level of scrutiny
64. It has been submitted by the learned advocates appearing for the petitioners that the standard of judicial review laid down in Archana Reddy is not based on the doctrine of strict scrutiny applied by the U.S. Supreme Court and is consistent with the observations of the Hon’ble Supreme Court in Ashoka Kumar Thakur, that the Courts have to apply a careful and deeper scrutiny. It has been submitted by them that for satisfying the American standard of strict scrutiny, the respondent State has to satisfy the two essential components viz., a) compelling State interest; and b) least restrictive requirement and narrow tailoring; and in Archana Reddy, this Court referred to but did not apply the strict scrutiny doctrine in the American sense.
65. Per contra, it has been submitted by the learned Advocate General that in Archana Reddy though the Bench had extensively considered the scope of judicial review and held that the Hon’ble Supreme Court in Indra Sawhney I had not set any standard of judicial scrutiny in the matters of affirmative action of the State, Justice Raghuram and Justice V.V.S. Rao of the Bench have held that strict scrutiny test is applicable in cases of this nature. It is his case that the Bench (view of Justice V.V.S.Rao) erred in holding that Justice Jeevan Reddy in Indra Sawhney I did not either accept or reject strict scrutiny test to review social justice measures.
66. It has further been submitted by the learned Advocate General that in Archana Reddy (view of Justice V.V.S. Rao) this Court has relied on the judgments of the U.S. Supreme Court delivered after Indra Sawney I and has held that the U.S. Supreme Court has ultimately accepted strict scrutiny standard in matters of judicial review of affirmative action and applied the same in Archana Reddy. According to him, this Court (view of Justice V.V.S. Rao) failed to distinguish the fundamental differences between the U.S. Constitution and the Indian Constitution in the matter of the mandate of equality (Article 14 of the Indian Constitution and the 14th Amendment of U.S. Constitution) and wrongly applied the American principle of “strict scrutiny” to the Indian context.
67. The learned Advocate General has also contended that in Archana Reddy (view of Justice G. Raghuram), while referring to the judgments of the U.S. Supreme Court, which are unsuitable to the Indian context, this Court has observed that the State must satisfy that the means adopted are the only way to achieve the compelling objective, and has held that religion specific classification would constitute a suspect classification and, therefore, it requires strict scrutiny. He has further submitted that the observations of this Court (view of Justice Raghuram) that the Hon’ble Supreme Court, starting from State of Madras v. Champakam Dorairajanto State of Uttar Pradesh v. Pradeep Tandon, applied rigorous scrutiny test, are not correct and that this Court has also not explained as to the relevance of U.S. jurisprudence to Indian context.
68. It has also been urged by the learned Advocate General that different levels of scrutiny viz., strict scrutiny, intermediate scrutiny and rational basis scrutiny were evolved and are being followed by the U.S. Supreme Court and though the same were in existence even when the judgment in Indra Sawhney I was delivered and the judgment of this Court in T. Muralidhar Rao, both Courts thought it fit not to import this principle, in view of the differences in the Constitutions of the two countries.
69. It has been submitted by him that there is a great deal of difference between racial discrimination and discrimination based on caste system; that the language used in Articles 14 to 16 of the Indian Constitution is different when compared with the language in 14th amendment of the U.S. Constitution; and the expression used in Article 14 viz., “equality before the law” is absent in the U.S. Constitution. It is his case that social justice action including reservations in our country is a constitutional obligation of the State and such an obligation is absent in the U.S. Constitution.
70. In view of the submissions made by the learned advocates on either side on the aspect of level of scrutiny to be applied by the Courts, we consider the judgments of the Supreme Court touching on the point in issue.
71. In Ramkrishna Dalmia, the Hon’ble Supreme Court has observed that when a statute comes up for consideration before the Court on a question of its validity under Article 14 of the Constitution, the same may be placed in any of the five classes enumerated by it. The Hon’ble Supreme Court has also observed that the following principles will have to be constantly borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws:
“12. … … ...
(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in Chiranjitlal Chowdhri v. Union of India {(1950) SCR 869}, State of Bombay v. F.N. Balsara {(1951) SCR 682}, Kedar Nath Bajoria v. State of West Bengal {(1954) SCR 30}, S.M. Syed Mohammad & Company v. State of Andhra {(1954) SCR 1117}, and Budhan Choudhry v. State of Bihar {(1955) 1 SCR 1045}.
(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum v. Mahboob Begum {(1953) SCR 404} and Ramprasad Narain Sahi v. State of Bihar {(1953) SCR 1129}.
(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal v. Anwar Ali Sarkar {(1952) SCR 284}, Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh {(1954) SCR 803} and Dhirendra Krishna Mandal v. Superintendent and Remembrancer of Legal Affairs {(1955) 1 SCR 224}.
(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional, as it did in Kathi Raning Rawat v. State of Saurashtra {(1952) SCR 435}.
(v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court e.g. in Kathi Raning Rawat v. State of Saurashtra that in such a case the executive action but not the statute should be condemned as unconstitutional.”
72. It is undisputable that judicial review or scrutiny and its extent are not defined in the Constitution. The Courts have evolved general principles as to the scope of such scrutiny with self-imposed restrictions. The extent and scope of judicial review or scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on.
73. Much has been said with regard to the nature of scrutiny required when any law in the nature of the impugned Act is enacted by the State. The Hon’ble Supreme Court has expressed that the American doctrine of strict scrutiny should not be imported by us looking to the fact that the circumstances prevailing in the American society and in our society are different. However, the Hon’ble Supreme Court has referred to the concept of rigorous scrutiny for examining the validity of law in Champakam Dorairajan, M.R. Balaji, P. Sagar, A.Peeriakaruppan (Minor) v. State of T.N., U.S.V. Balaram, Janki Prasad Parimoo v. State of J & K, Pradeep Tandon and Indra Sawhney I.
74. We have thus to decide what degree and quality of scrutiny is appropriate while examining the legality of the impugned Act. We have mainly gone through the judgment rendered by this Court in Archana Reddy, the final outcome of which has given rise to the impugned Act and we have also gone through the judgment delivered by the Hon’ble Supreme Court in Indra Sawhney I. In Indra Sawhney I, Justice Sawant has opined as under:
“529. There are no special principles of judicial review nor does the scope of judicial review expand when the identification of backward classes and the percentage of the reservation kept for them is called in question. So long as correct criterion for the identification of the backward classes is applied, the result arrived at cannot be questioned on the ground that other valid criteria were also available for such identification. It is possible that the result so arrived at may be defective marginally or in marginal number of cases. That does not invalidate the exercise itself. No method is perfect particularly when sociological findings are in issue. Hence, marginal defects when found may be cured in individual cases but the entire finding is not rendered invalid on that account.
530. The corollary of the above is that when the criterion applied for identifying the backward classes is either perverse or per se defective or unrelated to such identification in that it is not calculated to give the result or is calculated to give, by the very nature of the criterion, a contrary or unintended result, the criterion is open for judicial examination.
537. To sum up, judicial scrutiny would be available (i) if the criterion inconsistent with the provisions of Article 16 is applied for identifying the classes for whom the special or unequal benefit can be given under the said article; (ii) if the classes which are not entitled to the said benefit are wrongly included in or those which are entitled are wrongly excluded from the list of beneficiaries of the special provisions. In such cases, it is not either the entire exercise or the entire list which becomes invalid, so long as the tests applied for identification are correct and the inclusion or exclusion is only marginal; and (iii) if the percentage of reservations is either disproportionate or unreasonable so as to deny the equality of opportunity to the unreserved classes and obliterates Article 16(1). Whether the percentage is unreasonable or results in the obliteration of Article 16(1), so far as the unreserved classes are concerned, it will depend upon the facts and circumstances of each case, and no hard and fast rule of general application with regard to the percentage can be laid down for all the regions and for all times.
552. … There is no special law of judicial review when the reservations under Article 16(4) are under scrutiny. The judicial review will be available only in the cases of demonstrably perverse identification of the backward classes and in the cases of unreasonable percentage of reservations made for them.”
75. The afore-stated observations by the Hon’ble Supreme Court clearly reveal that there is no special law on the subject of judicial review when a reservation under Article 16 (4) of the Constitution is made and the law giving right of reservation in favour of a particular class is under scrutiny.
76. In the afore-stated circumstances, so as to simplify the concept with regard to judicial scrutiny, we can only say that the scrutiny should depend upon the subject matter of legislation and its impact upon legal or fundamental rights of one class of the society. When, so as to achieve the goal enshrined in the Constitution of helping disadvantaged class, a law is enacted so as to give more rights to such a disadvantaged class at the cost of another class of persons, in our opinion, what is required to be examined by this Court is: whether the purpose for which such an Act was enacted was, in fact, served and whether the conclusions on the basis of which the Act was enacted were correctly arrived at. If the reason for which a particular class was considered a disadvantaged class was not rightly arrived at, the enactment made to favour such a class at the cost of the general community would not be just, proper or valid.
77. In Saurabh Chaudri, the question was as to whether reservation on the basis of residence, was constitutionally permissible. While answering the question, the Hon’ble Supreme Court has observed that reservation on the basis of domicile is impermissible in terms of Article 15 (1) of the Constitution. On the issue of applicability of scrutiny, the Hon'ble Supreme Court observed as follows:
“36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in the Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same. The courts always lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative “on the principle expressed in the maxim: ut res magis valeat quam pereat”. (See CIT v. S. Teja Singh {AIR 1959 SC 352} and Tinsukhia Electric Supply Co. Ltd. v. State of Assam {(1989) 3 SCC 709 = AIR 1990 SC 123}).”
78. However, the Court did not accept the contention urged on behalf of the petitioners for applying the strict scrutiny test and to set aside the statute saying that such a test was not applied in the Indian Courts, but, in any event, such a test may be applied in a case where a legislation is ex facie found to be unreasonable or where by reason of a statute the life and liberty of a citizen is put in jeopardy.
79. Now, we will deal with the observations in Ashoka Kumar Thakur on the applicability of 'strict scrutiny’ doctrine to the Indian context. The Hon’ble the Chief Justice of India, Shri K.G. Balakrishnan, while dealing with the question - whether the principles laid down by the United States Supreme Court for affirmative action such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are applicable to the principles of reservation or other affirmative action contemplated under Article 15 (5) of the Constitution of India? – in paragraph 206, has observed that the Courts, both in India as well as in the United States of America, have looked with ‘extreme caution and care’ at any legislation that aims to discriminate on the basis of race in the United States and on the basis of caste in India and that the American decisions are not strictly applicable to us and when the principles of strict scrutiny and suspect legislation were sought to be applied, the Hon'ble Supreme Court had rejected the same in Saurabh Chaudri. Referring to the observations in the said judgment as to the applicability of strict scrutiny, as noticed above, the Hon’ble Chief Justice observed:
“209. The aforesaid principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by constitutional provisions and we have not applied the principles of “suspect legislation” and we have been following the doctrine that every legislation passed by Parliament is presumed to be constitutionally valid unless otherwise proved. We have repeatedly held that the American decisions are not strictly applicable to us and the very same principles of strict scrutiny and suspect legislation were sought to be applied and this Court rejected the same in Saurabh Chaudri v. Union of India (supra). … … …
210. Learned counsel Shri Sushil Kumar Jain contended that the classification of OBCs was not properly done and it is not clear as to whose benefit the legislation itself is made, therefore, it is a suspect legislation. This contention cannot be accepted. We are of the view that the challenge of Act 5 of 2007 on the ground that it does not stand the “strict scrutiny” test and there was no “compelling State necessity” to enact this legislation cannot be accepted.”
80. Justice Arijit Pasayat, speaking for himself and Justice C.K. Thakker, while answering almost an identical question, has observed in paragraph 251 of the judgment that “… the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of considerable importance when so much debate is taking place about respect being shown by courts of a country to a decision of another country. The factual scenario and the basic issues involved in the cases sometimes throw light on the controversy.” Justice Pasayat elaborately discussed the American and Indian case law on the subject and, in paragraph 268, observed as follows:
“In India there has to be collective commitment for upliftment of those who needed it. In that sense, the question again comes back to the basic issue as to whether the action taken by the Government can be upheld after making judicial scrutiny. Much assistance is not available to the petitioners from the American decisions.”
81. On the extent of judicial scrutiny to be applied, Justice Pasayat, in paragraph 269, observed:
“It is to be noted that the doctrine of separation as is prevalent in the American society is not of much consequence in the Indian scenario. It needs to be clarified that the expression “strict scrutiny” has also been used by the Indian courts in Narendra Kumar v. Union of India (supra) but it appears to have been used in different context. What really appears to be the intention for the use of the expression is “careful and deeper scrutiny” and not in the sense of strict scrutiny of the provisions as is prevalent in the American jurisprudence. It is used in different sense. The application appears to be in technical sense in the American courts, for example, Regents of University of California v. Allan Bakke.”
82. Justice Dalveer Bhandari, while answering the question on strict scrutiny test, has observed in para 623 that “… where others have reviewed similar issues in great detail, it behoves us to learn from their mistakes as well as accomplishments.” It has also been observed that “let the path to our constitutional goals be enlightened by experience, learning, knowledge and wisdom from any quarter”. It has been further observed in para 545 that “… the judgments delivered by US courts on affirmative action have great persuasive value and they may provide broad guidelines as to how we should tackle our prevailing condition. A large number of English laws have been inherited by India and America. English and American cases are frequently cited by our courts. We need to keep our window open and permit the light of knowledge to enter from any source.” Justice Bhandari has also referred to a foreword written by the former President of India, Mr. R. Venkataraman, to a book (Democracy and Rule of Law: Foundation and Frontiers) by the eminent constitutional expert Dr. L.M. Singhvi, which has been extracted at paragraph 623 of the judgment. The foreword of Mr.R. Venkataraman reads as under:
“Society progresses only by exchange of thoughts and ideas. Imagine what a sorry state the world would have been in had not thoughts and ideas spread to all corners of the globe. Throughout history, philosophers, reformers, thinkers, and scholars have recorded their thoughts, regardless of whether they were accepted or not in their times, and thus contributed towards progress of humankind. India was the first to encapsulate this seminal global thought. The Rig Veda says:
Ano bhadrah krtavo yantu viswatah
Let noble thought come to us from every side.”
83. Justice Dalveer Bhandari has, however, answered the question on strict scrutiny, after discussing the American case law on the issue, in the following words:
“640. The principles enunciated by the American Supreme Court, such as, “suspect legislation”, “narrow tailoring”, “strict scrutiny” and “compelling State necessity” are not strictly applicable for challenging the impugned legislation.”
84. In paragraph 556, Justice Dalveer Bhandari has also observed as follows:
“556. As I have observed, American courts carefully review racial classifications. Given that the Ninety-third Amendment on its face discriminates against general category students, we should give it careful scrutiny. The Article 14 right to formal equality deserves as much. If 49.5% caste-based reservation was upheld in Sawhney (1) for government employment, it follows that 49.5% caste-based reservation is permitted in aided educational institutions. While I am compelled by Sawhney (I) to hold that the impugned legislation passes careful scrutiny with respect to reservation in aided institutions, its implementation is contingent upon the directions given in this opinion.”
85. From a reading of the separate observations of K.G. Balakrishnan, CJI, Justice Arijit Pasayat and Justice Dalveer Bhandari, it is clear that though the learned Judges of the Supreme Court have observed that the law on strict scrutiny applied by the U.S. Supreme Court is inapplicable in our country, the judgments delivered by the U.S. Supreme Court on affirmative action have great persuasive value and may offer broad guidelines as to how we should tackle our prevailing condition. They have referred to the cases of the U.S. Supreme Court believing that the factual scenario and the basic issues involved in the cases therein may sometimes throw light on the standard of scrutiny to be applied by the Courts in India. What the Hon'ble Judges have done is, they have referred to Saurabh Chaudri to clarify the applicability of strict scrutiny doctrine in the Indian context in the facts and circumstances of the case in Ashoka Kumar Thakur, which relates to providing reservations under Article 15 (5) to other backward classes (OBCs) in the State-aided institutions and the Constitution Bench declared the said reservations to be valid to the extent that it permitted reservations for SEBCs in the State or State-aided institutions subject to the exclusion of the “creamy layer” from the other backward classes.
86. On a careful consideration of the above judgments, it would emerge that when an affirmative action of the State providing reservations to backward classes was under challenge in the context of Article 14, the Hon'ble Supreme Court had gone into the details of the basis for making the classification and gave its findings. However, it did not prescribe the level of scrutiny to be applied and providing reservation on such affirmative action was tested on the standards of ‘deeper scrutiny’, ‘in-depth scrutiny’ or ‘extreme care and caution’, and in some cases the doctrine of ‘strict scrutiny’ was applied. All the judgments touching upon reservations consistently applied exacting scrutiny or rigorous scrutiny. In Indra Sawhney I, the Hon’ble Supreme Court analysed the Mandal report minutely, which, in our view, exemplifies application of a rigorous and exacting standard of scrutiny.
