This article is written by Tarun Dogne from SVKM’s Narsee Monjee Institute of Management Studies School of Law, Bangalore. This article is an exhaustive analysis of the ninety-third amendment and some provisions of the Central Education Institution Act, 2006 via Ashoka Kumar case.
In India, there are many underprivileged people, particularly those classes or groups of people which in the past were given the tag of inferior caste or low status, and it was considered that these peoples did not have an equal status in society. Since independence, every government is committed to eradicating this social evil from our society. India has a long history of caste-based society and it becomes rigid in nature with the time. The founding father of our constitution wants a casteless and classless society for India. They want the removal of inequalities from India. Article 15 and Article 46 of the constitution is the main reflection of this particular idea.
In India, there are separate departments in the state government to overlook the welfare policies for The Scheduled Caste (SCs) and Scheduled Tribes (STs), and Other Backward Classes (OBCs). And also there are many NGOs and unions that voluntarily promote the welfare of the weaker section of our society. Since independence government expenditure has been increasing continuously on welfare programs. Our constitution provides the provisions for adequate representation of the weaker section of society in the legislature and also in services and education.
Reservation is one of the tools for the purpose of upliftment of the weaker section of society. Initially in India, the benefit of reservation is only limited to the Scheduled Caste (SCs) and Scheduled Tribes (STs) but after Mandal Commission recommendations, Other Backward Classes (OBCs) were also included in the scope of reservation. In India, there are different opinions on the reservation in educational institutions and public employment. There are many protests and various petitions in the Supreme Court as well as in High Courts from both the one who is against reservation and also from those who are in favour of reservation. There are different arguments from both the sides, some says reservation may create the reserve discrimination or positive discrimination and other side argue that it is not fair when society isolates some section of society from education or any mainstream facilities than one day liberate him and put them in starting point of the race and say run and compete with others.
Article 46 of the constitution held that the state shall promote education and economy of the weaker section of society and also protect from social inequality. In P.A. Inamdar and Ors v. State of Maharashtra and Ors (2005) case, Supreme Court of India held that the minority and the non-minority unaided private educational institution does not come under the reservation policy of the state.
In India, state-maintained or aided educational institutions have very limited seats in their institutions compared with the unaided education institutions. In 2006, Parliament enacted the Constitution (Ninety-Third Amendment) Act, 2005, to put the private unaided educational institutions under the ambit of reservation policy of the state and promote the educational interest of the weaker section of society. This amendment widens the scope for the state to make special provisions. Article 15(4) was added by the Constitution (First Amendment) Act, 1951, in this clause educational advancement was mentioned but the term “admission to the educational institutions” is not included. Ninety-third Amendment Act added Article 15(5) in which the term “admission to the educational institution” was mentioned. So by adding clause 5 in Article 15 the scope of the amendment act widens considerably. This empowers parliament as well as the state legislature to make appropriate laws regarding the reservation.
In 1955, the Kalekar Commission was set up under Article 340 of the Constitution. One of the objectives of this commission is to identify the criteria on which identification of OBCs would be possible but the Kalekar commission is not able to give any satisfactory solution to that problem. In 1980, the Mandal Commission was set up and the commission prepared a list which includes 3743 backward castes after considering factors like social, economic, and educational backwardness. Mandal Commission also comes with the recommendation and one of the recommendations is about the reservation, the commission recommends 29 per cent of seat reservation in an education institution and government jobs for OBCs. This recommendation was implemented by the prime minister V.P. Singh in 1990. Following this implementation, India witnessed some major protests across the country. People felt that this was not reasonable because of two main reasons. First, this implementation would be the first step towards caste-based society by law, and second, OBCs are not a backward class; they are quite powerful in rural India and hold a large amount of land.
In 2006, Central Educational Institutions (reservation in admission) Act passed in the parliament after the ninety-third amendment act. Section 3 of this act provides a reservation of fifteen per cent for Scheduled Caste (SCs), seven and one-half per cent for the Scheduled Tribes (STs), and twenty-seven per cent for the Other Backward Classes in Central education institutions. After passing of this act many petitions were filed challenging the provisions of central education institution act and also the constitutionality of the ninety-third amendment act on various grounds, initially, the bench of two Judges was setup to heard these writ petitions but after considering the importance of this matter, all petitions were referred to a constitution bench.
Ashoka Kumar Thakur v. Union of India (2008) revolves around the validity of the Central Education Institution Act and the Constitution (93 Amendments) Act incorporation of clause (5) in Article 15. There are several issues before the Supreme Court of India.
