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.”
July 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 Telangana
Achchukattalavandlu, 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.