87. In a recent judgment by the Hon’ble Supreme Court in the case of Subhash Chandra v. Delhi Subordinate Services Selection Board, it has been observed that if it has come to light that those who are entitled to the benefit of the doctrine of protective discrimination contained in Clause (4) of Article 16 of the Constitution of India had been deprived of their constitutional right, and when the affirmative action of the State is challenged, the Courts would be entitled to apply the principle of strict scrutiny test or closer scrutiny test or higher level of scrutiny. Referring to M. Nagaraj, the Court has observed that the doctrine of guided power had been used in the said case as a corollary of strict scrutiny rule. It is a distant relative of continuing mandamus. It has been further observed in Subhash Chandra that “strict scrutiny paves the way for a more searching judicial scrutiny to guard against invidious discriminations, which could have been made by the State against a group of people in violation of the constitutional guarantee of just and equal laws. The court must adopt a weighted balancing approach or in other words pursue an even-handed balancing of the interests.” In the above case, the Hon’ble Supreme Court has widened the scope of the applicability of the doctrine of strict scrutiny by adding the following categories of cases in which it may be applied:
“i) Where a statute or an action is patently unreasonable or arbitrary. [Mithu v. State of Punjab [(1983) 2 SCC 277].
ii) Where a statute is contrary to the constitutional scheme. [E.V. Chinniah].
iii) Where the general presumption as regards the constitutionality of the statute or action cannot be invoked.
iv) Where a statute or executive action causes reverse discrimination.
v) Where a statute has been enacted restricting the rights of a citizen under Article 14 or Article 19 as for example clauses (1) to (6) of Article 19 of the Constitution of India as in those cases, it would be for the State to justify the reasonableness thereof.
vi) Where a statute seeks to take away a person’s life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right.
vii) Where a statute is ‘Expropriatory’ or ‘Confiscatory’ in nature.
viii) Where a statute prima facie seeks to interfere with sovereignty and integrity of India.”
(We have noticed this judgment, which was pronounced after we had reserved judgment in this case, and we refer to it as this is a precedent relevant to this issue.)
88. Analyses of the judgments referred to above illustrate that when affirmative action of the State is challenged as offending the equality injunctions of the Constitution, particularly in the matter of reservations to SCs, STs and BCs, though there is a presumption as to the constitutionality of the statute, the Courts have examined such statutes rigorously, with great care and caution. Therefore, the contention advanced on behalf of the State that the standard of scrutiny actually applied in Archana Reddy does not suit the Indian conditions or is inconsistent with the law laid down in Ashoka Kumar Thakur, has to be rejected.
Burden of proof
89. It has been submitted by the learned Advocate General that Article 14 read with Articles 15 (1) and 16 (1) casts a mandatory duty on the State to remove inequalities and to take social welfare measures like providing reservations to persons belonging to backward classes. It is a constitutionally mandated obligation on the State and looking to the object of the 2007 Act, it cannot be treated as a suspect legislation. Therefore, the burden lies on the petitioners to show that the impugned Act is violative of other constitutional provisions and is liable to be struck down. The burden also lies on the petitioners to establish that a particular group included in the list of backward classes is not backward, socially and educationally.
90. It has also been submitted by the learned Advocate General that in T. Muralidhar Rao, though the High Court interfered with the executive action of the State, insofar as judicial scrutiny is concerned, it has not deviated from the law laid down in Indra Sawhney I. However, Archana Reddy introduced the theory of strict scrutiny and shifted the burden of proof from the petitioners to the State, erroneously.
91. In Ram Krishna Dalmia, the Hon’ble Supreme Court has observed that when the Court is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of equal protection of the laws, the law may be declared constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual has been treated as a class by himself. It has also been observed that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The Court must also presume that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discrimination is based on adequate grounds. In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived to be existing at the time of the legislation. It has also been observed by the Hon’ble Supreme Court that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
92. In Jagadish Saran (Dr.) v. Union of India, where the constitutionality of reservation of seats or quota for local candidates in professional courses was under challenge, the Hon’ble Supreme Court has observed that the burden, when protective discrimination for promotion of equalization is pleaded, is on the party who seeks to justify the ex facie deviation from equality. The case in defence of the deviation from equality must be clearly made out and not merely asserted.
93. In S.R. Bommai, the Hon’ble Supreme Court has observed that when the Proclamation issued by the President of India under Article 356 (1) of the Constitution is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there existed material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government.
94. In M. Nagaraj, the Hon’ble Supreme Court has observed that before making the provision for reservations for persons belonging to the Scheduled Castes and Scheduled Tribes in matters of promotions, the State concerned will have to show in each case the existence of the compelling reasons viz., backwardness, inadequacy of representation and overall administrative efficiency.
95. In E.V. Chinnaiah, the Hon’ble Supreme Court has observed that in providing reservation to disadvantaged classes of people, the burden is on the State to show that such classification is reasonable and it has nexus with the object sought to be achieved.
96. In AIIMS Students’ Union, where 1/3rd quota of seats in post-graduate courses was reserved in favour of institutional candidates, the Hon’ble Supreme Court observed that when protective discrimination for promotion of equalization is pleaded, the burden is on the party who seeks to justify the ex facie deviation from equality.
97. In the recent case of Anuj Garg also, the Hon’ble Supreme Court has observed that the burden of proving that legislation was enacted to achieve the constitutional goal of removing inequalities among different sections of the society, is on the State. It is for the State to show that such legislation does not violate Articles 14 and 15.
98. Thus, a close reading of the propositions laid down by the Hon’ble Supreme Court discloses that presumption is in favour of the constitutionality of an enactment and the burden is on the person attacking its constitutionality, that there has been a clear transgression of the constitutional principles. However, such a presumption of constitutionality of a statute is not available if it can be shown that facially the law or the surrounding circumstances on which the classification is based did not warrant such a classification and the statute made an invidious discrimination among citizens similarly situated. It is also discernible from the above propositions that when a statute is challenged and a prima facie case is made out by the person attacking such statute, the burden shifts to the State to satisfy that there exists some material which justifies the State action of a departure from the basic principle of equality; and as such material would be exclusively within the knowledge and domain of the State, the burden is upon the State to prove the existence of such material. For the reasons recorded hereafter, we are of the view that there was no material with the State to legitimize the classification involved in the impugned Act and as it is violative of Articles 15(1) and 16 (2) of the Constitution, the petitioners have discharged their initial burden and, therefore, the burden shifts to the State to place before the Court sufficient material for sustaining the impugned legislation.
ii) Whether the recommendations of the Commission are sustainable
99. As stated hereinabove, there is no prescribed special standard of scrutiny. To examine the validity of the impugned Act, we must examine whether the conclusion arrived at by the State that the groups of Muslims incorporated in the Schedule appended to the impugned Act are, in fact, SEBCs. It is of vital importance to examine the same because, while giving certain rights to them by providing reservation, the State is proportionately depriving persons of other class of their opportunity to higher education and to employment in public services. Once a reservation is provided to the extent of 4% to the groups of Muslims incorporated in the impugned Act, the persons getting admission in educational institutions or getting employment in public services would be getting the said benefit at the cost of other persons belonging to either the unreserved classes or even persons legitimately belonging to other reserved classes.
100. In our opinion, what is important in the instant cases is to see whether the State had arrived at a correct conclusion by adopting rational methods of ascertaining social and educational backwardness of groups of Muslims.
101. For the afore-stated purpose, the Court has to examine the entire procedure very meticulously for the reason that by virtue of the impugned enactment, rights of several other persons would be impacted and this Court has to protect the rights of other persons unless their rights are lawfully abridged so as to help disadvantaged groups as per the provisions of Articles 15 (4) and 16 (4) of the Constitution. In our opinion, our afore-stated view has been buttressed in principle by the observations made and law laid down by the Hon’ble Supreme Court in Indra Sawhney I.
102. Thus, for the purpose of ascertaining legality of the impugned enactment, we must scrutinise whether the conclusion by the State in relation to the social and educational backwardness of groups of Muslims enumerated in the Schedule appended to the impugned Act is just and proper. We have also to examine whether the methodology adopted by the Commission, on whose recommendation the State has enacted the impugned Act, was just and proper.
103. If the methodology adopted by the Commission for ascertaining whether the afore-stated groups of Muslims were socially and educationally backward, is found to be erroneous, in our opinion, the entire basis on which the impugned Act has been enacted would also be invalid and in that event, rights of other persons belonging to the unreserved classes and other reserved classes would be violated because, in that event, persons belonging to those groups or classes would be deprived of the opportunity of having admissions in certain educational institutions and public employment to the extent to which persons of groups enumerated in the Schedule appended to the impugned Act would get such benefit.
104. Thus, in our opinion, without giving any label to the nature of judicial review, we would examine the legality and validity of the impugned Act, keeping in view the afore-stated principles. If it is ultimately found that by virtue of the impugned Act, some rights given to a section of people are abridged in accordance with the constitutional provisions and that too for upliftment of disadvantaged classes, then the impugned Act would be legal and valid, but the same would not be valid if found otherwise.
Methodology followed by the Commission
105. Pursuant to the judgment of this Court in Archana Reddy, on 17.4.2007, the Backward Classes Welfare Department of the Government of Andhra Pradesh had addressed a letter to the Member Secretary of the Commission referring the matter pertaining to identification of backward classes among Muslims in the State of Andhra Pradesh. The relevant portions of the said letter are as under:
“… in light of the commitment of the Government towards the cause of socially and educational backward classes of the population, including those belonging to the Muslim Community, and taking note of the observations made by the High Court in the said judgment and of the developments since the judgment of the Andhra Pradesh High Court, it is decided to make a reference to the A.P. Commission for Backward Classes under section 9 (1) of the A.P. Commission for Backward Classes Act, 1993 to make a survey / study of the Muslim community in Andhra Pradesh and identify the classes / communities / groups among the Muslim population in the State that can be classified as socially and educationally backward classes of citizens in the light of the judgment of the Hon’ble High Court in W.P.No.13832 of 2005 dated 7-11-2005 and judgment of the Hon’ble supreme Court in the Indra Sawhney case ( AIR 1993 SC 477), so that special measures like reservations be considered for such groups / classes / communities in terms of Article 15 (4), 15 (5), 16(4) and other provisions of the Constitution of India.
The report with clear recommendations of the Commission with data pertaining to such groups / classes / communities to justify the recommendations should be sent to the Government as early as possible.”
106. In the afore-stated letter, the Government had requested the Commission to conduct a survey/study of the entire Muslim community of Andhra Pradesh and identify the classes/ communities/groups among the Muslim population in the State that can be classified as socially and educationally backward so that special measures like providing reservation can be considered for such groups in terms of Articles 15 (4), 15 (5) and 16 (4) among other provisions of the Constitution. The contents of the letter also disclose that the above exercise had to be done by the Commission purportedly keeping in view the judgment of this Court in W.P.No.13832 of 2005 dated 7-11-2005 (reported as B. Archana Reddy v. State of A.P.) and the judgment of the Hon’ble supreme Court in Indra Sawhney I.
107. The 2007 Act was enacted as an earlier attempt of the respondent State had failed when the afore-stated writ petition challenging Ordinance No.13 of 2005 and the consequent A.P. Reservation of Seats in the Educational Institutions and of Appointments/Posts in the Public Services under the State to Muslim Community Act, 2005, was allowed. In this context, we refer to the relevant portions of the summary of conclusions of the Hon'ble Supreme Court in Indra Sahwney I at para 859, which were relied upon and followed by this Court in Archana Reddy on the question of the procedure or method for identification of Backward Classes. The same read as under:
“859. … … …
3 (b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does — what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming minority of the country’s population, one can well begin with it and then go to other groups, sections and classes. (Paras 780 and 785).
(c) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Paras 786-789)
(d) ‘Creamy layer’ can be, and must be excluded. (Paras 790-793)
(e) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 794 and 797)
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 798)
(4) (a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. (Para 799)
(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised (Para 800).
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories (Paras 801 to 803).
(6) (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to end characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. (Paras 804 to 813)
(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 814)
(8) While the rule of reservation cannot be called anti-meritarian; there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 832 to 841)
(9) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). (Para 842)
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism — in the nature of a Commission — for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of OBCs and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. (Para 847)
(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of five Judges. (Paras 848 to 850)”
108. In Archana Reddy, this Court had declared Ordinance No.13 of 2005 and the consequent A.P. Reservation of Seats in the Educational Institutions and of Appointments/Posts in the Public Services under the State to Muslim Community Act, 2005 as unconstitutional on the ground that the Ordinance and the 2005 Act were violative of Articles 15 (4) and 16 (4) of the Constitution. This Court held therein that the conclusions arrived at by the Commission for suggesting the Backward Classes were based on identification and application of irrelevant criteria to a grossly inadequate data collected by the Commission. It was further held that since declaration of 5% reservation for the entire Muslim community in educational institutions and public services was based on religion and the total reservation to the backward classes, including 5% reservation to Muslims, was exceeding 50% ceiling limit, the impugned Ordinance and the Act were not sustainable and were liable to be set aside. The relevant portion from the summary of conclusions in the above judgment reads as under:
“… … …
377. … When a legislation or executive action providing reservations is challenged before the Constitutional Court, primary scrutiny should be searching and strict scrutiny. Primary review is mainly concerned with the legislative competency of the legislation enacting the impugned law and question whether such legislation or executive action violating the fundamental rights under Article 14, 15 and 16 of Constitution of India. During such primary review, so as to satisfy the strict scrutiny test, it is for the State to demonstrate before the Court that the conditions precedent for exercising the power under Article 15(4) and 16(4) exist. The burden entirely lies on the State to prove and justify the legislation when such legislation prima facie is suspect of being unconstitutional. However, when the secondary review is taken up to examine the question of irrationality and arbitrariness in the provisions of the impugned legislation or executive action, the Court need to apply intermediate or deferential scrutiny by applying Wednesbury principle.
378. ... While determining social backwardness of a class of citizens, an expert body like B.C.Commission has to necessarily evolve absolutely relevant criteria for the purpose of caste test, occupation test and means test. Wherever social backwardness is due to a class of people being born in a homogenous endogamous group called caste with common traits and rigid customs and social rules, the caste test itself lead to an inference that the class/caste is socially backward. If the occupation of majority of a class of citizens is considered inferior and unremunerative, and such class of people is considered lowly placed in the society, it would ordinarily satisfy the test of social backwardness. The means test presupposes that by reason of birth in a class of people, historically and traditionally the entire class suffers from perennial poverty, in which case, the means test would enable the determination of social backwardness. The B.C. Commission did not evolve any criteria for identifying social backwardness and did not apply the three tests in a scientific and objective manner.
379. … the B.C. Commission at the stage of collecting preliminary data, evolving criteria and conducting public hearings for the purpose of hearing objections from the public, did not take such steps which can be called transparent and fair. Though, the nature of enquiry by B.C.Commission cannot be strictly treated as quasi-judicial, but still while undertaking an exercise for identification of backward class of citizens, the Commission is legally bound to be fair and transparent and afford all such opportunity to objectors and proponents for effective representation before the Commission. The prior non-publication of criteria and data collected by the B.C.Commission renders the report of the B.C.Commission illegal being contrary to provisions of B.C.Commission Act and principles of fairness.
380. ... The sample collected by the B.C.Commission is not representative of the population both with reference to general population and Muslim population. The sampling design is defective and imperfect. The analysis of the data by the B.C. Commission is faulty for more than one reason. So to say, the collection of the data, the analysis of the data and the conclusions drawn from the data are not scientific and B.C. Commission totally failed in considering the reference made to it in an objective manner after taking into consideration the entire population, as mandated by the nine-Judge Bench of the Supreme Court in Indra Sawhney-I.
381. ...The B.C. Commission laid over-emphasis on educational backwardness and economic backwardness of Muslim community in coming to the conclusion that Muslims are socially backward. This is contrary to the law laid down by the Supreme Court in Balaji, Jayasree, Vasanth Kumar and Indra Sawhney-I, to the effect that mere poverty, economic backwardness and educational backwardness are not indicative of social backwardness which is unignorable conditionality for operating Article 16(4) of the Constitution of India. To be branded as a socially backward, apart from poverty, economic backwardness and educational backwardness, there should be something more in a class of citizens for qualifying for the benefit of reservation. The B.C.Commission totally ignored this aspect of the matter and therefore its report cannot stand the scrutiny of this Court. The B.C.Commission and the impugned Ordinance which is entirely based on it is unconstitutional and ultra vires Articles 15(4) and 16(4) of the Constitution of India.
