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A five-judge bench Gujarat High Court in a majority decision on Friday held that Union government's scheme of pre-matriculation scholarship for students of five minorities does not violate the Constitution of India and directed the Narendra Modi government to implement it in the state.
The full-bench headed by Justice V M Sahai through a majority decision of 3:2 observed that the scheme was not discriminatory in nature and did not violate the article 15 (1) of the Constitution as alleged by the Gujarat government. The issue was referred October 2012 to the five-judge bench by a division bench headed by Chief Justice, who held that no monitory benefits cannot be given on the ground of religion. However, this verdict was contradictory to an 2009 order by a division bench of the same court. Therefore the Chief Justice referred the issue to a larger bench which would decide if the pre-metric scholarship scheme for students from minority community was violative of the Constitution and whether the High Court can direct a state government to implement the scheme.
Under the scheme, the Union Government contributes 75 per cent of the scholarship amount while the State Governments are required to contribute 25 per cent of the amount. The Congress-led UPA had initiated this scheme under the 15-Point Programme for the Welfare of Minorities wherein poor students belonging to five specific minority communities (Muslims, Christians, Sikhs, Buddhists and Parsis) were to be given scholarships provided they maintained the grades specified under the scheme.
During the pronouncement of verdict on Friday Justice Sahai, Justice Akil Kureshi and Justice D H Waghela held that the scheme in question was not discriminatory in nature, but an affirmative action by the government for social upliftment of minorities. They further observed that diversion of funds for select minority communities for social well being cannot be termed as reservation or discriminatory. They further held that directions should be issued to the Gujarat government to implement the scheme in the state.
The other two judges Justice R R Tripathi and Justice J B Pardiwala had a dissenting view. They were of the opinion that the scheme was violative of the article 15 (1) of the constitution and discriminatory in nature. They further observed that directing the state to implement the scheme would be like directing state to violate the Constitution of India.
After the pronouncement of the verdict Advocate General Kamal Trivedi sought two month stay on the implementation of the judgement which was rejected. The five-judge bench said that they have given their opinion on the question of law points referred to them by the division bench, hence they cannot stay the judgement. The matter will now again be sent to the division bench that had made the reference and it will give the final judgement. The bench was hearing a public interest litigation (PIL) seeking direction for the Narendra Modi government to implement the pre-Metric scholarship scheme for students from minority community in Gujarat.
During hearing in the case government of Gujarat stated that it did not implement the scheme as it discriminated between students on the basis of religion. Moreover, the Gujarat Government had a scheme in place since three decades which covered six lakh eligible poor pre-matric students whereas the minority scholarship scheme would be applicable only to 52,260 students.