Gujarat High Court
Adam B Chaki vs Government Of India Through on 15 February, 2013
Equivalent citations: AIR 2013 GUJARAT 66
Author: V.M.Sahai
Bench: J.B.Pardiwala, V.M.Sahai
ADAM B CHAKI....Applicant(s)V/SGOVERNMENT OF INDIA THROUGH SECRETARY C/WPPIL/20/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 20 of 2011 With WRIT PETITION (PIL) NO.
191 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/-
With HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- With HONOURABLE MR.JUSTICE RAVI R.TRIPATHI With HONOURABLE MR.JUSTICE AKIL KURESHI Sd/- and HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES2 To be referred to the Reporter or not ?
YES3 Whether their Lordships wish to see the fair copy of the judgment ?
NO4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
NO================================================================ ADAM B CHAKI....Applicant(s) Versus GOVERNMENT OF INDIA THROUGH SECRETARY & 3....Opponent(s) ================================================================ Appearance:
MR EKRAMA QURESHI and MR HASHIM QURESHI, ADVOCATES for the Applicant.
MR PARAS KUHAD, ADDITIONAL SOLICITOR GENERAL with MR PS CHAMPANERI, ASSISTANT SOLICITOR GENERAL with MR HRIDAY BUCH, SENIOR CENTRAL GOVERNMENT COUNSEL with MR IQBAL A SHAIKH with MS SWATI VIJAYERGIYA for Respondent No.1.
MR KAMAL B TRIVEDI, ADVOCATE GENERAL with MR PK JANI, GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for Respondent No.2.
MR YATIN OZA, SENIOR ADVOCATE with MS SRUSHTI A THULA, ADVOCATE for Respondent Nos.3-4.
MR YH MUCHHALA, SENIOR ADVOCATE with MR MTM HAKIM, ADVOCATES for Intervenors.
MR DUSHYANT DAVE, SENIOR ADVOCATE with MR ANAND YAGNIK, ADVOCATE for Intervenors.
WP (PIL) No.191 of 2012 Appearance :
MR SHALIN MEHTA, SENIOR ADOVDATE with MS SRUSHTI A THULA, ADVOCATE for the applicants.
MR PARAS KUHAD, ADDITIONAL SOLICITOR GENERAL with MR PS CHAMPANERI, ASSTT. SOLICITOR GENERAL with MR HRIDAY BUCH, SENIOR CENTRAL GOVERNMENT COUNSEL, with MR IQBAL A SHAIKH with MS SWATI VIJAYERGIYA for Respondent No.1.
MR KAMAL B TRIVEDI, ADVOCATE GENERAL WITH MR PK JANI, GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for Respondent No.2.
MR YH MUCHHALA, SENIOR ADVOCATE with MR MTM HAKIM, ADVOCATES for Intervenors.
MR DUSHYANT DAVE, SENIOR ADVOCATE with MR ANAND YAGNIK, ADVOCATE for Intervenors.
========================================================== CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAIandHONOURABLE MR.JUSTICE D.H.WAGHELAandHONOURABLE MR.JUSTICE RAVI R.TRIPATHIandHONOURABLE MR.JUSTICE AKIL KURESHIandHONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 15/02/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI FOR SELF AND FOR HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. This reference involves the question of validity of Pre-matric Scholarship Scheme (Ohe Schemefor short) framed by the Government of India. Such a scheme was formulated as part of Prime Minister¿ New 15 Point Programme for the welfare of Minorities. The Scheme was made effective from 1st April 2008. Those students who had secured not less than 50 per cent marks in the previous final examination and the annual income of whose parents/guardians from all sources did not exceed Rs.1 lac were eligible for the scholarship. The scholarship was made available to the students of minorities as notified under section 2(c) of the National Commission for Minorities Act, 1992. 30 per cent of the scholarship was ear-marked for girl students. Since the scholarships that would be made available in a year was fixed, for inter-se selection of all eligible students, weightage was to be given to poverty rather than marks. Funding of the scholarships would be shared by the Central and State Governments in the ratio of 75% as to 25% whereas in case of Union Territories, 100 per cent funding was to be provided by the Central Government.
The said scheme came to be challenged before this Court in Special Civil Application No.2245 of 2008 filed by one Shri Vijay H. Patel in the nature of public interest litigation. The grievance of the petitioner therein was that diverting national resources in favour of minority communities was discriminatory, arbitrary and violative of the constitutional provisions. The Court traced the origin of the Scheme which was framed bearing in mind the findings of the High Level Committee constituted by the Government of India under notification dated 9th March 2005 headed by Justice Rajender Sachar (popularly known as Sachar Committee Report), which was constituted to prepare a comprehensive report on the socio-economic and educational status of Muslim community in India. The petition was dismissed holding that the Scheme does not suffer from any constitutional invalidity as the funds used to minimise inequalities among minority communities by adopting various social and welfare activities like public safety, health, slum development, improving the deficiencies in civic amenities, economic opportunities, improving standard of education, skill and entrepreneurship development, employment opportunity, eradication of poverty, etc. would in no way violate the constitutional principles of equality or affect any of the fundamental rights guaranteed to the members of the other communities. For coming to such a conclusion, the Division Bench made following observations :
Welfare of the people is ultimate goal of the State actions. State if finds that a minority community is not equally placed with the majority community, socially or economically, can take steps to minimise inequalities and bring that community at par with those communities which are otherwise well placed in the social fabrics of the society. Principal aim of socialist State is to eliminate inequalities in income, status and standard of life. Concept of equality contemplates minimizing the inequality in income and eliminating inequality in status, facilities, and opportunities for which it is at times necessary to adopt some affirmative actions. Government have decided to open more branches of public sector banks in Muslim concentrated areas and also to take measures to promote micro-finance amongst minorities and special literacy drive has also been undertaken in the areas where substantial population of minorities reside. Decision to establish Block Institutes of Teacher Education (BITEs) to impart pre-service and in-service training to primary, upper primary and secondary level teachers in such areas would no way affect our Constitutional objectives. On the other hand, actions of the State to minimise inequality in income and status and the endeavour to eliminate poverty and to provide opportunities in employment would only uphold constitutional objectives. Sachar Committee report reveals that Muslim community concentrated areas, with poor infrastructure facilities, affect their access to basic services like civil amenities, education, health facilities etc. Government on the basis of the report took steps to identify the minorities concentrated areas which are backward and also initiated steps to improve deficiency in civil amenities and socio economic opportunities and monitor the implementation of a comprehensive programme for skill and entrepreneurship development among the Muslim community.
xxxx xxxx Government should, however, observe complete religious neutrality. Religious tolerance and fraternity are basic features and postulates of the Constitution and no action of the Government should directly or impliedly offends the religious sentiments or freedom or conscience of other religions. Madarsas have played an important role in providing religious education to the Muslim population. Policy envisages a mechanism whereby Madarsas are linked with a Higher Secondary School Board, so that the students wanting to shift to a regular mainstream education can also do so after having passed from Madarsas. Further it is also stipulated that recognition of degrees from Madarsas for eligibility in competitive examinations, desirable. Government would ensure that the aid or services rendered by it, be secular in nature and not utilised by any institution for inculcating religion or for the advancement of religious teaching, lest it may violate religious neutrality to be maintained by the Government. State would while implementing those programmes, ensure that the funds be utilised only for social welfare activities and not directly or indirectly used for promotion of any religious activities or advancement of religious teaching of a particular minority community.
For the time being, so far as the constitutional validity of the Scheme was concerned, the matter rested there. Since despite such declaration, the State Government did not implement the Scheme, a public interest petition Writ Petition (PIL) No.20 of 2011 was filed praying for a direction in the nature of mandamus or any other appropriate writ against the State of Gujarat for implementing the said Scheme.
Before the said public interest petition could be decided by this Court, another public interest petition being Writ Petition (PIL) No.191 of 2012 came to be filed. Petitioner No.1 therein belongs to the Scheduled Caste category and petitioner No.2 belongs to Other Backward Class (OBC) category. They have challenged the validity of the Scheme. They have prayed for a declaration that the said Scheme is discriminatory being violative of Article 14 of the Constitution. In the petition, they have pleaded that the members of Scheduled Castes and OBC communities are a disadvantaged lot, despite which the Government of India has not framed any scheme of scholarship for the students of such communities. This, according to them, violates the equality clause enshrined in Article 14 of the Constitution.
When these petitions were pending, this very Scheme along with another scheme of the Government of India for scholarships to Post-Matriculation Course for Minorities came up for consideration before the Bombay High Court in the case of Sanjay Gajanan Punalekar v. Union of India, in Writ Petition No.84 of 2008. A Division Bench of the Bombay High Court, by judgment dated 6th June 2011, upheld the vires of the Scheme. The Court held as under:
51. We are in complete agreement with the aforesaid view of the Division Bench of Gujarat High Court and we have no hesitation in holding that the impugned scholarship schemes for students of minority communities whose parents/guardians income does not exceed Rs.1 lakh (for pre-matric scholarship) or Rs.2.50 lakh (for professional/ technical education) and who are required to obtain at least 50% marks in the previous examination are constitutionally valid and do not suffer from any infirmity under Articles 14, 15(1), 15(4) and 27 of the Constitution.
In the process the Court observed as under :
37. A bare perusal of the Report of the High Level Committee headed by Justice Sachar clearly indicates that low level of social and educational backwardness of the Muslim community is not attributable only to poverty or only to religion. Ghettoisation, identity related concerns, security concerns etc. are social barriers peculiar to the Muslim community and not to the other poor strata of the society belonging to the majority community. Hence, when a meritorious but poor Muslim student is given a pre-matric scholarship for school education and a post matric scholarship for a professional or technical course, he does not get it merely because he is a Muslim, but because he has to face the social barriers indicated above, which the majority community students belonging to poor strata do not have to face. The very fact that out of every 25 students in under-graduate courses, only one is a Muslim, that out of every 50 students in post-graduate courses, only one is a Muslim and that out of every 100 students in IIMs, only one is a Muslim, substantiates in ample measure the Government submission that the benefits of various Government schemes for the underprivileged have not reached the disadvantaged sections of the minority communities.
38. In other words, as highlighted by Mr. Khambatta, learned Additional Solicitor General, some of the reasons for social and educational backwardness of minorities, most of whom belong to the poor strata of society, are unique to the minority communities. Majority community students, even belonging to the poor strata of society, do not have to face those social barriers like ghettoisation, identity related concerns and security concerns which are already indicated in paras 16 and 19 hereinabove. The differentia that poor students belonging to minority communities face social barriers which poor students belonging to the majority community do not have to face, is therefore, an intelligible differentia.
We, therefore, find considerable substance in the submission of Mr. Khambatta, learned Additional Solicitor General that when the main thrust of Eleventh Five Year Plan is for inclusive growth and when Article 46 of the Constitution requires the State, interalia, to promote with special care the educational and economic interests of the weaker sections of people, the above differentia have a rational nexus with the object of achieving inclusive growth.
Both the public interest petitions filed before this High Court came up for consideration before a Division Bench. Judgments of this Court in the case of Vijay H. Patel (supra) as well as by the Bombay High Court in the case of Sanjiv Gajanan Punalekar (supra) were brought to the notice of the Court. The Bench, however, found itself unable to accept the same view. The Bench was of the opinion that the Scheme was violative of Article 15 of the Constitution, and in exercise of writ jurisdiction under Article 226 of the Constitution, the court would not issue a writ or direction upon the State to violate constitutional provisions. The Court placed heavy reliance on a decision of the Supreme Court in the case of State of Rajasthan v. Thakur Pratap Singh, AIR 1960 SC 1208. It was a case wherein the State of Rajasthan had issued a notification levying cost from the inhabitants of certain areas declared as disturbed area for deployment of additional police force. This was done pursuant to the powers under section 15 of the Police Act which authorizes the State Government for proclamation to notify to declare any area as a disturbed area. This, in turn, would authorize the Inspector General of Police to employ additional force. Sub-section (3) of section 15 of the Police Act provided that subject to the provisions of sub-section (5), the cost of such additional police force shall be borne by the inhabitants of such disturbed area. Sub-section (5) of section 15 of the Police Act in turn provided that it shall be lawful for the State Government to exempt any persons or class or section of such inhabitants from liability to bear any portion of such cost.
