Plea Before Supreme Court Challenges Kerala Govt Order Distributing Scholarships To Minority Communities In Ratio Of Population Percentage

The Supreme Court, on Friday, tagged a writ petition assailing the decision of Kerala Government to grant scholarships to minority communities on the ground that it is allocated only in accordance with their respective population share in violation of Article 15(1) and 15(4) of the Constitution of India, 1950, with another petition where similar issue is pending adjudication.

At the request of Senior Advocate, Mr. Salman Khurshid, appearing on behalf of the petitioner All India Backward Classes Federation, a Bench comprising Justices Indira Banerjee and M.M. Sundresh passed the tagging order.

In 2006, based on the report of the Sachar Committee on the Social, Economic and Educational status of the Muslim Community of India, the Union Government had announced a scheme of 'pre-matric scholarship for the minorities. The allotment was stated to be based on the population of minorities as per the Census of 2001, which would be updated after the 2011 Census. In 2008, in Kerala the Paloli Committee was formed for implementing the recommendations of the Sachar Committee. By an government order dated 16.08.2008 merit-cum-means scholarships were allotted in academic courses for Muslim women. In 2011, the benefits of the scholarships were extended to the Latin Catholics and converted Christian girls. The reservation between the Muslim and the Latin and converted Christians was in 80:20 ratio. Again, in 2015, the Government provided scholarships to minority students pursuing Chartered Accountant, Cost & Works Accountancy (ICWA) and Company Secretaryship (CS) courses. Subsequently, the Ministry of Minority Affairs announced a scheme of 'Pre-Matric Scholarship' for students belonging to the minority community 2017-2020 and the allotment was supposed to be on the basis of the population of minorities. The reservation amongst the Muslim and other minorities was in 80:20 ratio. Eventually the Government orders of 2008, 2011 and 2015 were challenged before the Kerala High Court, and they were quashed. In 2021, by the impugned order dated 16.07.2021, the Minority Welfare Department declared that benefit of all minority scholarships will be provided on the basis of population percentage in the 2011 census. The relevant portion reads as under -

"The Hon'ble High Court of Kerala has ordered in the judgement referred to in Reference (4) above that it is illegal to sub- classify minority groups according to their backwardness and on that basis to provide 80% of merit-cum-means scholarship to Muslim communities and 20% to Latin Christian, Converted Christian and other minority communities; and that minority scholarships must be provided to all notified minority communities in accordance with their population share"

On May 28, 2021, a division bench of the Kerala High Court had set aside the scheme of Government to distribute minority scholarship to Muslims and Christians in 80:20 ratio, observing that the state has to treat both the minority communities equally. The High Court had further directed that the minority scholarship must be distributed amongst the notified minorities in accordance with their population proportion as per the latest census.

The Supreme Court had last year issued notice on the Special Leave Petition filed by the State of Kerala against the High Court judgment. In April this year, the Court issued notice on another Special Leave Petition filed by Solidarity Youth Movement, the youth wing of Islamic organization Jamaat-E-Islami Hind.

The present writ petition has been tagged along with these SLPs.

As per the 2011 Population Census in Kerala, 54.73% are Hindus, 26.56% are Muslims and 18.38% are Christians and 0.33% are the other religious minorities. Total population of the minority communities is 45.27%. 58.67% of this 45.27% are Muslims, 40.6% Christians and 0.73% other minorities. The petition highlights that Muslims are socially and educationally more backward than the other minority communities in Kerala.

The petition submits that the High Court's order is only restricted to the scholarship granted to students pursuing CA, ICWA and CS courses; the extension of the ratio of that order to the other scholarships is illegal. It avers that the allotment of scholarship solely on the basis of population ignoring all other criteria of social and educational backwardness is discriminatory.

Citing the judgment of the Apex Court in Indra Sawhney v. Union of India, it argues that socio economic criteria cannot be decided solely on the basis of population. As per the petition, the Government should take into account that in Indra Sawney the Apex Court had permitted sub-classification of Other Backward Communities (OBC) as 'backward' and 'more backward' based on a comparative analysis of their degree of backwardness. It also refers to the State of Punjab And Ors. v. Davinder Singh And Ors. to aver that sub-classification is permissible on the basis of the degrees of social backwardness. Reliance is placed on Articles 15(4) and 16(4) to aver that the State is free to adopt policies of affirmative action for socially and educationally backward classes.

It is highlighted that the Muslims are socially and educationally backward communities in Kerala and therefore the benefit of scholarships were extended to them in 2008. The benefit was extended to the Latin and converted Christians, who are also suffering from backwardness. The petition vehemently argues that the scholarships were provided on the basis of the reports of Paloli Committee and Sachar Committee. The petition extracts relevant portion of the Paloli Committee report which reads as under -

"the standard of education of Keralite Muslims stands too low to that of Christians and the castes those stood in the prime position in the traditional caste series."

According, the Committee recommended -

"In the Prime Minister's New 15-Point Programme there are some education promoting factors. The benefit of such factors promoting professional higher studies are to be made available to all deserving Muslim students in Kerala."

By neglecting the afore-mentioned reports and the recommendations therein, the petition submits, the Kerala Government has violated Articles 15(3) and (4) of the Constitution.

The petition has been filed by All India Backward Classes Federation and Muslim Employees Cultural Association and it was filed through Advocate-on-Record, Ms. Lubna Naaz.

[Case Status: All India Backward Classes Federation And Anr. v. State of Kerala And Ors. W.P.(C) No. 404/2022]