382. ... The impugned Ordinance is religion specific aimed at providing five per cent reservation to Muslim community. The preamble, the long title and Sections 3, 4 and 5 of the impugned Ordinance abundantly make it clear that it is a legislation intended to benefit a class of people who belong to Muslim community. Such legislation is violative of Article 15(1) and 16 (2) of Constitution of India and therefore void.
383. … The action of the State in making a single point reference to B.C. Commission, though number of claims for inclusion in the list of backward classes by other communities are pending, does not in any manner violate Article 14 of Constitution of India.
… … …”
109. While allowing the writ petitions, Archana Reddy had given the following directives in paragraphs 114, 293, 378 and 379, which read as under:
“1) There must be a causal nexus between the Islamic faith aggregate and the pursuit of certain professions, trades or humble economic circumstances. (para 114)
2) The very purpose of issuing notification inviting objections and conducting public hearings, would be defeated if the criteria is not decided prior to undertaking the collection of data and putting the objectors on notice. (para 293)
3) While determining the social backwardness of a class of citizens, an expert body like B.C. Commission has to necessarily evolve absolutely relevant criteria for the purpose of caste test, occupation test and means test. (para 378)
4) While undertaking an exercise for identification of backward class of citizens, the Commission is legally bound to be fair and transparent and afford all such opportunity to objectors and proponents for effective representation before the Commission. (para 379)”
110. At this stage, we cannot ignore that the law laid down by this Court in Archana Reddy still holds the field, though its validity has been questioned before the Hon’ble Supreme Court in Civil Appeal No.7513 of 2005. In the said Civil Appeal, the Hon’ble Supreme Court, by its order dated 04.1.2006, while directing maintenance of status quo with regard to admissions into educational institutions, has observed:
“Having heard the learned counsel and having perused the constitutional provisions and the Report as also the impugned judgment, we are not inclined to stay the operation of the impugned judgment and make operational a law which has been invalidated by the High Court, as an interim measure. In view of the above, there will be a limited stay, above indicated.”
111. It is also pertinent to mention that the observations made by this Court in Archana Reddy are in conformity with the guiding principles laid down by the Constitution Bench in Indra
Sawhney I. The learned advocates appearing for the parties concede the position that the Commission was bound by the methodology suggested in the afore-stated two judgments while collecting data for determining whether a particular group can be considered as backward for the purpose of recommending affirmative action by the State.
112. As per the procedure suggested in Indra Sawhney I and this Court in Archana Reddy, the Commission --
1) must notify the proposed criteria, invite objections and suggestions to the said criteria and conduct public hearings by putting the objectors to notice. Based on the responses, it must formulate rational, scientific and objective criteria for determining the caste test, occupation test and the means test;
2) can adopt any method/procedure for identification of social and educational backwardness of a particular class/group, but it has to conduct a field survey covering the population of a particular class of citizens, record oral and documentary evidence, apply the criteria evolved earlier to the data collected and find out whether the data of that particular class satisfies the criteria so evolved for declaring them as socially and educationally backward;
3) has to investigate whether the said backward classes are inadequately represented in the services of the State and if not, should give its report recommending for inclusion of such classes into the list of backward classes.
113. Now, we have to see whether the Commission had followed the afore-stated principles and methodology while drawing up its report and recommending the specified Muslim groups as being socially and educationally backward and for their inclusion in the list of Backward Classes.
114. It has been submitted by the petitioners that, when in the year 1994, the Government had requested the Commission to undertake revision of the socio-economic position of all castes in the State and the matter was pending, the Government of Andhra Pradesh ought to have waited till the report was given by the Commission, or ought to have requested the Commission to expedite the revision and submit its report. It has been further submitted that the State Government had hastily taken up the issue of providing reservation to Muslims alone when the claims of 112 other castes/groups were pending before the Commission. It has been further submitted by the petitioners that -
1) The Commission had failed to i) evolve and notify any criteria, ii) conduct a survey to ascertain the comparative backwardness among Muslims and/or others; iii) identify the social and educational backwardness; iv) furnish necessary material to the objectors prior to public hearing; v) produce any material in support of ‘inadequate representation’ as required under Article 16 (4) of the Constitution; and vi) evaluate the reports of Anantaraman, Mandal, Muralidhar Rao and National Commission for Backward Classes (NCBC);
2) When the Commission itself was in existence, the very appointment of Mr. P.S. Krishnan for identification of backwardness among Muslims was ultra vires the 1993 Act and Article 162 of the Constitution;
3) Mr.P.S. Krishnan had relied on the articles written by different authors and published in People of India Series compiled by the Anthropological Survey of India (AnSI);
4) Dependence by the Commission on Mr. Krishnan's report was illegal and in contravention of the directions of the Supreme Court in Indra Sawhney I and of the High Court in Archana Reddy as the exercise of classification by Mr.Krishnan was wholly irrelevant to Articles 15 (4), 16 (4);
5) The share of Muslims in public employment was 9.09% at the relevant time and that was commensurate with their population percentage in the State. The sample size collected by the Commission was not in proportion to the Muslim population. Reservations provided to the backward classes under the four categories 'A', 'B', 'C' and 'D' were based on the population, whereas category 'E' had been included by virtue of the 2007 Act;
6) Though this Court, in B. Archana Reddy, has observed that to tide over all the infirmities, there should be an increase in the sample size, and the Commission had also expressed its view that sample size of not less than 2% was necessary for a fair result, the samples collected by it were not even 1/38th of the standard sample size;
7) The Commission did not declare on what basis it had determined social backwardness. It did not define even conceptually the terms “educational backwardness”, “social backwardness” and “inadequate representation in the services under the State”'. It also did not explain the total educational deficiency among the Muslim groups. The data of 2001 Census does not support the conclusion of the Commission that Muslims are socially and educationally backward;
8) The recommendations of the Commission were deficient because it had failed to gather and compute the data of individual population of each of the 32 Muslim groups so as to declare that they were inadequately represented, and enclose the same with the report. The Commission had assumed on the basis of illusory data that Muslims were under-represented;
9) Though the process of collection of data, compilation of the survey material and discussion on the collected material was completed by 29.6.2007 (27.6.2007, as stated in the report), the Commission had submitted its report on 02.7.2007, which is about 206 pages, within a span of two days after analyzing the data collected by it, which legitimizes an inference as to inadequate application of mind to a solemn exercise.
115. On the other hand, it has been submitted on behalf of the State and the other respondents that --
1) Even prior to the 2007 Act, all the Scheduled Caste converts were placed under one group viz., Group 'C' and simply because the 14 identified groups belonging to Muslim community were included in the list under a separate Group 'E', the impugned Act cannot be termed as religion specific. If the newly identified groups were included in the already existing groups, they could not have competed with the other backward classes and, therefore, they were shown in a separate group;
2) i) The process of reviewing the existing backward classes in the list under Section 11 of the 1993 Act is different from the process of identifying the backward classes under Section 9 (1) and the Act does not prohibit inclusion of new groups or classes in the list, pending the revision. There was nothing wrong if the Commission looked into some of the claims out of 112 claims, which included even the claims made by the persons belonging to unreserved classes like Brahmin, Vaishya, Velama etc.; ii) the claimants whose cases were pending consideration before the Commission had not approached this Court, and the petitioners, who are not concerned with the claimants, could not plead or advocate the case of those claimants;
3) i) There cannot be a uniform procedure/criteria for identification of backward classes; ii) the body entrusted to identify the backward classes can adopt such approach and procedure, as it deems appropriate, but such approach should be rational; iii) Neither in Indra Sawhney I nor in any other case has the Hon'ble Supreme Court has ruled that the criteria evolved or adopted by the Commission needs to be published. The 1993 Act also would not obligate the Commission to publish the criteria evolved by the Commission; iv) it is not open to the Courts to scrutinise the criteria evolved by the Commission in minute detail; v) in the cases on hand, the Commission was only asked to identify SEBC Muslims keeping in view the judgments delivered in Indra Sawhney I and Archana Reddy, whereas the previous Commissions viz., Anantaraman, Muralidhar Rao and Mandal were asked to lay down the criteria. Even otherwise, the previous Commissions had published the criteria after the entire exercise was completed i.e. after hearing all the objections and while preparing the report, but not before preparing their reports; vi) the petitioners had not challenged the reference letter dated 19.7.2005 in the writ petitions;
4) There was no prohibition on the State Government either under the Constitution or under any statute to entrust the work relating to collection of necessary material through an expert like Mr.P.S. Krishnan, for fulfilling its constitutional obligation. The Commission’s function would be only to submit its report for making recommendations or giving advice to the State Government and it would be for the State to take appropriate final decision. Mr. Krishnan's appointment for the purpose of gathering information on the issue, while simultaneously referring the matter to the Commission on the subject, was well within the powers of the State Government;
5) i) Under Section 9 (1) of the 1993 Act, “examine” and “hear” are two different expressions used for two distinct functions referred to therein and, therefore, when the Commission performs the function of “examining” the requests for inclusion of any class of citizens as backward class in the list, the question of “hearing” the petitioners does not arise. ii) A decision, which has no adjudicatory character, cannot comprise the subject of judicial scrutiny;
6) Mr. Krishnan's function was to discover the occupational and other social groups of Muslims, having regard to their historical and sociological background coupled with their contemporary positions and Mr. Krishnan had studied the subject scrupulously and carefully by relying on various sources, and only after collecting and suitably analyzing the data in a proper manner and after considering the same from various angles, he had submitted his well considered report after thorough application of mind. AnSI report was based on anthropological study, dealing with social strata of various groups, but not in the context of Articles 15 and 16. Mr.Krishnan had relied on AnSI report only for identifying the existence of distinct homogenous groups in the Muslim community;
7) There was nothing wrong if the Commission used the sound material like Mr.Krishnan's report. It had not only relied on Mr.Krishnan's report, but had also followed the ‘fast track’ and ‘rough and ready criteria’ adopted by the National Commission for Backward Classes (NCBC), besides following the criteria evolved by the Mandal Commission for identifying Backward Classes among non-Hindu communities. The Commission had also conducted an independent enquiry/survey, as it deemed necessary. The findings of the Commission on the backwardness of “Atchukattlavandlu” and “Turaka Kasha” were solely based on is own efforts and Mr.Krishnan’s report had no role in the said conclusion;
8) i) Though the percentage of employment of Muslim community in the State Public employment was 9.262%, which was more than their population proportion of 9.17%, their employment had mainly concentrated in Class III and IV posts. The percentage of SEBCs among Muslims in public employment was much less in Class III and IV posts and it was negligible in higher posts. ii) The public employment obtained through reservation cannot be counted to compute and assess adequate representation in the services under the State; iii) it has to be seen whether a particular group is adequately represented in higher cadres of public employment and merely because some groups occupy places in public employment in the lower rung, the same cannot be treated as adequate representation in public employment in its true spirit and sense;
9) The survey conducted by the Commission was to ascertain contra-evidence, if any. The Commission had conducted the survey by making inquiries from more number of persons than surveyed by the earlier Commissions. Adequacy or inadequacy of the sample or survey cannot be gone into by this Court and sufficiency of material gathered by a fact finding body would not fall within the ambit of judicial scrutiny;
10) i) Though the Commission was aware of the total population of Muslims, the details of population with regard to the individual communities were not available and unless the Commission had the figures of the population of the individual groups, it was not possible for the Commission to fix the size of the sample to be studied for collection of data of particular communities. ii) Absence of caste-wise or group-wise census was no bar for identification of SEBC Muslims and the survey that had been conducted by the Commission was to cross-check whether a particular community existed elsewhere in the State or not;
11) The petitioners had neither pleaded that the identified groups were not socially and educationally backward nor had questioned the action of the Commission in identifying the backwardness of the identified groups on the basis of their traditional occupation. There was no plea, in any of the writ petitions, that in Andhra Pradesh, the 14 identified groups were not in existence and no contra-material had been placed by them to show that the identified groups were socially and educationally advanced.
116. In view of the above competing submissions, firstly, we may notice the functions of the Commission, which are enumerated in Section 9 of the 1993 Act, which read as under:
“9. The functions of the Commission are:
1) to examine requests for inclusion of any class of citizens as backward classes in the list and hear complaints of over inclusion or under inclusion of any backward class in such list and tender such advise to the Govt. as it deems appropriate,
2) to make recommendations on any other matter relating to the backward classes that may be referred to it by the Govt. from time to time,
3) to make an interim report in regard to any castes or classes in whose case urgent action, necessary under the Act in the opinion of the Govt.,
4) to enquire into specific complaints with regard to the non-observance of the rule of reservation in the admissions into educational institutions and also reservation of appointments to posts/services under the Govt. and other local authorities or other authority in the State.
117. A reading of the provisions of Section 9 shows that besides other functions, the Commission has to examine the requests for inclusion of any class of citizens, hear complaints of over-inclusion or under-inclusion and make recommendations on any other matter to the Government relating to backward classes.
What the Commission did
118. In terms of the reference made by the Government vide letter dated 17.4.2007, the Commission had conducted a survey and submitted the report to the State Government, which is placed on record of the writ petitions. A detailed perusal of the report discloses that the Commission had sub-divided its report into six chapters viz., 1) introduction, 2) constitutional provisions, 3) methodology followed by the Commission, 4) statistics regarding Muslim communities in A.P., 5) social groups, survey and analysis and 6) recommendations. It can be seen from Chapter III of the report that the Commission had issued a public notification on 26.4.2007 inviting representations, suggestions and objections on the inclusion of certain communities/groups/classes among Muslims in the list of backward classes. In this notification, the Commission mentioned that though previously some of the Muslim groups viz., 1) Fakeer (Darvesh), 2) Pakeerla (Bonthala), 3) Labbi/Labbai, 4) Qureshi (Muslim Butcher), 5) Muslim Rajakas, 6) Thuraka Kasha and 7) Achukatlavandlu (Muslim) had already made representations for their inclusion into the list of backward classes, keeping in view the terms of the reference, it had decided to call for the representations/ suggestions/objections in the matter of inclusion of all classes/communities/groups among the Muslim community from all interested persons. The Commission had accordingly conducted the first round of public hearings on 14.5.2007, 15.5.2007, 16.5.2007, 22.5.2007, 28.5.2007 and 01.6.2007; and had received several representations from the individuals and associations – some in favour of inclusion of the Muslim community as a whole and some for inclusion of certain occupational groups among Muslim community in the list of backward classes. In all, the Commission was requested to include 37 Muslim groups into the list of backward classes. It can also be seen from Chapter III that the Commission had also received objections from five individuals/associations for inclusion of Muslims in the list of backward classes. Shri K. Kondal Rao, Advocate, Hyderabad (the petitioner in Writ Petition No.25282 of 2007 and a party-in-person), is one of the objectors before the Commission.
119. Upon perusal of Chapter III, it is found that Mr. P.S. Krishnan, a retired IAS Officer had been appointed as Advisor to the Department of Backward Classes Welfare for identifying SEBCs among Muslim communities in Andhra Pradesh. Mr.Krishnan had submitted his report and the said report had been forwarded by the Principal Secretary to the Government, Backward Classes Welfare Department, to the Commission on 11.6.2007. The said report was put on website on 12.6.2007 by the Commission for information to the public at large and for the purpose of inviting views, suggestions, and objections from the public. The Commission had also fixed a Schedule whereby objections and views of people were to be received and public hearing on the subject was to take place. Hearing was given to the public at large on the afore-stated subject by the Commission from 23rd to 26th June, 2007.
120. It is also borne out from Chapter III that the Commission, apart from the report of Mr.P.S. Krishnan, had referred to the reports of Justice Ranganath Mishra, Justice Rajindar Sachar and had concluded that the approach adopted by Mr.P.S.Krishnan was realistic, valid and legally sustainable. The Commission had also deputed a survey team headed by the Deputy Director (Statistics) to conduct door-to-door survey so as to gather the relevant data. The survey team had formulated a questionnaire for identification of socially and educationally backward classes in the Muslim community, namely: a) social status, b) occupation, c) aspects of discrimination with regard to profession, occupation, social situation, d) economic status, e) details of ownership of movable and immovable property etc. f) status of indebtedness, g) access to amenities like telephone, personal transport, h) details of residence and whether living in a slum, i) literacy and level of education completed and j) details of employment, if any, in public services. The Commission had apparently deliberated on the survey data and the analysis thereof is set out in Chapter V of its report.
121. It can also be seen from Chapter III of the report that the Commission had referred to the guidelines adopted by the National Commission for Backward Classes for consideration of requests for inclusion and complaints of under-inclusion in the Central List of other Backward Classes, especially the guidelines for those questions which pertain to “fast track” and the two criteria of Mandal Commission for identification of socially and educationally backward classes in Non-Hindu Communities.
