93rd Constitutional Amendment 2005

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DRIVING FORCE BEHIND THE 93RD AMENDMENT

The Supreme Court delivered an unanimous judgement by 7 judges on August 12, 2005 in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. All political parties without exception were unhappy with the Supreme Court's recent judgement in the P.A. Inamdar case and there was a consensus among all political parties for amending the Constitution to impose the State's reservation policies on the private unaided colleges too.The 104th Constitution Amendment Bill became the the Constitution 93rd amendment Act, 2005 when President Kalam signed it on January 20, 2006 after coming very close to withholding his assent to the Bill. President Kalam had raised a number of queries and Prime Minister Manmohan Singh was apparently able to address all queries to the President's satisfaction.

Constitutional 93rd amendment, 2006 added clause (5) in Article 15 which stated-nothing shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

The Court has time in and again upheld the amendment on various occasions stating it to be not ultra-vires but something done by the Government for the educational upliftment of the socially backward classes, who over a period of time have been sidelined in every aspect of social advancement.

NEED FOR THE AMENDMENT

At present, the number of seats available in aided or State maintained institutions, particularly in respect of professional education, is limited, in comparison to those in private aided institutions.

Clause (1) of article 30 of the Constitution provides the right to all minorities to establish and administer educational institutions of their choice. It is essential that the rights available to minorities are protected in regard to institutions established and administered by them. Accordingly, institutions declared by the State to be minority institutions under clause (1) of article 30 are excluded from the operation of this enactment

To promote the educational advancement of the socially and educationally backward classes of citizens i.e. the Other Backward Classes or of the Scheduled Castes and the Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions, other than the minority educational institutions referred to in clause (1) of article 30, the provisions of article 15 were amplified. The new clause (5) of said article 15 enables the Parliament as well as the State legislatures to make appropriate laws for the above mentioned purpose.

The 93rd Constitutional Amendment allows the government to make special provisions for "advancement of any socially and educationally backward classes of citizens", including their admission in aided or unaided private educational institutions. The concept of social exclusion essentially refers to the processes through which individuals or groups are wholly, or partially, excluded from full participation in the society in which they live. The exclusion-induced deprivation may operate in multiple spheres- civil, cultural, political, and economic.

Note that the term "admission to educational institutions" has been inserted in the 93rd Amendment but "educational institutions" has been left undefined . I'm not sure if the Constitution defines "educational institutions" anywhere. The "enabling legislation" is insidious and technically allows the government to enforce reservations not just in higher education institutions but in all educational institutions starting from the nursery upwards.

DETERMINATION OF BACKWARD CLASSES

In M.R. Balaji v. State of Mysore AIR 1963 SC 469 it was held that the caste of a group of persons could not be the sole or even predominant factor though it could be relevant test for ascertaining whether a particular class was backward class or not. Backwardness under Article 15(4) must be social and educational and that social backwardness was, in the ultimate analysis, the result of poverty. In the opinion of Sen J. - ‘The predominant and the only factor for making special provisions under Article 15(4) and 15(5) and 16(4) should be poverty, and caste or a sub-caste or a group should be used only for purposes of identification of persons comparable to scheduled castes or Tribes.’(1985 Supp SCC 714 at p. 770)

QUANTUM OF RESERVATION

On the question of quantum of reservation, the Mandal commission case (Indira sawhney v. UOI AIR 1993 SC 477) settles the issue. In the particular case court was asked to pronounce on the constitutional validity of two office memoranda of the central Government. One of them, which was initially brought before the the court, was issued on 13th August, 1990. Implementing partially the Mandal commission report, it reserved 27 per cent vacancies in civil posts and services under the Government of India to be filled by direct recruitment from the socially and educationally backward classes (SEBCs). Before the court could decide the validity of this memorandum, the other memorandum was issued on 25th September, 1991.

In T. Devadasan v. Union of India AIR 1964 SC 179, a rule of the Central Government which actually reserved only 17.5 per cent posts in the Central services for the SCs & STs but provided for carrying forward of their unfilled quota to the next succeeding year, if suitable candidates were not found, was invalidated on the ground that accumulation of 17.5 per cent in three years would come to approximately 54 per cent and in the instant case it had come to 64 per cent because out of 45 vacancies, 29 went to the reserved quota.

RESERVATION IN PRIVATE SECTOR OUTSIDE THE PURVIEW OF RESERVATION

In the matter of P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537 the Supreme Court held that ‘neither the policy of reservation can be enforced by the State nor any quota or percentage of admissionscan be carved out to be appropriated by the state in an unaided educational institution’.

Reiterating its stand in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 that ‘the right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1)(g)’, it went further and held that ‘imposition of quota of State seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions which cannot be held to be a reasonable restriction within the meaning of Article 19(6) of the Constitution’.

EXCLUSION OF CREAMY LAYER FROM THE 93RD AMENDMENT

The 93rd amendment would be ultra vires and invalid if the creamy layer is not excluded. Affirmative action is employed to eliminate substantive social and economic inequality by providing opportunities to those who may not otherwise gain admission or employment. Articles 14, 15 and 16 allow for affirmative action. To promote Article 14 egalitarian equality, the State may classify citizens into groups, giving preferential treatment to one over another. When it classifies, the State must keep those who are unequal out of the same batch to achieve constitutional goal of egalitarian society.

In Indira Sawhney & Others v. Union of India & Others (1992) Supp (3) SCC 217, Supreme Court aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely.

Society does not remain static. Creamy layer OBCs and non-creamy layer OBCs are not equals when it comes to moving up the socio- economic ladder by means of educational opportunity. Failing to remove the creamy layer treats creamy layer OBCs and non- creamy layer OBCs as equals. The non-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment.

93RD AMENDMENT AND BASIC STRUCTURE

Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' ARTICLE 19(1)(g) right to carry on an occupation. Unaided entities, whether they are educational institutions or private corporations, cannot be regulated out of existence when they are providing a public service like education. That is what reservation would do. That is an unreasonable restriction. When you do not take a single paisa of public money, you cannot be subjected to such restriction. The 93rd Amendment's reference to unaided institutions must be severed.

Imposing reservation on unaided institutions violates the Basic Structure by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an occupation. T.M.A. Pai and Inamdar affirmed that the establishment and running of an educational institution falls under the right to an occupation. The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered. To restore the Basic Structure, the 93rd Amendment must be severed in reference to "unaided" institutions.