39. The ideal of social justice, which has invited frequent judicial intervention, is that of 'affirmative action'. The framers of the Constitution not only included the guarantee of 'equal protection before the law' in Article 14, but also permitted 'differential treatment' in order to advance the interests of the historically or otherwise disadvantaged sections, which came to be designated as Scheduled Castes and Scheduled Tribes. The 'affirmative action' policies took the form of reservation of seats in legislatures, public employment and in educational institutions. As observed in M.R. Balaji and Indra Sawhney I by the Hon’ble Supreme Court, while the judiciary has steadfastly supported the principle of 'affirmative action', there has been frequent litigation pertaining to the specific application of the same in different settings. There has also been a significant litigation over questions that involve an interface between the fundamental rights enshrined in the Constitution and the broad objectives of ensuring social justice. In certain instances, there has also been a clash between the understanding of fundamental rights on one hand and the governmental objectives of ensuring social justice on the other. However, the most important feature is that the fundamental rights provided the Supreme Court and the High Courts with a clear set of criteria to regulate relations between citizens and the Government (i.e. vertical application of rights) as well as among citizens themselves (i.e. horizontal application of rights). Furthermore, the Supreme Court and the High Courts have interpreted these rights both in 'negative' and 'positive' dimensions. ...
63. The principles that would emerge from the judgments of the Hon’ble Supreme Court are that any interference by the State with the fundamental rights of the citizens should be reasonable and such interference must stand the scrutiny of the Court. When there is a challenge to a legislative action of the State as offending Articles 14, 15 (4) or 16 (4), the Court can and should verify whether the level of discrimination is excessive and whether the asserted classification has a nexus with the objective intended to be achieved by the State; and in applying the test of reasonableness, the Court has to consider the background of the facts and circumstances under which the legislation was made, and in particular, when a legislation aims to discriminate the citizens on the basis of religion, race etc., the Courts have to make a careful and deeper scrutiny to test such legislation.
185. The general practice in vogue in almost all the States in the country is to provide reservation to S.Cs., S.Ts. or SEBCs. after considering the total population and the population of persons belonging to such classes. So, reservation to be provided to such classes must be commensurate with the percentage of the total population. We do not find any justification for providing 4% reservation to SEBC Muslims under the impugned Act. Similarly, the Commission has also not given any explanation, much less even a plausible reason, justifying its recommendation for providing 4% reservation to the so-called identified fifth group viz., Group 'E', in education and public employment. As has been discussed supra, the Commission, while dealing with the different communities of Muslims, has only recorded an observation whether that particular community is socially and educationally backward, but has not given any figure illustrating its ultimate finding that without providing 4% reservation to these groups, justice would not be done. The logical inference is that since only 4% percentage reservation was left available to be provided by the State to other identified backward class people, after the 46% reservation already provided to the different groups of S.Cs., S.Ts. and OBCs (A, B, C & D). This cannot be a legitimate justification for providing 4% reservation to Group ‘E’. ...
197. The grievance of the petitioners is that because of the impugned Act, the reservation to the backward classes has been increased from 46% to 50% and during the academic year 2007-08 some of the petitioners, who could find place in the merit list for admission in professional colleges viz., Engineering, Medical and Post- Graduate courses, lost an opportunity of securing seats in view of the impugned enactment. The grievance of some of the petitioners, who have filed the petitions in public interest, is that the Commission had not taken into consideration their objections for inclusion of certain other communities including Muslim community, in the list of backward classes. It has been submitted by them that the inclusion of the identified groups among Muslim community, which does not satisfy the criteria, would adversely affect the persons belonging to forward classes, in general, and the legitimate interest of the already listed backward classes as well.
198. Our Constitution permits application of the equality clause by grant of additional protection to the disadvantaged classes irrespective of their religion, so as to bring them on an equal platform with other advantaged classes of people. Where, however, reservation is provided to a community or group of communities professing a particular religion or a religious denomination, without a lawful determination of social and educational backwardness, the classification so made would be exclusively on the basis of religion, prohibited by Articles 15 (1) and 16 (2). ...
202. Further, it is also to be noticed that the 2007 Act does not define the word “Muslim”. In the absence of any definition in the Act, naturally we have to fall back to the dictionary meaning. According to Oxford Dictionary, “Muslim” means, ‘a follower of the religion of Islam’. The meaning given in the Webster’s Comprehensive Dictionary to the word “Muslim” would read that he is ‘a believer in Islam’. Taking the dictionary meaning, a Muslim is a person who sincerely embraces the religion of Islam and believes in Islam. The word “Islam” has been defined by the New International Webster’s Comprehensive Dictionary of the English language, as ‘the religion of the Muslims, which maintains that there is but one God, Allah, and that Mohammed is his Prophet; Mohammedanism’. It would also mean ‘the body of Muslim believers, their culture, and the countries they inhabit.’ It has been defined by the new Oxford Dictionary of English, as the ‘religion of the Muslims, a monotheistic faith regarded as revealed through Mohammed as the Prophet of Allah.’ Thus, a Muslim is a person, who tries to worship God by following the teachings of Prophet Mohammed. Therefore, any follower of Islam can be regarded as a Muslim. The Legislature ought to have taken care, while making the enactment, to define the word “Muslim” and the phrase “other Muslim groups” and state clearly as to who actually falls within these definitions, for enjoying the benefits under this Act.