122. Chapter-IV of the Commission's report deals with the statistics of Muslim communities in Andhra Pradesh. In this chapter, the Commission has referred to the list of Muslim communities and other minorities, who were declared as other backward classes at the all India level. The Commission had gathered this list from the National Backward Classes Commission in 2006. The Commission had incorporated the details of percentage of Muslims selected in various entrance examinations and in various recruitments and observed that the low figures shown in the tables included Muslim BC groups for whom there was reservation and the other Muslim groups, who were not socially backward. It is also mentioned in this Chapter that the figures collected by the Commission in 2001 would show that out of the 9,48,980 employees working in 27 departments, 77,919 were Muslim employees, other than those of the reserved category. There were also 587 Mehtar and 9389 Dudekula Muslims, who belonged to the reserved category. The Commission expressed its inability to segregate the Muslim employees group-wise. The Commission categorically admits that it could not obtain the relevant figures for some of the groups of Muslims, who were under its consideration.
123. A mention is also made in Chapter IV of the report that the Chairman of the Commission had addressed a letter to the Chief Secretary to the Government on 05.5.2007 to direct all the Heads of Departments to furnish the particulars of persons belonging to groups/classes among Muslim community and on 08.5.2007 the Government had asked all the Secretaries to furnish the particulars to the Commission. In that letter, the Commission had sought information in respect of only seven social groups among Muslims viz., 1) Fakeer (Darvesh), 2) Pakeerulu (Bonthala), 3) Labbi/Labbai, 4) Qureshi (Butcher), 5) Muslim Rajakas, 6) Turaka Kasha and 7) Achukatlavandlu and had received information in respect of these seven social groups. The Commission clearly records that it could not collect any information with regard to the other social groups of Muslims, since their cases had come up before it at a subsequent date i.e. after 05.5.2007.
124. The Commission had forwarded its recommendations for inclusion of several classes of Muslims in the list of backward classes without information and data. The Commission did not explain the urgent need for recommending the other so-called social groups of Muslims viz., 1) Guddi Eluguvallu, 2) Siddi, 3) Garadi, 4) Attar Saibulu, 5) Gosangi Muslim, 6) Shaik/ Sheik, 7) Hajam/Nai and 8) Shia Imami Ismaili/Khoja, 9) Arab 10) Bohara, 11) Syed/Saiyed/ Sayyad/Mushaik, 12) Mughal/Moghal, 13) Pathan, 14) Navayat,
15) Irani, 16) Kutchi Memon, 17) Jamayat, for their inclusion in the list of backward classes without making even minimal effort for gathering information and data regarding these groups.
125. The Commission dealt with the survey and analysis of the community status among Muslims in Chapter V of its report. At the commencement of this Chapter, the Commission has stated that the survey details of social groups of Muslims are based on the description of each social group by the Anthropological Survey of India in its book “People of India”. In this Chapter, the Commission has referred to the identity, synonyms, geographical location, special dress, background, social status, educational status, employment status, economic status of 1) Faqir/Fhakir Budbudki, 2) Borewale, 3) Labbai/Labbi, 4) Qureshi/Kureshi/Khureshi, 5) Dhobi Muslim/ Muslim Dhobi/Dhobi Musalman, 6) Chakketakare, 7) Achukatlavandlu (Muslims), 8) Guddi Eluguvallu, 9) Siddi, 10) Garadi/Garadi Muslim, 11) Attar Saibulu, 12) Gosangi Muslim, 13) Shaik/Sheikh, 14) Hajam/Nai/Navid, and to the recommendations made by Mr. P.S.Krishnan in his report and then has recorded its recommendations that since the above groups belonged to the lower strata and that they were socially and educationally backward, they deserved to be included in the list of backward classes. The Commission has also considered other groups of Muslims viz., 1) Shia Imami Ismaili/Khoja, 2) Arab, 3) Bohara, 4) Syed/Saiyed/ Sayyad/Mushaik, 5) Mughal/Moghal, 6) Pathan, 7) Navayat, 8) Irani, 9) Kutchi Memon and 10) Jamayath and observed that these communities enjoyed a high social status and were not socially backward and, therefore, were ineligible for inclusion in the list of backward classes.
126. Chapter VI of the report of the Commission deals with its recommendations. In this Chapter, the Commission has observed that the Ahle Hadeeth, Ahle Sunnath Wal Jamat,Mahadavis, Sunni, Shia, Tableegi, Wahabi, who had made requests for inclusion in the backward classes list, were all religious denominations or sects and not social groups and, therefore, it advised the government that their requests be rejected. The Commission has, however, recommended for inclusion of other Muslim groups, excluding 1) Syed/ Saiyed/Sayyad/Mushaik, 2) Mughal/Moghal, 3) Pathans, 4) Irani,
5) Arab, 6) Bohara, Bohra, 7) Shia Imami Ismaili, Khoja, 8) Cutchi-Memon, 9) Jamayat and 10) Navayat and all the synonyms and sub-groups of the above excluded groups and except those who have been already included in the State list of backward classes. The reason given for inclusion of “other Muslim groups” is given as under:
“V (c). Commission also considered item 14 of the recommendation of the Advisor Shri P.S. Krishnan. It notes that this principle of excluding the socially advanced classes of Muslims has been in practice in the Central OBC lists for Kerala and Karnataka. This exclusion ensures that only the socially and educationally backward come into the BC list and should give confidence about the correctness of the inclusions. Further, it is also a fact that there may be communities or groups that are so remote and lacking in awareness that they have not moved for inclusion, and the State and its institutions and also academic scholars have not been able to reach out to them. Such groups will also be automatically covered under this item. They will then not have to lose time making requests and waiting for the Commission's enquiry and advice and Government's orders which is a time consuming process. One more important factor in favour of this item is that, in the various hearings and reports in the newspapers many Muslim groups have expressed the feeling that the Muslim community has evolved over time, that many of them have left their traditional occupations and moved over to the towns and cities and have left behind their ancient moorings, that many of them are not well to do and that there may be some segments of the Muslim population who would not like to be associated with the old professions which are considered as socially inferior or due to the basic egalitarian principle of Islam. Such groups would be covered under “Other Muslims”. The Commission also feels that this clause cannot be misused as all identified socially non-backward groups are proposed to be excluded as proposed in Chapter V (15) and further as the creamy layer is proposed to be excluded. Hence, the Commission agrees with this recommendation of Sri P.S. Krishnan and recommends inclusion as item (15) ...”
127. Now, we may briefly peruse the reports of the Anantaraman and Mandal Commissions with regard to the procedure/criteria followed by them, not for comparison, but to have an idea as to the methodology adopted by those Commissions for identifying the social and educational backwardness. We are referring to the reports of these Commissions because Anantaraman Commission was the first Commission appointed by the State of Andhra Pradesh, whose report has been upheld by the Supreme Court in Balaram. As regards the report of the Mandal Commission, the Commission was constituted for identifying the backward classes throughout the country, and the Hon’ble Supreme Court in Indra Sawhney I has observed that the Commission had made its recommendations on the basis of massive statistics collected by it and accordingly upheld its report holding that the recommendations made therein were supportive of affirmative action programmes.
128. A study of the Anantaraman Commission report discloses that it had provided opportunity to all individuals, associations and organisations to express their views and had issued a questionnaire suggesting criteria so as to give a chance to the people to show under which criteria they can be regarded as backward. In pursuance of this effort, the said Commission had received many replies and memoranda expressing divergent views and some suggestions to determine social and educational backwardness. In that process, the Anantaraman Commission had also noticed the criteria followed by the other State Governments and the Backward Classes Commission appointed by the Government of India. After examining various suggestions and views and the criteria followed by the other State Governments, the Anantaraman Commission had spelt out various tests for determining social backwardness. Therefore, it becomes clear that the said Commission had followed a rational and scientific method for laying down the criteria for identifying social and educational backwardness.
129. In its report, the Mandal Commission observed that the objective tests and criteria for proper classification of socially and educationally backward classes had to be laid down because the recommendations of the first Backward Classes Commission (Kaka Kalelker Commission) were rejected on that score. The Mandal Commission had employed great care to collect facts and figures relevant for the purpose. It had issued three different questionnaires to the State Governments, to Central Ministries/Departments and to the General Public, voluntary organisations, etc. The information collected in response to these questionnaires was systematically compiled and analysed and then it had evolved criteria on the basis of field investigations and other independent evidence. Even in respect of fixation of the sample size, the Mandal Commission had obtained the views of the experts’ panel and the technical advisory committee and on the basis of the advice, it was decided that 100% coverage of two villages and one urban block in each district of the country would be adequate as 1% sample of the country's population might be too large. The Commission, after having wide ranging discussions, evolved eleven indicators or criteria for determining social and educational backwardness. These indicators were grouped under three broad heads viz., social, educational and economic and separate weightage points were given to them.
130. The present Commission had neither evolved any criteria nor published the same before inviting objections except stating that it had followed the two criteria evolved by the Mandal Commission for identification of SEBCs among non-Hindu communities. The Commission had also not finalized the criteria after hearing the objectors. What the Commission had done is that it had issued a public notification inviting representations, suggestions and objections on the inclusion of only seven Muslim groups viz., 1) Fakeer, 2) Pakeerla, 3) Labbi/Labbai, 4) Qureshi, 5) Muslim Rajakas, 6) Turka Kasha and 7) Achukatlavandlu. It did not notify the criteria and the factors which it intended to consider or apply before proceeding further in identifying social and educational backwardness of the above Muslim groups. This procedural error committed by the Commission is fatal to its report and its consequent recommendations.
131. Another important aspect is with regard to obtaining relevant data to ascertain whether the groups of Muslims, who have been included in Group ‘E’ were, in fact, socially and educationally backward. In order to ascertain whether the members of a particular group are socially and educationally backward for giving them the benefit of reservation, the Commission was required to collect the relevant data and upon analysis of the data regarding social status, education, income etc. of persons belonging to that group with that of the others, it ought to have considered whether persons belonging to the particular group are socially and educationally backward or socially backward and under-represented in public employment, as the case may be.
132. For the afore-stated purpose, necessary survey should have been conducted by the Commission either by means of collecting data with regard to the entire population or by adopting a scientific sampling method. Perhaps, to collect data with regard to the entire population is difficult and in such cases, data may be collected on scientific basis by adopting any of the standard and well established methods of sampling. For determining the size of the sample, first of all the size of the population must be ascertained. Upon knowing the population size, the concerned person or the Commission should have decided the size of the sample and the locations from where the sample was to be collected for gathering the relevant data.
133. It is deplorable that in the instant case, the Commission was not aware about the total population of the persons belonging to the groups of Muslims, who have been included in Group ‘E’. It is an admitted fact that the Commission was not having details about total population of the groups, which have been included in Group ‘E’. In our considered opinion, it is necessary to know the total population because, for the purpose of determining the size of the sample, it is necessary to know the total population. In Indra Sawhney I, on the basis of the report submitted by the Mandal Commission, it has been observed that the sample size of 1% of the country's population comprising 65 lakh persons may be too large, especially in view of the limited time available to it. Unless one knows the total size of the population, it cannot be decided as to how big or small the sample size should be.
134. In the absence of any idea with regard to the population of persons belonging to each of the groups included in Group ‘E’, we fail to understand how the Commission could have decided upon the sample size. In fact, the sample size had not been determined by the Commission. Therefore, the procedure of collecting data by sampling was perverse.
135. It is also important to consider whether the authority collecting the data is collecting the data by itself or is relying upon the data collected by somebody else, which is popularly known as secondary data.
136. In the instant case, the Commission has relied upon the secondary data because, it has relied upon the data collected by the AnSI and Mr.Krishnan. While relying upon the secondary data, it is very important to know the purpose for which someone else had collected the data. If the purpose for which another person/agency had collected the data and the purpose for which the data is being used by the Commission are unconnected, the final conclusion arrived at by the Commission on the basis of such secondary data would be incorrect. The data collected by the AnSI was clearly not for the purpose of determining whether the persons in respect of whom the data was collected were socially and educationally backward classes. We have already referred to hereinabove the purpose for which the AnSI had collected the data. Looking to the variance of the purpose for which the data was collected by the AnSI and the purpose for which the Commission had used the same, in our opinion, the conclusions by the Commission on the basis of the said data cannot be sustained and it would not be legitimate for the State to formulate a reservation policy on the basis of such irrelevant recommendations by the Commission.
137. A perusal of the report of the Commission, particularly in relation to the methodology of the survey conducted by it, shows that the Commission had deputed a survey team to conduct door-to-door survey in the field, but, in fact, there is nothing to show that an appropriate sample size/percentage was determined and the sample of the population scientifically studied. It has been submitted across the Bar that the survey was conducted to cross-check whether the data already collected was correct and the so-called fast-track method was adopted to collect/cross check the data. It is true that the Commission can adopt any methodology suited for the purpose, but it should commensurate with the standard methods of sampling, as discussed above. To us, it appears that the fast-track approach adopted by the Commission was nothing but a non-scientific method of sampling, which is otherwise known as “opportunity sampling” or “non-probability sampling”. In other words, such sample would be drawn from that part of the population which is close to hand. As the nomenclature itself indicates, the readily available and convenient sample drawn cannot provide a reasonably correct idea about the total population, because that sample would not be representative. Therefore, if the sample is not representative of the population, it cannot be made the basis for coming to a conclusion.
138. The above conclusion of ours may be tested with the report of the Commission in comparison with the report of AnSI, which was followed by Mr.Krishnan and the Commission in extenso.
139. In its report, the Commission has stated that according to People of India Series, 'Atchukatlavandlu (Muslims)' are predominantly living in Kadapa District and they are distributed in small number in Srikakulam, Vizinagaram and East Godavari districts, and perhaps for the said reason the Commission had conducted survey in June 2007 in Kadapa and Adilabad Districts. But, a perusal of the report of AnSI shows that there is no discussion about this Muslim community, though there is a discussion about their Hindu counterpart. Perhaps, the traditional occupation of this community is similar to its counterpart in Hindus, and this might be the reason for the Commission to recommend its inclusion.
140. With regard to 'Faqir/Fhakir Budbudki', it has been stated in the Commission's report that though they are distributed all over the State, mainly they reside in the areas of Banganapalli, Kondampeta, Krishnagiri, Mangampeta, Sandrapalli, Guwagudu, Vajrakaruru, Pattikonda, Uravakonda, Kadiri, Madanapalli, Reddipalli and Pamudoddi, which are in the Rayalaseema region of the State. However, the staff of the Commission had conducted its survey in Warangal, Karimnagar, Adilabad and Nizamabad Districts, which are in the Telangana region of the State. Discussing about their social status, the Commission has stated that a considerable proportion of this community is engaged in the traditional occupation of begging and most of those who had changed their traditional occupation were engaged as daily wage labourers in agricultural and non-agricultural activities. A perusal of the statistics set out in the report of the Commission discloses that this community is not carrying on its traditional occupation and their percentage of literacy is 47.04% as against the State average of 60.47%. However, Mr.Krishnan, who also relied on the AnSI report, describes this community as nomadic and a very low class, which is mainly dependent on begging and this group is also found in Hindus, who are already included in the list of backward classes. Perhaps, this might be the reason for Mr.Krishnan recommending inclusion of Fakir Budbudki in the SEBC group.
141. As regards 'Siddi' community, the Commission has stated that they are located in A.C. Guards area of Hyderabad, in addition to their location in other major cities in the country. According to the report, this community was traditionally engaged in giving security but at the time of conducting the survey, their source of livelihood was rickshaw pulling. The Commission justifies its recommendation for inclusion only because their counterpart in Gujarat was included in Scheduled Tribe and in the list of backward classes in Karnataka. Mr.Krishnan has also relied on the AnSI report and observed that as this community is of foreign origin, it deserved inclusion.
142. So far as 'Garadi' community is concerned, according to the survey conducted by the Commission, seven households comprising 40 persons had been surveyed in Medak District. Of those who had been surveyed i.e. 100% of them had stated that they were not given any discriminatory treatment by the society and they were also not in their traditional occupation. Moreover, they all had submitted that they were treated as normal social beings by the other members of the society. In spite of the above facts gathered by the Commission, it had recommended that 'Garadi' community be treated as socially and educationally backward. It is also pertinent to note that the total population of the Garadi community was not known. Therefore, one does not know whether the 40 persons who had been considered were, in fact, socially, educationally or economically representative of the entire population of 'Garadi' Muslims in the State.
143. Insofar as 'Gosangi' community is concerned, data from only one family had been collected by the Commission in Nizamabad District and on the basis of the information given by that family, the entire community had been recommended for inclusion in the socially and educationally backward classes list.
144. With regard to the community 'Chakketakare', the Commission had surveyed six households comprising 29 persons in Adilabad District and on the basis of the information given by them, the entire community was recommended for being included in the list of SEBCs.
145. Upon perusal of the report submitted by the Commission, it also appears that with regard to 'Guddi Eluguvallu', which has been recommended for inclusion in the list of SEBCs., no survey whatsoever had been conducted and no data had been collected by the Commission.
146. Likewise, with regard to other communities also, we find that the Commission had not conducted the survey objectively to justify its recommendations.