- First, the constitutionality of the provisions of the central education institutions acts, especially Section 2(g) of the Act, it’s dealing with the identification of Socially and Educationally Backward Classes (hereinafter SEBCs).
- Another issue is about the constitutional validity of the Ninety-Third Amendment Act, the question is whether this act violates the basic structure of the constitution or not. This issue is based on the principle of equality. The Article such as 14, 15(1), and 29(2) required that admission must be on the basis of merit to educational institutions, and the amendment also creates non-operative with the other Articles of the constitution, especially articles which come under fundamental rights. Counsel for the petition was of the view that this act and amendment are ultra vires of the constitution.
- The other issue which comes before the court is that there are no fixed criteria for fixing of SEBCs or OBCs and this makes it very difficult to determine the beneficiaries. So twenty-seven per cent of seat reservation is useless and also the exclusion of “creamy layer” from SEBCs.
There is also a question with respect to minority educational institutions which is not included in Article 15(5) and petitioners believe that this is a violation of Article 14 of the constitution. One of the main issues before the court is whether Articles 15(4) and 15(5) are mutually contradictory? And under this issue, a question arises like the constitutionality of Article 15(5). There is also a question about excessive delegation to the union government before the court to determine as to who shall be the “backward class”. Under Section 2(g) of the Central Education Institutions Act, the word “backward class” is defined but it does not lay down any proper guidelines for the government on which they can identify the “backward class”.
The first issue before the court is about the constitutionality of the Ninety-Third Amendment Act. Petitioners argued that the ninety-third amendment act violates the basic structure of the constitution. Supreme court in the case of T.M.A Pai Foundation case (2002) clarified the Article 19(1)(g) of the constitution with respect to private education institutions and put this institution in the ambit of “occupation” overruled the Unni Krishnan, J.P v. State of Andra Pradesh (1993).
In the case P.A Inamdar and Ors v. the State of Maharashtra (2005), the court held that the private educational institutions without the aid from the government are entitled to be protected under Article 19(1)(g), and private education institutions do not come under the ambit of reservation policy of the state and also under Article 19(6), this reservation is not justified. The court also held that if the State starts to fix the fee structure or reservation of seats in private educational institutions, it is the same as the nationalization of education and this is an unreasonable restriction on the private educational institution rights as mentioned in Article 19 of the constitution. The argument on behalf of the respondent is that, for the purpose of promoting the educational and economic interest of the weaker section of society, affirmative action is absolute. They also argue that the provision of the constitution should be interpreted in a liberal manner and as a whole, not in a manner in which it renders other provisions of the constitution.
It was also argued that Article 38 held that the state shall strive to minimize the inequalities in income and endeavour to eliminate inequalities in status and also under Article 46, the state shall make provision promote education and economic interest of the SCs, STs, and weaker sections of society. The fundamental rights in Part III can not be interpreted in isolation, both Directive Principles of State Policy and fundamental rights are equally important. The Directive Principle of State Policy gradually transformed into fundamental rights depends on the state and its economic capacity.
There is another question that originates from the ninety-third amendment act, whether the exclusion of minority educational institutions from Article 15(5) is valid? For this issue, the petitioner argued that the ninety-third amendment act violates the principle of equality, such exclusion of minority educational institutions based on religions is a violation of Article 15(1) of the constitution. Respondent arguments on this issue were that Article 15(5) enables the state to make special provisions for the advancement of Scheduled Caste (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBC) especially for admission in an educational institution. And the inclusion of minority institutions in Article 15(5) is not necessary because under Article 30, the right of the minority educational institution was protected and there is the whole set of the provision in the constitution for the protection of the right of minority institutions.
There was another issue about Article 15(5) which comes before the court that Article 15(4) and Article 15(5) are mutually contradictory. It was argued by the petitioners that after the judgment of the State of Madras v. Srimathi Champakam (1951) Article 15(4) is a source of legislative power for making a reservation for Scheduled Caste (SCs) and Scheduled Tribes (STs) and also Socially and Educationally Backward classes(SEBCs). And Article 15(5) provides reservation in aided or unaided educational institution and exclude minority education institution but it is covered under Article 30 of the constitution and according to the petitioner’s counsel this creates the situation in which state legislature can not give reservation to the weaker section of the society even in the aided minority educational institutions. It was also argued that Article 15(4) includes in Article 15(5) because in this Article the term “nothing in the Article” is included. So Article 15(5) is contradictory to Article 15(4) and it is also non-operative.