The notification issued by the State of Rajasthan which was under
challenge had, while ordering collection of cost of such additional police force from the inhabitants of the disturbed area exempted the Harijan and Muslim inhabitants of the said area. The Constitution Bench of the Supreme Court considered the validity of such a notification and held that the same was contrary to the provisions of Article 15(1) of the Constitution on the ground that it was not even the case of the State that there were no persons belonging to other communities who were peace-loving and law abiding. In that view of the matter, it was observed that the notification discriminated against law abiding members of other communities and in favour of Muslim and Harijan communities.
Basing heavy reliance on the said decision, the Division Bench, in its detailed judgment dated 8.10.2012, found itself unable to accept the view of this Court in the case of Vijay H. Patel (supra) or that of the Bombay High Court in the case of Sanjay Gajanan Punalekar (supra). The Bench was of the opinion that the decision of the Supreme Court in the case of Thakur Pratap Singh (supra) and the ratio laid down therein was not considered in the aforementioned judgments. It was observed in the referring judgment as under :
30. The phrase any person appearing in Article 14 or the expression any citizen appearing in Article 15 having been interpreted by the constitutional Bench in the case of State of Rajasthan (supra), as even a single person or citizen respectively, any interpretation taking the view that word any means ¿ubstantial number of persons or citizensmust be rejected so long as the said decision is not varied or upset by any Larger Bench decision of the Apex Court.
31. It is now a settled law, that a writ-court in exercise of power conferred under Article 226 of the Constitution of India should not issue any writ or pass direction upon the State which violates the Constitutional provision. In our opinion, to pass a direction upon the State to implement the scheme as suggested by Mr. Qureshi will amount to passing direction upon the State Government to violate Article 15(1) of the Constitution. Similarly, a writ-court cannot pass a direction upon the Union of India to implement the scheme to all children as it is within its province to take such a decision. But this much this court can hold that the scheme in question can be upheld only if it is made applicable to all the citizen of this country irrespective of the religion they belong.
In the ultimate analysis, the Court was of the opinion that the Scheme which provided scholarship only to the students of minority communities to the exclusion of other communities was discriminatory. In this respect, it is observed as under :
34.1 Let us now consider a situation where two citizens of this country, one belonging to any of those five religions and the other, not belonging to those five religions, due to their misfortune are reduced to the lowest ebb of poverty and distress and earning their livelihood as street-beggars, having the same meagre amount of annual income which is much less than Rs.1 lakh. Both the aforesaid persons have a son each and they want that their respective son should complete education so that he is not forced to undergo a life of misery. The son of the person not belonging to any of those five religions has secured 90% marks in the last final examination whereas the son of the other, who belongs to one of those five religions, has obtained 60% marks. According to the Scheme in question, the son of the former one who does not belong to any of those five religions will be deprived of the benefit only on the ground that he does not belong to those five religions whereas the son of the other person, who belongs to one of those five religions, will be entitled to the benefit only because he belongs to one of those five religions and no other ground although he is less meritorious than the former and the socio economic condition of his father is the same as that of the father of the former. The Scheme in question, therefore, clearly discriminates against a citizen only on the ground of religion.
Since the previous Division Bench in the case of Vijay H. Patel (supra) upheld the validity of the Scheme, the Court referred the question of validity of the Scheme to a Larger Bench. The questions formulated by the Division Bench are as follows:
36.
We, therefore, formulate the questions to be referred as follows:
Whether the scheme in question violates Article 15(1) of the Constitution and a direction should be given to the State Government to implement the scheme.
Whether the decision of the Division Bench of this court in Special Civil Application No.2245 of 2008 (Vijay Harishchandra Patel vs. Union of India) disposed on March 20, 2010 lays down the correct proposition that the scheme in question does not violate Article 15 of the Constitution of India.
The questions framed have two basic parameters. First portion of the first question refers to the constitutional validity of the Scheme. Though the precise question framed refers to the possible violation of Article 15(1) of the Constitution, we have considered the validity of the Scheme as a whole and not confined our scrutiny to clause (1) of Article 15 alone since obviously that was not the intention of the referring Bench. The second aspect of the reference which emerges from later portion of question No.1 framed by the referring Bench pertains to the issue whether even if the Scheme is constitutionally valid, should direction be issued to the State Government to implement the same. This aspect emerges from the opposition of the State to the prayers made by the petitioner in Writ Petition (PIL) No.20 of 2011 seeking direction of the Court to implement the Scheme. The stand of the State is that the court cannot issue a direction to the State Government to implement the Scheme since the Union Government cannot issue a binding direction to the State Government in form of an executive instruction particularly when implementation of such a decision involves expenditure by the State Government. Second question pertaining to the correctness of the decision of this Court in the case of Vijay H. Patel (supra), the moment we answer the question of the validity of the same would stand answered.
We may, briefly, record the stand of different parties to these proceedings.
9.1 In Writ Petition No.20 of 2011, the petitioner¿ case is that despite validity of the said Scheme having been upheld by this Court, the State Government has refused to implement the same. This amounts to depriving the rights of under-privileged minority communities. After several years of formation of the Scheme, the same is yet to be implemented in the State. The apprehension is that if the funds allocated by the Union of India are not utilized by the State, the same may be diverted to other States thereby causing grave injustice to deserving students of the State.
9.2 In the subsequent public interest petition filed by Shri Rajesh G. Solanki and another, the case of the petitioners is that the Scheme which provides scholarships for minority students is violative of Article 14 of the Constitution. As noted earlier, petitioner No.1 belongs to Scheduled Caste community and petitioner No.2 belongs to OBC community. They contend that the scheme which excludes other under-privileged sections of the society is unconstitutional. Though in the petition itself, major thrust is on non-inclusion of Scheduled Caste students within the purview of the Scheme, before us, learned counsel appearing for such petitioners had contended that non-inclusion of all the communities irrespective of race, caste or religion, would be violative of Article 15 of the Constitution. It was argued that the scheme which separates students of minority communities for a special treatment causes hostile discrimination against the excluded class of students, which includes not only Schedule Castes, Scheduled Tribes and OBCs, but also other non-minority religious groups and citizens of the country. Their stand was that the Scheme which classifies minorities into one group is in conflict with clause (1) of Article 15 of the Constitution. It was submitted that clause (4) of Article 15 alone would permit the State to make provisions for any socially and educationally backward classes. The stand was that minority communities in general cannot be categorized as socially and educationally backward classes. In any case, before any such categorization can be made, detailed examination of their social and educational backwardness must be undertaken. This can be done only in terms of Article 340 of the Constitution, which, in turn, can be done only by setting up a Commission at the State level by the State Government. In the present case, no such systematic exercise was undertaken either by the Union of India or the State Government. There is no declaration made including all minorities into the socially and educationally backward classes. In that view of the matter, granting any special benefits in favour of members of these communities is wholly impermissible under Articles 15(1) and 15(4) of the Constitution.
9.3 The stand of the Union of India, in both these cases, is that the Scheme is constitutionally valid. It makes special provisions for the underprivileged class of the society. The classification made is reasonable and does not offend Articles 14 or 15(1) of the Constitution. Through several affidavits filed by the Union of India in these petitions and written submissions presented previously and during the course of arguments before us, the stand that has been adopted by the Union of India is that the Scheme grants pre-matric scholarship to students belonging to the minority communities as defined in section 2(c) of the National Commission for Minorities Act, 1992. The Scheme was introduced with effect from 1.4.2008, as part of the Prime Minister¿ 15 Point Programme for upliftment of the minorities. The Scheme was introduced as a consequence of the report by the Sachar Committee. The Scheme is implemented all over India except in the States of Gujarat, Arunachal Pradesh and Lakshadeep. Since the inception of the Scheme till 31.12.2012, total number of scholarships awarded across the country comes to 1,74,01,844/-. Through oral submissions, it was strongly urged on behalf of the Union of India that the Scheme in question is in no way violative of any of the constitutional provisions. It was submitted that after detailed examination of the socio-economic conditions of the minorities and in particular Muslim community of the country, it was decided that to uplift this under-privileged class of the society, scholarships should be made available to the students at pre-matric level and post-matric level. Such classification cannot be said to be either unreasonable or amounting to hostile discrimination. It was urged that clause (4) of Article 15 is not the only source of power for giving benefits to the under-privileged class of the society. Article 14 read with Article 15(1) permits reasonable classification in favour of any class or section of the society. What Article 15(1) prohibits is making special provisions only on the basis of religion and in the present case, religion was not the sole or even the predominant factor. Several factors were taken into consideration before framing the Scheme. In the alternative, it was submitted that even on the anvil of Article 15(4) of the Constitution, the Union had the power to make special provisions for upliftment of the minority communities. It was submitted that merely because such communities were not formally declared as socially and educationally backward classes would not in any manner, make it impermissible for the Union of India to make special provisions for their betterment.
On behalf of the Union of India, it was also pointed out that there are several scholarship schemes launched by the Union of India for various under-privileged classes of the society, which include, besides others, Centrally sponsored scheme for pre-matric and post-matric scholarships for Scheduled Caste students, pre-matric and post-matric scholarship schemes for OBC students, pre-matric scholarship for the children of those engaged in unclean occupation and national scholarship for the persons with disabilities.
9.4 The State Government, on the other hand, has taken a stand that the Scheme is unconstitutional. It was argued at length by the learned Advocate General that no special provisions can be made only in favour of religious minorities since the same would be violative of Articles 15(1) and 15(4) of the Constitution. It was the firm stand of the State Government projected before us through the learned Advocate General that the Scheme suffers from hostile discrimination inasmuch as the same excludes the students of all communities other than notified minorities from the purview of scholarship. This, according to the learned Advocate General, was wholly impermissible under Article 15(1) of the Constitution. It was also his stand that the Scheme would be hit by Article 15(4) of the Constitution and would in no manner be saved under Article 15(1) of the Constitution.
9.5 Before framing the Scheme, the Union of India had called for the response from the State Government. In response to the same, the State Government had on 4th March 2008, conveyed as under:
Hon. Chief Minister of Gujarat had in his speech to the National Developmental Council held on 19th December 2007 reiterated the stand that various minority welfare programmes focus on earmarking certain outlays solemnly based on the criteria of minority community status. This is required to be reviewed in the interest of maintaining the social fabric of the nation. Such discrimination amongst the eligible beneficiaries for flow of funds, based on minority status will not help the cause of taking the people of India together on the path of development. The correct criteria for flow of funds for various schemes and programmes should be based on principles of equity by taking only socio economic criteria alone and leaving the implementation of such schemes to the States. The State Government is not in favour of Pre-matric scholarship where 25% state share is envisaged since this scheme is not based on the principles of equity. The State Government is also of the opinion that Central Government need not start any scheme for the minority welfare where state¿ share is envisaged.
Thus, the stand of the State Government was that the State is not in favour of such a scheme since the Scheme is not based on the principle of equality. In other words, the State Government did not approve of any such scheme which gave scholarship only to minority community students.
9.6 In Writ Petition No.20 of 2011, the State has filed its replies. In one such reply affidavit dated 26th April 2011, the stand of the State further clarified is that in the first year, the Central Government had allowed 10460 scholarships under the said scheme for the year 2008-09. The same was revised from time to time until the year 2010-11, when the number was increased to 52260. For such purpose, the Central Government announced grant of Rs.9.82 crores which would require the State to bear the burden of Rs.4 crores for one year. It is pointed out that the State already has various welfare schemes for several categories of students. Noticeably, the State already has a pre-matric scholarship for minority students since the year 1979 under which eligible student is granted Rs.150 per annum for standard 5 to 7 and Rs.300 per annum for standard 8 to 10. It is pointed out that the income limit for availing such scheme is Rs.20,000/- per annum for rural areas and Rs.25,000/- per annum for urban areas.
