This document discusses several provisions of the Indian Constitution relating to reservations and affirmative action for disadvantaged groups. It summarizes key points about Articles 15, 25, 29, 30, 38, 46, 16, and 51A and discusses how they relate to issues like reservations for socially and educationally backward classes, minorities, public employment, promotion of welfare, and fundamental duties. It argues that constitutional provisions mandate affirmative action and reservations cannot be struck down simply for benefiting one religious group. It questions the judicial interpretation of these provisions.

1. Constitutional Provisions… and
Judicial Interpretative Options
Shafeeq Rehman Mahajir, Advocate, LL.M. (Lon.)
• Modus operandi …
• Introspect to see what we can do
• Assess judgments in light of Constitutional provisions and options
• Ask questions about the basic premises on which we have
moved so far
• Generate debate and compel moves leading to changes in
status quo
• Deliberate before going to SC as issues of reservation in other
states should not be harmed

2. social contract theory of nations
• The constitutional provisions constitute a
contract between peoples
• If that contract is breached, its basis
evaporates
• Therefore the original must be adhered to
• Any other view would facilitate a fraud
upon a people

3. Art. 15. Prohibition of discrimination on
grounds of religion, race, caste, sex or
place of birth.-
The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place
of birth or any of them.
4) Nothing in this article or in clause (2) of article
29 shall prevent the State from making any special
provision for the advancement of any socially and
educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes.
This therefore proceeds (note the word OR) on the basic fact
that aside from scheduled castes and scheduled tribes,
there can be socially and educationally backward classes
(note the plural) of citizens.
Discrimination AGAINST is precluded – not affirmative action
FOR disadvantaged groups

4. 25. (1) Subject to public order, morality and health
and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate
religion.
• Right to propagate is therefore enshrined. There is
nothing to indicate there can be propagation by mode
A and not by mode B, for instance, and therefore any
law proscribing conversions would be violative of
this provision.
•
• (2) Nothing in this article shall affect the
operation of any existing law or prevent the State
from making any law-
•
• (a) regulating or restricting any economic,
financial, political or other secular activity which
may be associated with religious practice;
•

5. 29. Protection of interests of minorities.-
• (1) Any section of the citizens residing in the
territory of India or any part thereof having a
distinct language, script or culture of its own
shall have the right to conserve the same.
• (2) No citizen shall be denied admission into
any educational institution maintained by the
State or receiving aid out of State funds on
grounds only of religion, race, caste, language
or any of them.
• a : Muslims have a culture and language and script
that is distinct
• b : Reservations for SCs/STs who are Hindus result
in denial of admissions to Muslims for reasons of
caste and religion.
• c : Therefore how do Courts uphold these ?

6. Constitutional Mandate ?
• The constitution assured reservations for ten
years : if it was then postulated that there
would be reservations beyond fifty years no
one would have accepted the preposterous
proposition. Extension of reservations
beyond the first ten years is a violation and
breach of the contract we the people of
India gave ourselves.

7. Who can be a minority ?
• 30. Right of minorities to establish and administer educational
institutions.-
• (1) All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions
of their choice.
• Therefore a people, a minority, can be adherents of one religion
or speaking one language, and that cannot be a ground for the
Courts to strike down affirmative action on the excuse that the
benefiting group adheres to only one religion. (Cited as
indicative of a minority being based on religion : and if that
minority is backward, the mere fact that it also has one religion
cannot make affirmative action “extreme…religion-specific…
illegal” as our High Court has held)

8. Directive Principles of State Policy
• 37. Application of the principles contained in this Part.-
• The provisions contained in this Part shall not be enforceable by
any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws.
• While I cannot file proceeding for enforcement, these provisions
are by the Constitution declared nevertheless fundamental in
governance : fundamental pillars of governance cannot be
enforced BUT action founded on them CAN be STRUCK DOWN !!
Does this not need reconsideration ? What ought to be the role
of the judiciary in this conflict between what ought to be and
what is, when attempted, immediately assailed as being
“extreme…religion-specific…illegal” ?

9. …social order for the promotion of
welfare…
• 38. State to secure a social order for the promotion of welfare of
the people.-
•
• (1) The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in
which justice, social, economic and political, shall inform all the
institutions of the national life.
•
• (2) The State shall, in particular, strive to minimise the inequalities
in income, and endeavour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged
in different vocations

10. …educational & economic interests… other weaker sections
•
• 46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections.-
•
• The State shall promote with special care the educational
and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
•
•

11. …public employment…
• 16. Equality of opportunity in matters of public employment.-(1)
There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
State.
• (2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect of, any employment or
office under the State.
• (4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State,
is not adequately represented in the services under the State.
• Reservation for SCs/STs (only Hindus) means denial
of real equality of opportunity to Muslims for
reasons of (absence of) caste and on ground of
religion.

