Justice Anil Dave Judgment

On 16.7.2007, T.Muralidhar Rao and another filed Writ Petition No.15267 of 2007 before the High Court of Andhra Pradesh at Hyderabad challenging the said G.O.Ms. No.23(dated 7.7.2007). Certain other Writ Petitions were also filed challenging the said ordinance. Interim orders were also prayed for.

On 24th July, 2007, the High Court passed an interim order: “The admissions made hereinafter by implementing the provisions of the ordinance impugned in this petition shall remain subject to the final adjudication and this fact be incorporated in the letters of admission or otherwise notified to the students.”

On 20th August, 2007, the Andhra Pradesh Government filed counter affidavit while the BC Commission filed its counter on 28th August.

The BC Commission, in its counter, submitted that:

(I).     neither the Ordinance in issue nor the report of the Commission based on which the ordinance was promulgated can be termed as religion based. It is an accepted fact that there are occupational and other groups within Muslims, who are socially and educationally backward and providing reservation after identifying such groups as backward is perfectly valid and legal.  The factual position is that, for reasons like lack of proper understanding of the A.P.Muslim society and its structure, a large part of the A.P.Muslim population, which can be identified as socially and educationally Backward Classes, had missed being identified as such over the last many decades.   It was this handicap and gap that was sought to be removed by the Commission.

The Commission has in consonance with the judgment of the Hon’ble High Court in Archana Reddy’s case not treated the entire Muslim population as a Backward Class enbloc.  As stated in the report, “we have decided to recognize identifiable separate groups among Muslim communities and consider which of them are socially and educationally backward.”  As observed by this Hon’ble Court was in the matter of Indira Sawhney vs. Union of India (supra) at page 782) for the purpose of identification, there is no set or recognized method nor does any statutory instrument to prescribe it. The report makes it clear that nowhere did the Commission try to consider Muslims embloc, but attempted to delineate the identifiable groups/ communities among Muslims. The exercise conducted by the Commission while identifying the groups/communities among Muslims, inter alia, for the purpose of providing reservation in their favour under Articles 15(4) and 16(4) of the Constitution of India, is therefore legal and valid.

 (II).  The contention that the methodology stated to have been followed to figure out the social backwardness amongst the groups of Muslim population as reflected in chapter-III is not objective and rational and findings based on such survey is perverse as regards each of the communities that have been found backward, is wholly baseless incorrect in as much as sample survey is a permissible mode of Survey in order to ascertain the factual data of a particular segment or issue.  In the instant case the sample survey was conducted for aid in identification of socially and educationally backward classes in Muslim communities, which reflect the socio-economic conditions of such groups as a whole. There is no necessity to conduct the Survey covering each and every family of such groups/community among the Muslims. There cannot be any rigid/fixed criterion for such surveys.

(III)   The entry under item No.15 of recommendation of the Commission for Muslim groups after identifying and excluding the socially advanced sections of the Muslim is essential to provide for those backward groups, which are not identified by the People of India series, but are mentioned in District Gazetteers and other sources, which on account of smallness, remoteness and lack of contact may not have come to the notice and may come to notice in future and need to be given help without any further delay.

(IV).  The Commission’s investigation and report takes into consideration the earlier reports of various B.C. Commissions appointed by the government from time to time; the judgements of this Hon’ble Court and  the Hon’ble High Court; the reports of Anthropological Survey of India, Justice R.Sachar; Justice Ranganath Misra and Sri P.S.Krishnan an expert and Advisor to the government. Thereupon, it has adopted the methodology as mentioned in Chapter III of Commission’s Report.  In the circumstances the contention that the Commission had failed to evolve a rational and scientific criteria for consultation or that the investigation was inadequate is untenable.

(IV).  the Commission is not an adjudicatory body and it is only a fact finding Commission.

The Commission also submitted that the Report of the Commission is very clear as to the criterion and methodology that it had adopted in identifying the socially and educationally backward classes among Muslims. The Commission had studied the criterion adopted by the earlier Commission, the law declared by this Hon’ble Court and the Hon’ble High Court with regard to the criterion on the identification of socially and educationally backward classes among Muslims and followed the criterion which is applicable and appropriate to the identification of socially and educationally backward classes in non-Hindu communities.  This aspect of the matter is made very clear in the Report itself.

On February 8, 2010, the High Court bench headed by Justice Anil R. Dave delivered its judgment.

