93rd CONSTITUTIONAL

AMENDMENT: Is It Valid?

Project work: constitutional

Governance-I

Submitted to: Submitted by:

NIMESH DAS GURU ANKITA SINHA
FACULTY: CONSTITUTIONAL LAW ROLL NO: 156
SEMESTER: 2nd

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 Contents

 Table of cases………………………………………….o3
 Abstract………………………………………………..04
 Introduction……………………………………………05
 Hypothesis…………………………………………….06
 Literature review and analysis………………………...07
 Conclusion…………………………………………….16

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 Table of cases

 P.A. Inamdar & others vs. State of Maharashtra……………..2005 (6) SCC 537
 T.M.A. Pai Foundation & ors v. State of Karnataka & ors…..2002 (8) SCC 481
 Islamic Academy of Education vs. State of Karnataka…….. (2005) 6 SCC 697
 Kesavanand Bharti vs. State of Kerela……………………….1973 (4) SCC 225
 St. Stephen College vs. University of Delhi…………………1992 (1) SCC 558
 R. Chitralekha and Anr. v. State of Mysore………………….AIR 1964 SC 1823
 P. Rajendran v. State of Madras and Ors…………………… AIR 1968 SC 1012
 Sudha Tiwari v. State of U.P………………………..CMWP No. 22511 of 2009
 Ashok Kumar Thakur vs. Union of India………………………..(2008) 6 SCC 1
 Indian Medical Association v Union Of India………...[2011] 6 S.C.R. 599 600

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 Abstract

The topic of my research paper the “93rd constitutional amendment” spurred a lot of debates in
the legal field when it was passed in the parliament when it added the 5th clause in article 15 of
the constitution of India. My paper examines these debates and differences of opinions and along
with it the various cases that arose. The topic of reservation has always been contentious but in
the recent developments of guarantying reservation in private educational institutions as was laid
out in the 93rd amendment of the constitution became a hot subject for discussion and thus the
validity of the amendment was called into question. The paper thus tracing the cases on the topic
of reservation in unaided and minority institutions analyses the various opinions and judgments
both in favor and against the amendment. There is a trail of debate both in support of continuing
with the legislation and in condemnation to accept it as a constitutionally workable amendment.
The paper thus tries to focus on the arguments as raised from both the sides and reach to a sound
conclusion as to whether the amendment is valid.

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 Introduction

The paper is on the Topic of the constitutional validity of the 93rd constitutional amendment that
was brought in to amend the article 15 of the constitution. Article 15 which prevents
discrimination on grounds of religion, race, caste, sex or place of birth, originally had four sub
clauses, but a fifth sub-clause was added to by the 93rd amendment, in order to enable the state to
identify certain class and section of people in the society to provide them with positive
discrimination and equal opportunities at excelling in the educational institutions. The article
15(5) thus also enabled the central government to make reservation in private educational
institutions. The unaided institutions except the minority institutions could thus be brought under
the ambit and thus provide for reservation. The paper gives a brief account of reservation and its
history, the account of article 15 and the subsequent amendment added to it. The various cases
on the constitutional validity of the 93rd amendment have been analyzed and thus a conclusion is
sought.

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 Hypothesis

The research questions that the paper is based on are as follows:

 Whether the 93rd constitutional amendment violates the basic structure of the
constitution?
 Whether the article 15(5) violates the right to occupation under article 19(1)(g) of the
private educational institutions which can now be forced to reserve seats?
 Whether the inclusion of article 15(5) in the constitution works in the positive
discrimination aim of reservation?
 Whether the question of education in private educational institutions is answered through
the 93rd constitutional amendment?

Thus, the paper tries to answer the above question, through the study of the cases hence arisen,
and what were the different ratio’s and opinions of the different judges on the 93rd constitutional
amendment’s validity. The paper also analyses the articles and other works on the subject, in
order to satisfy the answers to the questions raised.

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 Literature review and Analysis

The 93rd constitutional amendment act 2005, an amendment to insert clause 5 in the article 15 of
the constitution came into being on 20th January, 2006. The amendment’s statement of object and
reason stated that it aimed to promote the educational advancement of the socially and
educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in
matters of admission of students belonging to these categories in unaided educational
institutions. It aimed at amplifying the scope of article 15, in order to widen the scope, and thus
provide for positive discrimination. The amendment intended to provide greater access to higher
education including professional education to a larger number of students belonging to the
socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes. As the number of seats in the public and aided professional educational
institutions were limited, the amendment in the article 15 provide for an ample opportunity to the

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select class in the society. The step was taken to ensure that the equality ensured under article 14
of the part 3rd of our constitution was provided to them.

