Telangana faces big test on 12 per cent Muslim quota
DECCAN CHRONICLE |
S.A. ISHAQUI
Published Aug 31, 2015, 6:36 am IST
Updated Jan 10, 2016, 8:38 am IST
YSR step was quashed as reservations crossed 50 per cent
Representational image (Photo Courtesy: centreright.in)
Hyderabad: Will the Telangana government succeed
in providing 12 per cent reservations to Muslims in the state as
promised in its election manifesto?
As per the Supreme Court’s
ruling in the Indira Sawhney case, reservations contemplated in Clause
(4) of Article 16 of the Constitution cannot exceed 50 per cent.
Crossing
the 50 per cent mark was one of the grounds for the maiden attempt by
the Y.S. Rajasekhar Reddy-led Congress government in July 2004, to
provide five per cent reservations to Muslims, to be struck down.
After
three years of legal battle, the government cut five per cent down to
four per cent to maintain total reservation at 50 per cent. Even the
four per cent survived only due to an interim order of the Supreme
Court.
If the Telangana government provides 12 per cent
reservations, the percentage of total reservations will reach 58 per
cent. Whether this will stand judicial scrutiny is a big question before
the government.
Chief Minister K. Chandrasekhar Rao and his
Cabinet colleagues have been claiming that they will adopt the Tamil
Nadu model where total reservations are 69 per cent.
After more
than 50 years of struggle, the Tamil Nadu government had succeeded in
including the Tamil Nadu Backward Classes, Scheduled Castes and
Scheduled Tribes (Reservation of seats in educational institutions and
of appointments or posts in the Services under the State) Bill, 1993 in
the Ninth Schedule of the Constitution through the 76th Amendment.
Though
that decision was validated by Parliament through Article 31 (B) of the
Constitution, a seven-member bench of the Supreme Court had held that
validation of Acts through the Article could not be barred from judicial
review and the matter of Tamil Nadu was also pending before the Supreme
Court for final verdict.
In view of this fact, the move of the
Telangana government to provide 12 per cent reservations and whether it
will stand legal scrutiny is interesting.
Mr K. Chandrasekhar Rao has been claiming that strong political will and his conviction will ease things.
He
had also constituted a three-member commission of inquiry in March this
year to study the social and educational backwardness among Muslims of
the state.
The commission has begun its exercise.
High
Court advocate S. Sriram said the government would have to follow the
procedure provided under law and should not repeat the mistakes done
while providing reservations to Muslims in Andhra Pradesh.
The
reservations will have to pass judicial scrutiny because Article 16 (4)
of the Constitution speaks of adequate representation and not
proportionate representation, he added.
The Supreme Court had
said that in certain exceptional circumstances the reservations may
cross 50 per cent but it would be subjected to judicial review, Mr
Sriram said.
Mr Abid Rasool Khan, chairman of the Minority
Commission for Andhra Pradesh and Telangana, said, “Twelve per cent
reservation for Muslims will have authenticity in the eyes of the law
when the Minority Commission, which is a statutory body, is also
involved along with the Backward Classes Commission and the three
man-committee in studying and identifying social and educational
backwardness among Muslims.”
TimelineJuly 12,
2004: The Y.S. Rajasekhar Reddy-led Congress government, after coming
to power in 2004, issued G.O. Ms. No.33 on July 12, 2004, providing five
per cent reservation to Muslims by treating the entire community as a
Backward Class under Category-E in addition to the existing categories
of A, B, C, D, in educational and employment, following a report of the
Commissionerate of Minorities Welfare, headed by the ex-officio
commissioner.
Sept. 2004: The GO was stuck down by a five-member
Bench of the Andhra Pradesh High Court based on the findings of the apex
court in the Indira Sawhney case. The court had held that the GO was
ultra vires inter alia on the ground that the government was bound to
consult the Backward Classes Commission before undertaking any revision
of the Backward Classes List and they did not reflect formation of
opinion as to adequacy of representation of Muslims in the service of
the state. It then directed the government to reconstitute the AP
Commission for Backward Classes to examine the matter.
Nov. 2004:
The government constituted the BC Commission on November 14 and it
submitted its recommendations on June 14, 2005. On the basis of the
report, the government issued the AP reservation of seats in educational
institutions and of appointments/posts in public services in the state
as Muslim Community Ordinance, 2005 (Ordinance No. 13 of 2005, dated
20-06-2005).
Oct. 2005: The Ordinance was repealed by AP Act No. 21 dated October 25, 2005.
Nov.
2005: Another five-member bench of the AP High Court struck down the
Act. However it declared that there was no prohibition to declare
Muslims, as a community, socially and educationally backward for the
purposes of Articles 15(4) and 16(4) of the Constitution of India,
provided they satisfied the test of social backwardness.
2007:
The government brought out another Act to provide 4 per cent
reservations to Muslims. This was again challenged before the High Court
and a five-member Bench referred the matter to a seven-member
Constitution Bench in January 2008.
Feb. 2010: The seven-member
Constitution Bench, in a 5-2 majority ruling, held the law providing 4
per cent reservation to backward class Muslims in the state as invalid
stating that it was unsustainable and in violation of Article 14, 15(1)
and 16 (2) of the Constitution. The bench found that the commission had
neither evolved any criteria nor published these before inviting
objections.
It had merely stated that it had followed the two
criteria evolved by the Mandal Commission for identification of socially
and economically Backward Classes among non-Hindu communities.
When
the matter was placed before the Supreme Court, it gave an interim
order for continuation of reservations to Muslims ruling that the
reservation would be available only to Muslims who fell under the 14
categories figuring in the Andhra Pradesh Reservation Act, 2007.
Muslim groups enjoying a reservations in AP and TelanganaAchchukattalavandlu, Singali, Singamvallu, Achchupanivallu, Achchukattuvaru, Achukatlavandlu,
Attar Saibulu, Attarollu
Dhobi
Muslim / Muslim Dhobi / Dhobi Musalman, Turka Chakla or Turka Sakala,
Turaka Chakali,Tulukka Vannan, Tsakalas, Sakalas or Chakalas, Muslim
Rajakas
Faqir, Fhakir Budbudki, Ghanti Fhakir, Ghanta Fhakirlu, Turaka Budbudki, Darvesh, Fakeer
Garadi Muslim, Garadi Saibulu, Pamulavallu, Kani-kattuvallu, Garadollu, Garadiga
Gosangi Muslim, Phakeer Sayebulu
Guddi Eluguvallu, Elugu Bantuvallu, Musalman Keelu Gurralavallu
Hajam, Nai, Nai Muslim, Navid
Labbi, Labbai, Labbon, Labba
Pakeerla, Borewale, Deera Phakirlu, Bonthala
Qureshi, Kureshi / Khureshi, Khasab, Marati Khasab, Muslim Katika, Khatik Muslim
Shaik / Sheikh, n Siddi, Yaba, Habshi, Jasi
Turaka Kasha, Kakkukotte Zinka Saibulu, Chakkitakanevale, Terugadu Gontalavaru, Thirugatigantla,
Rollaku Kakku Kottevaru, Pattar Phodulu, Chakketakare, Thuraka Kasha.
Other
Muslim groups excluding Syed, Saiyed, Sayyad, Mushaik; Mughal, Moghal;
Pathans; Irani; Arab; Bohara, Bohra; Shia Imami Ismaili, Khoja;
Cutchi-Memon; Jamayat; Navayat.