Basing the Commission which forwarded the report for such inclusion in the backward category for the sloppiness of the work done, the High Court observed as under;203. Looking to the facts of the case, in our opinion, the 2007 Act is religion specific and potentially encourages religious conversion, and is thus unsustainable.
130. The present Commission had neither evolved any criteria nor published the same before inviting objections except stating that it had followed the two criteria evolved by the Mandal Commission for identification of SEBCs among non-Hindu communities. The Commission had also not finalized the criteria after hearing the objectors. What the Commission had done is that it had issued a public notification inviting representations, suggestions and objections on the inclusion of only seven Muslim groups viz., 1) Fakeer, 2) Pakeerla, 3) Labbi/Labbai, 4) Qureshi, 5) Muslim Rajakas, 6) Turka Kasha and 7) Achukatlavandlu. It did not notify the criteria and the factors which it intended to consider or apply before proceeding further in identifying social and educational backwardness of the above Muslim groups. This procedural error committed by the Commission is fatal to its report and its consequent recommendations. ...
133. It is deplorable that in the instant case, the Commission was not aware about the total population of the persons belonging to the groups of Muslims, who have been included in Group ‘E’. It is an admitted fact that the Commission was not having details about total population of the groups, which have been included in Group ‘E’. In our considered opinion, it is necessary to know the total population because, for the purpose of determining the size of the sample, it is necessary to know the total population. In Indra Sawhney I, on the basis of the report submitted by the Mandal Commission, it has been observed that the sample size of 1% of the country's population comprising 65 lakh persons may be too large, especially in view of the limited time available to it. Unless one knows the total size of the population, it cannot be decided as to how big or small the sample size should be.
134. In the absence of any idea with regard to the population of persons belonging to each of the groups included in Group ‘E’, we fail to understand how the Commission could have decided upon the sample size. In fact, the sample size had not been determined by the Commission. Therefore, the procedure of collecting data by sampling was perverse.
135. It is also important to consider whether the authority collecting the data is collecting the data by itself or is relying upon the data collected by somebody else, which is popularly known as secondary data.
136. In the instant case, the Commission has relied upon the secondary data because, it has relied upon the data collected by the AnSI and Mr.Krishnan. While relying upon the secondary data, it is very important to know the purpose for which someone else had collected the data. If the purpose for which another person/agency had collected the data and the purpose for which the data is being used by the Commission are unconnected, the final conclusion arrived at by the Commission on the basis of such secondary data would be incorrect. The data collected by the AnSI was clearly not for the purpose of determining whether the persons in respect of whom the data was collected were socially and educationally backward classes. We have already referred to hereinabove the purpose for which the AnSI had collected the data. Looking to the variance of the purpose for which the data was collected by the AnSI and the purpose for which the Commission had used the same, in our opinion, the conclusions by the Commission on the basis of the said data cannot be sustained and it would not be legitimate for the State to formulate a reservation policy on the basis of such irrelevant recommendations by the Commission.
Have a look at the decision.137. A perusal of the report of the Commission, particularly in relation to the methodology of the survey conducted by it, shows that the Commission had deputed a survey team to conduct door-to-door survey in the field, but, in fact, there is nothing to show that an appropriate sample size/percentage was determined and the sample of the population scientifically studied. It has been submitted across the Bar that the survey was conducted to cross-check whether the data already collected was correct and the so-called fast-track method was adopted to collect/cross check the data. It is true that the Commission can adopt any methodology suited for the purpose, but it should commensurate with the standard methods of sampling, as discussed above. To us, it appears that the fast-track approach adopted by the Commission was nothing but a non-scientific method of sampling, which is otherwise known as “opportunity sampling” or “non-probability sampling”. In other words, such sample would be drawn from that part of the population which is close to hand. As the nomenclature itself indicates, the readily available and convenient sample drawn cannot provide a reasonably correct idea about the total population, because that sample would not be representative. Therefore, if the sample is not representative of the population, it cannot be made the basis for coming to a conclusion.
The Supreme Court has effectively stayed this decision of the High Court on 25.03.2010. Have a look at the order.