147. What the Commission had done was that it had referred to the reports of Mr.P.S.Krishnan and that of AnSI and on the basis thereof, it had made its recommendations without conducting any scientific survey. Moreover, it would not have been possible for the Commission to conduct a detailed survey within a short span of about 2½ months. The Commission was requested vide letter dated 17.4.2007 to conduct a survey and submit the report. The report was submitted on 2.7.2007. Meanwhile, on 11.6.2007, the Government had forwarded the report of Mr.Krishnan to the Commission to examine the same and send its recommendations at an early date. So, the Commission had relied upon the said report so as to make its recommendations at an early date without even a minimal professional effort to find out the facts, which were required for the purpose of coming to a conclusion whether a particular group of Muslims was, in fact, socially and educationally backward. If the Commission had formulated its own criteria and had surveyed even a part of the population of such Muslim groups in a scientific manner, in our opinion, it could not have made its recommendations so soon. In our opinion, the hit and run method adopted by the Commission was neither legal nor sustainable.
148. It is also seen from the record that though compilation of data was completed on 27.6.2007 (as stated at page 40 of the Commission’s report in Chapter III), some more data with regard to Shaik, Gosangi, Siddi and Hajam groups had been collected on 28.6.2007 and 29.6.2007 by visiting Kamareddy in Nizamabad District. This fact has not been denied by the respondent State or the Commission. Moreover, the Commission had submitted its report comprising 206 pages to the government on 02.7.2007. Within a short span of two days, the survey with regard to the above communities could not have been completed and the report prepared. It is thus legitimate to infer that either undue haste was employed or, in fact, no scientific survey was conducted by the Commission.
149. It should also be examined whether the Commission could have relied upon the report of Mr.P.S. Krishnan and the material collected by AnSI. In our opinion, it was for the Commission to gather primary data for coming to the conclusion as to whether a particular group of Muslims was socially and educationally backward for the purpose of making its recommendations. It was also open to the Commission to refer to or rely upon some relevant material to verify or cross-check its conclusions to enable it to make recommendations on the subject. Moreover, the material relied upon should have a rational nexus with the purposes for which it was collected. On the same subject, data could be collected for a variety of purposes. Data collected for one purpose may not be useful for a dissimilar purpose. We, therefore, consider now the data/reports, which were referred to and relied upon by the Commission.
Data published by Anthropological Survey of India
150. The Anthropological Survey of India had published a set of books - “People of India” in respect of all the States. The book was published in two parts, which are inter-related. The first part consists of a 11- volume national series, five of which contain abstracts on all the communities across the length and breadth of the country. The data generated in this respect is supported with additional information from Census and other secondary sources. These volumes include one on the Scheduled Castes, one on the Scheduled Tribes, and three on all the communities of India. Two volumes contain data on the languages and scripts and biological variation in Indian population. Two other volumes present a quantitative profile of the Indian society and communities, lists of communities and their segments, synonyms, surnames and titles. The remaining two volumes are on Introduction and Anthropological Atlas. The second part pertains to the States/Union Territories, with detailed write-ups on each community of India. Volume XIII of the first part gives the particulars of the communities relating to the State of Andhra Pradesh.
151. In his note on the books, the General Editor Shri K.S. Singh has stated about the object behind publishing them. The same reads as under:
‘There is an information gap on a very large number of communities in India and whatever information that exists on them is scanty or needs to be updated. The Anthropological Survey of India (AnSI) launched a project on the People of India on October 2, 1985. The objective of the project was to generate a brief, descriptive anthropological profile of all the communities in India, the impact on them of change and development processes and the links that bring them together. This was in accordance with the objectives of the AnSI, which was established in 1945. The AnSI has been pursuing bio-cultural research among different population groups from its eight regional centres. Its objectives have been redefined in the policy resolution, adopted in 1985, which commits this organization to a survey of the human surface of India.”
152. A reading of the note would also go to show that in its compilation of the lists of the communities of India under the People of India project, AnSI has taken into consideration the ethnographic surveys, lists of Scheduled Castes and Scheduled Tribes drawn up by the Government of India, lists of Backward Classes prepared by the Backward Classes Commissions set up by various state governments, including the list mentioned in the Mandal Commission Report. After conducting a survey, in all, it could identify 4694 communities. It has been further stated in the note that as many as 500 scholars had participated in the project, including 197 scholars from 26 different institutions. About 3000 scholars had participated in about 100 workshops and several rounds of discussions were held in all the States and Union Territories. The relevant portion of the note reads as under.
“… The investigators spent 26,510 days in the field, which works out to 5.5 days per community studied in the various States and Union Territories of India. Our scholars interviewed a large number of people, out of whom we have recorded only the key informants i.e. 24,951. This works out to about five ‘informed’ informants per community. Of the informants, 4981 were women. Our instruction to the investigators was to study a community at two or three places, and in at least two or three cultural regions into which the larger States of India are divided.
Interviews were conducted in connection with the study of the communities in 3581 villages, mostly multi-community villages, and in 1011 towns and cities spread over almost all the districts of India, i.e. 421 districts and 91 cultural regions. We were able, thus, to study on an average a community at about two places. … most of the smaller communities could be studied at only one place since they are not located in more than one area.”
153. The note would also indicate that 500 scholars had collected the information from about 25,000 of the informants over the period from 1985 to 1992 and the percentages relate strictly to the responses made by the informants to the questionnaire contained in the schedule guideline and computer format and to the queries made by the investigators at the places of investigation. According to the note, the responses had been supplemented with the observations of the investigators, the secondary material from the Census, ethnographic records etc. and the material had been checked and cross-checked by local scholars at many levels with other sources of information.
154. It can be seen from parts I to III of Volume XIII that different authors, who were deputed by the Anthropological Survey of India, had made research over the existence of different communities in Andhra Pradesh viz., 1)Achchukattalavandlu/Singamvallu, 2) Attar Saibulu, 3) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman,
4) Borewale, 5) Chaakketakare 6) Faqir/Fhakir Budbudki
7) Garadi/Garadi Muslim, 8) Gosangi Muslim, 9) Guddi Eluguvallu, 10) Hajam/Nai/Navind, 11) Labbai/Labbi,12) Qureshi/ Kureshi/ Khureshi, 13) Shaik/Sheikh, and 14) Siddi, in the areas where they were mostly spread, and studied about their occupation, custom, daily habitat etc. This was a generic anthropological study.
Report of Mr.P.S.Krishnan
155. The report of Mr.P.S.Krishnan, a retired IAS officer, contains nine chapters. They are: I) Introduction, Background and Approach, II) Social ideology of Islam and social stratification in Muslim societies, III) Emergence and Growth of Muslim society in India, South India and Andhra Pradesh, IV) Indian caste system and social stratification in Indian Muslim society, V) Social stratification in South Indian Muslim society, VI) Social stratification in Andhra Pradesh Muslim society, VII) Identification of socially and educationally backward classes among Muslims – General principles and judicial decisions – findings of social backwardness, VIII) Data analysis and IX) recommendations. In Chapter I of his report, Mr.Krishnan refers to the task entrusted to him by the Government of Andhra Pradesh on 18.5.2007 vide G.O.Ms.No.21, for preparing and submitting a report on identification of socially and educationally backward classes in the Muslim population, taking note of the judgment of this Court in Writ Petition No.832 etc. (probably the judgment in Archana Reddy) and the judgment of the Hon’ble Supreme Court in Indra Sawhney I and the subsequent developments, and further materials and facts since available, so that necessary measures can be undertaken to widen opportunities for them in various schemes, including, and more particularly, admission in educational institutions and public employment. It has been further stated by him that in view of his close association stretching over the last five decades with Andhra Pradesh as well as all over India in various capacities, governmental, non-governmental and post-governmental, and in view of his commitment to the cause of social justice and to the State and the people of Andhra Pradesh, he had accepted the task as a privilege.
156. It has been stated in Chapter I that his approach towards the task had been broadly guided by the following aspects: 1) the social structure of the Muslim society in Andhra Pradesh, and 2) the guidance provided by the Supreme Court and the
Andhra Pradesh High Court, more particularly in the Mandal case (Indra Sawhney I) in 1992 and the Muslim community reservation case (Archana Reddy) of this Court in 2005 regarding the constitutional provisions, their interpretation and their application.
157. In Chapter II, Mr.Krishnan has discussed about the social ideology of Islam and how the social stratification, contrary to its social ideology, arose in Muslim society. In this chapter, Mr.Krishnan has referred to the research by Mr. M.K.A. Siddiqui of the Anthropological Survey of India, who had done research in social stratification among Muslims, Mr.A.R. Momin, sociologist of the University of Bombay, who had done research in Indo-Islamic tradition, Mr.Imtiaz Ahmad, former Professor of Jawaharlal Nehru University, Mr.Ghaus Ansari, a pioneer in the study of Muslim society, Mr.Hasan Nishat Ansari, Head of the Department of History, SMD College, Magdh University, Punpun (Patna) and Mr.M.Mohd. Irfan Basha.
158. Chapter III of his report deals with the emergence and growth of Muslim society in India, South India and Andhra Pradesh. In this chapter, he has discussed the general role of sufis and traders in the spread of Islam (para 3.1 at pg.13), role of Sufis and traders in Tamil Nadu and adjacent Andhra area (para 3.3 at pg.14), social motivation and history behind spread of Islam among masses (para 3.5 at pg.16), social identities in Indian Muslim society in Deccan and Andhra Pradesh (para 3.6.10 at pg.40) and has recorded his conclusion at para 3.7 (pg.42) that the major agencies of the spread of Islam in India were Muslim traders and Sufi preachers and saints, more particularly in the Peninsula, including Andhra Pradesh. The bulk of the people who adopted Islam and moved to the Islamic fold were those who belonged to the lower castes – the same classes which were now classified as SCs and SEBCs/OBCs in terms of the Constitution. Their prime motivation arose from the disadvantages, discriminations, indignities and humiliations they faced under the prevailing caste system and against which they had been struggling from ancient and medieval times in such ways as were open to them from time to time.
159. In Chapter VI, Mr.Krishnan has dealt with the social stratification of Muslim society in Andhra Pradesh. In this chapter, he has discussed about the 1) sources of information for Andhra Pradesh, 2) pre-independence Andhra District Manuals and Gazetteers, 3) post-independence Andhra District Gazetteers, 4) pre-independence Telengana District Gazetteers, 5) post-independence Telangana District Gazetteers, 6) Thesis on Muslims of Rayalaseema, 7) S.A.A. Saheb's profile of social hierarchy of Muslims in Andhra Pradesh, 8) People of India (A.S.I.) list of A.P. Muslim communities/groups, 9) People of India description of A.P. Muslim communities/groups, and 10) Encyclopaedia of World Muslims list of A.P. Muslim communities/groups.
160. It has also been mentioned by him in this chapter that according to the thesis of one Mr.M.Mohd. Irfan Basha of 2005 titled “Socio-economic conditions of the Muslims of Rayalaseema”, Rayalaseema, comprising four districts, has the largest percentage of Muslim population i.e. 12.5% among the three regions of Andhra Pradesh, which, as a whole, has a Muslim percentage of 9.17; whereas the ten Telengana districts, which were longest in the Nizam's dominion, have 12.43% and the nine districts of coastal Andhra have only 4.54% Muslims. It has also been mentioned by Mr.Krishnan that according to Mr.Basha, the Muslims of Rayalaseema region can be classified as Syeds, Shaiks, Pathan, Qureshi and Dudekula or Pinjaras and they are not hierarchically ranked castes and that there is no recognition of untouchability among the Muslims and inter-dining freely occurs at feasts; that nothing prevents them from having an intermarriage with strangers and the laws of endogamy and exogamy still have force, at least in some subsections of Muslims like Sayyids, who want to strictly maintain the purity of blood and some occupational groups like Dudekula, Khasaab, Dhobi etc. also prefer endogamy.
161. A further reading of this chapter would go to show that of the various social groups of Muslims in existence in
Andhra Pradesh, only Dudekula or Pinjari or Nurbash has been known, identified and referred to for a long time. According to Mr.Krishnan, the two recent accounts of social groups of Muslims of Andhra Pradesh are that of Shaik Abdul Azeez Saheb and the same is available in 'People of India' Series of the Anthropological Survey of India on Andhra Pradesh. Mr.Krishnan states that Mr.Saheb had observed that Muslim castes are occupationally and culturally different. On the study of Mr.Saheb on the 14 Muslim groups in Andhra Pradesh viz., Syed, Shaik, Pathan, Habbi, Khureshi, Attar-saibulu, Atar, Gair-e-Mehadi, Chekketakare, Borewale, Garadi, Hazam and Fhakir-budbudki and Dudekula, Mr.Krishnan has stated as follows:
“6.7.1 … These are formed on the basis of their traditional occupation and are endogamous. In social hierarchy, the Syeds occupy the top place, since they form the traditional clergy. They claim that they are the true descendants of the prophet. Shaiks claim the second place, who are believed to be a ruling class. The Pathans claim the third position. They are said to be the descendants of those warriors, who sacrificed their lives for the propagation of Islam. The Labbais occupy the fourth place. They get their lower status because they are the descendants of Arabs, who came to India for trade and not to propagate Islam. They also married native women and settled in India. In the fifth place are the Khureshi, the descendants of the Khuresh tribe of Arabia, to which the prophet belongs. Attar-saibulu, the perfume (Attar) traders, come next. Atar, who sell petty domestic items used at the time of festivals of Muslims and Gair-e-Mehadi are below them. They are considered a Shia sect. The Chekketakare who are traders in mortar vehicles, Borewale who are the palm leaf weavers and Garadi, jugglers are placed in the sixth place. At the lowest level come the Dudekula the cotton cleaners, barbers (hazam), and mendicants (Fhakir-budbudki). The Dudekula are placed in the last category because they use a thread made out of the intestinal tissue from the dead cattle, while cleaning cotton. Since they work touching dead cattle, they occupy a lower place in the hierarchy and are not eligible for marriage alliance with the above said Muslim groups.”
162. Mr.Krishnan has also referred to the book “People of India” (AnSI) published in 2003 which describes about the existence of 391 communities in Andhra Pradesh and out of them 24 are Muslim communities. They are: 1) Arab, 2) Attar Saibulu, 3) Bohara, 4) Chakketakare, 5) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman, 6) Dudekula/Anjikutti, 7) Faqir/Fhakir Budbudki, 8) Garadi/Garadi Muslim, 9) Gosangi Muslim, 10) Hajam/Nai/Navid, 11) Irani, 12) Khatik/Khatik Muslim/Kasab, 13) Labhai/Labbi, 14) Mehtar, 15) Mughal/Moghal, 16) Noor Basha, 17) Pathan, 18) Qureshi/Kureshi/Khureshi, 19) Shaik/ Sheikh, 20) Shia Imami Ismailis/Khoja, 21) Siddi 22) Syed/ Saiyed/Sayyad/Mushaik, 23) Borewale, and 24) Guddi Eluguvallu. According to Mr.Krishnan, both 'Khatik/Khatik Muslim/Kasab' and 'Qureshi/Kureshi/ Khureshi' are the same.
163. In para 6.9 of this chapter, Mr.Krishnan has referred to the description in the People of India study about the existence of Muslim communities in Andhra Pradesh. He has discussed about the studies by the different authors of the People of India on 1) Syed/ Saiyed/Sayyad/Mushaik, 2) Shaik/Sheikh, 3) Mughal/ Moghal, 4) Pathan, 5) Irani, 6) Arab, 7) Bohara, 8) Shia Imami Ismalilis/Khoja, 9) Mehtar, 10) Gosangi Muslim, 11) Faqir/Fakhir Budbudki,
12) Attar Saibulu or Attarollu, 13) Chakketakare,
14) Dhobi Muslim/ Muslim Dhobi/Dhobi Musalman, 15) Garadi/ Garadi Muslim, 16) Hajam/Nai/Navid, 17) Labbai/Labbi,
18) Siddi, 19) Dudekula/Panjikutti, 20) Noor Basha, 21) Qureshi/ Kureshi/Khureshi, 22) Khatik/Khatik Muslim/Kasab,
23) Borewale and 24) Guddi Eluguvallu and opined that Syed, Moghal, Pathan, Irani, Arab, Bohara, Khoja, Labbai/Labbi, are socially advanced classes; and Gosangi Muslim, Fhakir budbudki, Attar Saibulu, Chekketakare, Dhobi Muslim, Garadi Muslim, Hajam, Siddi, Qureshi, Khatik/Khatik Muslim/Kasab and Guddi Eluguvallu, as the communities, which deserve to be included in the list of socially and educationally backward classes. The other two communities Mehtar and Dudekula have already been included in the list of backward classes of the State.
