A Constitution Bench of the Supreme Court will decide if an Andhra Pradesh law granting reservation in education and government jobs to socially and educationally backward Muslims is ?religion specific? or a piece of social welfare legislation.
A three-judge Bench of Chief Justice of India KG Balakrishnan, Justices J M Panchal and BS Chauhan on Thursday stayed the February 8 order of a seven-judge Constitution Bench of the Andhra Pradesh High Court which struck down the Andhra Pradesh Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act of 2007 as ?invalid, unconstitutional? and discriminatory.
The Bench decided to refer the question of constitutional validity of the Act to a Constitution Bench of the Supreme Court which will start hearing the matter from the second week of August.
The Bench allowed, for the time being, the 4% reservation envisaged in the Act to be ?extended? to the 14 ?identified groups?, excluding the category simply termed ?other Muslim groups?. The latter category has been excluded to prevent further confusion until the Constitution Bench decides.
The Act, passed by the Andhra Pradesh Assembly, is the first special law to expressly prescribe exclusive reservation benefits for backward members within the Muslim community.
The Act excludes nine other classes?Syed, Saiyed, Sayyad, Mushaik, Mughal, Moghal, Pathans, Irani and Arab?which have not been traced, though known to exist in the state.
Attorney general GE Vahanvati, appearing for the Andhra Pradesh government, led the arguments, declaring that the state legislature did not intend the Act to be ?religion specific? but aimed to uplift social groups identified as backward.
?The criterion in this law is backwardness. Religion specific is a non-issue. You cannot pick holes in the intent of this social welfare legislation. This Act should not have been struck down,? he said, underlining that the Act does not prescribe reservation rights ?for Muslims in general, but specifically for backward class Muslims?.
Reading from a list, Vahanvati said the Faqir (beggar), the Attar Sabulu (attar maker), the Turka Chala or Turka Sakala (burial ground minder), the Qureshi (butcher) were some of the backward social groups identified by the Andhra Pradesh Commission for Backward Classes, the findings of which form the bulwark of the Act.
?The Sheikhs call themselves leaders, but are very, very backward. The Siddis have Negroid features and are actually from Africa. They work as security guards. The Labbi or Labbais are Tamil-speaking tanners. Proper research has gone into identifying the groups. The High Court order was without any application of mind,? Vahanvati said.
?The high court struck down the Act saying reservation rights to these classes would potentially encourage conversion. I say, reservation benefits to these 14 groups since the Act came into being in 2007 has never led to unscrupulous conversion. The implementation of the Act is an important social, affirmative action,? he said.
Supplementing the attorney general?s arguments, senior advocate K Parasaran said ?for 60 years they have lived their lives as beggars, dhobis, burial ground labourers and continue to do so?.
When his turn came, senior advocate Harish Salve launched a direct attack on the state law: ?What have you done by this law? You have taken Muslims and created a separate class for reservation based on religion.?
At this point, Chief Justice Balakrishnan said: ?The government is of the view that certain sections of Muslims are socially and educationally backward. What is wrong with that??
Salve said: ?The name of the Act itself is wrong. The law of the land and the Supreme Court say religion is immaterial. But under this law, you have to be not only socially or educationally backward but also a Muslim. This is thinly disguised religious reservation.?