12. …raise… standard of living… prohibition of the consumption … of
intoxicating drinks
• 47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health.-
•
• The State shall regard the raising of the level of nutrition
and the standard of living of its people and the
improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs
which are injurious to health.

13. 51. Promotion of international peace and security
• 51. Promotion of international peace and security.- The State
shall endeavour to-
• (a) promote international peace and security;
• (b) maintain just and honourable relations between nations;
• (c) foster respect for international law and treaty obligations in
the dealings of organised people with one another; and… … …
• International Convention on Civil & Political Rights
• International Convention on Protection of Rights of Minorities
• Prohibition of cultural genocide…
• Prohibition of ethnic and other genocide…
• Promotion of rights of minorities by affirmative action
• (The SC – V R Krishna Iyer, J - has held that these must be implemented.)

14. Fundamental duty…every citizen… respect ideals of Constitution
• 51A. Fundamental duties.- It shall be the duty of every citizen of
India,-
• (a) to abide by the Constitution and respect its ideals and
institutions…
• Every citizen would include Hon’ble Judges
• What ought to be the role of members of the judiciary in this
conflict between what ought to be and what is, when
attempted, immediately assailed ? Should the constitutionally
mandated affirmative action be quashed as being “extreme…
religion-specific… illegal… fraud on the constitution” ? Does not
respect for national institutions entail respect of judgments of
higher courts and for constitutional provisions that require
honouring treaty obligations…

15. …five-Judge Bench of this Court at para 251 gave three
directions to the State Government…
1. The Government …forthwith initiate the process of reconstituting
APBCC… within a period of three months… and seek the opinion
of the Commission for inclusion of the Muslim Community into the
list of Backward Classes.
• 2. The Commission shall examine the requisition … opinion
within a period of six months
• State Government to lay down the criteria for identification of
creamy layer… in terms of the directions of the SC in Indra
Sawhney’s case. within … three months or in the alternative
follow criteria … Government of India Memorandum dated
08.09.1993 affirmed in AIR 1996 SC 75 and 2000 (1) ALD 54 (SC), in
order to facilitate the expeditious disposal of the claim of the
Muslim Community for their identification as a Backward Class.”

16. Procedure of Commission faulted
• The Court has found fault with the procedure of the BCC but
while the co-equal bench’s judgment (which the present
judgment refers to and relies on) remains unchallenged and has
become final, can the mere implementation of that judgment be
faulted without first assailing the earlier judgement, which is the
basis of the BCC’s action ?
• Judicial propriety requires that if a co-equal bench differs with
another the matter is referred to a higher authority, an even
larger bench.
• When the earlier co-equal bench sought that BCC give opinion
on inclusion of Muslim Community (which has no religion save
Islam) in BC list, how could this bench fault BCC’s consideration of
the Muslim Community as such, calling it “extreme… religion-
specific… illegal… fraud on the constitution” etc.?
• Can a bench over-rule decisions of a co-equal bench ?

17. Anglo-Indian community : RACE- and
RELIGION-specific reservations are okay !
• 331. Representation of the Anglo-Indian community in the House
of the People - Notwithstanding anything in article 81, the
President may, if he is of opinion that the Anglo-Indian
community is not adequately represented in the House of the
People, nominate not more than two members of that
community to the House of the People.
• 333. Representation of the Ango-Indian community in the
Legislative Assemblies of the States - Notwithstanding anything in
article 170, the Governor of a State may, if he is of opinion that
the Anglo-India community needs representation in the
Legislative Assembly of the State and is not adequately
represented therein nominate one member of that community to
the Assembly.
• Note Presidential acts are almost always non-justiciable !

18. “1(b) Whether the Muslims as a group are entitled to affirmative
action/social reservations within the constitutional dispensation ?”
the present Court has asked itself while framing questions / issues
• Quote from a Supreme Court judgment :
• Reservations for Muslims or sections/groups
among them, in no manner militate against
secularism, which is a part of the basic structure
of the constitution.
• Therefore, reservations for Muslims as such was also envisaged as
a constitutionally permissible action : and yet the judgement says
it is “extreme…religion-specific…illegal”. How proper is it for a
High Court to go against a Supreme Court ruling… ? From where
does a high court judge derive power to determine what a
supreme court judge meant by which expression ??

19. social backwardness ~ poverty nexus
• Social backwardness is in the ultimate analysis the result of
poverty, to a very large extent.
•
• The classes of citizens who are deplorably poor
automatically become socially backward. They do not
enjoy a status in society and have, therefore, to be
content to take a backward seat. It is true that social
backwardness which results from poverty is likely to be
aggravated by considerations of caste to which the poor
citizens may belong, but that only shows the relevance of
both caste and poverty in determining the backwardness
of citizens.”

