Constitutional Validity of 93th Amendment

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Old 13-Aug-2015
Ginni Singh
Constitutional Validity of 93th Amendment

Constitutional 93rd Amendment
In India, the 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.

Requisite Behind 93rd Constitutional Amendment
V The Amendment States

Greater access to higher education including professional education is of great importance to a large number of students belonging to the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens. The reservation of seats for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes of citizens in admission to educational institution is derived from the provisions of clause(4) of article 15 of the constitution. 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.

V Government Situation
The government faced problems of people with intense group structured inequality and deprivation associated with caste system and institution of untouchability and it felt urgent need to correct these inequalities, the India state made explicit use of multiple remedies against discrimination (in the form of legal measures and Reservation policy) in employment, education and political and civil spheres . This policy however remained confined to a tiny government and public sector only and vast private sector comprising agriculture; industry and service sector in which more than 90 percent of SC/ST are employed remained outside the preview of the reservation policy. Narrowing down of already tiny public sector due to privatization and selective withdrawal of the state under policy of liberalization serious concern was expressed about the significance of public sector reservation policy.

V Exclusion And Discrimination
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. It emphasizes on two crucial dimensions namely the “institutions” (of exclusion), and their “outcome” (in terms of deprivation). Therefore in order to understand the dimensions of exclusion, it is necessary to understand the societal processes and institutions, which lead to exclusion of certain groups. The exclusion-induced deprivation may operate in multiple spheres- civil, cultural, political, and economic. For a broader understanding of the concept of exclusion, the insights in to the societal process and institutions of exclusions are as important as the outcome in terms of deprivation for certain groups. Defining characteristics of exclusion are particularly relevant, namely, the multiple aspect of discrimination and the societal processes and the institutions that cause deprivation. It is therefore, important to recognize the diverse societal processes and institutions in which social exclusion can cause discrimination and deprivation and poverty for the excluded and discriminated groups. Consequences of exclusion thus, depend crucially on how the institutions function, and how exclusionary and discriminatory they are in their outcome.

Discrimination may occur through “unfavorable inclusion”, namely through differential treatment in terms and condition of contract, one of them would reflect in discrimination in the prices charged and received by discriminated groups.

Exclusion and discrimination can occur in terms of access to social needs supplied by the government or public institutions, or by private institutions in education, housing, and health, including common property resources like water bodies, grazing land, and other land of common use.

Some groups (particularly the untouchables) may face exclusion and discrimination from participation in certain categories of jobs (the sweeper being excluded from inside household jobs such as cooking or others), because of the notion of purity and pollution of occupations, and their engagements in so-called unclean occupations.

V Private Outlook
Arguments in favour of reservation in private sector on the grounds,

That private sector follow discriminatory hiring practices, that there is need to remove inefficiency cause by market discrimination,

That the private sector received support from government and they have social obligation,

That there is thin line between private and public spheres, so there is lot of public aspect to what is called as private , and

That there is social responsibility of Corporate sector toward the marginalized groups and to address the issues emerging from the social structure, and encourage diversity in labour forces.

Faced With Such Problems And Private Corporate Outlook The Goverment Of India Came Up With The 93rd Constitutional Amendment.
Issues-Situations-Contentions Constituting The 93rd Constitutional Amendment
The most contentious issues in the application of Article 15(5) are
Backward Classes
Extent Or Quantum Of Reservation
Reservation In Private Sector Outside The Purview Of State.

V Determination Of Backward Classes
The Constitution gives no definition of the backward classes. Although Article 340 contemplates appointment of a commission to investigate the conditions of “socially and educationally backward” and such other matters as may be referred to the commission by the President. No universally accepted formula has yet been devised.

In M.R. Balaji v. State of Mysore[1] 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 R. Chitralekha v. State of Mysore[2] , the Government of Mysore laid down the classification of socially and educationally backward classes should be made on the following basis:-

Economic conditions
In P. Rajendran v. State of Madras[3] the court upheld the test of backwardness which was predominantly based on caste as it quoted

“Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would violate Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favor of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Article 15(4) and 15(5).”