164. In Chapter VII of his report, Mr.Krishnan has referred to the social basis for inclusion of Muslim communities/groups in socially and educationally backward classes list (para 7.2) and the Commission’s approach to SEBC Muslims (para 7.3) wherein the previous Central Backward Classes Commission reports were discussed. In para 7.3, he has discussed the reports of the State Governments and State Commissions wherein a mention has been made about the Sachar Committee's/NSSO's all-India inter-State comparative picture showing the percentage of Muslim population in 2001 and socially and educationally backward class Muslim population figures of 1999-2000 and 2004-2005 (para 7.3.3 at pg.217). The figures relevant to Andhra Pradesh for the purpose are recorded as under:
Percentage of Muslim population in 2001 and Sed.BC Muslim population Figures in 1999-2000 and 2004-05
|
State
|
Population (2001) Millions
|
Muslim Population (2001)
%
|
% of SEd.BC Muslims and General Muslims among Total Muslim Population
|
|
S.Ed.BC Muslim
1999-2000 2004-05
|
General Muslim i.e. non-SEdBC Muslim
1999-2000 2004-05
|
|
India
|
1028.6
|
13.4
|
31.7 40.7
|
68.3 59.3
|
|
AP
|
76.2
|
9.2
|
10.7 19.5
|
89.3 80.5
|
165. With regard to the methodological difference in North India and South India for listing the backward classes and the methodology adopted by the National Commission for Backward Classes, Mr. Krishnan in para 7.3.4.1 (from pgs.240 to 242) has stated that the groups existing in Karnataka and Kerala and who moved to Islam in north India were mainly artisans and persons belonging to other occupational castes. They are the same castes which now find place in the socially and educationally Backward Classes and Scheduled Castes of Hindus. After conversion, their occupational pattern and other features have remained the same as before conversion and they have retained the same community name and social identity and are carrying on the same traditional occupation. He has also stated that neither the State Commissions nor the State Governments in the States of Uttar Pradesh, Bihar and Madhya Pradesh nor the Mandal Commission included Sayyed, Sheikh, Pathan, Moghul, Bohara, Cutchi Memon, Khoja etc. in the list of socially and educationally backward groups.
166. It has been further observed by Mr.Krishan in para 7.3.4.2 that in southern States, conversion to Islam seems to have been from Scheduled Castes and backward classes and it is perhaps for this reason that the practice of including the entire Muslim community in the State lists has been in vogue. It has also been stated that the Muslim communities at the lower end of the spectrum which retained their traditional occupation and ranking low in hierarchy were also included in the State lists. Mr.Krishnan has also observed that such a low proportion of Muslim being in the list of backward classes is on account of a lacuna in the perception of certain specificities of that community and that the existing situation has arisen from a number of factors, one being the Muslim civil society leadership put all its weight behind the efforts to get the entire Muslim community recognised as “socially and educationally backward”.
167. In the end of Chapter VII, Mr. Krishnan has observed that Borewala and Shaik also are socially and educationally backward communities and deserved to be included in the list of Backward Classes.
168. In Chapter VIII, Mr. Krishnan has given the table showing Muslim presence at different levels of education furnished by the Commission in 2005 and observed that there is considerable shortfall at all levels except primary level to Class V; the gap is serious from Class X to Graduation, while it is grave and disturbing at professional and technological levels. He has also furnished the table showing number of Muslim candidates selected for the years 2004-05 to 2006-07 to various services in the State, and opined that the identified Muslim groups were inadequately represented in the services of the State.
169. In Chapter IX, Mr. Krishnan has made a recommendation for inclusion of the groups identified as SEBC Muslim groups in Chapters VI and VII in the list of Backward Classes. He has, however, observed that the percentage of reservation may be limited to 4% in view of the maximum limit of 50% prescribed by the Hon'ble Supreme Court in Indra Sawhney I. The exercise by Mr.Krishnan is per se not based on any survey, socio-economic criteria, representative sample collection, data analysis on the basis of evolved criteria or the like. Mr.Krishnan’s exertion cannot per se be a legitimate basis for the State to evolve an affirmative action.
170. On a careful consideration of the report of the Commission, it can be seen that the Commission, without conducting any independent, detailed and scientific survey of each of the identified communities, had simply adopted the report of Mr.Krishnan, which in turn was substantially based on the AnSI report. It is clear that the reports of Mr.Krishnan and of the AnSI were not prepared after an objective and scientific exercise. Mr.Krishnan has drawn up his report taking into consideration the various District Gazetteers of Telengana, Andhra and Rayalaseema regions and the thesis reports of some research scholars, whereas the report of the AnSI was only a compilation of articles written by different scholars, who conducted a general study of the communities living in India from the anthropological perspective.
171. As already noticed, though the revision of backward classes’ list was pending with the Commission since 1994, the respondent State, in the year 2007, had requested the Commission to give its recommendations after identifying the social and educational backwardness among Muslims. At the relevant time, only 2001 Census figures were available with the Commission. Therefore, in order to have the latest data about various Muslim groups, the Commission ought to have undertaken a detailed study to collect the material and to make its recommendations. Instead, the Commission simply followed the 2001 Census figures without conducting any field investigation. Moreover, the Commission being a statutory body could have utilised all possible sources to tap information from all corners of the State. Besides this, the Commission could have requested the State Government to make an exercise for collection of the population figures with regard to the different groups of Muslims in the State. When the revision was pending since 1994, the Commission all of a sudden woke up in 2007 when it was requested to study the social and educational backwardness among Muslims, virtually ignoring its statutory duty.
172. Further, the educational backwardness among Muslims, as projected by the Commission in its report, cannot be accepted because, it did not take into consideration the relevant data for arriving at the conclusion. As contended by the learned advocates for the petitioners, the Commission ought to have taken into account the figures relating to admission of Muslims in minority and non-minority private educational institutions, while computing the data with regard to educational backwardness among Muslims. For identifying a class or group as backward – social, economical and educational – the backwardness with respect to any particular indicator should be more than 50% and if it is just below the State or country’s average or equal, such group or class cannot be treated backward. In the additional affidavit of the petitioner in Writ Petition No.18494 of 2007, it has been averred that the literacy rate among Muslims, including female literacy, is much higher when compared to either the State average or the average of Hindus. In order to substantiate this assertion, the petitioner has relied on the 2001 Census and has furnished a table, which is as follows:
Table showing literacy rate among different religions based on 2001 Census of Andhra Pradesh
|
|
Literacy rate % among religious groups as per 2001 Census
|
|
|
All religions
|
Hindus
|
Muslims
|
Christians
|
Sikhs
|
|
|
Both
|
Female
|
Both
|
Female
|
Both
|
Female
|
Both
|
Female
|
Both
|
Female
|
|
State average of Andhra Pradesh
|
61.0
|
53.2
|
59.4
|
49.2
|
68.0
|
59.1
|
75.3
|
69.8
|
78.7
|
72.7
|
173. As seen from the table, against the State literacy average of 61%, the literacy rate among Muslims is 68%; and against the State female average of 53.2%, among Muslim females, literacy rate is 59.1%. These figures furnished by the petitioner have not been controverted by the respondents by producing any supporting material and, therefore, they are presumed to be true. The report of the Commission is based on the 2001 Census. It is strange to note as to how the Commission could arrive at a different conclusion and make its recommendations, when, in fact, the figures relating to the literacy rate among Muslims given by the petitioner from the same 2001 Census are otherwise. In such a case, so as to show that a particular group of Muslims is less literate, the Commission must establish the same with facts and figures by conducting survey in a scientific manner, which had not been done by it.
174. In view of the above discussion, it is evident that the Commission failed to formulate criteria for identifying the backward classes among Muslims, but had simply conducted a household survey in places close to its hand. Even assuming that the Commission had adopted its own methodology for identifying the backward classes, in our view, it had not applied any scientific criteria to check whether a sizeable number of occupational groups like Fakir Budbudki, Garadi Muslim, Gosangi, Guddi Eluguvallu etc., who had practically changed their occupations, were in existence and required upliftment. The learned Advocate General has tried to justify the Commission's report by submitting that as Hindu counterparts of majority of the identified communities were enjoying the status of backward classes and the reservation, the Commission had adopted 'fast track' and 'rough and ready' criteria for arriving at the conclusion and making the recommendation. We are not inclined to accept the said submission because, according to us, only after careful collection and study of the data so collected, the status of backward class can be conferred upon a particular class or group, as such a status given to one group or class adversely affects the rights of several other citizens.
175. Normally, the benefit of reservation is given to members of the group of citizens, who seek such reservation. As stated hereinabove, almost 112 applications from different groups seeking inclusion in the list of backward classes were pending before the Commission and without considering the same, the Commission had decided to include all the remaining groups of Muslims except those enumerated in Item No.15 of the Schedule appended to the impugned Act. It is strange to hear from the learned Senior Advocate appearing for the Commission that possibly it included those groups without there being any application from them because they were located at such remote places that it was not possible to have access to them and even they were not aware of their right of being included in the list of backward classes. We are not in agreement with the said submission for the reason that if they were located at such remote places, how the Commission could gather information about persons of those groups so as to include them in Item 15 of the Schedule, without even referring to their names! In the circumstances, we are constrained to believe that undue favour was done to the groups other than those enumerated for exclusion in Item 15, by including them in the list of backward classes.
176. In the afore-stated circumstances, we are of the considered view that the report of the Commission cannot constitute a lawful basis for affirmative action by the State.
177. In view of the submissions made by the learned counsel for the petitioners that the appointment of Mr.Krishnan as Advisor to the Government of Andhra Pradesh to collect data and submit a report on the backward classes among Muslims in Andhra Pradesh is illegal and violative of Article 162 of the Constitution, we briefly notice the constitutional provisions on the issue.
178. Article 162 of the Constitution lays down that -
“162. Extent of Executive power of State:-
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”
179. Article 162 does not contain any definition as to what the executive function is and what activities would legitimately come within its scope. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. Our Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but the functions of different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.
180. The executive or the State in exercise of its executive power is charged with the duty and responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of the executive power cannot be circumscribed. If there is no enactment covering a particular aspect, the government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. The State Government can act in relation to any matter with respect to which the State Legislature has power to make laws even if there is no legislation to support such executive action. The State Government, however, can never go against the provisions of the Constitution or of any law. If there is a statutory rule or an Act on the matter, the executive must abide by that Act or rule and it cannot, in exercise of the executive power under Article 162 of the Constitution, ignore or act contrary to that rule or Act. Any such transgression made by the executive or the State is liable to be struck down as ultra vires. Reference in this connection can be made to the judgments of the Hon'ble Supreme Court in Ram Jawaya Kapur v. State of Punjab, Mahalakshmi Mills v. State, B.N. Nagarajan v. State of Mysore, ADM, Jabalpur v. Shivakant Shukla, Bishambar Dayal Chandra Mohan v. State of U.P. and Pancham Chand v. State of U.P..
181. In the cases on hand, the respondent State had appointed Mr.P.S. Krishnan, as Advisor to Government of Andhra Pradesh, Backward Classes Welfare on 18.5.2007 vide G.O.Ms.No.21 by entrusting the work of collection of data pertaining to backward classes. Clause (iv) of para 3 of the said G.O., which is relevant for the purpose of these cases, is extracted below:
“3 (iv). His duties include, inter alia, collection of data, conducting research; consultation with the Andhra Pradesh Backward Classes Commission, concerned Government Officials and non-Government organisations and individuals, preparation and submission of draft report to the Government in May 2007 for wider consultation; finalisation of report after taking note of various suggestions, keeping the observations of the Andhra Pradesh High Court and the Supreme Court on this issue; briefing the government and the Council of Ministers (if need be); filing of caveats, preparation of counter affidavit on behalf of the Government and defending the government in Courts of law, if need be; and such other work as may be entrusted by the government from time to time, for the benefit of the socially and educationally backward classes of the people of Andhra Pradesh in general, and in particular those belonging to these classes in the Muslim population.”
182. On a perusal of the functions assigned to Mr.Krishnan, it is clear that the State had entrusted him the very same functions as were to be undertaken by the Commission under the provisions of the 1993 Act. By the above reference, Mr.Krishnan was asked by the Government to collect data relating to backward classes among Muslims keeping in view the observations of this Court and the Supreme Court on the issue. This task had been entrusted to him by Principal Secretary to Government under an executive order, while the Commission, a statutory body constituted under the provisions of the 1993 Act is legislatively authorized to regulate its own functions. So long as the 1993 Act is on the statute book, the executive must abide by it and cannot, in exercise of its executive power, overreach, supplant, supplement, ignore or act contrary to the 1993 Act. In our opinion, by issuance of G.O.Ms.No.21, dated 18.5.2007, the respondent State has transgressed into the powers of the Commission constituted under the 1993 Act. When the statutory Commission was in force since 1994 and the Government by its letter dated 17.4.2007 had requested the Commission to undertake a survey of the Muslim community in Andhra Pradesh and identify the socially and educationally backward classes among them, there was no point in appointing Mr.Krishnan for the same purpose, on 18.5.2007. If necessary, the Commission could have taken the assistance of any research scholar or report prepared by an expert in the field, including Mr.Krishnan, if so deemed appropriate by the Commission. In our considered view, by this appointment, the State had trenched into the functions of the statutory Commission. The appointment of Mr.Krishnan is thus pro tanto invalid, insofar as the entrustment of functions includes such functions as are legislatively within the domain of the Commission qua the provisions of the 1993 Act.
183. With regard to the provision of 4% reservation to the identified Muslim groups, we fail to understand the basis for such a conclusion. The Mandal Commission (paragraphs 12.19 to 12.21 at Chapter XII (Identification of OBCs) of its report), had estimated the population of OBCs throughout the country to arrive at the percentage of reservations to be recommended and, in paragraph 12.22, given the percentage distribution of Indian population by caste and religious groups. The Mandal Commission had recommended the percentage of reservation to OBCs at 27% (though total OBC population arrived at is 52% according to 1931 Census) keeping in view the percentage of reservation given to SCs and STs and also the judgments of the Hon’ble Supreme Court that the total percentage of reservations should be less than 50%. Though the total population figure at the time when Mandal Commission had undertaken the survey was not available, it had taken into account the proportionate population growth of various/communities into consideration.
184. A perusal of the report of the present Commission does not reflect such scientific and rational exercise. Even otherwise, according to the 2001 Census, the total Muslim population is 9.2% of the total population in Andhra Pradesh and the percentage of backward classes among Muslims is 19.5%. Thus, the total backward class Muslim population comes to around 2% of the total population in Andhra Pradesh. According to the report of the Commission also, 19.5% of Muslims are covered under OBCs in Andhra Pradesh and the relevant portion from page 53 of the report of the Commission reads as under:
“Sachaar Committee report shows that the Distribution of population in 2004-05 indicates that 25.6% of Hindu population comes under SCs & STs., 50.2% of Hindu population comes under OBCs, making a total of 75.8% covered under reservation in A.P. On the other hand, the Sachar-NSSO figures indicates that 19.5% of the Muslim population are covered under OBCs in Andhra Pradesh. Thus, about 75% of the Hindu population is covered under OBCs in Andhra Pradesh, whereas 19.5% of the Muslims are covered under OBCs in A.P.”
185. The general practice in vogue in almost all the States in the country is to provide reservation to S.Cs., S.Ts. or SEBCs. after considering the total population and the population of persons belonging to such classes. So, reservation to be provided to such classes must be commensurate with the percentage of the total population. We do not find any justification for providing 4% reservation to SEBC Muslims under the impugned Act. Similarly, the Commission has also not given any explanation, much less even a plausible reason, justifying its recommendation for providing 4% reservation to the so-called identified fifth group viz., Group 'E', in education and public employment. As has been discussed supra, the Commission, while dealing with the different communities of Muslims, has only recorded an observation whether that particular community is socially and educationally backward, but has not given any figure illustrating its ultimate finding that without providing 4% reservation to these groups, justice would not be done. The logical inference is that since only 4% percentage reservation was left available to be provided by the State to other identified backward class people, after the 46% reservation already provided to the different groups of S.Cs., S.Ts. and OBCs (A, B, C & D). This cannot be a legitimate justification for providing 4% reservation to Group ‘E’.
186. Another important aspect of the matter is that the Commission has not included the already existing Muslims groups in Groups ‘A’ and ‘B’ into the newly identified Group ‘E’. The reasons for not including the Muslim groups Dudekula, Laddaf, Pinjari/Noorbash and Mehtar find place neither in the Commission’s report nor in the Government Order notifying Group ‘E’.
