Turning the clock back

Print edition : September 09, 2005

The Supreme Court's judgment in the P.A. Inamdar case deals a blow to the policy of positive discrimination which enjoys the sanction of the Constitution by virtue of its very first amendment.

V. VENKATESAN in New Delhi

At the Common Entrance Test centre in Bangalore on July 20, when counselling began for medical seats.-K. GOPINATHAN

ARTICLE 15 is a key provision in the Constitution, guaranteeing the right to equality. It aims to prohibit discrimination on the grounds of religion, race, caste, sex or place of birth. When the Constitution came into existence in 1950, this Article had three clauses. In 1951, the government and Parliament, by the First Amendment Act, added a fourth clause to bring clarity to this provision. Clause 4 of Article 15 reads: 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 urgency to enact the First Amendment to the Constitution, even before the formation of the First Lok Sabha in 1952, was significant. The immediate object of the law-makers was to override the Supreme Court's decision in State of Madras v. Champakam that the Constitution did not intend to protect the interests of backward classes in admissions to educational institutions.

The First Amendment thus set forth in unmistakable terms the state's commitment to the promotion of the educational and economic interests of the S.Cs, the S.Ts and other weaker sections, a directive principle enshrined in Article 46.

In the Champakam case the Supreme Court held that a citizen could not be denied admission to state-maintained or state-aided educational institutions on the grounds of religion, race, caste or language, as guaranteed by Article 29 (2). But the language of Clause 4 of Article 15 suggests that the law-makers sought to give the state a clear mandate to secure the interests of the weaker sections and backward classes in all educational institutions.

The Supreme Court's judgment in P.A. Inamdar and Others v. State of Maharashtra and Others on August 12 threatens to undo the very basis of the First Amendment. The seven-member Bench comprising Chief Justice R.C. Lahoti and Justices Y.K. Sabharwal, D.M. Dharmadhikari, Arun Kumar, G.P. Mathur, Tarun Chatterjee and P.K. Balasubramanian, held unanimously that enforcing the reservation policy of the State on seats in unaided professional institutions constitutes a serious encroachment on the right and autonomy of these institutions. The Bench held that merely because the State's resources in providing professional education are limited, it cannot force private educational institutions, which intend to provide better professional education, to make admissions on the basis of its reservation policy to less meritorious candidates. The judgment will be operative from the next academic year.

The Bench does not seem to have examined the implications of this ruling in enforcing Article 15(4). In fact, Article 15(4) is not even mentioned in the judgment. The reason for this judgment can perhaps be found in the immediate history of the case, which goes back to the verdict delivered by a Bench of 11 Judges in the T.M.A. Pai Foundation case in 2002.

The seven-member Bench appears to have considered it its duty to interpret the judgment in the T.M.A. Pai case to identify exactly the law laid down in it, and pronounce as illegal what was not specifically said in the judgment. The petitioners were managements of some unaided professional institutions who were aggrieved with the judgment of the five-member Bench in Islamic Academy of Education and Others v. State of Karnataka and Others in 2003.

In the Islamic Academy case the Supreme Court interpreted the T.M.A. Pai judgment as having declared that unaided professional institutions are entitled to autonomy in their administration, but at the same time they should not forgo or discard the principle of merit. Secondly, it held that in unaided non-minority professional colleges a certain percentage of seats could be reserved by the management for students who had passed the Common Entrance Test held by itself or by the state/University, while the rest of the seats might be filled up on the basis of counselling by the state agency. Thirdly, the Bench suggested that unaided professional colleges should also make provisions for students from the poorer and backward sections of society. It said the government could prescribe the percentage of seats according to local needs, and different percentages could be fixed for minority and non-minority institutions.

However, in the P.A. Inamdar case, the Bench held that nowhere in the T.M.A. Pai case judgment it found any justification for the imposing of a seat-sharing quota or reservation policy by the state on unaided private professional colleges.

The crucial paragraph in the T.M.A. Pai judgment - interpreted differently in the Islamic Academy case and the P.A. Inamdar case - is paragraph 68. The Bench in the P.A. Inamdar case interpreted this paragraph to mean that managements may adopt a policy in line with the reservation policy of the state to cater to the educational needs of the weaker and poorer sections of society, but it has to be on the basis of voluntary or consensual arrangements which can be reached between unaided private professional institutions and the state.

The Bench said the first part of the paragraph declared the law, while the second part was just an illustration or a suggestion or observation as to how the state may devise a mechanism to take care of the poor and backward sections. As this part cannot be read as law laid down by the Bench, it can be enforced only by consent or agreement or persuasion, the Bench held in the P.A. Inamdar case.

In the first part of paragraph 68 in the T.M.A. Pai judgment, the Bench said the university or the government at the time of granting recognition to a private unaided institution can require it to provide for merit-based selection, while at the same time giving the management sufficient discretion in admitting students. This, it said, could be done through various methods.

In the second part of the paragraph, the Bench suggested that, for instance, a certain percentage of the seats can be reserved for the management for the admission of students from among those who have passed the Common Entrance Test held by itself or by the state/university and have applied to the college concerned, while the rest of the seats may be filled on the basis of counselling by the state agency. This, the Bench said, would "incidentally take care of poorer and backward sections of society". The prescription of percentage for this purpose had to be done by the government according to the local needs, it said.

It added that the government could fix different percentages for minority and non-minority institutions, and that it could apply the same principles to non-professional unaided educational institutions too.

It is clear that the Bench in the Islamic Academy case read this paragraph as a whole, while that in the P.A. Inamdar case read the two parts in isolation. It is ironical that such a minor disagreement on what a paragraph in an earlier judgment meant has resulted in the undoing of a momentous constitutional amendment aimed at achieving social justice in access to education.

The roots of this judicial aberration perhaps lie in the philosophy of the Supreme Court as it evolved in the T.M.A. Pai judgment, which considered the right to establish and manage an educational institution as a fundamental right under 19(1)(g) for the non-minorities and under Article 30 for the minorities. As a corollary, the Supreme Court examined whether reservation of seats in such institutions could be construed as a reasonable restriction under Article 19(6).

In the P.A. Inamdar case, the Bench held that "such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6)" - a bald assertion which, in the eyes of the political class, calls for suitable legislative remedies.

The Bench also drew attention to the question of NRI seats. It has admitted that by and large neither the students who get admission under the NRI category nor their parents are NRIs. In effect and reality, the Bench said, under this category, less meritorious students, but who could afford to bring more money, got admission. However, the Bench allowed a limited reservation of such seats at the discretion of the management but not exceeding 15 per cent, on the condition that only genuine NRIs got admission and that merit was not given a complete go-by.

Displaying rare unanimity, Lok Sabha members on August 17 demanded legislation to reverse the setback caused to the social justice philosophy of the Constitution by the Supreme Court judgment. Human Resource Development Minister Arjun Singh acknowledged that the verdict impinged on social rights and that the government was committed to reservation. The Supreme Court itself called for detailed, well-thought-out legislation on the subject and held that the committees envisaged for regulating the admission procedure and the fee structure would be temporary devices that would last until a law was enacted.

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