Legal backing

Students protest in Delhi against the Supreme Court verdict in 1992, which approved the implementation of the Mandal Commission recommendations. - RAJEEV BHATT

The 93rd Constitution Amendment aims to provide legal support to the policy of reservation in educational institutions.

HUMAN Resource Development Minister Arjun Singh defended his disclosure of the proposal to legislate on extending reservation to Other Backward Classes (OBCs) in educational institutions, in the wake of the Election Commission's query whether he had violated the model code of conduct for political parties and candidates during the run-up to the Assembly elections in several States. To Arjun Singh, the proposal, which the Cabinet will consider after the elections, is nothing new; it only seeks to implement the 93rd Constitutional Amendment enacted in January with the support of all political parties.

The question of the Congress making political gains from the proposed legislation - as it aims to benefit a particular section of the electorate - does not arise as it will be the result of a broad political consensus arrived at following the Supreme Court's judgment in the P.A. Inamdar case in 2005. The court had in that case declared that reservation in private, unaided educational institutions was unconstitutional. The judgment led to a clamour from the political class for a suitable amendment of the Constitution and legislation to protect reservation for Scheduled Castes, Scheduled Tribes and the backward castes in educational institutions.

The 93d Amendment to the Constitution - enacted in Parliament on January 20 this year - adds Clause 5 to Article 15 of the Constitution, a fundamental right against discrimination by the state. Article 15 (1) directs the state not to discriminate against any citizen on grounds of religion, race, caste, sex or place of birth or any of these. The new Article 15(5) is in the form of an exception to this clause. It says:

"Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 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 insofar 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 referred to in Clause (1) of Article 30."

A close reading of Article 15(5) explains its significance.

Article 19(1)(g) guarantees all citizens the right to practise any profession or to carry on any occupation, trade or business. The right to run an educational institution of one's choice is certainly recognised as a fundamental right under this Article. The exercise of this right is subject to reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Article 19(1)(g) is also subject to the operation of any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business or the carrying on by the state of any trade, business, industry or service.

Obviously, before the addition of Article 15(5), the exercise of fundamental right under Article 19(1)(g) could not have been restricted by any state-imposed quota for the weaker sections in admission to educational institutions, as reservation of seats is not covered by any of the grounds of reasonable restrictions mentioned in the Constitution, except remotely "in the interests of general public" as mentioned in Article 19(6).

This was the factor the Supreme Court considered in the P.A. Inamdar case while overruling reservations in private unaided educational institutions, as it found the entire quota regime as an unreasonable restriction in the exercise of a fundamental right under Article 19(1)(g).

In a sense, Article 15(5) is partly a re-statement of what is guaranteed under Article 15(4), which was also added to the Constitution by the First Amendment in 1951, following the Supreme Court's ruling declaring as void community-based reservations in the then Madras State in the Champakam case. Article 15(4) states: "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."

The Supreme Court struck down reservation in educational institutions in the Champakam case because it violated Article 29(2), a fundamental right which guarantees that 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. Article 15(4), therefore, was carved out as an exception to both Articles 15(1) and 29(2).

Article 15(5) incorporates much of what is guaranteed in Article 15(4) by way of abundant caution, as it is for the first time special provisions for the advancement of SCs, STs and SEBCs in terms of admission to educational institutions are dealt with and it is imperative that it is not read in conflict with the principle of non-discrimination enshrined in Article 15(1).

More significant, Article 15(5) makes it necessary for the State to make any special provision for the advancement of these weaker sections by law, and not by any executive action. So far, the government has been implementing the policy of reservation for the weaker sections through executive orders and instructions. Statutory backing to the policy of reservation was found necessary to instil confidence in S.C., S.T. and OBC members that their legitimate aspirations for adequate representation and participation in the national mainstream have been given protection by Parliament. Besides, absence of legislation on the subject had led to considerable ambiguity, leading to several rulings by the Supreme Court interpreting the constitutional provisions in a manner perceived to be against the interests of these sections.

The Mandal Commision recommendation relating to reservation in public services, for instance, was implemented through an Office Memorandum. The Supreme Court found it easy to stay the operation of this Memorandum in 1990, and to some extent diluted it through its judgment in 1992 by introducing the concept of a creamy layer. It was a legislative void that enabled the Supreme Court to pronounce its judgment in the P.A. Inamdar case. A law on the subject could go a long way in fulfilling the letter and spirit of the Constitution amendment and even meeting the test of judicial review, by adding clarity.

Lastly, Article 15 (5) exempts minorities - whether based on religion or language - from its purview, as they enjoy a special right under Article 30(1) to establish and administer educational institutions of their choice. It will be unreasonable to impose reservation on these institutions in admissions, as it would violate Article 30(1), considered important to safeguard the principles of secularism and federalism. Even the Bharatiya Janata Party, which opposed this exemption initially, went along with the 93rd Amendment, in view of its emphasis on social justice.