The Gujarat judiciary has, in a judgment, forced the UPA and various state governments to rethink their version of special sops based on minorityism religion.

By Kartikeya Tanna

Pursuant to the Sachar Committee report on the social, economic and educational status of Muslims in India, the prime minister launched a 15-point Programme for the Welfare of Minorities under which a scheme for awarding pre-metric educational scholarships to children belonging to five specific minorities was initiated.

The purpose of this scheme was to "encourage parents from minority communities 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 basic conditions of this scheme are: (a) the student concerned must not get less than 50 percent marks in the previous examination; (b) the annual income of parents/guardian must not exceed Rs 1 lakh; and, most controversially, (c) the student must be a Muslim, Christian, Sikh, Buddhist or Parsi.

Refusing to implement it in Gujarat owing to the fact that it discriminated between students on the basis of religion alone, the Gujarat government stated that such a scheme would cover only 52,260 minority students as against six lakh eligible pre-metric students falling within the income criteria.

This led a Gujarat Congress member to file a Public Interest Litigation in the Gujarat High Court asking the court to issue directions to the Gujarat government to implement the scheme. The Central government, through the Assistant Solicitor General, supported the stand taken by the Gujarat Congress member.

One of the arguments of the Gujarat government was that the minority communities in Gujarat are more developed and educationally advanced as compared to minorities in many other states in the country and even compared to people belonging to the SC/ST, SEBC (socio-economically backward) and EBC (economically backward) categories. Therefore, targeting a limited number of communities on the basis of religion will create ‘heart-burning’ and discriminatory feeling amongst the other low income students.

The state also said that Gujarat was implementing as many as five scholarship schemes covering all eligible persons without limiting it to particular minority communities. The central scheme, according to the Gujarat government, created a class within a class and, that too, on the basis of religion alone, something clearly forbidden in the Constitution.

Interestingly, in an earlier petition challenging the Prime Minister’s 15-point programme, the Gujarat High Court had held in 2009 that "funds utilised by states for.... providing education etc". would not violate the Constitution. The Bombay High Court in 2011 ruled the same in an identical challenge.

Even the Supreme Court, in an unrelated matter but one raising similar issues, had held that when expenditure is incurred by Central and state governments for other religions and economic classes, there is no ‘discrimination’ under to a scheme which also gives facilities to minorities on the basis of religion alone.

Nonetheless, the Gujarat High Court bench, consisting of the Chief Justice, disagreed with these findings and held that such a scheme would violate the Constitution. It relied primarily on a 2005 Supreme Court judgment (given by a larger five-judge bench) which held that a "further classification by way of micro-classification" was not permissible under the Constitution.

The Central government, through this scheme, wanted to "make a micro-classification among the weaker sections of citizens on the basis of religion alone". Article 29(2) of the Constitution clearly prohibited any citizen from being denied aid out of state funds on grounds only of religion.

According to the Gujarat High Court, the following question was the yardstick when determining the constitutionality of such a scheme:

"Will people from other communities whose annual income is less than Rs 1 lakh and whose children are equally (or more) meritorious be deprived of government patronage only because they belong to different religions other than five minority religions?”

If the answer was in the affirmative—which it clearly was—the Gujarat High Court could not order the Gujarat government to implement the scheme. Since the earlier 2009 Gujarat High Court judgment which upheld the PM’s 15-point programme was also by a two-judge bench, this matter has been referred to a larger bench for final adjudication.

For the moment, however, the Gujarat High Court has expressed its displeasure with the palpably blatant discrimination inherent in the scheme which has the effect of depriving a poor child securing 90 percent marks just because he happened to belong to a religion other than the religion of a comparably poor child who secures 51 percent (and who, therefore, gets the scholarship solely because of his religion).

How a larger bench will decide on this issue remains to be seen. However, by ‘road-rolling’ minority welfare schemes such as these, the UPA has, in the words of the Gujarat High Court, “exposed the idea that there is no necessity of socio-economic upliftment of persons of even the poorer and socially backward strata with the help of government sponsorship unless they belong to the five minority religions.”

The Gujarat judiciary has, with this judgment, forced the UPA and various state governments to rethink their version of secularism. Because the version they are practising keeps drifting further and further away from the constitutional values our founders thought India would cherish and preserve.