187. With regard to the question of providing reservations to SEBC Muslims under a separate group ‘E’, but not including the Muslim groups already included in the lists ‘A’ and ‘B’, the respondent State has tried to justify its action by stating that the Muslim groups in the lists ‘A’ and ‘B’ were enjoying the benefit of reservation since 1970 and in order to give an opportunity to the newly included groups of SEBC Muslims to enjoy the benefit of reservation and improve their standard of living, the State had shown them separately in the list of backward classes and provided separate reservation to them. This explanation of the State is not acceptable, since the date of publishing the list of socially and educationally backward classes viz., 23.9.1970 vide G.O.Ms.No.1793, several groups of backward classes were included in the existing four groups in the list, right from 1972 {from the date of inclusion of “Mehtar (Muslim) on 5.7.1972 to “Patra” on 28.8.2006} to 2006. During these subsequent inclusions, the newly added groups were not shown separately in the list of backward classes. Though Schedule Caste converts to Christianity were shown separately in Group 'C' when they were included in the list of backward classes in the year 1981, the status of the Schedule Caste converts was shown in the higher strata when compared to the Scheduled Castes and placed them in the list of backward classes in a separate Group ‘C’. As a consequence of the impugned Act, all the identified Muslim groups of backward classes (earlier and now included) are to be found in Groups ‘A’, ‘B’ and now the bulk of them in Group ‘E’. Those Muslim communities earlier included in Groups ‘A’ and ‘B’ would have to compete with others for the percentage of affirmative opportunities allotted to Groups ‘A’ and ‘B’, while those included in Group ‘E’ would enjoy an exclusive package of affirmative opportunities of 4%. This action of the State constitutes a discriminatory treatment among the identified Muslim groups and is violative of Article 14 of the Constitution.
188. It is also pertinent to note that as per the Scholars, who have studied Islamic law and way of living of Muslims, firmly believe that there is no caste system among Muslims. It is also a matter of fairly common knowledge that caste system is prevalent mainly among Hindus. The conclusion by experts and sociologists that when Hindus got converted to Islam, they had continued their way of living and occupation, including caste insularities. Thus, only on conversion of Hindus to Islam, there used to be different classes among Muslims, based on their traditional occupations etc. Therefore, Muslims groups, which have been identified as SEBCs, ought to have been included in either Group ‘A’ or under Group ‘B’ or even in Group ‘D’, where their Hindu counterparts were already admitted to the benefits of reservation. Even the learned Advocate General had stated that in certain cases there was perhaps no justification for including certain Muslim groups in the list of backward classes, except for the reason that their Hindu counterparts were already included as SEBCs., and for this reason, the Commission, without any survey to ascertain their way of living, level of education and economic condition, had recommended certain groups to be included in the list of backward classes.
Whether the 2007 Act is religion specific
189. The petitioners have contended that as the object behind enactment of the 2007 Act is to provide reservation to some of the socially and educationally backward groups among Muslim community only, the same is religion specific and discriminates even among people of backward classes on the basis of religion and is violative of Articles 15 (1) and 16 (2) of the Constitution. It has been also alleged that the 2007 Act is religion specific and in particular Item 15 of the Schedule appended thereto would encourage conversion of members of other religious groups to Islam for enjoying the benefit of reservations.
190. Referring to Clause 15 of the Schedule to the 2007 Act, it has been submitted that the provision for reservation for ‘other Muslim groups’ without a definition of the said phrase in the Act, has the direct potential to encourage others to convert to Islam, which is violative of the core of secularism – a part of the basic structure of the Constitution.
191. It has been further submitted that Article 15 (4) empowers the State to provide for reservation to the socially and educationally backward citizens, but it does not enable religion specific reservation and the State action in taking religion as the basis for identification of backward classes is unconstitutional.
192. It has been submitted that earlier, the Anantaraman Commission had looked into the backwardness of all communities in the entire society, including Muslims, and had recommended inclusion of only two occupational groups of the Muslim community viz., Mehtar and Dudekula into the list of backward classes. However, in the cases on hand, the State Government had directed the Commission to investigate the backwardness among the classes/communities/groups of Muslims alone. If the intention of the State Government was to provide reservation based on occupational groups, there was no justification to restrict the investigation to the identification of backwardness of the Muslim community alone.
193. It has been next submitted that neither the Commission nor the State has explained the urgency in providing reservation to the backward classes among Muslims alone when the claims of about 112 communities from different religions viz., Hindus, Muslims and Sikhs were pending before the Commission for their inclusion into the list of backward classes.
194. The State has enacted the 2007 Act to provide reservation to SEBC Muslims in educational institutions and public employment for their upliftment and for matters connected therewith or incidental thereto. Section 1 of the Act specifies the short title, extent and commencement of the Act, Section 2 deals with the definitions of the words “Commission”, “educational institutions”, “notification”, “public services” and “Schedule”. While Section 3 enumerates the declaration of Muslim communities and groups as backward classes, Section 4 speaks of reservation in favour of backward classes of Muslim communities and groups and Section 5, the percentage of reservations. Sections 6 to 8 empower the State Government to amend the Schedule appended to the 2007 Act, to make a provision for the purpose of carrying out all or any of the provisions of the 2007 Act and to remove any difficulty which arises in giving effect to the provisions of the Act respectively and Section 9 repeals the Ordinance issued in the year 2005. The Schedule appended to the 2007 Act reads thus:
SCHEDULE
1) Achchukattalavandlu, Singali, Singamvallu, Achchupanivallu, Achchukattuvaru, Achukatlavandlu.
2) Attar Saibulu, Attarollu.
3) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman, Turka Chakla or Turka Sakala, Turaka Chakali, Tulukka Vannan, Tsakalas, Sakalas or Chakalas, Muslim Rajakas.
4) Faqir, Fhakir Budbudki, Ghanti Fhakir, Ghanta Fhakirlu, Turaka Budbudki, Darvesh, Fakeer.
5) Garadi Muslim, Garadi Saibulu, Pamulavallu, Kani- kattuvallu, Garadollu, Garadiga.
6) Gosangi Muslim, Phakeer Sayebulu.
7) Guddi Eluguvallu, Elugu Bantuvallu, Musalman Keelu Gurralavallu.
8) Hajam, Nai, Nai Muslim, Navid.
9) Labbi, Labbai, Labbon, Labba.
10) Pakeerla, Borewalc, Deera Phakirlu, Bonthala.
11) Qureshi, Kureshi/Khureshi, Khasab, Marati Khasab, Muslim Katika, Khatik Muslim.
12) Shaik/Sheikh.
13) Siddi, Yaba, Habshi, Jasi.
14) Turaka Kasha, Kakkukotte Zinka Saibulu, Chakkitakanevale, Terugadu Gontalavaru, Thirugatigantla, Rollaku Kakku Kottevaru, Pattar Phodulu, Chakketakare, Thuraka Kahsa.
15) Other Muslim groups excluding:
Syed, Saiyed, Sayyad, Mushaik;
Mughal, Moghal;
Pathans;
Irani;
Arab;
Bohara, Bohra;
Shia Imami Ismaili, Khoja;
Cutchi-Memon;
Jamayat;
Navayat;
and all the synonyms and sub-groups of the excluded groups; and except those who have been already included in the State List of Backward Classes.
195. A perusal of the provisions of the 2007 Act and the Schedule appended thereto shows that the Act is intended to provide reservation to the socially and educationally backward classes among Muslims only. The object behind making such a legislation is as follows:
“Object of the Act
An Act to provide reservation to Socially and Educationally Backward Classes of Muslims in the Educational Institutions and Public Employment for their upliftment and for matters connected therewith or incidental thereto.
Whereas, the Andhra Pradesh Commission for Backward Classes found that the entire Muslim Community is socially, educationally and economically backward and therefore, recommended that provision be made providing 5% reservation to the Muslim Community in all Educational Institutions and Public Services in the State excluding the creamy layer among them;
And whereas, basing on the recommendations of the Commission, the Andhra Pradesh Reservation of Seats in the Educational Institutions and of appointments or posts in the Public Services under the State to Muslim Community Act, 2005 was enacted providing for 5% reservation of seats in Educational Institutions and in appointments in Public Services to the Muslim Community excluding the creamy layer amongst them;
And whereas, the Larger Bench of the Andhra Pradesh High Court in Writ Petition No.13832 of 2005 and batch dated 7.11.2005 held inter alia, that the Backward Classes Commission has not identified the social backwardness of Muslims to declare them as backward and accordingly, declared the above Act as unconstitutional and violative of Articles 15(4) and 16(4) of the Constitution of India;
And whereas, State Government filed SLP in Civil Appeal No.7513 of 2005 in the Supreme Court against the above judgment and it is still pending;
And whereas, Government referred the matter to the Andhra Pradesh Commission for Backward Classes basing on the decision of the Hon'ble High Court of Andhra Pradesh again to identify the Muslim Communities and Groups which can be regarded as socially and educationally backward for the purpose of providing reservation to them;
And whereas, the Andhra Pradesh, Backward Classes Commission in their report recommended that certain Muslim Communities and Groups are to be considered as socially and educationally Backward Classes of citizens for providing to them reservations under Articles 15(4) and 16(4) of the Constitution of India;
And whereas, Government approved the recommendations of the Andhra Pradesh Commission for Backward Classes to provide reservation to the eligible socially and educationally Backward Classes of Muslims;
And whereas, the provisions of the said Act, 2005 cannot be made applicable in the State;
And whereas, it has been decided to provide reservation in favour of the Socially and Educationally Backward Classes of Muslims as recommended by the Backward Classes Commission;”
196. From the statement of the objects and reasons, it is apparent that initially the Commission had found that the entire Muslim community was socially, educationally and economically backward and, therefore, had recommended 5% reservation to the Muslim community in all educational institutions and public services in the State, excluding the creamy layer among them. The State Government had accepted the same, and in the year 2005, when the Andhra Pradesh Reservation of Seats in the Educational Institutions and of appointments or posts in the Public Services under the State to Muslim Community Act, 2005 was enacted providing such reservation, in Archana Reddy, this Court had declared the said Act as unconstitutional and violative of Articles 15 (4) and 16 (4) of the Constitution on the ground that the Commission had not identified the social backwardness of Muslims so as to declare them “backward”; that during the pendency of the appeal filed before the Supreme Court challenging the order of the High Court, the State Government referred the matter to the Commission to identify the Muslim communities and groups, which could be regarded as socially and educationally backward for the purpose of providing reservation to them. Accordingly, in the year 2007, the Commission had recommended that certain communities and groups of Muslims should be considered as socially and educationally backward for providing them reservation under Articles 15 (4) and 16 (4). Hence, the 2007 Act has been enacted to provide reservation to SEBC Muslims in educational institutions and public services. It is, therefore, clear that the State, as a matter of policy, has decided to provide reservation to certain groups of Muslim community in educational institutions and in public services on the ground that they are socially and educationally backward.
197. The grievance of the petitioners is that because of the impugned Act, the reservation to the backward classes has been increased from 46% to 50% and during the academic year 2007-08 some of the petitioners, who could find place in the merit list for admission in professional colleges viz., Engineering, Medical and Post-Graduate courses, lost an opportunity of securing seats in view of the impugned enactment. The grievance of some of the petitioners, who have filed the petitions in public interest, is that the Commission had not taken into consideration their objections for inclusion of certain other communities including Muslim community, in the list of backward classes. It has been submitted by them that the inclusion of the identified groups among Muslim community, which does not satisfy the criteria, would adversely affect the persons belonging to forward classes, in general, and the legitimate interest of the already listed backward classes as well.
198. Our Constitution permits application of the equality clause by grant of additional protection to the disadvantaged classes irrespective of their religion, so as to bring them on an equal platform with other advantaged classes of people. Where, however, reservation is provided to a community or group of communities professing a particular religion or a religious denomination, without a lawful determination of social and educational backwardness, the classification so made would be exclusively on the basis of religion, prohibited by Articles 15 (1) and 16 (2). Reference in this connection may be made to the judgments of the Hon’ble Supreme Court in State of Rajasthan v. Thakur Pratap Singh, Triloki Nath Tiku v. Stateof J & K and R.C. Poudyal v. Union of India.
199. In Thakur Pratap Singh, the Hon’ble Supreme Court has held that the notification of the Government granting exemption under Section 15 (5) of the Police Act in favour of Harijans and Muslims was discriminatory against the law abiding members of the other communities as it was only on the basis of “caste” or “religion” and, therefore, the notification was violative of Article
15 (1) of the Constitution. In Triloki Nath Tiku, the Hon’ble Supreme Court has held that the Policy of the State of Jammu & Kashmir, whereby 50% of vacancies were reserved for the Muslims of Kashmir for the entire State, 40% for Hindus of Jammu and 10% for Kashmiri Hindus, was not justified in view of the provisions of Article 16 of the Constitution.
200. On a further reading of the provisions of the 2007 Act, it is seen that there is no definition of the phrase “Muslim” or “other Muslim groups” in the definitions under Section 3. Without defining the phrase “Muslim” or “other Muslim groups” and without clarity as to who are those Muslim groups that fall under the said group, Item No.15 in the Schedule has been enumerated providing reservation to such “other Muslim groups”. This failure introduces an ambiguity. It is well-settled that legislation should be clear and without ambiguity and a statute whose provisions are vague is void.
201. Article 25 of the Constitution provides that every citizen has a right to profess, practice and propagate any religion. Item No.15 of the Schedule potentially encourages a citizen to convert to Islam, with a view to claim the benefits of reservation. If a person, who is not a Muslim and who belongs to a forward caste embraces Islam, then the question would arise as to in which group he would fall. If he does not belong to any of the groups specifically narrated in the Schedule appended to the impugned Act, he would be included in “other Muslim groups” i.e. he would be in Item No.15; but as he would not be in groups, which have already been referred to in Item No.15 (i.e. the excluded communities), he would be a member of “other Muslim groups” and would be eligible for the reservation provided he is not a member of a creamy layer. In such an event, in our opinion, anybody can avail the benefit of reservation under the impugned Act and that would be against the spirit of secularism and in equal measure subversive of the purposes for which the 2007 Act has been enacted as well. This is a significant aspect, which has not been considered at all while enacting the impugned Act and this would have disastrous consequences. Not only unscrupulous persons embracing Islam would get the benefit of reservation, but that would result in depletion of the opportunities of enjoying reservation by those Muslim groups, who are otherwise entitled to the benefit of reservation in pursuance of the impugned enactment.
202. Further, it is also to be noticed that the 2007 Act does not define the word “Muslim”. In the absence of any definition in the Act, naturally we have to fall back to the dictionary meaning. According to Oxford Dictionary, “Muslim” means, ‘a follower of the religion of Islam’. The meaning given in the Webster’s Comprehensive Dictionary to the word “Muslim” would read that he is ‘a believer in Islam’. Taking the dictionary meaning, a Muslim is a person who sincerely embraces the religion of Islam and believes in Islam. The word “Islam” has been defined by the New International Webster’s Comprehensive Dictionary of the English language, as ‘the religion of the Muslims, which maintains that there is but one God, Allah, and that Mohammed is his Prophet; Mohammedanism’. It would also mean ‘the body of Muslim believers, their culture, and the countries they inhabit.’ It has been defined by the new Oxford Dictionary of English, as the ‘religion of the Muslims, a monotheistic faith regarded as revealed through Mohammed as the Prophet of Allah.’ Thus, a Muslim is a person, who tries to worship God by following the teachings of Prophet Mohammed. Therefore, any follower of Islam can be regarded as a Muslim. The Legislature ought to have taken care, while making the enactment, to define the word “Muslim” and the phrase “other Muslim groups” and state clearly as to who actually falls within these definitions, for enjoying the benefits under this Act.
203. Looking to the facts of the case, in our opinion, the 2007 Act is religion specific and potentially encourages religious conversion, and is thus unsustainable.
