This article is written by Shraddha Jain, a student of the Institute of Law, Nirma University, Ahmedabad. This article seeks to elucidate the background, scope, and criticism of the 93rd Constitutional Amendment (2005) along with observations made by the court to determine its constitutionality.

It has been published by Rachit Garg.

Introduction 

The Constitution of our country established the foundation for a casteless and equitable society. The legislature and government have taken actions such as reservations to address the issue of social inequalities. Reservation is among the techniques used to help the disadvantaged in society. The 93rd Amendment Act of 2005 is one such step taken by the government of India to uplift the socially and economically backward classes of the country. Through this amendment, clause 5 was added to Article 15 of the Indian Constitution, which enables the reservation for socially and economically backward classes in private educational institutes.

Background of 93rd Constitutional Amendment

According to Article 46 of the Indian Constitution, the state government should encourage education as well as the economic well-being of the underprivileged and safeguard them from social and economic inequality.

In the case of Islamic Academy v. State of Kerala, the Court ruled that the state government does not have the power to regulate fees and that educational institutions can only take admissions on the basis of common admission exams and performance.

The court ruled in T M A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, and P A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, that the government does not have the power to enforce its reservation schemes on minority and non-minority unassisted private institutions, especially professional colleges. In these decisions, the Supreme Court disagreed with the reservation of seats at unaided minority or non-minority academic centres, claiming that it would be an infringement on their liberty. This would be a breach of their freedom under Article 19(1)(g) and also falls beyond the appropriate limitations specified in Article 19. (6).

The Constitutional (First Amendment) Act of 1951 introduced Article 15(4), which mentions academic development but does not contain the words “admission to educational institutions.” In 2006, Parliament passed the Constitution (Ninety-Third Amendment) Act, 2005, to bring private unaided academic institutions into the purview of the government’s reservation policies and to support the academic interests of the disadvantaged sections of the country. This amendment broadens the government’s power to establish exemplary provisions. 

The 93rd Amendment Act included Article 15(5), which mentions ‘admission to educational institutions’. By including clause 5 in Article 15, the ambit of the amended Act is greatly expanded. This gives union and state legislatures the authority to enact reservation-related legislation. After the 93rd Amendment Act, the Central Educational Institutions (reservation in admission) Act was enacted by the Union Parliament in the year 2006.

Purpose of the 93rd Constitutional Amendment

The 93rd Amendment Act of 2005 to the Indian Constitution added clause (5) in Article 15 which enables the government to make any special provision for the development of any socially and educationally backward classes of people, or scheduled castes or scheduled tribes, with regard to their enrolment in educational institutions, which would include private educational institutions, whether aided or unaided by the government, but apart from minority educational institutions.

Furthermore, the intention of the amendment is to increase access to quality education, particularly in professional education, for students from socially and educationally disadvantaged groups of people, as well as those from Scheduled Castes and Scheduled Tribes. In the case of Society for Unaided Private Schools of Rajasthan v. Union of India, Supreme Court stated, “ As compared to private unaided universities, the proportion of seats available in aided or government regulated institutions was low, especially in professional education”.

Directive principle of state policy in Article 46 provides that the government must develop with special consideration for the educational and economic interests of the disadvantaged groups of the population and safeguard them from social inequality. Therefore, the said amendment was enforced to intensify Article 15 in order to encourage the educational development of the socially and educationally backward classes of people and of the Scheduled Castes and Scheduled Tribes in matters related to admission in unaided higher education institutions, except for the minority academic institutions mentioned in Article 30(1)  of the Indian Constitution.

Provisions under the 93rd Constitutional Amendment

The 93rd Amendment Act of 2005 added clause (5) in Article 15 of the Constitution, which states: “Nothing in this article or clause (g) of Article 19(1) shall deprive the Government from attempting to make any special provision by legislation for the development of the any socially and educationally backward classes of residents or the Scheduled Castes or Scheduled Tribes inasmuch as of those kinds of special provisions pertaining to their enrollment in academic institutions, which include private educational institutions, regardless of whether they are aided or unaided by the State, apart from the minority institutions.”

Some important provisions

In 2006, the Parliament enacted the Central Educational Institutions (Reservation in Admission) Act, which laid down certain provisions:

 Reservation of seats in central educational institutions:

  • Scheduled Castes must be given 15% of the yearly authorised capacity in each field of study or department.
  • Scheduled tribes will receive 5% of the seats; and
  • 27% of the seats should be secured for other backward classes.

The Act does not apply to:

Case laws related to 93rd Constitutional Amendment

In P. Rajendran v. State of Madras, the court affirmed the backwardness criteria, which were primarily based on caste. The Court stated, “Today, if the reservation had been based solely on caste and would not have taken into account the social and educational backwardness, then it would contravene Article 15(1).” However, a caste is also one of the classes of citizens, so if the caste as a whole is socially and academically deprived, then reservation can be imposed in favour of such a caste on the grounds that it is a socially and educationally backward class of people under Article 15(4) and 15(5).

