By IANS,
New Delhi/Hyderabad : In a major setback for the Congress-led United Progressive Alliance (UPA) central government, the Supreme Court Wednesday rejected, for now, its plea for a stay on an Andhra Pradesh High Court verdict quashing a 4.5 percent sub-quota for religious minorities in central educational institution.
An apex court bench of Justice K.S. Radhakrishnan and Justice J.S. Khehar said the 4.5 percent sub-quota within the 27 percent reservation for the Other Backward Classes (OBCs) was on religious basis and “not in conformity with Article 15 of the Constitution”.
“Within the OBCs there was solitary representation on religious basis. By that clause you create another class on the basis of religion,” Justice Khehar told the government. “How did you come to 4.5 percent sub-quota,” the court inquired.
The court observed that the “question is can you make a classification on the basis of religion”.
The court observation came when Additional Solicitor General Gourab Banerji told the court that the mention of religious minorities had been misconstrued as if it was for Muslims alone.
He told the court that the 4.5 sub-quota was for Muslims, certain backward classes whose members converted to Christianity and some backward classes among the Sikhs.
The court told Banerji that what he was saying did not appear from the office memorandum of Dec 22, 2011, as it only spoke of religious minorities and that created difficulty.
Issuing notice to the respondent R. Krishnaiah and others, the court told Banerji that Article 15(5) provided that the state by enacting a law could make special provision for the advancement of any socially and educationally backward classes for admission to educational institutions.
The court asked Banerji where was the law backing the 4.5 percent sub-quota for minorities within the 27 percent OBC reservation.
“We are (focusing) on the question whether 4.5 percent sub-quota has the constitutional support or not,” the court asked Banerji.
Banerji told the court what was done by last year’s office memorandum (OM), creating 4.5 percent sub-quota for the minorities, was prevailing in seven states within the country and in Karnataka, Kerala and Tamil Nadu there was an exclusive reservation for Muslims alone.
As the ASG sought to justify the memorandum, the court asked him what was the role of the National Commission for Backward Classes (NCBC).
The court said that “if they are under-represented (then) in that situation you must seek the advice of the NCBC and it (advice) is binding on you”.
As Banerjee said that “if court says that we will do it. There is no difficulty”, the court said: “We are not saying that but the provision of the NCBC says so.”
The court order could affect the admission of students from the minority community to the IITs. As many as 325 candidates have been short-listed under the sub-quota for counselling after this year’s joint entrance examination.
The human resource development ministry had challenged the May 28 order of Andhra Pradesh High Court quashing the sub-quota.
The bench, comprising then Chief Justice Madan B. Lokur and Justice P.V. Sanjay Kumar, declared that this action of the central government was based upon religious lines and not on any other intelligible consideration.
The high court, which was dealing with a petition by backward classes welfare association, had also expressed deep anguish at the casual manner in which the issue was dealt by the central government and said that it had exceeded constitutional boundaries.
The high court opined that the OM violates Article 15(1) and 16(2) of the Indian constitution which prohibit discrimination based on religion.
The central government had issued OM ahead of the January-March assembly elections in Uttar Pradesh and four other states.