New Delhi: The Supreme Court on Thursday permitted Andhra Pradesh to provide four per cent reservation in jobs and education for backward members of the Muslims but referred to a special bench the issue of its Constitutional validity.
Lifting the stay on the AP government's decision, a three-judge bench of Chief Justice K G Balakrishnan, Justice J M Panchal and B S Chauhan said "since it involves important questions of Constitution, we are referring the matter to a Constitution bench" for hearing in the second week of August.
As many as 14 Muslim groups identified as socially and educationally backward sections by the State Backward Commission would now be eligible for the benefit.
"The government is of the view that certain sections of the Muslim community are socially and educationally backward. What is wrong in it? It is only a question as to how you identify them.
"It is not a question as to whether they are Hindus or Muslims but the question is social and educational backwardness. Merely because they are Muslims they cannot be denied. The socially and educationally backward classes are identified," the bench said while passing the order.
The decision came on a special leave petition filed by the State Government challenging the ruling of a seven-judge bench of the High Court which had quashed the impugned policy as being unconstitutional on the ground that reservation cannot be extended on the basis of religion.
Attorney General G E Vahanvati argued that the High Court did not properly consider the matter while passing the judgment as it failed to consider the fact that identification of the most backward groups among the Muslim was done by the State Backward Commission.
K Parasaran, a lawyer for people supporting the reservation, argued that while barbers, dhobis and those working in cremation grounds in the Hindu community were extended reservation benefits under the backward class, similarly placed groups in the Muslim community were deprived of the benefits.
However, lawyer Harish Salve, who argued on behalf of people opposed to reservation, cautioned that extending "religion-centric" reservations posed a grave "danger of fissiparous tendencies developing in the country."
A seven-judge Constitution bench of the High Court had by a majority judgment of 5:2 held the Andhra Pradesh Reservation for Socially and Educationally Backward Classes of Muslims Act, 2007 "unsustainable" and violated Constitution’s Article 14 (equality before law) and other provisions pertaining to prohibition of discrimination by State on grounds of religion, race, caste, sex or place of birth.
The High Court, while setting aside the state Act, had also quashed a subsequent 2007 government order allocating four per cent reservation to Muslim groups in educational institutions and jobs.
The state had moved a bill in the Assembly on the basis of a report submitted to it by Andhra Pradesh Commission for Backward Classes (APBC). The bill was later passed by the Assembly.
The report had recommended that the socially and educationally backward should be adequately represented in the state.
The High Court held that the recommendation made by the APBC was unsustainable as it failed to evolve and spell out proper and relevant criteria for identification of social and educational backwardness and inadequate representation in public employment among classes or persons belonging to Muslim community.
It said the data was not collected properly by the APBC for determining the social and educational backwardness of the Muslims in the state.
The High Court said the Commission relied on data collected and observations made by Anthropological Survey of India which was meant to make an anthropological profile of Indian population and has no relevance to the affirmative action or reservation under Article 15(4) and 16 (4) of the Constitution which enable a state to make law on reservation.
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