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Scholarship for minorities an affirmative action: Gujarat HC
Last Updated : 16 Feb 2013 10:26:20 AM IST
Scholarship for minorities an affirmative action: Gujarat HC


The Gujarat High Court on Friday upheld by a majority verdict the constitutional validity of the Centre's pre-matric minority scholarship scheme, saying that it was "affirmative action" and not a discriminatory scheme.


It also said that such a scheme would be permissible looking at the backwardness of minority community. Narendra Modi government had refused to implement the scheme, saying it was discriminatory and unconstitutional.

"The fact is that minority community has lagged behind the national average in several parameters of advancement.Their performance is far behind the national average in various fields."If that be the situation, would it be impermissible for the Union of India to frame a scheme taking a small step providing scholarship to a limited number of students," it further said.

Of the five judges in the bench, three ruled in favour of the scheme, saying it does not violate the Constitution, while two others gave a dissenting opinion.The judgement was pronounced by the bench after hearing a batch of PILs demanding that the state government should implement the scheme in Gujarat.

The Modi government has not implemented the scheme,launched in the country in 2008, saying that it is "discriminatory" in nature.

Justices V M Sahai, D H Vaghela and Akil Kureshi said that it is an "affirmative action" and "not discriminatory" in nature.  "Viewed from any angle, the scheme cannot be held to be unconstitutional," the majority opinion said.

"The Constitution of India was framed with an aim of bringing about a peaceful social change. For achieving such goals, the policy framers must be allowed a certain degree of latitude in experimentation in framing policies and allocation of funds," the judgement of the three judges said.

 "The courts neither have a mandate, nor the wherewithal, nor the expertise to evaluate such policies microscopically. It is the framers of the policy who have public mandate and who once in every five years, unlike the judges, seek a fresh mandate from the people of this country,who may and must be allowed free hand in policy framing," it further said. "We must also remember that the scheme pertains to scholarship in primary education and cannot be equated with any kind of reservation. In other words, as an affirmative action or as is often referred to as a reverse discrimination,it amounts to preferential diversion of public funds in favour of a class of citizens.

"Nevertheless, the impact of such a scheme is vastly different from any reservation in education or public employment," the majority opinion said."We do not see how allocating funds to a limited number of otherwise eligible students on the basis of
availability of such funds can either be discriminatory or lead to any dissatisfaction amongst those who are left out.

 "In our opinion, the scheme is based not only on religion, but draws a classification on the basis of class of citizens grouped together, who have been identified as underprivileged and suffering from certain handicaps," it said.

 "Suffice it to conclude that grouping of such minorities do not form a heterogeneous class and particularly when numerically predominant minority is shown on the basis of research to be falling behind in overall national development in fields of education, employment and economy, the Scheme in our opinion, cannot be struck down", it further said.

The basis for framing of the scheme is not religion, but improvement of the conditions of such disadvantaged group. If religion were the sole basis for grouping the minorities for a preferential treatment and excluding the rest, that would be another issue," it said.

The verdict said that it does not violate Article 15 (1) of the Constitution and direction should be given to the state government to implement the scheme.

 The Article 15 (1) says that state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them.

 However, the dissenting opinion of Justice R R Tripathi and J B Pardiwala, was that the scheme was against the Constitution as it violates Article 15 (1)."It is with deep and sincere regret that we express inability to agree with the views expressed (by other judges).

We admit that on the question referred to this Full Bench,there is room for difference of opinion, but we would like to express our own views to ensure that the scope of fundamental right conferred by any provision contained in Part-III of the Constitution of India, is not allowed to be belittled or restricted," the minority opinion said.

 "We are of the view that the scheme in question is discriminatory and is hit by Article 15 (1) of the Constitution of India," the order of the two judges said. The central government scheme is for students belonging to five religious minorities, including Muslims whose parents have annual income below Rs 1 lakh.

In this scheme, the Central government gives 75 per cent of the scholarship amount while states have to bear the rest 25 per cent. A Congress leader Adam Chaki had filed a PIL, seeking direction from the court for implementation of Centre's scheme
by the Gujarat government.

 The five-judge bench was formed after a two-judge bench, which held the scheme to be unconstitutional, referred the matter to a larger bench for finality on its constitutionality

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