Petitioners also question the constitutionality of Central Education Institutions Act on the various grounds and one of the main grounds is about the identification of “backward class” based on “caste” is constitutionally valid. It was also argued that this legislation violates Article 14,15 and 19(1)(g) of the constitutions. Identification of backward class on the basis of “caste” in violation of Article 15 of the constitution. Respondents argued that in the case of Indra Sawhney v. Union of India (1999) it was held that caste may be a starting point and one of the major factors in the process of determining socially and economically backward sections of the society. There is one more important case that is M.R Balaji v. the State of Mysore (1962), in this case, it was held that Caste may be one of the factors in the identification of social backwardness of a group but this can not be the sole factor, It based on many reasons such as place of their habitation, or occupation of citizens. In the case, it was held that Caste alone is not permissible under Article 15(4) for the classification of social backwardness.
One question arises from this whole situation: is the delegation of power to the Union government to determine the backward class is valid or not? Backward class is defined under Section 2(g) of the Central Education Institution Act, 2006. But it has not laid down any guidelines on which backward class identified and delegated whole power to the Union of India to determine backward class. It was argued that without proper guidelines this act is not valid and amounts to the excessive delegation. It was also argued that this is not the first time when the word “backward class” is used. It was mentioned in Article 340 which empower the president of India to create a commission to prepare a report on the affairs of backward class within the territory of India. Also in Article 15(4) which was added by the first amendment act in 1951, the word socially and educationally backwards is mentioned, in Article 16(4) also backward class citizens are mentioned. There are many state commissions that deal with the affairs of backward class and its most logical way to do it because determining backward class is very time taking and definitely our parliament can not do by itself.
In this case, the bench consists of Justice K.G. Balakrishnan, Justice C.K. Thakker, Justice Dalveer Bhandari, Justice Dr Arjit Pasayat, and Justice R.V Raveendran. Justice K.G. Balakrishnan delivered the judgment. The bench observed that none of the single unaided private education institutions filed a single petition challenging the ninety-third amendment act violates the basic structure of the constitution. The court does not want to enter into the question of whether the ninety-third amendment act violates the “basic structure” of the constitution with respect to the unaided private education institution. Court leaves this open for another appropriate case. The court only deals with the question of the constitutionality of the ninety-third amendment act with respect to the State maintained institution and aided educational institution.
In Kesavananda Bharati case (1973), the court held that every provision in the constitution can be amended as far as the result of the amendment does not disturb the basic structure and must remain the same. The court also held that in this case the principle of equality can not be defined under one definition, it is the multi-coloured concept. The principle of equality is very essential for any human society and this principle is stated in Article 14, 15, 46 of the constitution and considered to be the element of “basic structure” of the constitution. It may be subject to the amendment but it can be configured in a certain way in which this change must be limited within the border of principle and also can not disturb the larger purpose behind the principle. After considering the above reasoning the court held that if the constitutional amendment is abridged or altered any provision it can consider as the violation of the “basic structure” of the constitution, it was also held that the constitution is able to adapt itself with the changing dimension of human society. Therefore the plea by the petitioners, challenging the constitutionality of the ninety-third amendment act is of no force, this amendment does not violate the basic structure of the constitution.
The court also answers the question about the exclusion of minority educational institutions. The court held that this plea is not sustainable because Article 30 of the constitution gives separate rights to minority institutions and this classification is in accordance with the constitution. And also the exclusion of minority institutions from Article 15(5) this Article to remain operative with complying with Article 30. Court also noted that if there is any violation of Article 14 by the ninety-third amendment act, there should be a petition from the side of the minority institution as there is no petition. Therefore, the court held that there is no violation of Article 14 by Article 15(5). The court also addresses the issue of the constitutionality of the identification of backward class based on “Caste”. It was pointed out that national commissions and State commissions that deal with affairs of the backward class have the detailed guidelines based on the recommendation of Mandal commission and it was also pointed out that the commissions did not identify backward class solely on the basis of Caste. Commissions also consider different criteria such as social, education, economic factors, and also timely analyzing the improvement or deterioration of the group of people, there also an elaborate questionnaire was prepared by the commissions for the purpose of the inclusion or exclusion of the group of people in the list.
It was clear that for the purpose of the determination of socially and economically backward class is not based solely on the basis of Caste but also includes different criteria and it is not the violation of Article 15(1) of the constitution. There is also one more under this issue, which is about the exclusion of the “creamy layer” from SEBCs. It was noted that if the principle of the “creamy layer” is not applied in the process of determining the backward class then this exercise of identification is solely based on “Caste”. The court held that the creamy layer is introduced for the purpose of excluding a section of a particular caste which is economically advanced or educationally forward. Creamy layer is excluded so there can be proper identification of socially and economically backward class and the court also held that without exclusion of the creamy layer from SEBCs it may violate Article 15(1) of the Constitution. The court also held that the creamy layer is not applicable for The Scheduled Caste (SCs) and Scheduled Tribes (STs) because SC and ST separate categories and also the concept of creamy layer is not applicable in the principle of equality. The concept is only applied to identify socially and economically backward classes.