In the said affidavit, it is further stated that the State Government is not desirous of implementing the Central Scheme. Since there would be as many as 6 lacs eligible students as per the income eligibility prescribed under the Central Scheme and since as per the fund allocation only 52,260 students would be covered, there would be heart-burning amongst those students who are left out. It is further stated that :
11.
It is further respectfully stated that as aforesaid, the Scheme is extended only to 52,260 students as against the total number of approximately 6,00,000 eligible students belonging to the minority communities. In that event, it will be the responsibility of the State Government to extend the benefit to the remaining students which is likely to incur the financial expenditure to the tune of Rs.168 crores excluding to other scholarship schemes prevailing in the State of Gujarat.
It is also stated that if the criteria laid down by the Central Scheme is applied in the scholarship schemes of the State Government, there would be additional burden on the exchequer to the tune of Rs.2091.38 crores per annum. In the said affidavit, it is further pointed out that in the year 2010-11, as many as 2.25 lacs students have received the benefits of the State Scheme for Pre-matric scholarship for minority students. It is, therefore, stated that :
14.
Owing to the aforesaid difficulties, the State Government would not like to discriminate amongst the students belonging to the minority communities since the Scheme in question floated by the Ministry of Minority Affairs can be extended only to an extent of limited students i.e. 52,260 in the State Government as against the 6,00,000 eligible students falling within the income criteria of Rs.1,00,000/- per annum.
In a further affidavit dated 14th November 2011, filed by Shri Harish Sheth, I/c. Joint Secretary, Social Justice and Empowerment Department, reiterated the State¿ stand that giving scholarship only to 52,260 students of minority community out of approximately 6 lacs eligible students would lead to heart-burning amongst the left out minority students. It is further stated as under :
4.
With reference to para 8.1.1., I respectfully say that the stand taken by State Government in this regard is same today as it was in the letter dated 4.3.2008, which reflects the policy matter of the State. I reiterate and respectfully say that the State Government is implementing the Pre-matric Scholarship Scheme for Minorities as State Funded Scheme and that the same scheme is implemented for Economically Backward Class (EBC), Socially and Economically Backward Class (SEBC), Scheduled Castes (SC) and Scheduled Tribes (ST) as stated in para and thus, it does not create any discrimination amongst any community. I respectfully say that the amount of scholarship and income criteria for Pre-matric Scholarship for students of Minorities, EBC and SEBC are common and as aforesaid, the same do not lead to any discrimination.
Yet another affidavit came to be filed on 29th January 2013 on behalf of the State Government. In that affidavit, the State has outlined the steps taken for declaring certain castes and communities as socially and educationally backward through various Commissions appointed by the State Government starting with Baxi Commission. It is pointed out that even presently, a Commission headed by Justice Sugnaben Bhatt is in office. It is clarified that the income criteria for availing the benefit of the State for pre-matric scholarship schemes has been revised to Rs.27,000/- and Rs.36,000/- for rural and urban areas respectively with effect from 1.4.2012.
9.7 It can thus be seen that in reply to the Union of India inviting State¿ response to the Pre-matric minority scholarship Scheme, the stand adopted was that discriminating amongst the eligible beneficiaries for flow of funds based on minority status will not help the cause of taking the people of India together on the path of development. In the replies that were filed before this Court, however, the main thrust of the State¿ opposition was that there is already a pre-matric scholarship in force for minorities as framed by the State Government since the year 1979. The Central Scheme for such purpose envisages much higher income criteria of Rs.1 lac. On the basis of such criteria, there would be close to 6 lacs minority students eligible for the scholarships. Since the scholarship is made available only for 52260 students, there would be heart-burning amongst the left out students of the minority communities. The State would be forced to increase the income limits for its own schemes which would create huge financial burden of recurring nature. Significantly, in the affidavits filed by the State Government, there is no stand taken that the Central Scheme is unconstitutional and violative of Article 15(1) or any other constitutional provisions.
10. On the basis of such material and the different stands adopted by the rival parties, we need to judge first and foremost the constitutional validity of the Scheme.
11. The Constitution of India was framed by the Constituent Assembly after lengthy debates. Many of the members of the Constituent Assembly themselves were actively and directly involved in the freedom struggle. They, therefore, brought in framing the Constitution their experience of movement for liberation from the colonial rule. The Constitution was framed at the time when the memories of violation of human and fundamental rights at the hands of colonial rulers were fresh. So was fresh in the mind of the people the Nazi excesses during the time of Second World War. Declaration of separate chapter of fundamental rights with special focus on equality and personal liberties was thus inevitable. The framers of the Constitution, thus, dedicated a whole chapter (Part III) for fundamental rights. While doing so, important provisions were made in Part IV pertaining to Directive Principles of State Policy, making detailed provisions laying down a road-map for bringing about a peaceful social revolution through Constitutional means and for the Governments to bear in mind those principles while framing future governmental policies. Article 37 contained in Part IV provides that the provisions contained in that part shall not be enforceable by any court, but it makes it clear that the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. Interplay of fundamental rights and directive principles of state policy have occupied the minds of the highest Court of the country on several occasions.
12. Before adverting to some of the fundamental rights having direct application in the discussion on hand, we may recall that the Preamble to the Constitution of India contains a solemn resolve of the people of India to secure to all its citizens social, economic and political justice and also equality of status and opportunity. Article 14, as is well known, is a fundamental right guaranteeing equality before law and the equal protection of the laws within the territory of India. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and reads as under:
15.
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public entertainment;
or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Nothing in this article shall prevent the State from making any special provision for women and children.
(4)Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Schedule's Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
Article 15, as originally framed, did not contain clauses (4) and (5). Clause (4) in fact was introduced through the First Constitution Amendment in the year 1951. This was necessitated due to a judicial pronouncement of the Supreme Court in the case of State of Madras v. Champakam, AIR 1951 SC 226. In the said decision, the action of the State fixing proportionate seats for different communities came to be called in question. Such prescription was held to be unconstitutional. It was observed that classification proceeds on the basis of religion, race and caste and that was opposed to the fundamental rights guaranteed to the citizens under Article 29(2) of the Constitution.
13. Article 16 of the Constitution guarantees equality of opportunity in matters of public employment to all the citizens. Article 16(1) provides that there shall be equality of opportunity for all the citizens in matters relating to employment or appointment to any office in the State. Clause (2) of Article 16 further amplifies this equality of opportunity in public employment, by providing that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth residence or any of them be ineligible or discriminated against in respect of any employment or office under the State. Clause (4) of Article 16 which would be useful in our study of corresponding clause (4) of Article 15 reads thus :
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Article 21 pertains to protection of life and personal liberty and provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. This important guarantee, though seemingly plain, has been interpreted by various courts and in particular, the Supreme Court as to include variety of rights which would form part of right to life and personal liberty, without enjoyment of which rights, the right to life and personal liberty would be meaningless and nugatory. Right to education has been recognized as one of the facets of Article 21 long before it was codified as one of the fundamental rights separately guaranteed under Article 21A of the Constitution.
14. The Constitution of India was amended by the Eighty-sixth Amendment Act 2002, to include right to education as a fundamental right under Article 21A providing that Mhe State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
Article 29 guarantees protection of interest of minorities and reads as under :
29. Protection of interests of minorities (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of is own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 pertains to right of minorities to establish and administer educational institutions. Clause (1) thereof provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Article 46 contained in Part IV provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
16. The Constitution of India places immense importance on the fundamental rights for which a separate chapter was dedicated while framing the Constitution itself. The fact that Article 32 guaranteeing the right to move the Supreme Court for appropriate proceedings for enforcement of rights conferred in Part III itself is contained in the fundamental rights and thus made a fundamental right is a strong indication that such rights were considered sacrosanct. However, it has always been recognized while framing the Constitution as well as while interpreting the same that no right of a citizen can be absolute and every right would have reasonable restriction. Article 19, for example, while guaranteeing various individual freedoms to citizens contains various clauses limiting enjoyment of such rights under specified conditions. Likewise, though Article 14 in plain terms provides that the State shall not deny any person equality before the law or the equal protection of laws, since the earliest days of interpretation of the Constitution, it has been recognized that this does not imply that there shall be one law which must apply to every person and that every law framed must correspondingly cover every person. In legal terminology, it means though Article 14 prohibits class legislation, the same does not prevent reasonable classification. It is, of course, true that for the classification to be valid and to pass the test of reasonableness twin tests laid down by the Supreme Court, time and again, must be fulfilled. Such tests are 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 that the differentia must have a rational relation to the object sought to the achieved by the statute in question.
In the case of Kathi Raning v. State of Saurashtra, AIR 1952 SC 123, S.R.Das, J. observed as under :
45.
After referring to our previous decisions in Chiranjit Lal v. Union of India, (1950 S. C. R., 869) and State of Bombay v. F. N. Balsara, A. I. R. 1951 S. C. 318 a p. 396, I summarised the meaning, scope and effect of Art. 14 of our Constitution, as I understand it, in my judgment in the West Bengal case which I need not repeat but to which I fully adhere. It is now well established that while Art. 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, (1) 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 (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act.
This principle has been consistently followed in subsequent decisions. Reference may be made in this respect in the case of Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533. It is not necessary to refer to all of them.
17. Article 14 guarantees equality in very wide terms and is worded in negative term preventing the State from denying any person equality before law or the equal protection of the laws within the territory of India. Article 15(1), on the other hand, prevents the State from discriminating against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Clause (2) of the Article further provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, use of wells, tanks, bathing ghats, etc. Article 16, in turn, pertains to equality of opportunity in matters of public employment. Clause (1) of Article 16, as already noted, guarantees equality of opportunity to all citizens in matters of employment or appointment to any office under the State. Clause (2) thereof, further amplifies that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State.
18. Thus, Articles 14, 15 and 16 are all different facets of concept of equality. In different forms, such articles guarantee equality of opportunity and equal treatment to all the citizens while specifically mandating that the State shall not discriminate against the citizens only on the grounds of religion, race, caste, sex, descent, place of birth or any of them. Like Article 14, neither Article 15(1) nor Article 16(1) prohibit reasonable classification. In other words, the clauses of Articles 15 and 16 respectively guaranteeing non-discrimination on the grounds alone of religion, race, caste, sex, place of birth or equality of opportunity for all citizens in matters of public employment prohibit hostile discrimination but not reasonable classification. As in Article 14, as well in Article 15(1), if it is demonstrated that special treatment is meted out to a class of citizens, not only on the ground of religion, race, caste, sex, place of birth or any of them, but due to some special reasons and circumstances, the enquiry would be, does such a classification stand the test of reasonableness and in the process, it would be the duty of the court to examine whether such classification fulfills the above noted twin conditions, namely, it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
In the case of Mohd.
Sujat Ali v. Union of India, AIR 1974 SC 1631, a Constitution Bench of the Supreme Court in the context of concept of equality flowing from Articles 14 and 16 of the Constitution observed that Article 16 is an instance or incident of guarantee of equality enshrined in Article 14. It gives effect to the doctrine of equality in the spheres of public employment. The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It was held and observed as under:
23.
Now we proceed to consider the challenge based on infraction of Article 14 and 16 of the Constitution. Article 14 ensures to every person equality before law and equal protection of the laws and Article 16 lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 is only an instance or incident of the guarantee of equality enshrined in Article 14. It gives effect to the doctrine of equality in the spheres of public employment. The concept of equal opportunity to be found in Article 16 permeates the whole spectrum of an individual's employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socio-economic objectives set out in the Preamble of the Constitution. The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It does not compel the State to run "all its laws in the channels of general legislation". It recognises that having regard to differences and disparities which exist among men and things, they cannot all be treated alike by the application of the same laws. "To recognise marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic." Morey v. Doud, 354 U.S. 457, p. 473. The Legislature must necessarily, if it is to be effective at all in solving the manifold problems which continually come before it, enact special legislation directed towards specific ends and limited in its application to special classes of persons or things. "Indeed, the greater part of all legislation is special, either in the extent to which it operates, or the objects sought to be attained by it." (1889) 134 US 594.