Vide majority judgment (as per Hon’ble Chief Justice Sri Anil R.Dave; Hon’ble A.Gopal Reddy, Hon’ble V. Eshwaraiah and Hon’ble G. Raghuram JJ) in Writ Petition No.15267 to 15270; 15330, , 17086, 18494, 25852 of 2007 and 17679 of the Hon’ble High Court was pleased to    hold unsustainable the said Act, 2007 amongst other considerations on the premise that the recommendations set out in the report of the petitioner -Commission were unsustainable due to:-

(I). Failure of the Commission to evolve and spell out proper and relevant criteria for identification of social and educational backwardness or social backwardness and inadequate representation in public employment, amongst, classes of persons belonging to the Muslims community.

(II). Failure of the Commission to obtain the population figures of the several classes, groups of persons belonging to the Muslim community for inclusion in Group “E”.

(III). Failure of the Commission to adopt a scientific method for determining the appropriate location for conducting a survey of the population of each of  the classes/groups recommended for inclusion; with a view to ensuring that the locations surveyed are representative of inhabitants of the relevant classes/groups.

(IV). Failure of the Commission to consider, determine and apply a scientific and statistically rational method of sampling like determination of sample size, location for sampling etc.

(V). Failure of the Commission to apply uniform criteria or even standards of analysis across the several classes/ groups recommended for inclusion, while recording conclusions as to social or educational backwardness or under representation in public employment.

(VI). The reliance placed by the Commission on the data collected and observations made by the ASI study (People of India Series) and the report of Mr. P.S. Krishnan for the purpose of making its recommendation though the data collected had no relevance or nexus with the affirmative action /reservation under Article 15(4) and 16(4) of the Constitution, which the State was to take on the basis of recommendations made by the Commission.   Reliance of the Commission on such material which was not scientifically collected and which was bereft of any survey made for the purpose, had led to incorrect conclusions.

(VII). The exclusive basis of for the `2007 Act’ is the report dated 2.7.2007 of the petitioner-Commission which was unsustainable.

Vide separate judgment of Hon’ble Smt. Justice T.Meena Kumari was pleased to concur with the conclusion in the majority judgment, but the learned Judge disagreed with the other four learned Judges with regard to the correctness of Archana Reddy’s direction on the procedure which the Commission has to follow for identification of socially and educationally backward classes and hold that it should be left to the Commission.

Vide separate judgment, Hon’ble Sri Justice B.Prakash Rao while holding the impugned action as valid, left it open to the government and the Commission and all other parties concerned  to  make  a  post  facto       re-exercise with regard to the inclusion of any of the social groups and it is open to any of the parties to move the Commission in case they have material to show that any of the social groups is not backward.

Hon’ble Sri Justice D.S.R.Varma was pleased to categorically hold:

(I). That there is nothing in the circumstances leading  to the Act, i.e., the material basis of the Act as laid out in the APCBC’s report and other materials that the State had in its knowledge, which could be termed as either perverse or per se defective or totally unrelated to the identification of backward classes made in the Act.  The methodology and procedure adopted in the exercise leading to the Act are neither distorted nor deliberately calculated to give effect to a pre-conceived result as has been made out by the challengers of the Act in the case;

(II). The criteria followed for identification as evident in the Report are in accordance with the well-tested principles in social enquiry as adopted by the National Commission for Backward Classes, the Mandal Commission and other Backward Classes Commissions in the country since a long time;

(III) By including the now identified groups in the BC list the State has not made any discrimination based on religion and no right of any citizens have been violated;

(IV) The plea that item 15 in the Schedule of the impugned Act will encourage conversions is irrational and unrealistic the State has not only identified socially and educationally backward classes but also taken care to specifically identify, spell out clearly and exclude the socially and educationally advanced social groups from the list of B.Cs. With such diligent care taken by the State, there is no scope for any socially advanced social groups of Muslims to take advantage of item 15 of the schedule and there is no scope for inferring mala fide intentions on the part of the State to give undue advantage to any class of citizens on the basis of religion only or to deny the rights under Article 14,15 and 16 of the Constitution to any class or individual citizens.  If in addition to the 10 social groups identified as `not socially backward’ are excluded, if any citizen has any information to show that there is any other social group of Muslims which is not socially backward, it is open to such citizen to move the NCBC with a complaint of over-inclusion and seeking the removal of such non-backward social groups from the ambiting the benefit of the Act and to add such social groups to the list of the excluded social groups;

(IV) None of the specific inclusion of socially groups recommended by the APCBC and made in the `2007 Act’ and its Schedule is unjustified. Provision of 4% reservation for the backward social groups of Muslims so identified is neither unjustified nor excessive;

(V). Once a legislation is enacted the judiciary has to take into account the principle of presumption of constitutional validity of any legislation under the Indian Constitution and set it aside only if there is anything in the legislation which strikes the conscience and strikes the eye as totally unreasonable.