Petitioners also raise the concern about excessive delegation of power to the union government to determine the backward class. For this issue court held that the “backward class” is not a new word or a new concept, it is mentioned in the constitution multiple time and there are many national as well as state commissions in the country and their primary objective is to deal with the affairs of backward classes, and this commission has laid down guidelines and court also said that if any undeserving Caste or group or person are included in the socially and economically backward class, that it is totally open anyone to challenge this inclusion through judicial review, So it is not carried to say it is excessive delegation to the union of India or it has been given wide power and the challenge of the central education institution is fail on the ground grounds of excessive delegation of power.
Judiciary has played an important role in strengthening our constitution values and democratic principle ever since independence and this Ashoka Kumar Thakur case is one of the examples.
Casteless society is a noble dream of the founding fathers of our constitution. Our country is divided on the basis of caste from ages. It has not only hampered the growth of our society socially but economically also. Before the independence or pre-reservation period, people do not want the tag The Scheduled Caste (SCs), Scheduled Tribes (STs), or Other Backward Caste but post-reservation period, some people want inclusion in these categories so they can get or enjoy the benefits of reservation which come with it.
Reservation is nothing but the gentle push to the weaker section of our society so that our country aspires for undivided society and forwardness. Reservation is a tool of upliftment of the weaker section of society for a period of time. If the reservation becomes permanent or continued for a long period of time, it creates a caste-based society permanently. In our constitution, there is no mention of a casteless society or trying to abolish the caste system from society. But our constitution prohibits any kind of discrimination on the basis of caste (Article 15). The Constitution seeks equal status for all citizens in our country.
In the Ashoka Kumar Thakur case, it is clear that the identification of SEBC or OBC can not be solely based on the “caste”. In Article 15(4), it is important to notice that it only speaks of classes, not about the caste. If Article 15(4) inserted in the constitution with the purpose of considering “caste” as one of the elements of social and educationally backwardness, they would be mentioned in the Article. The intention of the constitution is to help in the development of backward classes and put social interest above individual interests or groups which are advanced, both socially and educationally.
This case also clears some doubt about the identification of socially and economically backward class or other backward castes by the union government. Petitioners believed that this is nothing but excessive delegation to the union government. This matters if discussion. There are both national as well as state commissions in place to deal with the affairs of SEBCs or OBCs. As we all know that India is a country with large diversity, every region has its own customs and traditions, and also different castes have a different status in different regions. It is very difficult to have one list of SEBCs or OBCs for all the regions or states. There are many factors that play an important role in determining SEBCs or OBCs like the dominant caste in that particular state. To solve this problem both state and national commissions must work together because these commissions have large data and may come up with the number of lists for every state. And I think that the union government must delegate some powers to the state government, by this they may come up with a whole different solution to solve the problem and if anyone feels that something is not right they are free to approach the court for judicial review.
There are many cases that deal with reservation or caste or any other related matter but one question arises, that is how can a casteless society be achieved with the presence of caste-based reservation. Caste may not be the starting point for determining the OBCs or SEBCs. At this point in time, no one can be completely sure about the percent of OBCs or SEBCs in the population of India and this raises the question of how the government decides the percentage of reservation especially in public employment for all the states. It is difficult because the first one has to analyze the representation of a group of people in the services in order to fix the percentage of reservation and it is a very difficult job because as I mentioned before, the diversity of our country.
Our constitution laid down the basis for the classless and equal society. Action like reservation may solve this problem if its execution is done perfectly. The diversity of India is unique from other countries in the world. We simply can not adopt any measures which may work in the past for other countries, which may not work in India. Indian constitution is different from others. Indian constitution laid down the idea of a society that is based on the principle of equality. To live in harmony and reach higher goals, we need to get rid of social evils and praise the idea of our constitution-makers.
- Ashoka Kumar Thakur vs Union Of India & Ors (2008)
- P.A. Inamdar and Ors v. State of Maharashtra and Ors (2005)
- Unni Krishnan, J.P v. State of Andra Pradesh (1993)
- T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors (2002)
- State of Madras v. Srimathi Champakam (1951)
- Indra Sawhney v. Union of India (1999)
- M.R Balaji v. the State of Mysore (1962)
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