We thus arrive at the point at which the demand for equality confronts the right to classify. For it is the classification which determines the range of persons affected by the special burden or benefit of a law which does not apply to all persons. This brings out a paradox. The equal protection of the laws is a "pledge of the protection of equal laws." But laws may classify. And, as pointed out by Justice Brewer, "the very idea of classification is that of inequality''. The court has tackled this paradox over the years and in doing so, it has neither abandoned the demand for equality nor denied the legislative right to classify. It has adopted a middle course of realistic reconciliation. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. "The Equal Protection of the Laws'', 37 California Law Review, 341.
25. But the question is : what does this ambiguous and crucial phrase "similarly situated'' mean? Where are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law. There should be no discrimination between one person or thing and another, if as regards the subject-matter of the legislation their position is substantially the same. This is sometimes epigrammatically described by saying that what the constitutional code of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and imposed special burdens upon or grant special benefits to persons or things grouped together under the classification, so long as the classification is of persons or thing similarly situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law. The test which has been evolved for this purpose is - and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution - that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation.
While doing so, it was, of course, cautioned that the fundamental guarantee is of equal protection of the laws and the doctrine of classification only a subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality.
20. In the case of State of Kerala v. N.M.Thomas, [(1976) 2 SCC 310], Mathew, J. observed that Articles 16(1) and 16(2) of the Constitution do not prohibit prescription of a reasonable classification for appointment or for promotion. Any provision as to qualification for employment or appointment to an office reasonably fixed and applicable to all would be consistent with the doctrine of equality of opportunity under Article 16(1). It was observed that classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law.
In the case of Indra Sawhney v. Union of India, (AIR 1993 SC 477), B.P.Jeevan Reddy, J. in his majority opinion, observed in para 54 that Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification so does Article 16(1).
22. In a judgment of the Constitution Bench of the Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, Bhagwati, J. in the context of co-relation between Article 14 and Article l6 of the Constitution observed as under:
85.
The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground it is really in substance and effect merely an aspect of the second ground based on violation of Arts. 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Art 14 is the genus while Art. 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life'', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined'' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reasons for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16.
Similar observations were made also in the context of co-relation between Articles 14 and 16 in the case of Govt.
of A.P. v. P.B.Vijaykumar , AIR 1995 SC 1648. It was observed thus:
6.
This argument ignores Article 15(3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Art. 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Arts. 15(1) and 15(3) go together. In addition to Art. 15(1) Art. 16(1), however, places certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination of the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by clauses 3,4 and 5 of Article
16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 - the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.
23. What we are, therefore, trying to derive through the above discussion is that under Article 15(1) of the Constitution, while any discrimination against any citizen on ground only of religion, race, caste, sex, place of birth of any of them is prohibited, a reasonable classification is not. It was on this ground that the Apex Court in the case of State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 while disapproving the reservation of seats in educational institutions for rural areas in the State of U.P. upheld such reservation for the students of hill and Uttrakhand areas. The Supreme Court accepted the contention that hill and Uttrakhand areas are inaccessible. It is well recognized principle under Article 14, which can as well safely be applied whenever cases arise under Articles 15 and 16 of the Constitution that there can be equality of treatment only among equals and not among unequals. In other words, the equality guaranteed under Articles 14, 15 and 16 of the Constitution is equal treatment to equals and not equal treatment to unequals. In case of St. Stephens College v. University of Delhi, reported in (1992) 1 SCC 558, the Supreme Court observed that ¿t is now an accepted jurisprudence and practice that the concept of equality before the law and the prohibition of certain kinds of discrimination do not require identical treatment. The equality means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal. To treat unequals differently according to their inequality is not only permitted but required It is this concept of equal treatment only for equals which permits the Courts to examine the State action on the anvil of reasonable classification whenever a special class is carved out, and the State offers as a defence in doing so, that such classification is an instance of permissible classification satisfying the twin requirements of reasonableness.
24. In the case of State of Kerala v. N.M.Thomas, (supra), A.N.Ray, CJ also advanced this theory, observing that there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification. It was observed as under :
27.
There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16 (1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V. P. Narasinga Rao, (1968) 1 SCR 407 = (AIR 1968 SC 349)).
This equality of opportunity need not be confused with absolute equality. Article 16 (1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16 (1) guarantees is equality of opportunity to all citizens. Article 16 (1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15 (1). Promotion to selection post is covered by Article 16 (1) and (2).
xxxx
30. Under Article 16 (1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Road-side Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station Masters claimed equality of opportunity for promotion vis-a-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The Road-side Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Asst. Station Masters' Association v. General Manager, Central Rlys, (1960) 2 SCR 311 = (AIR 1960 SC 384)). The present case is not to create separate avenues of promotion for these persons.
31. The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds, The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.
25. We, therefore, need to examine whether the Scheme in question passes the test of permissible classification. In order to do so, we may take a closer look at the background in which the Scheme was framed and the detailed provisions contained in the Scheme. On 9th March 1995, the Government of India, issued a notification constituting a High Level Committee headed by Justice Rajender Sachar to prepare a report on the social, economic and educational status of the Muslim community in India. The notification records that there was lack of authentic information about the social, economic and educational status of the Muslim community in India, which comes in the way of planning, formulating and implementing specific interventions, policies and programmes to address the issues relating to socio-economic backwardness of this community. The Government, therefore, constituted a High Level Committee to prepare a comprehensive report covering these aspects. The terms of the reference of the Committee were as follows :
(a) Obtain relevant information from department/ agencies of the Central & State Governments and also conduct an intensive literature survey to identify published data, articles and research on relative social, economic and educational status of Muslims in India at the State, regional and district levels, to address, inter alia, the following questions:-
In which States, Regions, Districts and Blocks do Muslims of India mostly live?
What is the geographical pattern of their economic activity, i.e. what do they mostly do for a living in various States, Regions and Districts?
What is their asset base & income levels relative to other groups across various States and Regions?
What is the level of their socio-economic development in terms of relevant indicators such as literacy rate, dropout rate, MMR, IMR etc? How does this compare with other communities in various States?
What is their relative share in public & private sector employment? Does it vary across States and what is the pattern of such variation? Is the share in employment in proportion to their population in various States? If not, what are the hurdles?
What is the proportion of Other Backward Classes (OBCs) from the Muslim community in the total OBC population in various States? Are the Muslims OBCs listed in the comprehensive list of OBCs prepared by the National and State Backward Classes Commissions and adopted by the Central and State Governments for reservations for various purposes? What is the share of Muslim OBCs in the total public sector employment for OBCs in the Center and in various States in various years?
Does the Muslim community have adequate access to education & health services, municipal infrastructure, bank credit, & other services provided by Government/public sector entities? How does this compare to access enjoyed by other communities in various States? What is the level of social infrastructure (Schools, health centers, ICDS centers etc.) located in areas of Muslim concentration in comparison to the general level of such infrastructure in various States?
(b) Consolidate, collate and analyse the above information/literature to identify areas of intervention by Government to address relevant issues relating to the social, economic and educational status of the Muslims community.
Sachar Committee collected voluminous data and ultimately submitted its report on 17th September 2006. From the said report, we can gather that the Committee collected voluminous information with respect to the social, economic and educational status of the Muslim community in particular as also other minorities (page 5 of the report). In Chapter 2 titled as Public Perceptions and Perspectives, it was noted that fearing for their security, Muslims are increasingly resorting to living in ghettos across the country. This is more pronounced in communally sensitive towns and cities. The living in ghettos has impacted the Muslim women the most because they are reluctant to venture beyond the confines of ¿afeneighbourhoods. Increasing ghettoisation of the community implies a shrinking space for it in the public sphere (page 14 of the report). In the same Chapter, it was also mentioned that education is an area of grave concern for the Muslim community and how high drop out rates amongst Muslim students were worrisome (page 15 of the report).
The Committee collected data of population size and distribution of health conditions of Muslims as also educational conditions of such minority community. It was noted that literacy rate amongst Muslims in the year 2001 was far below the national average (page 52 of the report). Attainment levels of Muslims were close to or slightly higher than those of SCs/STs and much lower than those of other SRCs (Socio Religious Categories). The disparity in graduation attainment rates was widening since 1970¿ between Muslims and all other categories in both urban and rural areas ( page 67 of the report). The Committee also examined the economic and employment conditions of the community. The Committee dedicated a full chapter in the report to the Poverty, Consumption and Standards of Living of the community. It was noted that incidence of poverty among Muslims in urban areas was the highest followed by SCs/STs (page 157 of the report). It was observed that the abysmally low representation of Muslim OBCs suggests that the benefits of entitlements meant for the backward classes were yet to reach them (page 213 of the report).
26. After comprehensive survey and processing voluminous data collected, the Sachar Committee made detailed recommendations in chapter 12 of the report, some of which were as under :
3.1 Criticality of Education. Access to education is critical for benefiting from emerging opportunities that are accompanied by economic growth.
The report brings out clearly the educational deprivation experienced by the Muslim community. From lower levels of enrollment to a sharp decline in participation in higher levels of education, the situation of Indian Muslims is indeed very depressing as compared to most other SRCs, in fact their situation seems to have worsened in relative terms. And the problem is more acute for girls/women. Reasons for this are varied - ranging from poverty to perceived discrimination resulting in alienating school environment. While the overall situation remains bad, the enrolment rates of Muslims have picked up in recent years and the policies should help sustain the momentum that can get created through this change. Our analysis also shows that the major problems lie in school education; the likelihood of Muslim children completing school education is significantly lower than other SRCs, except SCs/STs, once factors like household expenditure, place of residence, gender etc. are controlled for. Once the Wurdleof school education is crossed, the differences across most SRCs in the likelihood of completing graduate studies narrow down and are at times not very significant. Therefore, a sharper focus on school education is desirable.
Free and compulsory education upto the age of 14 is the responsibility of the State. And the fulfillment of this obligation is critical for the improvements in the educational conditions of Muslims, in fact, of all socio-economically deprived children. In addition, a sharper focus on a few areas listed below is desirable.
xxxx Initiative in School Education. Muslims have the largest percentage share of children in the age group of less than 10 years with 27 per cent falling in this range as compared to the 23 per cent for the country as a whole. However, the current enrollment and continuation rates at elementary level (though picking up in recent years) are the lowest for the Muslims. These facts make primary education particularly important for the community and the need to ensure that all children in the age group of 0-14 have access to free and high quality education more urgent.
xxxx Last but no the least, although there are many Centrally Sponsored Schemes (CSS) and Central Plan Schemes (CPS) available for the welfare of SCs, STs and OBCs, such schemes for the welfare of minorities are rare. Even the available schemes are inadequately funded. Overall, targeting backward districts and clusters where special artisanal groups exist, will ensure a sharp reduction in disparities of access and attaining. The Central Government should introduce a few schemes with large outlays for welfare of minorities with an equitable provision for Muslims.
Improving Employment opportunities and conditions: The country is going through a high growth phase. This is the time to help the underprivileged to utilize new opportunities through skill development and education. A large segment of the Muslim community is engaged in self-employment activities. Besides, a significant proportion, specially women, is actually engaged in home-based work. While some of these workers are engaged in sectors that have experienced growth, many are engaged in occupations/sectors that are stagnant. The policy intervention needs to help workers engaged in growth-oriented sectors to become part of the larger network or market oriented firms engaged in that sector. For those caught in the stagnant sectors, a transition path will have to be evolved. Skill up-gradation, education and credit availability, referred to earlier will have an important role in both these strategies. The other deficit is in regular employment as a very small proportion of Muslim workers are engaged in regular work, especially in salaried jobs with the public sector or the large private sector. The conditions of work of not only the self-employed Muslim workers but also the regular workers are precarious.(emphasis added).