In State of A.P. v. P. Sagar[4] the court invalidated an Andhra notification, apparently based on exclusive caste criterion, with the observation that the expression ‘class’ in Article 15(4) and 15(5) means a homogeneous section of the people grouped together because of certain likeness or common traits in the determination of which caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.

In A. Peeriakaruppan v. State of T.N.[5] the court upheld a caste based test of backwardness with the observation that it was permissible so long as such castes were socially and educationally backward though it warned against vested interests being created in favour of castes and asked for constant revision of the test.

In the matter of State of U.P. v. Pradip Tandon[6] admission to medical colleges in U.P. in favor of candidates from

Rural Areas
Hill Areas
Uttarakhand Areas

Was challenged. The classification was based on geographical or territorial considerations because in the government’s view the candidates from these areas constituted socially and educationally backward classes of citizen. The Court held that the accent under Article 15(4) and 15(5) was on classes of citizens and the Constitution did not enable the state to bring socially and educationally backward areas within the protection of Article 15(4) and 15(5). The traditional unchanging condition of citizens could contribute to social and educational backwardness. The place of habitation and its environment could be a determining factor in judging the social and educational backwardness. The court upheld reservations for persons from hill and Uttarakhand areas. It was found that the absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward.

However reservation for people of rural areas was invalidated on the ground that rural population was heterogeneous and not all of them were educationally backward.

In the matter of Jayashree v. State of Kerala[7], where the main issue was whether the Constitutional protection could be extended to a person who belonged to a backward community but the family’s income exceeded the prescribed limit of a certain amount per annum. The court held that in ascertaining social backwardness of a class of citizens, it may not be irrelevant to consider the class of the group of citizens. Castes cannot, however, be made the sole or dominant test as social backwardness is, in the ultimate analysis, the result of poverty to a large extent, though social backwardness which results from poverty is likely to be aggravated by considerations of caste.

It was therefore held that the impugned order prescribing the income limit was valid, as the classification was based not on income but on social and educational backwardness.

It was recognized that only those among the members of the mentioned castes, whose economic means were below the prescribed limit were socially and educationally backward, and the educational backwardness was reflected to a certain extent by the economic conditions of the group.

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.’[8]
V Quantum Of Reservations
On the question of quantum of reservation, the Mandal commission case[9] 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.

It provided for preference to the poorer sections of SEBCs in respect of 27 per cent reservation made by the first memorandum and also additional 10 per cent vacancies for ‘Other economically backward sections of the people’ who were not covered by any existing schemes of reservation. The first memorandum stated: “the SEBC would comprise in the first phase the castes and communities which were common to both the list”.

By a six to three majority the court upheld the first memorandum but invalidated the addition of 10 per cent by the second.

Later however, in Ashok Kumar Thakur v. UOI[10], the court upheld the adoption and application of “other backward classes” to SEBCs in Article 15(5) i.e. implying on Article 15(4).

In the Mandal commission case[11] the court also held that the economic criterion alone cannot be the basis of backwardness although it may be a consideration along with or in addition to social backwardness. The Court suggested creation of a permanent body at the central and state levels to look into the complaints of over and under-inclusion as well as to revise the lists of SEBCs periodically.

Following the court’s directions the centre and the states appointed backward class commissions for constant revision of such classes and for the exclusion of creamy layer from amongst them[12].

Wherever any Government failed to implement the requirement of appointing a commission and exclusion of creamy layer it has issued necessary directions compelling them to do so.

In the matter of E.V. Chinnaih v. State of A.P.[13] the division between ‘backward’ and ‘more backward’ of SEBCs was upheld in Mandal division of SCs into four classes by the state of A.P. was invalidated by the court primarily because the states are incompetent to tinker with the list of SCs prepared by the President but also because such classification could not be justified under Article 14.

In T. Devadasan v. Union of India[14], 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.