In Haryana Progressive Schools Conference v. Union of India, the Hon’ble Supreme Court observed that the power in provision (5) of Article 15 of the Constitution is a directed power that has to be executed for the restricted purposes as stated in the provision, and that whenever a legislation is passed by the government in exercise of its power given in clause (5) of Article 15 of the Constitution, the Court would have to analyse and determine whether it is for the development of the socially and educationally backward classes of people or for the SCs and STs, and whether the law is restricted to enrolling such socially and educationally backward classes of people, or to admittance of Scheduled castes and scheduled tribes to private universities, regardless of whether it is aided or unaided. If the Court finds that the power has not been used for the purposes referred to in clause (5) of Article 15 of the Indian Constitution, the Court must consider the legislation to be ultra vires Article 19(1)(g) of the Indian Constitution.

Constitutional validity of 93rd Constitutional Amendment

The constitutional validity of the 93rd Amendment Act of 2005 has been challenged in Ashoka Kumar Thakur v. Union of India (UOI) and Ors. In this judgment, the court went on to examine the viability of India’s reservation policy. Ashoka Kumar Thakur challenged the 93rd Amendment Act of 2005 on the basis that it violated the Constitution’s ‘basic structure’ and abridged the concept of equality under Article 14 read with Article 15.

The Court stated that the 93rd Constitutional Amendment Act of 2005 will have to be reviewed in the context of the Kesavananda Bharati case. The majority in the Kesavananda Bharati case won’t agree that facets of Article 14 constitute a part of the basic structure doctrine. The court further stated that while interpreting constitutional provisions, the key rule would be to look at the preamble to the constitution as the guiding principle and the directive principle of state policy as a source of interpretation. Therefore, the Court determined that the Constitution’s 93rd Amendment does not contradict the “basic structure” of the Constitution so far as it applies to state-maintained and aided academic institutions.

The court determined that the recognition of socially and economically backward classes is not based strictly on caste, and therefore, the classification of socially and economically backward classes is not a violation of Article 15(1) of the Indian Constitution, and hence Article 15(4) of Indian Constitution was affirmed.

Then in Pramati Educational and Cultural Trust v. UOI, the Supreme Court ruled that Article 15(5) of the Constitution is an empowering clause that will provide the fairness and equality guaranteed in the Preamble of our Constitution.

The Bench stated, Article 15 (5) is coherent with the features of socialism as given in the Preamble and the directive principles of state policy. It also helps in the advancement of the backward classes. It will ultimately result in an advanced socialistic democratic country, which will establish equality in our nation.

Article 15(5) promotes the constitutional purposes and enhances the objectives desired to be attained by the Constitution, and permits Parliament to adopt legislative measures in that regard,” the Bench stated. Instead of changing any fundamental characteristics of the constitution or diminishing or modifying its basic structure, it enhances it.

Why is the 93rd Constitutional Amendment criticized?

  • It causes some dissatisfaction among the upper caste students because the amendment curtails their opportunity to get admission to higher educational institutions.
  • The reservation system is counter to the concept of equality. Equality requires equal rights and protection for all people. However, giving preferential treatment and protection to some groups of individuals goes against the equality doctrine. It goes against the fundamental idea of democracy.
  • The reservation in the admission of students undermines the efficiency and meritocracy of the admission process. Because qualified and bright individuals are denied their due share of admissions, and  the private educational  institutions are bound to compromise with the quality.
  • The definition of the backward classes is not given in the Constitution. Although Article 340 allows the creation of a panel to evaluate ‘socially and educationally backward classes’, yet there is no commonly recognised procedure.
  • Reservation policy, as mentioned in the amendment, gives rise to class-based politics in the Indian political system. The over-consciousness of caste distinction is hindering national unity. Furthermore, the people argue that castes have been used to preserve the vote banks of various political parties.

Conclusion 

It is obvious that identifying as Socially and Educationally Backward Classes or Other Backward Classes cannot be done exclusively on the basis of ‘caste’. Article 15(5) is an enabling provision to Article 15, the purpose of which is to aid in the development of weaker sections of society and to prioritise social interests over individuals or groups that are developed, both socially and educationally.

Frequently Asked Questions (FAQs) 

  1. What was the status of Article 15 prior to the enactment of the 93rd Constitutional     Amendment Act in 2005?

Article 15 of the Indian Constitution states that no one should be discriminated against on the basis of their religion, race, caste, gender, or place of birth. However, Article 15(4) states that the state may establish specific provisions for the development of any socially and educationally disadvantaged sections of the population, as well as the Scheduled Castes and Scheduled Tribes. This reservation system was successfully adopted by all government organisations. However, there was disagreement over reservations at private educational institutes, which was later settled by the 93rd Constitutional Amendment Act.

  1. How does the court decide whether a particular feature of the Constitution is part of the basic structure or not?

It must be evaluated in each individual situation, keeping in mind the framework of the Constitution, its purposes and intention, and the Constitution’s integrity as a basic tool for the country’s governance. Only an amendment that provides a situation that cannot be adequately described by any definition of equality would violate basic structure theory.

References 


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