27. The Sachar Committee Report noted in its first Chapter that the United Nations declaration on the rights of persons belonging to national, ethnic, religious and linguistic minorities says that promotion and protection of the rights of persons belonging to such minorities contribute to the political and social stability of the countries in which they live. Meeting their aspirations and ensuring their rights acknowledges the dignity and equality of all individuals and furthers participatory development........ As the processes of economic development unfold, pressures are likely to build up and intensify when there is unequal development and some groups of minorities lag behind in the development process. In an interesting survey of distribution of population of each religion by caste categories placed in Table 1.2 in the Sachar Committee Report, it was seen that, as against 74% of Hindu population being covered in SC/ST and OBC categories, percentage of Muslims covered by those categories was 40.5 as per the 61st round survey of NSSO. Similarly, percentage of people not covered by SC/ST and OBC categories among Christians was 66.7, which indicated how unequal number of members of certain minorities could not be the recipients of several poverty alleviating measures and privileges of reservation. The Sachar Committee Report has also noted in Chapter II that many of the problems enumerated in the earlier part were not specific to Muslims; all the disadvantaged socio-religious communities face them. The sense of insecurity and the crisis of identity made the Muslims perceive these problems as community specific and they needed to be attended to. .........There was a widespread demand for affirmative action, especially in the form of reservations. Some argued that policies for equality must aim at a substantive equal outcome, not merely formal, equal or identical treatment..........Still others argue that co-educational facilities combined with non-discriminatory practices were adequate for Muslims to compete. .......Finally, there were voices that questioned non-availability of the SC quota for Muslims, while it was available for Mazhiabi Sikhs and Neo Buddists.
28. This Report forms the basis for formation of the Scheme. The Scheme records that the Prime Minister¿ New 15 Point Programme for the Welfare of Minorities was announced in June 2006, which provided that a pre-matric scholarship scheme for meritorious students from minority communities would be implemented. The Scheme was framed with the following objective :
The scholarship at pre-matric level will encourage parents from minorities to send their school going children to school, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. The scheme will form the foundation for the educational attainment and provide a level playing field in the competitive employment arena. Empowerment through education, which is one of the objectives of this scheme, has the potential to lead to upliftment of the socio economic conditions of the minority communities.emphasis added) Para 3 of the Scheme provides that the scholarship will be awarded for studies in India in a government or private school from class I to X, including such residential Government institutes and eligible private institutes selected and notified in a transparent manner by the State Government and Union Territory Administration concerned.
Para 4 of the Scheme pertains to eligibility and provides thus:
Scholarship will be awarded to the students who have secured not less than 50% marks in the previous final examination and annual income of their parents/guardian from all sources does not exceed Rs.1 lakh.
Para 5 pertains to distribution and provides as under:
Muslim, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) have been notified as minority communities under Section 2(c) of the National Commission for Minorities Act, 1992. The distribution of scholarship among the States/Union Territories will be made on the basis of population of minorities in the States/Union Territories of Census 2001.
Para 6 provides that 30 per cent of the scholarship will be earmarked for girl students and if sufficient number of eligible girl students are not available, the balance earmarked scholarships would be awarded to eligible boy students. Para 7 pertains to criteria for selection and reads as under:
As the number of scholarships for minorities available in a year is fixed and limited it is necessary to lay down preference for selection. Inter-se selection weightage is to be given to poverty rather than marks. In case of the renewal applications, such applications would be fully exhausted before the new applications are considered.
Para 9 pertains to rate of scholarship and reads as under:
Actual financial assistance will be provided for admission/tuition fee and maintenance allowance as given below subject to a maximum ceiling indicated against item concerned:
S.No.ItemHostellersDay Scholars1Admission fee from class VI to XRs.500/- p.a. subject to actualsRs.500 p.a. subject to actuals2Tuition fee from class VI to XRs.350/- p.m. subject to actuals.Rs.350/- p.m. subject to actuals.3Maintenance allowance will be payable for a period not exceeding 10 months in an academic year.(i) Class I to VNilRs.100/- p.m.(ii) Class VI to XRs.600/- p.m. subject to actualsRs.100/- p.m. Para 11 lays down conditions for scholarships. Relevant conditions read as under:
(i) Scholarship will be available to the students of minority community studying in Classes I to X. The continuance of award will be subject to securing 50% marks in the previous examination. Maintenance allowance will be provided to hostellers and day scholars.
The award will be discontinued if a student fails to secure 50% marks in the annual examination except in case of unavoidable reasons to be certified by the Principal/competent authority of the school and recommended by the State Government/Union Territory Administration.
Scholarship will not be given to more than two students from a family.
Students should be regular in attendance for which the yardstick will be decided by the competent authority of the school.
xxxx The student obtaining benefits under this scheme shall not be allowed to avail of benefits under any other scheme for this purpose.
A student shall be eligible for only one scholarship for all sources, i.e. SC/ST/OBC.
The State Government/Union Territory Administrations shall constitute a committee of the Departments implementing such scholarships schemes to ensure that the student from the minority community, who may also belong to children of those engaged in unclean occupation and OBC do not avail scholarship from other sources for the same purpose and avail only one source.
29. The Scheme thus provides for scholarship to students belonging to minorities notified under section 2(c) of the National Commission for Minorities Act, 1992. However, there were other criteria to be satisfied before a student would be granted such scholarship. Firstly, the annual income of his/her parents/guardians from all sources should not exceed Rs.1 lac. Secondly, such scholarship would be awarded to only those students who have secured not less than 50% marks in the previous final examination. Even after awarding such scholarship, continuance thereof would be subject to securing 50 per cent marks in the previous examination. 30 per cent of the scholarships would be ear-marked for girl students. In case, there were more number of students eligible than the available scholarships, inter-se selection would be on the basis of poverty and not marks. A student seeking to avail such scholarship would not be eligible for any other scholarship from any other source.
30. It is, of course, true that such scholarship is ear-marked for students of minorities communities. However, there are several other eligibility criteria required to be satisfied. Principally, the Scheme provided for an income ceiling criteria, minimum educational performance criteria and continued level of such performance throughout the span of the Scheme and also provided for no dual scholarship. Significantly, in case of competition for such scholarship, weightage has to be given to poverty rather than marks in inter-se selection of eligible candidates. These aspects are significant because in addition to fulfilling the first criterion of belonging to minority community, the student would have to satisfy several other criteria. While providing for the scholarship only to children or wards of parents/guardians whose annual income does not exceed Rs.1 lac, the Scheme further provided that in case of competing claims, selection would be made on the basis of poverty inter-se and not marks. This, to our mind, is a very significant aspect of the Scheme which makes it amply clear that the Scheme aims at poverty alleviation through educational means. To put it differently, if two candidates otherwise fulfilling all other conditions of the Scheme apply for one scholarship available, not the one having higher marks in the previous result, but the one whose parentsguardian¿ annual income is less than the other would be given the scholarship. The Scheme thus puts considerable force on poverty being a handicap to pursue basic education.
31. Education, by now it is well recognized through judicial pronouncements and outside, is perhaps the most fundamental requirement of development. Without access to quality basic education, it would be impossible in the modern world to expect any individual, race, class or community to make any real advancement. While recognizing the role of education to achieve development and to provide equality of opportunity, the Courts have also recognized that the State has an important role, in fact an obligation to provide quality basic education to all the citizens. Long before the Constitution was amended by introduction of Article 21A, providing for free and compulsory education to children between age of 6 and 14 years, the Supreme Court had been expanding this principle through purposive interpretation and meaningful construction of guarantee to life and liberty enshrined under Article 21 of the Constitution. In case of Mohini Jain vs. State of Karnataka, (1992) 3 SCC 666, the Supreme Court observed as under :
9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Art. 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.
xxxx "Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Art. 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to Provide educational facilities at all levels to its citizens.
The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Art. 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical colleges under various private bodies and organisations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of "teaching shops" is contrary to the constitutional scheme ,and is wholly abhorrent to the Indian culture and heritage. As back as December, 1980 the Indian Medical Association in its 56th All India Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions:
"The 56th All India Medical Conference views with great concern the attitude of State Governments particularly the State Government of Karnataka in permitting the opening of new Medical Colleges under various bodies and organisations in utter disregard to the recommendations of Medical Council of India and urges upon the authorities and the Government of Karnataka not to permit the opening of any new medical college, by private bodies.
It further condemns the policy of admission on the basis of capitation fees. This commercialisation of medial education endangers the lowering of standards of medical education and encourages bad practice."
In case of Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, the decision in the case of Mohini Jain (supra) came up for consideration before Larger Bench of the Supreme Court. While not approving the judgment in toto, the above concept was further expanded and refined. It was observed as under :
168. In Brown v. Board of Education (1953) 98 Law Ed 873, Earl Warren, C. J., speaking for the U. S. Supreme Court emphasised the right to education in the following words :
"Today, education is perhaps the most important function of State and local governments..........It is required in the performance of our most basic responsibilities, even service in the armed forces. it is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."
169. In Wisconsin v. Yoder (1972) 32 Law Ed 2d 15, the Court recognised that :
"Providing public schools ranks at the very apex of the function of a State."
The said fact has also been affirmed by eminent educationists of modern India like Dr. Radhakrishnan, J. P. Naik, Dr. Kothari and others.
170. It is argued by some of the counsel for the petitioners that Article 21 is negative in character and that it merely declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Since the State is not depriving the respondents-students of their right to education, Article 21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Article 21 be attracted, according to them. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. The first question is whether the right to life guaranteed by Article 21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be to determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law.
171. In the above state of law, it would not be correct to contend that Mohini Jain (1992 AIR SCW 2100) was wrong in so far as it declared that "the right to education flows directly from right to life." But the question is what is the content of this right? How much and what level of education is necesary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition.The right to education which is implicit in the right to life and personal liberty, guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Article 41 says that the "State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want". Article 45 says that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." Article 46 commands that "the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." Education means knowledge - and "knowledge itself is power." As rightly observed by John Adams, "the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country" (Dissertation on canon and fuedal law, 1765). It is this concern which seems to underline Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said :
"Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction."
(Rauschning, The voice of destruction : Hitler speaks). A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to, govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means : (a) every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child /citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately.
172. Right to free education for all children until they complete the age of fourteen years. (45-A). It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to "endeavour to provide" the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years - more than four times the period stipulated in Article 45 - convert the obligation created by the article. into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the "limits of its economic capacity and development" as does Article 41, which inter alia speaks of right to education. What has actually happened is - more money is spent and more attention is directed to higher education than to - and at the cost of - primary education. (By primary education, we mean the education, which a normal child receives by the time he completes 14 years of age). Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the government - we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question. This inversion of priorities has been commented upon adversely by both the educationists and economists.
173. Gunnar Myrdal, the noted economist and sociologist, a recognised authority on South Asia, in his book "Asian Drama" (abridged Edition
- published in 1972) makes these perceptive observations at page 335 :
"But there is another and more valid criticism to make. Although the declared purpose was to give priority to the increase of elementary schooling in order to raise the rate of literacy in the population, what has actually happened is that secondary schooling has been rising much faster and tertiary schooling has increased still more rapidly. There is a fairly general tendency for planned targets of increased primary schooling not to be reached, whereas targets are over-reached, sometimes substantially, as regards increases in secondary and, particularly, tertiary schooling. This has all happened in spite of the fact that secondary schooling seems to be three to five times more expensive than primary schooling, and schooling at the tertiary level five to seven times more expensive than at the secondary level. What we see functioning here is the distortion of development from planned targets under the influence of the pressure from parents and pupils in the upper strata who everywhere are politically powerful. Even more remarkable is the fact that this tendency, to distortion from the point of view of the planning objectives is more accentuated in the poorest countries, Pakistan, India, Burma and Indonesia, which started out with far fewer children in primary schools and which should therefore have the strongest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest countries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education."
174. In his other book "Challenge of World Poverty" (published in 1970) he discusses elaborately - in chapter 6 'Education'- the reasons for and the consequences of neglect of basic education in this country. He quotes J. P. Naik, (the renowned educationist, whose Report of the Education Commission, 1966 is still considered to be the most authoritative study of education scene in India) as saying "Educational development..........is benefitting the "haves" more than the "have nots". This is a negation of social justice and 'planning' proper." - and our Constitution speaks repeatedly of social justice (Preamble and Article 38(1)). As late as 1985, the Ministry of Education had this to say in para 3.74 of its publication "Challenge of Education - a policy perspective". It is stated there :
"3.74.