As an example of extraordinary situation, the court mentioned of a far flung remote area whose population needed special treatment for being brought into the mainstream. For such cases the court suggested extreme caution and making out of a special case. The 50 per cent limit does not include those members of SEBCs who got selected on their own merit. They are entitled to get adjusted against the open category. For the application of 50 per cent rule, a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be. So long as the limit is observed, carry forward rule is permissible. Thus the Court overruled Devadasan[15] on this point. In arriving at the 50 per cent limit the Court rejected that Article 16(4) is an exception to Article 16(1) or Article 15(4) is an exception to Article 15(1) but relied on balancing of interests under the two provisions and on the reasonable exercise of power under Article 16(4).

In Preeti Srivastava v. State of M.P.[16] a constitutional bench of the Supreme Court by a majority of 4:1 invalidated admission criteria for the SCs-STs-SEBCs which provided lower percentage of marks for admission for admission to post-graduate medical courses for these classes than provided for the general category. The difference was of more than 10 per cent marks. The court held that though the difference of 10 per cent marks at the level of admission to M.B.B.S. course could be justified, bigger difference at the level of post-graduate courses could not be upheld.

The court also relied upon the relationship between Article 15(4) and 335 relating to super specialty jobs and efficiency of administration.

But the Constitutional Eighty-second amendment act, 2000 erodes the basis of the court decision in so far as it adds a proviso to Article 335 providing for relaxation in qualifying marks or standards of evaluation to the STs and SCs.

V Reservation In Private Sector Outside The Purview Of States
In the matter of P.A. Inamdar v. State of Maharashtra[17] 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[18] 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’.
Now the amendment neutralizes the decision on these points and restores the pre-amendment position subject to the conditions that the special provision can now be made only by law while before the amendment it could be made even by executive action.
In pursuance of this provision, Parliament enacted the Central Educational Institutions Act, 2006 providing for 15, 7.5 and 27 per cent reservation in Central institutions of higher education and research for members of SCs-STs and SEBCs.
In the petition Ashok Kumar Thakur v. UOI[19] the amendment as well as the Act was challenged. Herein the Court upheld the amendment as well as the Act. It rejected the contention that Article 15(5) was contradictory to Article 15(4) and upheld the exclusion of minority educational institutions from the purview of Article 15(5). The Court also insisted for the exclusion of creamy layer from SEBCs as determined by the NCBC[20] for purposes of article 16(4).

The Court did not find the absence of time limit for reservation fatal to legislation but suggested periodic review after every ten years

Creamy Layer To Be Excluded From 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[21], 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. The industrialization and the urbanization which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens.

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.

Article 15(5)'s exemption of minority institutions from the purview of reservation violate Article 14 of theConstitution
Minority aided institutions were subject to a limited form of reservation. In order to preserve the minority character of the institution, reservation could only be imposed to a reasonable extent. Minority aided institutions could select their own students, contingent upon admitting a reasonable number of non-minority students per the percentage provided by the State Government. This conclusion was derived from two conflicting constitutional articles i.e. Articles 29(2) and 30(1).

Article 30(1) provides that "all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." Article 29(2) states 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."

In other words, 30(1) by itself would allow minority aided institutions to reject all non-minority candidates, and 29(2) by itself would preclude the same as discrimination based solely on religion. Yet neither provision exists by itself. Rather than disturb the Constitution, the Court strikes a compromise and diluted each provision in order to uphold both.

With regard to the percentage of reservation, the State Governments are to determine the percentage of non-minority seats according to the needs of that State. As a compliment to reservation, aided minority institutions were also subject to regulation of administration and management

In the matter of T.M.A. Pai Foundation v. State of Karnataka[22] it was declared “Once aid is granted to a private professional educational institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. ..."

The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.

Thus, while maintaining the rule of non- discrimination envisaged by Article 29(2), the minorities should have also right to give preference to the students of their own community in the matter of admission in their own institution. Otherwise, there would be no meaningful purpose of Article 30(1) in the Constitution. The receipt of State aid makes it obligatory on the minority educational institution to keep the institution open to non-minority students without discrimination on the specified grounds. But, to hold that the receipt of State aid completely disentitles the management of minority educational institutions from admitting students of their community to any extent will be to denude the essence of Article30 of the Constitution. It is, therefore, necessary that the minority be given preferential rights to admit students of their own community in their own institutions in a reasonable measure otherwise there would be no meaningful purpose ofArticle 30 in the Constitution.