204. On the aforesaid analyses, we record the summary of our conclusions as under:
a) The validity of a legislation is subject to judicial review on established grounds such as legislative competence qua the distribution of legislative powers or on the ground of transgression of other limitations on the exercise of legislative powers under the provisions of the Constitution.
b) There is no special standard or principle of judicial review pertaining to affirmative action/State action under Articles 14, 15 and 16 of the Constitution. Identification of socially and educationally backward classes of persons is essentially an exercise in classification and must answer the twin tests of reasonable differentia and rational nexus. The degree of scrutiny must be appropriately calibrated to ensure that the impeached State action involving the classification satisfies the twin tests.
c) Where the petitioner presents a prima facie case of hostile or invidious discrimination in a factual matrix where the monopoly of information/material is with the State, the burden of justifying the apparent discriminatory State action as falling within the constitutionally permitted area of classification {in this case, for affirmative action under Articles 14, 15 (4) and 16 (4)} shifts to the State.
d) Though the strict scrutiny standard evolved by the Courts in U.S.A. may not be applicable in the Indian context, a careful, in-depth or rigorous scrutiny of affirmative State action is inevitable where validity of an affirmative action of the Sate is to be examined. The level and rigor of scrutiny actually applied in B. Archana Reddy v. State of A.P. {(2005) 6 ALD 582} cannot be said to be inconsistent with the law laid down by the Hon’ble Supreme Court in Saurabh Chaudri v. Union of India {(2003) 11 SCC 146} and Ashoka Kumar Thakur v. Union of India {(2008) 6 SCC 1}.
e) The recommendations set out in the report (dated 02.7.2007) of the A.P. Commission for Backward Classes are unsustainable due to:
i) Failure of the Commission to evolve and spell out proper and relevant criteria for identification of social and educational backwardness or social backwardness and inadequate representation in public employment, among classes of persons belonging to the Muslim community.
ii) Failure of the Commission to obtain the population figures of the several classes, groups of persons belonging to the Muslim community for inclusion in Group ‘E’.
iii) Failure of the Commission to adopt a scientific method for determining the appropriate location for conducting a survey of the population of each of the classes/groups recommended for inclusion; with a view to ensuring that the locations surveyed are representative of the inhabitants of the relevant classes/groups.
iv) Failure of the Commission to consider, determine and apply a scientific and statistically rational method of sampling like determination of sample size, location for sampling etc.
v) Failure of the Commission to apply uniform criteria or even standards of analysis across the several classes/groups recommended for inclusion, while recording conclusions as to social or educational backwardness or under representation in public employment.
f) The Commission had substantially relied on the data collected and observations made by the AnSI study (People of India Series) for the purpose of making its recommendation though the data collected by the AnSI study had no relevance or nexus with the affirmation action/reservation under Articles 15 (4) and 16 (4) of the Constitution, which the State was to take on the basis of recommendations made by the Commission. The data so collected by the AnSI was only to make anthropological profile of the Indian population. Similarly, the report made by Mr.P.S.Krishnan was substantially based on the research work done by others and that too for the purpose other than the one for which the Commission had to use the said material. Reliance of the Commission on such material, which was not scientifically collected and which was bereft of any survey made for the purpose, had led to incorrect conclusions.
205. Since the impugned legislation fails to define the expression “Muslim” and “other Muslim groups” and since the identification of social and educational backwardness and under representation in public employment of the several classes/groups among Muslims as socially and educationally backward classes/groups for inclusion in Group ‘E’ is held by us to be irrational and unsustainable, the inclusion of such classes/groups of Muslims is resultantly and exclusively religion specific, in particular the “other Muslim groups” referred to in Item No.15 of the Schedule of the 2007 Act. The 2007 Act is thus violative of Articles 14, 15 (1) and 16 (2) of the Constitution.
206. The Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007 is unsustainable and is so declared. This conclusion follows since the exclusive basis for this legislation is the report dated 02.7.2007 of the A.P. Commission for Backward Classes, which we have hereinbefore declared to be unsustainable.
207. Consequently, G.O.Ms.No.23, Backward Classes Welfare (C2) Department, dated 07.7.2007 and G.O.Ms.No.231, Health, Medical and Family Welfare (E1) Department, dated 11.07.2007 respectively cannot be sustained and are accordingly quashed.
208. Insofar as G.O.Ms.No.3, Backward Classes Welfare Department, dated 4.4.2006 is concerned, the challenge to this Government Order is on the basis of the alleged irrationality in identifying the creamy layer. In view of the substantive conclusions in this judgment as to the validity of the Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007, it is not necessary to pronounce on the validity of G.O.Ms.No.3, dated 4.4.2006.
209. In the light of the analyses and conclusions above, the writ petitions are allowed.
210. All interlocutory orders pending these writ petitions stand dissolved.
_______________________
Anil R. Dave, CJ
(Vide separate judgment)
___________________________ ________________________
Smt. T. Meena Kumari, J A. Gopal Reddy, J.
__________________ _______________________
V. Eshwaraiah, J. Goda Raghuram, J.
February , 2010
svs/ARS
Note:
L.R. copy be marked.
(By Order)
svs
COMMON JUDGMENT (per Smt. Justice T. Meena Kumari,)
I have perused the judgment of the Hon’ble Chief Justice. After perusing the same, I thought of rendering my judgment independently.
1. When these Writ Petitions were initially listed before the Bench consisting of 5 Judges, it was argued before the said Bench that the specific directions/criteria as pointed out in the larger bench decision in B. Archana Reddy and others vs. State of A.P. & Others1 and also the guidelines issued by the Apex Court in Indra Sawhney v. Union of India2 have not been followed by the B.C. Commission and it did not put forth any criteria for identifying socially backward classes as such, the Bench hearing the matters felt the necessity to refer the matter to a Larger Bench by its order dated 24-01-2008. The reference is as follows:
“These writ petitions have been filed praying to declare the Ordinance issued by the Government of Andhra Pradesh and the consequential G.O. Ms. No. 23, dated 7.7.2007 issued by the Backward Classes Welfare (C-2) Department, providing 4% reservation of seats for admission into the Educational Institutions and appointments for the posts in Public Services, which has subsequently become an Act, namely, “Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007” (Act No. 26 of 2007) as illegal, unconstitutional and offending Articles 14,15 and 16 of the Constitution of India.
On an S.L.P. filed by one T. Muralidar Rao and others, namely, Special Leave to Appeal(Civil) No(s). 17195-17196/2007, the Supreme Court on 12th October, 2007 directed this Court to dispose of the writ petitions finally before 31st October, 2007. Pursuant to the same, the above batch of writ petitions were listed before this bench and the same was coming up for hearing from 27.11.2007.
2. During the course of arguments, learned counsel for the petitioners while pointing out to certain observations made by a coordinate Bench of five judges of this Court with regard to identification of Muslim community as backward class in B. ARCHANA REDDY AND OTHERS vs. STATE OF A.P. & OTHERS (1st cited), sought to contend that the B.C. Commission did not evolve any criteria for identifying social backwardness. It was also their contention that the specific direction/criteria as pointed out in later larger bench has not been adhered to. He relied on paragraphs 114,279,293,378 and 379 of the said judgment which read thus:
“114. The Commission has neither found nor recorded that self-employment in petty business, occupations like rickshaw pulling, push-cart trade, agricultural labour, marginal land ownership, mal-nutrition, inaccessibility to medical facility, lower life expectancy, engagement as unskilled labour, masons or drivers, pursuit of professions or occupations such as cycle repairing or vulcanizing, engagement of women and children in beedi-rolling, are circumstances either peculiar to the Muslim community or that professing the faith of Islam (definition of ‘Muslims’ in Sec.2(c) of the Ordinance) and these (occupational, professional, extreme poverty and want) circumstances have a causal relationship. In the absence of a causal nexus between the Islam faith aggregate and the pursuit of certain professions, trades or humble economic circumstances; the occupation and/or the means test, provides neither a legal nor a rational and logical basis for the conclusion that all Muslims are socially backward because some or many of them are in dire economic straits.
279. Transparency in governance is exhortation of the day. In this context, a little elaboration is necessary. Doctrine of rule of law in legal and political philosophy means many things for many people. The universal theme, however, is that the constitutional governance by rule of law is preferable to governance by a few persons. Democracy presupposes peoples’ rule by law or rule of law through people. The broad principle of rule of law contemplates that (i) all laws should be prospective, open and clear, (ii) laws should be stable, (iii) making of particular laws should be guided by stable and general rules, (iv) the principles of natural justice must be observed, and (v) there should be a system of implementation of laws guaranteeing the independence of judiciary duly conferring on it the power to review public law functions. Another important principle of rule of law is that the rulers must know the rules to the ruled. All persons must know what are the laws, rules and regulations by which they will be governed. This is more important in a democratic polity where an independent judiciary, lords over the exercise of legislative, judicial and administrative powers by other organs of the State, by reason of doctrine of judicial review. Transparency in public administration and constitutional governance is therefore a part of rule of law and indeed it is inseparable adjutant of ‘rule of law’. This Court may make reference to Jaisinghani and Merkur Island Shipping Corporation v. Laughton (1983) 2 AC 570 (CA) and the decision of the Supreme Court in BALCO Employes’ Union (Regd.) v. Union of India(2002)2 SCC 333.
293. In an enquiry of the nature undertaken by B.C. Commission, mere issue of notification inviting objections and conducting public hearings at different places would only satisfy the principles of fairness to some extent. In the absence of notifying the objectors of criteria prior to such hearings and furnish the material to such objectors prior to conducting public hearings, the enquiry conducted by the B.C. Commission cannot be called fair. The very purpose of issuing notification inviting objections and conducting public hearings, would be defeated if the criteria is not decided prior to undertaking, the collection of data and putting the objectors on notice. We accordingly hold against the State.
378. Fourthly, while determining social backwardness of a class of citizens, an expert body like B.C. Commission has to necessarily evolve absolutely relevant criteria for the purpose of caste test, occupation test and means test. Wherever social backwardness is due to a class of people being born in a homogenous endogamous group called caste with common traits and rigid customs and social rules, the caste test itself lead to an inference that the class/caste is socially backward. If the occupation of majority of a class of citizens is considered inferior and unremunerative, and such class of people is considered lowly placed in the society, it would ordinarily satisfy the test of social backwardness. The means test presupposes that by reason of birth in a class of people, historically and traditionally the entire class suffers from perennial poverty, in which case, the means test would enable the determination of social backwardness. The B.C. Commission did not evolve any criteria for identifying social backwardness and did not apply the three tests in a scientific and objective manner.
379. Fifthly, the B.C Commission at the stage of collecting preliminary data, evolving criteria and conducting public hearings for the purpose of hearing objections from the public, did not take such steps which can be called transparent and fair. Though, the nature of enquiry by B.C. Commission cannot be strictly treated as quasi-judicial, but still while undertaking an exercise for identification of backward class of citizens, the Commission is legally bound to be fair and transparent and afford all such opportunity to objectors and proponents for effective representation before the Commission. The prior non-publication of criteria and the data collected by the B.C. Commission renders the report of the B.C. Commission illegal being contrary to provisions of B.C. Commission Act and principles of fairness.”
In view of the aforesaid judgment emanated from a coordinate bench of five judges of this Court and in the absence of any provision in the statute for publication of the criteria whether this Court can supplant the provisions of the Act and the Rules by making publication mandatory as per the observations as contained in paras stated supra and other observations made by the coordinate bench, are contrary to the observations made by the Supreme Court in Indra Sawhney v. Union of India, where it was left open for the concerned authorities to lay down the criteria, apart from contrary to principles laid down in regard to strict scrutiny approach, as laid in Saurabh Chandra v. Union of India and also the principles laid down in other decisions of the Apex Court.
After hearing the counsel on either side appearing on behalf of the respondents, we are of the view that the matters are required to be heard and reconsidered by a 7-Judge Bench.
Accordingly, we direct the registry to place these matters before the Hon’ble the Chief Justice for obtaining necessary orders.”
2. Accordingly the writ petitions were posted before a larger Bench consisting of Seven Judges and they were heard for considerable length of time.
3. The batch of Writ Petitions have been filed questioning the validity of the impugned Act No. 26 of 2007, dated 13-08-2007, replacing the Ordinance 5 of 2007, dated 06-07-2007, wherein the Government of Andhra Pradesh enacted an Act with an object to provide reservation to socially and educationally backward classes of Muslims in the Educational Institutions and Public Employment for their upliftment and for matters connected therewith or incidental thereto. The Act 26 of 2007 is called as “Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007” (Act No.26 of 2007). At the first instance, the petitioners have chosen to file the Writ Petitions questioning the Ordinance and in view of the enactment of the Act replacing the Ordinance, they have subsequently sought to amend the prayers in the Writ Petitions, and same was allowed by this Court. In the Schedule, the Government has declared 15 classes of Muslims residing in the state (Other than Dudekula, Laddaf, Pinjari/Noorbash and Mehtar) as identified by the A.P. Commission for Backward Classes as socially and educationally backward and included them in the lists of backward classes under separate category ‘E’.
4. The vires of the said Act is challenged in these writ petition.
5. It is contended on behalf of the petitioners that the above enactment is the result of the Report and Recommendations of the Respondent No.3 – Andhra Pradesh Backward Classes Commission (hereinafter called, ‘B.C. Commission’) dated 02-07-2007. It is further contended that B.C. Commission Report is based on the Report submitted by one, Mr.P.S. Krishnan, who was appointed as an Advisor to the State Government by virtue of G.O.Ms.No.21, dated 18-05-2007. It is also contended that his duties included collection of data, conducting research and consultation with B.C. Commission, concerned Governmental officials and preparation and submission of the draft report to the Government in May, 2007 for wider consultation, finalization of report after taking note of various suggestions, such as keeping the directions of the A.P. High Court and the Supreme Court on these issues, briefing the Government and the Council of Ministers if need be, filing of caveats, preparation of counter-affidavit on behalf of the Government and defending the Government in Courts of Law if need be and such other work as may be entrusted by the Government from time to time, for the benefit of the socially and educationally backward classes of citizens of Andhra Pradesh and in particular those belonging to these classes in the Muslim Population. It is contended that in the said G.O. it is stated that the Government of Andhra Pradesh is concerned with the conditions of the socially and educationally backward classes in the Muslim Population to take all possible special measures for the advancement of those belonging to such classes in terms of Article
15(4), 15(5), 16(4) and other provisions of the Constitution. Relying upon the Judgment of this Court in W.P.No.13832 and others read with judgment of the Hon’ble Supreme Court in Indra Sawhney’s case and also taking into consideration subsequent developments, it is contended that the said Officer, who was appointed by virtue of G.O.Ms.No.21, dated 18-05-2007, has submitted his report on 11-06-2007 identifying specific classes of Muslims recommending to include in the list of socially and educationally backward classes as a separate group ‘E’ excluding the other Muslim groups, who are also socially and educationally backward. It is also contended by the learned counsel that B.C. Commission has also recommended for inclusion of the said classes in the separate group ‘E’ basing on the Report of Sri P.S.Krishnan. It is contended by the counsel that the enquiry conducted and the data collected by the Commission is not in conformity with the guidelines issued by the Hon’ble Supreme Court in Indra Sawhney’s case and also the decision of the Larger Bench of this Court in Archana Reddy’s case.. It is further contended that the inclusion of the Muslim groups in the B.C. list was done by the respondents mechanically without adequate and relevant data. It is also contended that the B.C. Commission has acted in a haste manner, in conducting the survey and also in collecting the data for recommending the 15 groups as specific classes of the Muslims to be included in Group ‘E’ of the B.Cs. in addition to ‘A, ‘B’, ‘C’, ‘D’ for reservation into educational institutions and appointment to posts in the public service under Article 15 (4) and 16(4) of the Constitution of India. It is also contended by all the learned counsel that in the State of Andhra Pradesh there exists a B.C. list wherein certain group of Muslims have already been identified right from 1968 onwards. It is also contended that Anantha Raman Commission identified and prepared a B.C. list of 92 caste groups, out of which they have excluded Dudekula, Laddaf, Pinjari or Noorbash. The Commission has rejected the claim of other groups of Muslims and afterwards several developments have taken place and the Government tried to include certain groups of Muslims by way of providing reservations under Articles 15(4) and 16(4) and by virtue of G.O.Ms.No.33 dated 12-07-2004 and also tried to include the Muslim community as backward class in the B.C. list in Group ‘E’ by providing 5% of reservation in Articles 15(4) and 16(4) of the Constitution of India by virtue of G.O.Ms.No.33, dated 12-07-2004 and the same was subject matter before the High Court in T.Muralidhar Rao v. State of A.P3 and the said G.O. was quashed by this Court on the ground that the entire community cannot be declared as backward class and the reservation is also excessive. It is also contended that including all the socially educated group of classes would amount to division of existing B.C. list and the elimination of creamy layer is in contravention of the directions issued by the Supreme Court in Indra Sawhney’s case. It is emphatically argued before this Court that the Government has issued G.O.Ms.No.3, dated 04-04-2006, wherein it was ordered that adoption of criteria to determine the creamy layer among the B.C.s as fixed by the Government of India except the annual income limit, which is fixed by Government of India at Rs.2.50 lakhs per annum whereas the rate has been fixed at Rs.4,00,000/- per annum, which is contrary to the judgment of the Supreme Court in the Nair Service Society v. State of Kerala4.
6. It is contended on behalf of petitioners that the respondent No.1 i.e., the Principal Secretary to Government in the Writ Petition has sent the report of Sri P.S. Krishnan to respondent No.3 i.e., B C Commission and the respondent No.3 conducted the hearings and its Report is based on material supplied by Anthropological Survey of India and following the report of Sri P.S. Krishnan. It is contended that the Commission has never evolved any criteria nor collected any sufficient data nor made any comparative assessment with other communities and the way in which the B.C. Commission has conducted itself in a hurried manner goes to show that the survey was conducted within a short period. The hearings were held on 14.5.2007, 16.5.2007, 22.5.2007, 28.5.2007 and 1.6.2007 at Hyderabad and the hearings were also held on 23-06-2007 at Kadapa, on 24-06-2007 at Kurnool on 24-06-2007 at Mahaboobnagar, on 25-06-2007 at Guntur, on 25-06-2007 a