Considering the constitutional imperative regarding the universalisation of elementary education it was to be expected that the share of this sector would be protected from attribution (sic). Facts, however, point in the opposite direction. From a share of 56 per cent in the First Plan, it declined to 35 per cent in the Second Plan, to 34 per cent in the Third Plan, to 30 per cent in the Fourth Plan. It started going up again only in the Fifth Plan, when it was at the level of 32 per cent,, increasing in Sixth Plan to 36 per cent, still 20 per cent below the First Plan level. On the other hand, between the First and the Sixth Five Year Plans, the share of university education went up from 9 per cent to 10 per cent."
175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - at least now. Indeed, the 'National Education Policy - 1986' says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.
We are conscious that the decision of the Supreme Court in the case of Unnikrishnan (supra) was later on overruled in a Larger Bench decision in the case of TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, but not on this point.
32. In case of Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, the Supreme Court considered the validity of Right of Children to free and compulsory Education Act, 2009 insofar as it made provisions therein applicable to unaided non minority schools. Hon[le Chief Justice speaking for the majority, observed as under :
27. At the outset, it may be stated, that fundamental rights have two aspects they act as fetters on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State¿ endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word orin Article 45 is a preposition. The word Nducationwas read into Article 21 by the judgments of this Court. However, Article 21 merely declared Nducationto fall within the contours of right to live.
To provide for right to access education, Article 21-A was enacted to give effect to Article 45 of the Constitution. Under Article 21-A, right is given to the State to provide by law ree and compulsory education Article 21-A contemplates making of a law by the State. Thus, Article 21-A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child-centric and not institution-centric. Thus, as stated, Article 21-A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21-A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education.
33. Importance of quality basic education for upliftment of any socially, educationally or economically backward or weaker sections of the society thus cannot be over-stressed. Financial constraint, besides other handicaps, of any class of citizens would certainly be a major barrier in securing primary education. Lack of primary education would, in turn, be a strong factor liming progress or advancement of such section of the society. If considering such aspects of the matter, after collecting voluminous data on the condition of the minority and collating such data in a scientific manner on the basis of report of the High Level Committee, the Government frames a scholarship scheme for such minority, can it be stated that the same is prohibited under Article 14 or for that matter under Article 15(1) of the Constitution? To our mind, the answer is in the negative. Such carving out a class of citizens for such special treatment would not amount to hostile discrimination. In the context of general condition of minorities and in the context of access to education if it is found that certain class of citizens need a special attention, to our mind, it is certainly not impermissible for the policy framers to provide for the same by diverting a small portion of public funds for such purpose.
34. The fact that students of minority communities, who otherwise fulfill the criteria laid down under the Scheme, form a class providing an intelligible differentia distinguishing them as one group as opposed to those who are left out, can hardly be disputed. More complex question, however, is: does this classification satisfy the second condition of the same being reasonable, i.e. does the differentia have a rational relation to the object sought to be achieved? The differentia in the present case are that the student must belong to a minority community, his parent or guardians should not have income of more than Rs.1 lac, that he must have secured minimum 50 percent marks in the previous year and that in case of competing claims, his parentsguardian¿ annual income should be less than the other eligible candidates. The purpose sought to be achieved through the Scheme is to provide an impetus for basic education to students of minorities whose parents are otherwise, on account of unequal socio-economic conditions, unable to provide them. If the Government of India, on the basis of report of the High Level Committee found that certain minority communities, because of various social factors, have lagged behind the national growth in terms of economic and educational development and consequently in employment, can it be stated that carving out a separate class of such sections in addition to providing for stringent conditions for availing scholarship is not a differentia having a rational relation to the objects sought to be achieved?
35. The Constitution of India was framed with an aim of bringing about a peaceful social change. Preamble to the Constitution aimed at achieving social, political and economic justice for all the citizens. For achieving such goals, the policy framers must be allowed a certain degree of latitude in experimentation in framing policies and allocation of funds. The courts neither have a mandate, nor the wherewithal, nor the expertise to evaluate such policies microscopically. It is the framers of the policy who have public mandate and who once in every five years, unlike the Judges, seek a fresh mandate from the people of this country, who may and must be allowed free hand in policy framing. The Government of the day would have its own socio-economic ideology. We must also remember that the Scheme pertains to scholarship in primary education and cannot be equated with any kind of reservation. In other words, as an affirmative action or as is often referred to as a reverse discrimination, it amounts to preferential diversion of public funds in favor of a class of citizens. It is true that such diversion of funds leaves out students of all communities other than the notified minorities and in that sense, if it otherwise fails to satisfy the twin tests of reasonableness may still be seen as hostile discrimination against those who have been left out. Nevertheless, the impact of such a scheme is vastly different from any reservation in education or public employment.
36. The last aspect is significant, because it was strenuously urged on behalf of the parties challenging the Scheme as well as the State Government that any welfare measure exclusively in favour of minority communities is wholly impermissible. They stress heavily on Article 15(4) of the Constitution in this respect and cite instances and decisions rendered by different courts in the context of Article 16(4) of the Constitution. It is their combined stand that minorities in general are neither notified Scheduled Castes nor Scheduled Tribes as envisaged under Articles 341 and 342 of the Constitution. They argue that the minorities also cannot be enbloc treated as socially and educationally backward class (SEBC) and in any case, no such classification would be permissible without taking steps as envisaged in Article 340 of the Constitution. The other limb of this argument is that unless and until the community, be it minority or otherwise, is classified as an SEBC community or caste, any preferential treatment in favour of such a class would not be permissible under Article 15(4) of the Constitution. They argue that admittedly when no such declaration has been made with respect to minority communities, granting any preferential treatment by the State would not be permissible. They point out that such SEBC status can be granted only by a State level Commission, as provided by the Supreme Court in the case of Indra Sawhney (supra) in para 123(A) of the decision. They point out that such Commissions are in existence and have been regularly fulfilling the task of categorizing different castes and communities as SEBC whenever sufficient material is available in this respect.
37. Article 340 of the Constitution provides, inter alia, that the President may, appoint a Commission to investigate the conditions of socially and educationally backward classes and the difficulties under which they labour and make recommendations as to the steps that should be taken by the Union or State to remove such difficulties and to improve their conditions.
38. In the case of M.R.Balaji v. State of Mysore, AIR 1963 SC 649, the Supreme Court negatived the contention that unless a commission has been appointed under Article 340 of the Constitution and the report of the Commission is laid down before the Parliament, it is not competent for the State to make an order under Article 15(4). The Apex Court observed as under:
...... In our opinion, this contention is misconceived. It is true that the Constitution contemplated the appointment of a Commission whose report and recommendations, it was thought, would be of assistance to the authorities concerned to take adequate steps for the advancement of Backward Classes; but it would be erroneous to assume that the appointment of the Commission and the subsequent steps that were to follow it constituted a condition precedent to any action being taken under Art. 15(4). Besides, it would be noticed that Art. 340(1) provides that recommendations had to be made by the Commission as to the steps that should be taken by the Union or any State, inter alia, to improve that means that the recommendations were to be made which would be implemented in their discretion by the Union and the State Government and not by the President. Thus, Art.340(1) itself shows that it is the Union or the State that has to take action in pursuance of the recommendations made, and so, the argument that the President alone has to act in this matter cannot be accepted.
We are conscious that the decision in the case of Balaji (supra) was not approved in its entirety in later decisions, particularly in case of Indra Sawhney (supra). However, here we are not directly concerned with that aspect of the matter. The fact that minorities are not declared as SEBCs for the purpose of Article 15(4) of the Constitution is undisputed. But to our mind, while judging the validity of the Scheme, this would not be of any consequence. We may notice that Article 16(4) of the Constitution refers to backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State. In such a case, it is provided that nothing in the Article shall prevent the State from making any provisions for the reservation of appointments or posts in favour of such backward class of citizens. On the other hand, Article 15(4) refers to socially and educationally backward classes of citizens along with Scheduled Castes and Scheduled Tribes and provides that nothing in the Article or Article 29(2) shall prevent the State from making any special provision for the advancement of such classes. Article 16(4) thus pertains to backward classes of citizens for the purpose of making reservation in public employment. Article 15(4), on the other hand, refers to socially and educationally backward classes for the purpose of making any special provisions by the State for advancement of such classes. While affirmative action implied in Article 16(4) is restricted to reservation in employment, Article 15(4) has a wider canvass and reach by virtue of the pronounced purpose of making special provisions.
39. Such a distinction between two provisions was noticed by the Supreme Court in the case of Indra Sawhney (supra) wherein Jeevan Reddy, J. speaking for the majority, observed as under :
"Whether the backwardness in Art" 16(4) should be both social and educational?
85. The other aspect to be considered is whether the backwardness contemplated in Art. 16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji (AIR 1963 SC 649), it has been assumed that the backward class of citizens contemplated by Art. 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Art. 15(4). Though Art. 15(4) came into existence later in 1951 and Art. 16(4) does not contain the qualifying words ¿ocially and educationally' preceding the words "backward class of citizens" the same meaning came to be attached to them. Indeed, it was stated in Janaki Prasad Parimoo (AIR 1973 SC 930) (Palekar, J. speaking for the Constitution Bench) that:
"Article 15(4) speaks about socially and educationally backward classes of citizens." However, it is now settled that the expression "backward class of citizens" in Art. 16(4) means the same thing as the expression "any socially and educationally backward class of citizens" in Article 15(4). In order to qualify for being called a 'backward class citizen' he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Arts. 15(4) and 16(4).
It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Art. 16 does not contain the qualifying words' "socially and educationally" as does clause (4) of Art. 15. It may be remembered that Art. 340 (which has remained unamended) does employ the expresion 'socially and educationally backward classes' and yet that expression does not find place in Art. 16(4). The reason is obvious: "backward class of citizens" in Art. 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Art. 15(4) may qualify for Art. 16(4). They may not qualify for Art. 15(4) but they may qualify as backward class of citizens for the purposes of Art. 16(4). It is equally relevant to notice that Art. 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/ posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in Art. 340 is only one of the categories for whom Art. 16(4) was enacted; Art. 16(4) applies to a much larger class than the one contemplated by Art. 340. It would, thus, be not correct to say that 'backward class of citizens' in Art. 16(4) are the same as the socially and educationally backward classes in Art. 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Art. 16(4). Moreover, when speaking of reservation in appointments/ posts in the State services - which may mean, at any level whatsoever insisting upon educational backwardness may not be quite appropriate.
Despite such legal distinction drawn by the Supreme Court between the backward classes referred to in Article 16(4) and socially and educationally backward classes referred to in Article 15(4) of the Constitution, in the practice which has developed over a period of time, such distinction has been virtually obliterated. It is an undisputed position that the State has been categorizing various classes and communities as socially and educationally backward classes (SEBC) often referred to in popular term as Other Backward Classes or OBC. Such list is common for both the benefits envisaged under Article 16(4) of the Constitution as well as Article 15(4). In other words, it is this very list of SEBC which is utilized by the State organs for the purpose of granting reservation in public employment in terms of Article 16(4) of the Constitution. This very classification of SEBC status also qualifies the member of the community to reservation in education including professional courses which would flow from the provisions made in Article 15(4) of the Constitution. The matter on hand, however, is neither one of reservation in public employment nor in education field or any other purpose. The present case involves granting of scholarship to a class of citizens who, as noted above, were found to be socially, educationally and economically disadvantaged on account of their minority status which was ascertained through a report of the High Level Committee. Therefore, even if constitutionality of the Scheme cannot be upheld on the anvil of Article 15(4) of the Constitution, when we hold that the same satisfies the test of reasonable classification, the same would still be permissible in terms of Article 15(1) of the Constitution. We are unable to accept the line of argument that either the Scheme must clear the test of Article 15(4) or be condemned as unconstitutional. This argument has many fallacies. It proceeds on the presumption that Article 15(4) is an exception to Article 15(1) and along with Article 15(3), the sole exceptions. The argument implies that any slightest classification, even if reasonably made, from the plain language of Article 15(1) of the Constitution will be impermissible unless it satisfies the requirement of Article 15(4) or Article 15(3), as the case may be.