Minorities possess one right or privilege that non-minorities do not: establishing and administering institutions for their community. The right to admit your own students in aided minority institutions was subject to admitting a reasonable number of outsiders.
Instead of having to admit a reasonable number of outsiders they would be exempted from reservation.
With the ultimate goal of furthering a classless/casteless society, there is no need to include them into the scheme of reservations. Such a ruling would subject even more institutions to caste-based reservation.
The 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions
Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' 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.
POINT AT WHICH student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)
Once a candidate graduates from a university, he must be considered educationally forward. There have been contentions that those who have completed Plus 2 should be considered educationally forward. In other words, they would no longer be eligible for reservation in university or post-graduate studies. There is some force in this argument where only 18% in the relevant age-group have completed Plus 2. From this vantage point, this means that they are educationally elite. But the answer to most questions in law is not so simple. The answer often depends on the circumstances surrounding the issue. In the marketplace, a candidate who has completed higher secondary education cannot be considered "forward". The real value of the higher secondary degree is that it is a prerequisite for college admissions. The general quality of education imparted upto Plus 2 is of extremely indifferent quality and apart from that, today some entry-level Government positions only accept college graduates. One is educationally backward until the candidate has graduated from a university. Once he has, he shall no longer enjoy the benefits of reservation. He is then deemed educationally forward. For admission into Master's programmes, such as, Master of Engineering, Master of Laws, Master of Arts etc., none will be a fortiori eligible for special benefits for admission into post graduation or any further studies thereafter. Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter.
The 93rd Amendment to the Constitution directly or indirectly affects millions of citizens of this country. If Article 15(5) is permitted to remain in force, then, instead of achieving the goal of a casteless and classless society, India would be converted into a caste- ridden society. The country would forever remain divided on caste lines. The Government must seek to repudiate this argument. To attain an egalitarian society, we have to urgently remove socio-economic inequalities.

Mahatma Gandhi said: "The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day."

The first Prime Minister, Pt. Jawahar Lal Nehru, said that "no one should be left in any doubt that the future Indian Society is to be casteless and classless".

Dr. B. R. Ambedkar called caste "anti-national".

After almost four decades of independence, while participating in the Parliamentary Debate on the Mandal issue, then Prime Minister Shri Rajiv Gandhi on 6th September, 1990 again reiterated the same sentiments: "I think, nobody in this House will say that the removal of casteism is not part of the national goal, therefore, it would be in the larger interest of the nation to get rid of the castes as early as possible".

It is our bounden duty and obligation to counter the validity of the 93rd Amendment in the background of the Preamble and the ultimate goal that runs through the pages of the Constitution.

[1] AIR 1963 SC 469
[2] AIR 1964 SC 1823
[3] AIR 1968 SC 1012
[4] AIR 1968 SC 1379
[5] AIR 1971 SC 2303
[6] AIR 1975 SC563
[7] AIR 1976 Sc 2381
[8] 1985 Supp SCC 714 at p. 770
[9] Indira sawhney v. UOI AIR 1993 SC 477
[10] WP (civil) No. 265 of 2006 decided on April 10, 2008.
[11] Indira Sawhney v. UOI AIR 1993 SC 477
[12] Central commission is called National Commission for Backward Classes.
[13] (2005) 1 SCC 394
[14] AIR 1964 SC 179
[15] T. Devadasan v. UOI AIR 1964 SC 179
[16] (1999) 7 SCC 120
[17] (2005) 6 SCC 537
[18] (2002) 8 SCC 481
[19] (2007) 4 SCC 361
[20] National Commission for Backward Classes
[21] (1992) Supp (3) SCC 217
[22] (2002) 8 SCC 481

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