20. stand that quote : Muslims may be educationally backward but they
cannot be termed “socially backward” and expression socially backward
can only apply to SCs and STs … : unquote how valid is the contention ?
• In Chapter-VI of the report, one of the questions framed by the
Commission was, “What shall be the criteria for including any
class of citizens as backward class.” Then refer… various
judgments of the Apex Court and this Court. In pages 32 to 35, it
summed up its discussion as under;
• “To sum up, the following are the general broad principles
indicated by the High Court and Supreme Court for ascertaining
social and educational backwardness. The backwardness must
be both social and educational. It is not either social or
educational.”
• But the SC had said “The classes of citizens who are deplorably
poor automatically become socially backward.” (slide 20 earlier)
And as far as educational backwardness is concerned, the
State’s figures for higher education speak for themselves.

21. The faulting of the criteria : unable to say itself what the criteria ought to
be, the court leaves it to the BCC. Then it proceeds to decide relevance,
adequacy, etc., and ends up calling exercise perverse, irrelevant,
inadequate, illegal, religion-specific, baseless, etc.
• “evolving a proper criteria for determining which classes are
socially backward, is obviously a very difficult task.”
“Indeed there is no such thing as a standard or model
procedure / approach. It is for the authority (appointed to
identify) to adopt such approach and procedure as it thinks
appropriate, and so long as the approach adopted by it is fair
and adequate, the Court has no say in the matter.”
• “The formal institutions designed by humankind are as
viable as the maturity of its adherents. We need say no
more.”
• Could this apply to the institution of the judiciary ?!

22. Can there be another definition ?
• 3.c : “Muslims” means any person professing the faith of Islam but
does not include for the purpose of this Ordinance, persons
belonging to Dudekula, Laddaf, Pinjari/Noorbash and Mehtar groups
who are already included in the lists of Backward Classes in the
State.
• Note that the SC had held Muslims can be considered after excluding those
who have been already considered. Hence the exclusion. The Court finds
fault with the definition. Let it define the expression : Can there be any
other definition ?
• Instead of attempting a redefinition, however, the Court frames an issue
thus : Whether in view of the definition of the expression “Muslims”
(Section 2(c) of the Ordinance), the State legislative exercise qua
the Ordinance is a fraud on the Constitution? Strong language !
And the answer it reaches : “Yes!”

23. I beg your pardon !!•
• Whether the failure of the Commission, to recognize the Muslim
collective in the State as a heterogeneous social class; the failure to
exclude those insular classes of Muslims already recognized and
established as Backward Classes while computing the population of the
Muslims community; the failure to collect data on social, educational
and economic aspects in relation to only the remnant population of the
Muslim collective; the failure to formulate criteria of social
backwardness, to identify the existence of any of further classes/groups
in the remnant Muslim population (in the context of insular classes of
social backwardness) and the failure to apply such relevant evolved
criteria to the appropriate data and to reach rational conclusions,
renders the exercise by the Commission and its consequent conclusions
and recommendations irrational, perverse and invalid?; and (ii)
Whether the provisions of the Ordinance based exclusively on an
invalid and unsustainable report of the Commission, are invalid?
• How rational, valid and sustainable is the very framing of such a
loaded question where the predisposition is so manifest ? Which
judicial mind would frame an issue which establishes a priori what
the judicial mind is to set out to determine ??

24. …what the SC said… and what our HC asks…
• For example it may take up the Muslim community (After
excluding those sections, castes and groups, if any, who have
already been considered) and find out whether it can be
characterized as a backward class in the State or region, as the
case maybe
• Whether the categorization of “Muslims” as Backward Classes is
in substance and operation clearly and exclusively a religion
specific Governmental reservations programme and the label of
Backward Classes is only a camouflage to shield a clearly
unconstitutional State action?
• Courts may disagree with actions, but can they refer to exercises
which a higher Court deems proper as “religion specific” and
“unconstitutional” ? What was the thought in the judicial mind ?

25. “Never in the history of our Republic has membership of a
Backward Class been so enticing, so easy or so inviting” says our
Court : anyone can convert to acquire backward status !!
• Islam has no tradition, entrenched or in contemporary practice,
prohibiting proselytization or conversion. Adventitious opportunities and
advantages … inherent in a reservation programme, …, provide a
powerful incentive to conversion … By the Ordinance, professing the faith
of Islam better enables educational and public employment
opportunities. Any person professing faith in Islam (according to the
definition), is a Mulsim …is also a Backward Class…automatically …
entitled to partake of the educational and public employment
opportunities and benefits, in an entrenched and specially carved out
quota of reservation …”. Any member indisputably belonging to a
forward class amongst Hindus or belonging to any other race, caste,
descent or religion would become backward by the mere expedient of
“professing the faith of Islam”
• But the Court ignores its own quote : It is impermissible to acquire the
status of a Backward Class either by marriage, conversion or adoption ---
Valsamma Paul Vs. Cochin University AIR 1976 SC 1011