40. Though previously Articles 15(4) and 16(4) were seen as exception of the equality enshrined in Article 15(1) and 16(1) respectively, this understanding of the constitutional provisions underwent a major change in the decision in N.M.Thomas (supra). Mathew J, observed as under :
78. I agree that Art. 16 (4) is capable of being interpreted as an exception to Article 16 (1) if the equality of opportunity visualised in Article 16 (1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and Scheduled Tribes.
If equality of opportunity guaranteed under Article 16 (1) means effective material equality, then Article 16 (4) is not an exception to Article 16 (1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even upto the point of making reservation.
41. This change in the approach was noticed and amplified by the Supreme Court in the Larger Bench judgment in the case of Indra Sawhney (supra). It was observed as under :
57. In Balaji (AIR 1963 SC 649) it was held - "there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(l) and 29(2)". It was observed that Article 15(4) was inserted by the First Amendment in the light of the decision in Champakam (AIR
-1951 SC 226), with a view to remove the defect pointed out by this Court namely, the absence of a provision in Article 15 corresponding to Clause (4) of Article 16. Following Balaji (AIR 1963 SC 649) it was held by another Constitution Bench (by majority) in Devadasan (AIR 1964 SC 179) - "further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to Clause (1)". Subbarao, J., however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(l) but that it is only an emphatic way of stating the principle inherent in the main provision itself. Be that as it may, since the decision in Devadasan, it was assumed by this Court that Article 16(4) is an exception to Article 16(l). This view, however, received a severe set-back from the majority decision in State of Kerala v. N. M. Thomas, 1976 (1) SCR 906 : (AIR 1976 SC 490). Though the Minority (H. R. Khanna and A. C. Gupta, JJ,) stuck to the view that Article 16(4) is an exception, the majority (Ray, C. J., Mathew, Krishna Iyer and Fazal Ali, JJ.) held that Article 16(4) is not an exception to Article 16(l) but that it was merely an emphatic way of stating a principle implicit in Article 16(l). (Beg, J. took a slightly different view which it is not necessary to mention here). The said four learned Judges - whose views have been referred to in para 41
-held that Article 16(l) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(l) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy.
The "backward class of citizens" are classified as a separate category deserving a special treatment in the nature of reservation of appointments/ posts in the services of the State. Accordingly, We hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). The speech of Dr. Ambedkar during the debate on draft Article 10(3) (corresponding to Article 16(4) in the Constituent Assembly - referred to in para 28 - shows that a substantial number of members of the Constituent Assembly insisted upon a "provision (being made for the entry of certain communities which have so far been outside the administration", and that draft clause (3) was put in in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/ posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.
Regarding the view expressed in Balaji (AIR 1963 SC 649) and Devadasan (AIR 1964 SC
179), it must be remembered that at time it was not yet recognised by this Court that Article 16(l) being a facet of Article 14 does implicitly permit classification. Once this feature was recognised the theory of clause (4) being an exception to clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification inherent in clause (1). Now, just as Article 16(l) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is equally an exception to clause (2). Question then arises, in what respect is clause (4) an exception to clause (2), if 'class' does not mean 'caste'. Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does not permit classification and therefore clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.
In that context, the Supreme Court answered the question whether Article 16(4) is exhaustive of the very concept of reservations. It was held that though Article 16(4) is exhaustive for reservation in favour of backward classes and no further special treatment is permissible in their favour outside of Article 16(4), Article 16(4) itself is not exhaustive of the concept of reservation. It was held that Article 16(1) itself, of course, in very exceptional situations and not for all and sundry reasons permits reservations. The contention that Article 16(1) permits preferential treatment and not reservation was thus rejected.
42. We may apply the above conclusions of the decision in the case of Indra Sahwany (supra) to the contention under consideration. Article 15(4) not being an exception, but only an emphatic manifestation of equality flowing from Article 15(1) of the Constitution cannot be the litmus test for deciding the constitutional validity of the Scheme. As observed by the Apex Court, if the contention that Article 15(4) along with Article 15(3) are exceptions to the rule of equality enshrined in Article 15(1) is accepted, it would lead to a situation where outside of such exceptions, there would be no further flexibility of reasonable classification under Article 15(1). Such a theory, therefore, must be rejected. We, therefore, hold that even if minorities are not so classified as socially and educationally backward classes, any classification made in their favour which is otherwise reasonable and stands the twin tests of permissible classification, can still be sustained under Article 15(1) of the Constitution.
43. The Scheme is also attacked on the ground that the same is based on religion and therefore, impermissible under Article 15(1). To our mind, such a contention is also not valid. The Scheme is not framed on the basis of religion. Of course, five minorities notified under section 2 (c) of the National Commission for the Minorities Act are grouped together for common treatment. However, the scheme for scholarship was framed to give encouragement to the students of such minorities to secure primary education when it was found that certain minorities were suffering from social handicaps which had led to their growth retardation as compared to the national average in the areas of social, educational and economic advancement. Thus, the basis for framing of the Scheme is not religion, but improvement of the conditions of such disadvantaged group. If religion were the sole basis for grouping the minorities for a preferential treatment and excluding the rest, that would be another issue. In the present case, minorities as a group was used only for the purpose of identifying a class of citizens who have lagged behind in progress. The fact that they belong to a common community may be a reason for their slow progress but is not the reason for providing the scholarship. The reason for providing the scholarship is their slow progress as compared to the national average.
44. It was also argued before us that the special treatment envisaged under the Constitution in favour of minority communities are only those flowing from Articles 29 and 30 of the Constitution. In other words, the contention was that unless and until the provision made in favour of such communities is saved either by Article 29 or Article 30, the same cannot be validly made. Article 29 pertains to protection of interests of minorities. Clause (1) thereof provides that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Article 30 pertains to right of minorities to establish and administer educational institutions. These articles do recognize certain special rights and privileges of the minorities. However, it would be incorrect to say that the Constitution prohibits bunching of minorities for the purpose of drawing a reasonable classification even if the requirement so demands. Grouping together the minorities for the purpose of drawing a class by itself is vastly different issue from protection of their interests and right to establish and administer educational institutions. If otherwise such a classification is validly made, it cannot be frowned upon merely on the premise that the State action is not covered either under Article 29(1) or Article 30 of the Constitution.
Much reliance was placed on the decision of Division Bench of the Andhra Pradesh High Court dated 28.5.2012 in the case of R.Krishnaiah v. Union of India.
In the said case, the petitioner had challenged a decision of the Central Government to carve out sub-quota of 4.5 percent for socially and educationally backward classes of citizens belonging to minorities as defined under section 2(c) of the National Commission for Minorities Act, 1992 from within the 27 per cent reservation for other backward classes notified by the Government. The Division Bench relying upon the decision in the case of Triloki Nath Tiku v. State of Jammu & Kashmir, AIR 1969 SC 1, observed that the resolution of the Government carved out a sub-quota for the minorities. The very use of the words ¿elonging to minoritiesor or minoritiesindicates that a sub-quota has been carved out only on religious lines and not on any other intelligible basis. It was observed that :
Absolutely no material is placed before us to demonstrate that persons belonging to the religious groups mentioned above are more backward than any other category of backward classes or that they need any preferential treatment as compared to other OBCs.
In the absence of any material before us (and we must emphasize this), and on the plain language of the OMs, it seems to us quite clear that the sub-quota has been created only on grounds of religion and nothing else. This is clearly impermissible in view of the specific language of Article 15(1) of the Constitution as well as Article 16(2) of the Constitution. In the absence of any factual basis, it seems to us that by making a special provision for religious minorities with regard to admission in some central educational institutions and with regard to employment in appointments and posts under it, the Central Government has exceeded the constitutional boundaries. Ex facie, the petitioners must succeed on this basic ground of challenge.
From the above, it can be seen that the case before the Andhra Pradesh High Court involved an entirely different issue for consideration. What was under challenge was a sub-quota carved out for minorities out of 27 per cent total reservation for admission in Central Educational Institutions. Such special classification was found to be discriminatory on the ground that the same was based only on religion. While doing so, the Court observed that no material was placed before it to demonstrate that persons belonging to such groups were more backward than the other category of backward classes and that therefore they needed preferential treatment. It was in this context observed that in absence of any material placed before the Court, ¿t seems clear that the sub-quota has been created only on the ground of religion and nothing else Clearly, the ratio laid down therein on the basis of aforesaid findings is distinguishable. Firstly, the issue on hand was pertaining to special classification in an otherwise common group forming OBCs. Secondly, the same was struck down since no material was placed before the Court to demonstrate that persons belonging to such minorities require any preferential treatment.
45. In addition to our above legal conclusions, we also cannot quite follow the standpoint of the State. As noted earlier, before the Scheme was framed, the State took a stand that framing of such a Scheme which discriminates between different religious groups would not be appropriate. In the replies filed before us in these petitions, the stand adopted was that the Central Scheme makes provision only for 52000 odd students against the eligible 6 lacs students as per the income limit of Rs.1 lac per annum. This, if not remedied, would lead to heart-burn for the students of minority community who are left out of the benefits of the Scheme. If the State were to remedy the same, and also increase the income limit to Rs.1 lac in various scholarship schemes, it would create a financial burden of Rs.2000 crores. What is, however, argued before us on behalf of the State is that the Scheme itself is unconstitutional.
46. Firstly, we do not see how allocating funds to a limited number of otherwise eligible students on the basis of availability of such funds can either be discriminatory or lead to any dissatisfaction amongst those who are left out. Whenever State funds fall short of covering all eligible beneficiaries, any reasonable criteria for allocating available fund to the priority group is not impermissible or unknown. We also do not see how the State would be compelled to cover the rest of the left out students. Further the State itself has framed pre-matric scholarship for minority students which is in existence since the year 1979. Such a scheme is still in operation. Is it not somewhat incongruent for the State which frames and sustains a scheme for decades together to argue that any such scheme which is meant only for minority students is constitutionally invalid? We may hasten to add that we have not decided any of the issues on demurrer, but purely on our legal understanding. We, however, cannot accept the State¿ stand that it being a policy of the State not to accept such a scheme, the Court should not interfere. Can the State which itself has been operating the pre-matric scholarship scheme for minorities without any further justification avoid a similar scheme only on the basis of policy decision?
47. Equally, the stand of the petitioners also is somewhat perplexing. Petitioner No.1 belongs to Scheduled Caste community and petitioner No.2 belongs to OBC category. In the petition, they have mainly taken up the contention that the Scheme in question discriminates the Scheduled Castes students. It has come on record that Central as well as the State Governments have framed various schemes specially covering Scheduled Castes and Scheduled Tribes and OBC students. They have now taken before us a different stand altogether, namely, that they also espouse the cause of all other students including those belonging to general category.
48. This Court in the case of Vijay H. Patel (supra) had examined the Scheme and found it constitutionally valid. It was observed that welfare of the people is ultimate goal of the State actions and the if State finds that a minority community is not equally placed with the majority community, socially or economically, it can take steps to minimise inequalities and bring that community at par with rest of the population. It was observed that the principal aim of socialist State is to eliminate inequalities in income, status and standard of life.
49. Bombay High Court also in the case of Sanjiv Gajanan Punalekar (supra) upheld the validity of this very Scheme along with similar Central scheme for post-matric scholarship for minorities. The Bombay High Court also upheld the scheme as part of affirmative action of the State under Article 15(1) of the Constitution. The High Court referred to a decision of the Supreme Court in the case of Praful Goradia v. Union of India, (2011) 2 SCC 568 which is a case pertaining to challenge to Haj subsidy being given by the Government of India.
50. The above views of different Courts commend themselves. We also record our reasons for coming to similar conclusions though may be through a slightly different route.
51. Findings of the Sachar Committee Report are not under challenge before us. We have, therefore, proceeded on the basis of such findings which, inter alia, highlight the fact that minority community has lagged behind the national average in several parameters of advancement. It is found that in certain respects of education, economic development and other relevant parameters of socio-economic advancement, such community hovers around and, in some cases, even lags behind the national average for other disadvantaged group of citizens such as SCs/STs. Their performance is far behind the national average in various fields. If that be the situation, would it be impermissible for the Union to frame a Scheme taking a small step providing scholarship to a limited number of otherwise eligible students of such communities? The strict scrutiny test adopted by the US courts in case of State¿ affirmative action is not accepted by the Indian Supreme Court.
52. In the case of Saurabh Chaudhri v. Union of India, AIR 2004 SC 361, Constitution Bench of the Supreme Court observed as under :
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 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. Teja Singh (AIR 1959 SC 352) and Tinsukhia Electric Supply Co. Ltd. v. State of Assam (AIR 1990 SC 123).
In the case of Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1, Hon[le Chief Justice of India discussed this issue at considerable length and concluded that:
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 the 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 Chaudhari vs. Union of India.
53. Thus viewed from any angle, the Scheme cannot be held to be unconstitutional. It is true that along with Muslim minority, the Scheme clubs together rest of the notified minorities also. The Sachar Committee report is based predominantly on the conditions of the Muslim minority in the country. However, we notice that Muslim community is predominant amongst such minorities since numerical strength of rest of the other minorities, in particular, Buddhists and Parsis is minuscule. From the decision of the Bombay High Court in the case of Sanjiv Gajanan Punalekar (supra), we gather that position of different communities in the country is as follows:
CommunityPercentageHindus81.89%Muslims13.40%Christians2.00%Sikhs1.90%Buddhists0.80%ParsisLess than 0.01% These minorities are those notified under section 2(c) of the National Commission for Minorities Act,1992. The said Act was enacted to constitute a National Commission for Minorities. Statement of its objects and reasons suggests that previously Minority Commission was set up in the year 1978 for providing institutional arrangement for evaluating the safeguards provided in the Constitution for protection of the minorities and to make recommendations for ensuring implementation of the safeguards and the laws. It was held that Minorities Commission with statutory status would infuse confidence among the minorities about the working and effectiveness of the Commission. The same would carry more weight with the State administration. It was, therefore, decided to give statutory status to the Minorities Commission. The main task of the Commission is to evaluate the progress of the development of the minorities, monitor the working of the safeguards provided in the Constitution for the protection of interests of minorities and in laws enacted by the Central Government and the State Government, besides looking into the specific complaints regarding deprivation of rights and safeguards of the minorities. The Commission should also cause studies, research and analysis relating to socio-economic and educational development of the minorities and make recommendations for the effective implementation of the safeguards for the protection of interests of minorities by the Central as well as the State Governments. Functions of the Commission have been described in section 9 of the said Act. Section 2(c) defines ¿inorityfor the purposes of the Act to mean that a community notified as such by the Central Government. It can thus be appreciated that five minorities so notified by the Central Government under section 2(c) of the Act after proper examination of the relevant factors for doing so, are those in favour of which the Scheme has been framed. Different democracies attempt in different ways to protect the identity and interests of minority communities, be it religious or linguistic. The Constitution of India makes special provisions for protection of such minorities under Article 29 and 30 of the Constitution. Interpretation and width of these Articles came up for consideration before the Supreme Court in the case of Ahmedabad St. Xavier¿ College Society v. State of Gujarat, (1974) 1 SCC 717 and in the case of St. Stephens College (supra). For the purpose of deciding the issue before us, we are not required to enter into various issues arising in such decisions. Suffice it to conclude that grouping of such minorities do not form a heterogeneous class and particularly when numerically predominant minority is shown on the basis of research to be falling behind in overall national development in fields of education, employment and economy, the Scheme in our opinion, can not be struck down on the premise that such detailed material was not collected in case of other minorities who form a much smaller group of minorities. The status of such small groups as \inoritieswith all the concomitant rights and handicaps in the diverse and stratified society is, however not in controversy. We have noticed earlier that Sachar Committee also called for data with respect to other minorities, of course, without any special focus on detailed analysis of their social and economic conditions.
However, solely on that basis, we would not be justified in annulling otherwise a valid scheme.
54. The Referring Bench was of the opinion that the Scheme is constitutionally invalid and the question requires consideration by the Larger Bench. That opinion was primarily based on two considerations. Firstly, the Scheme excludes a student from any community other than the notified minorities from seeking benefits of the Scheme. This according to the Bench, was an example of hostile discrimination. In our opinion, the Scheme is based not only on religion, but draws a classification on the basis of class of citizens grouped together who have been identified as under-privileged and suffering from certain handicaps. The starting point for finding out their conditions may be a religious tag attached to them. However, special treatment is being meted out not because they belong to a certain religion, but because as a class of citizens, they have lagged behind the national average in development.
55. The second aspect on which the Referring Bench found it appropriate to make a reference to the Larger Bench was that the decision in the case of Thakur Pratap Singh (supra) was not considered either by the Gujarat High Court in the case of Vijay H. Patel (supra) or by the Bombay High Court in the case of Sanjiv Gajanan Punalekar (supra). To recall, it was a case where on the premise that certain villages in the district of Jhunjhunu in the State of Rajasthan harboured dacoits and receivers stolen properties leading to trouble and riots, the State Government took action under section 15 of the Police Act. The said section authorized the Inspector General of Police to deploy additional police force in such disturbed area and provided that cost of such additional police force shall be borne by the inhabitants of the disturbed area. While issuing such an order, the State Government provided that the residents of the area belonging to Muslim and Harijan communities would be exempt from paying such cost. It was in this context, the Supreme Court found that such an action was violative of Article 15 of the Constitution. We are of the opinion that the decision in the case of Thakur Pratap Singh (supra) was rendered in an entirely different factual background. The ratio laid down therein is not applicable in the present case.
56. This leads to the question whether a writ of mandamus should be issued. The stand of the State Government, in this respect, is two-fold. Firstly, it is contended that the Scheme does not vest any right in an eligible candidate. Without a vested legal right in favour of a person and corresponding legal duty on the part of the State, no mandamus could be issued. It is pointed out that the Scheme is only an enabling provision and there being no corresponding duty on the part of the beneficiary, the principles of promissory estoppel cannot be applied. The second limb of the State¿ opposition is that it is a matter of Union and State relations whether the Scheme should be adopted or not by the State Government. Particularly when 25 per cent of the contribution is to flow from the State Government coffers, the State cannot be compelled to agree to implement the Scheme. Our attention was drawn to Articles 256, 257 and 73 of the Constitution to argue that in absence of any law framed by the Parliament, Union cannot give any executive direction to the State in the matter of education which is part of the concurrent list in Schedule VII of the Constitution.
57. If the Union Government as a framer of the Scheme had either withdrawn or after framing the Scheme not implemented it at all, for whatever internal reasons, the question whether mandamus can be issued for implementing such a scheme would have required the examination of applicability or otherwise of the concept of promissory estoppel. In the present case, however, the Union of India, as framer of the Scheme has not resiled from such a scheme. In fact, the Union has already made necessary allocation for implementation of the Scheme all throughout the country including in the State of Gujarat. It is stated that the Scheme is implemented across the country except in the State of Arunachal Pradesh, Gujarat and Lakshwadeep. We are informed that non-implementation of the Scheme in Lakshwadeep was owing to the fact that there is large tribal population in the said region. Be that as it may, we see no inhibition in giving suitable directions, if not strictly in the nature of mandamus, for carrying out the effect of the Scheme.
58. The question of the State opposition must be viewed in the peculiar facts of this case. From the record, we gather that before the Scheme was framed, view of the State Government was called for. It is in this respect that the State¿ first response came in the form of a communication dated 4th March 2008, contents of which we have already noticed earlier. Ultimately, when the Scheme was framed and circulated amongst the State Governments for its implementation, the State Government did not oppose the same. The learned Advocate General stated under instructions that periodically the Government of India would send communications for implementing the Scheme every year. The State Government, he conceded that, had not responded to any such communications.
59. Before us also, the State Government has not sought any declaration that the Scheme is not binding on the State or that the same cannot be implemented. Simultaneously, we also find that the State itself has framed a pre-matric scholarship scheme for minority students without any limit on the number of students who can avail of such a scheme. Under such scheme, large number of minority students are already taking benefit of the State¿ scholarships.
If the Central scholarship Scheme is also implemented, some of the students who are currently covered under the State scholarship scheme would shift to such a Central Scheme, the same being more advantageous. The Central Scheme itself makes it clear that no student shall be entitled to avail of more schemes than one from any source for the same purpose. Thus those minority students who would be switching over to Central Scheme would be eliminated from the State list. Simultaneously, we also notice that the State has also implemented the post-matric scholarship scheme of the Central Government without any opposition. Such Scheme is in operation since some time now. The State¿ opposition in the present case may be on account of 25 per cent State participation that the Scheme envisages. However, as already noted, implementation of the Central Scheme would result into reduction in number of beneficiaries under the State Scheme and to that extent, the State allocation would certainly be reduced. If as per the Central Scheme around 52260 students receive such scholarships, such students who would be receiving State scholarships would cease to qualify for such State scholarship. Merely because a small portion of the spending comes from the State¿ exchequer does not commend to us that we should hold that no mandamus should or could be issued. Therefore, keeping open the larger question of Central-State relations and true interpretation of the relevant provisions of Articles 256, 257 and 73 of the Constitution, we would suitably answer the questions referred to us in view of the above discussion. According to the constitutional scheme, right to education forms part of the right to life under Article 21 and the right to education is incorporated separately and in clear terms as an independent fundamental right in the form of Article 21-A. That article is couched in the language which is mandatory insofar as the State is obliged to provide free and compulsory education to all children of the age of 6 to 14 years. The matter of free and compulsory primary education has been perceived to be so important even at the time of drafting of the Constitution that Articles 45 and 46 were incorporated in Chapter IV of the Constitution to lay the principles fundamental in the governance of the country and they were made the duty of the State to apply those principles in making laws by virtue of Article 37. Now that right to education is not only declared as fundamental right of every child, but the State has been obliged to provide free and compulsory education, no authority which is Mhe Statewithin the definition contained in Article 12 could legitimately renege on the constitutional covenant. The phrase ree and compulsory educationin Article 21-A clearly makes it obligatory on the State to not only provide necessary funds and facilities for free, but also compulsory education. The State already under obligation to apply the provisions contained in Articles 45 and 46 to provide child care and primary education and promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice could not be heard to advance the argument of its own policy of not implementing a welfare measure calculated to fulfill its obligations, either on the ground of financial implication or the other measures being taken by itself. We have already noticed that under the Scheme, burden on the State exchequer is not very large. In a related provision under Article 51-A of the Constitution, it is also the duty of every citizen, who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of 6 and 14 years. With such background of constitutional provisions, realization of the goal of universal literacy by compulsory education could be achieved not just by penal provisions, but by incentive schemes impelling the parents to send their children to schools and enforcement of such schemes, consistent with other articles of the Constitution, could be treated as having the mandate of the Constitution itself for its enforcement. In fact, the Division Bench referring the aforesaid issues to the Larger Bench has already observed in para 33.10.1, without any difference of opinion from any earlier judgment, that, .....we do not, for a moment, dispute the power of the Central Government to issue executive directions upon the State within the scope of the Constitution.......
However, even without a formal direction of the Central Government and reference to the provisions of Articles 73, 256 and 257 of the Constitution, the High Court must exercise its extraordinary jurisdiction for issuing appropriate direction subservient to the aforesaid constitutional mandate. We may remind ourselves of the observations made by Mathew, J. in the case of N.M.Thomas (supra), as under:
73.
There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.
60. In conclusion, we answer the questions referred to us in following manner :
The Scheme in question does not violate Article 15(1) of the Constitution and that direction should be given for its implementation.
Decision of this Court in the case of Vijay H. Patel (supra) laid down the correct proposition of law.
The matters be now placed before appropriate Division Bench.
(V.M.SAHAI, J.) (D.H.WAGHELA, J.) (AKIL KURESHI, J.) (vjn) Page 84 of 84