26. …and time marches on…
• 334. Reservation of seats and special representation to cease
after [1][fifty years] - Notwithstanding anything in the foregoing
provisions of this Part, the provisions of this Constitution relating to-
• (a) the reservation of seats for the Scheduled Castes and the
Scheduled Tribes in the House of the People and in the
Legislative Assemblies of the States; and
• (b) the representation of the Anglo-Indian community in the
House of the People and in the Legislative Assemblies of the
States by nomination,
• shall cease to have effect on the expiration of a period of [2][fifty
years] from the commencement of the Constitution:
• [1] Substituted by the Constitution (Sixty-second Amendment)
Act, 1989, section 2, for “forty years” (w.e.f 25-1-1990).
• [2] Substituted by the Constitution (Sixty-second Amendment)
Act, 1989, section 2, for “forty years” (w.e.f 25-1-1990).

27. …what the Court said…
• The Ordinance imposes illegitimate, discriminatory and grossly
burdensome impact on citizens, on those belonging to the
existing notified Backward Classes and on those who are not
members of backward classes, as well. The inference is therefore
compelling that the entirety of the State action manifested in the
provisions of the Ordinance, is a crude camouflage to shield
what is clearly a naked and exclusively religion based
programme of reservation in educational institutions and public
employment. The declaration of Muslims as backward classes …
is only on the basis of religion and discriminates against and
negatively impacts members belonging to other religious
persuasions only on the basis of religion. It is a religion exclusive
classification. The provisions of the Ordinance, thus clearly
transgress the prohibitions implicit in Art.14 and explicit in Art.15
(1) and 16 (2).

28. Reservations… shall they continue… exclusively… for
those… who are… not Muslims… ??
• If there is a negative impact on others from reservation favouring
Muslims, has there been none on Muslims over the last half
century and more of reservations ?
• Are reservation for SCs/STs who cannot be other than Hindu
religion-specific and unconstitutional ?
• Does a community which does not subscribe to abolished caste
system thereby disentitle itself from affirmative action benefits ?
• Do the basic premises prevailing at the dawn of constitutional
history hold valid now or do they require restatement in the
context of present-day socio-political realities ?
• If Muslims could not in 1940 be thought of as backward, does the
basis of that view still hold good to require retention of archaic
definitions of terms and blind judicial minds to changing
demographic truths and deprivation of real equality or a “level
playing field” for Muslims ? Where does judicial activism stop ?

29. …reservation …backwardness …criteria

30. parliamentary history in construing statutes
• The school of thought that limited but open use should be made
of parliamentary history in construing statutes is gaining ground.
Courts, after enunciating the rule of exclusion of parliamentary
history, have veered to the view that legislative history within
circumspect limits may be consulted by Courts in resolving
ambiguities. (AIR 1952 SC 366, AIR 1952 SC 369, AIR 1050 SC 27)
• Courts are entitled to take into account such
external or historical facts as may be necessary to
understand the subject matter of the statute or to
have regard to the surrounding circumstances which
existed at the time of passing of the statute.
• (While this was stated for statutory interpretation, it would equally
apply to constitutional interpretation)

31. U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd.
AIR 1993 SC 1435 = (1993) 2 SCC 299
(2 MB) ~~ Kuldip Singh, J. B.P. Jeevan Reddy J.
• ... the obligation to act fairly on the part of the administrative
authorities was evolved to ensure the rule of law and to prevent
failure of justice. ....
• In the matter of administrative action, more than one choice is
available to the administrative authorities; they have a certain
amount of discretion available to them. They have ‘a right to
choose between more than one possible course of action upon
which there is room for reasonable people to hold differing
opinions as to which is to be preferred’. The court cannot
substitute its judgment for the judgment of administrative
authorities in such cases. Only when the action of the
Administrative authority is so unfair or unreasonable that no
reasonable person would have taken that action, can the court
intervene. Doctrine of fairness, evolved in administrative law, is
not supposed to convert the writ courts into appellate authorities
over administrative authorities.

32. the constitution a living document, not a dead letter
• There is greater reason in giving to the language of a
Constitution, a liberal construction so as to include within its
ambit the future developments in various fields of human activity
than in restricting the language to the state of things existing at
the time of the passing of the Act. A Constitution, unlike other
Acts, is intended to provide an enduring instrument to serve
through a long lapse of ages without frequent revision.
• Several notions that have taken root have to be weeded out.
• Several terms with archaic connotations have to be redefined.
• Several basic premises have to be questioned.
• Backwardness… is a misunderstood term : CAD reports show
minorities were specifically included in term.

33. … questions… feedback…
• Specific questions can
be asked in brief
• Answers cannot be
again responded to as
time does not permit a
debate on answers
• Questions must cease
when time available
expires