The amendment thus inserted clause 5 in the article 15 which read as follows:

"(5) 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 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 referred to in clause (1) of article 30."

Thus the clause sets out clearly reservation in the private educational institutions, and gave state
the authority to decide on all matters henceforth. The new clause (5) of said article 15 thus
enabled 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, irrespective of
whether they receive aid from the state. It has an express exemption for minority-run-
educational-institutions.

The passing of the constitution 93rd amendment gave rise to debates in the legal fraternity. The
cases on the topic of private educational institutions are therefore discussed as follows:

In the judgment in P.A. Inamdar & others vs. State of Maharashtra and ors 1 the Supreme
Court held that the State cannot impose quotas on unaided (minority and non-minority)
institutions. Unaided institutions (minority and non-minority) can admit as they choose, provided
their process is fair, transparent, non- exploitative and merit-based. Inamdar stated2: So far as
appropriation of quota by the State and enforcement of its reservation policy is concerned, we do
not see much of difference between non- minority and minority unaided educational institutions.

1
2005 (6) SCC 537
2
Ibid (Para124)

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In T.M.A. Pai Foundation & ors v. State of Karnataka & ors3 it was suggested that State
could compel unaided institutions to admit a reasonable percentage of students via reservation.
Inamdar4 clarifies that T.M.A. Pai should be read to mean that the State and unaided institutions
may enter into consensual agreement regarding reservation. In P.A. Inamdar's case5 it was
observed that unaided institutions (minority and non-minority) can admit as they choose,
provided their process is fair, transparent, non-exploitative and merit based.

In Islamic Academy of Education vs. State of Karnataka6 a Five-Judge Bench observed that
since TMA Pai Foundation was Eleven-Judge Bench, the later decision in P.A. Inamdar (Seven-
Judge bench) could clarify but not overrule T.M.A. Pai Foundation. The Islamic Academy of
Education, thus approved the quotas of unaided institutions by way of a scheme in which the
States could fix quota of seat sharing between the management and the State. Thus the
judgement approved reservation in private educational institutions.

Later, Ashok Kumar Thakur, an advocate filed a Writ Petition7 in Supreme Court where the
question to be decided by the Supreme Court was of creamy layer’s exclusion, whether the 93rd
amendment’s exclusion of minority institutions was in violation of article 14 of the constitution
of India, whether the act of 20068 was valid etc. The Constitution Bench of the Supreme Court
held Article 15 (5) to be valid to the extent it permits reservation for socially educationally
backward classes and other reserved category classes in the State or State aided educational
institutions subject to exclusion of creamy layer from O.B.C. Four honourable judges on the
Bench did not express any opinion whether the Constitution (Ninety-third Amendment) Act,
2005 was valid so far as private un-aided educational institutions are concerned and left the
question open.

Hon'ble Mr. Justice Dalveer Bhandari in his opinion however considered the issue and has held
that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as
private unaided educational institutions are concerned. In his arguments he stated that the

3
2002 (8) SCC 481 (Para 68).
4
Id pg 6
5
Supra (In para-126)
6
(2005) 6 SCC 697
7
(Civil) No.265 of 2006
8
Central Educational Institutions (Reservation in Admission) Act, 2006

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amendment violated the basic structure of the constitution as it took away the fundamental right
of occupation of the private educational institutes. It was held in Kesavanand Bharti vs. State
of Kerela 9 that an amendment alters the basic structure if its actual or potential effect would be
to damage a facet of the basic structure to such an extent that the facet's original identity is
compromised.

According to Justice Dalveer Bhandari, since article 15(5) excludes the rights under article 19 it
is in violation of the basic structure as it abridges the fundamental rights under the artcle 19, the
right to occupation. Article 15(5) expressly precludes the application of Article 19(1)(g).
Whenever reservations are implemented under Article 15(5), citizens are stripped of their
fundamental rights under Article 19(1)(g). By excluding Article 19(1)(g), Article 15(5)
obviously affects Article 19(1)(g), a facet of the basic structure of the Constitution. Step One is
therefore cleared. What is more, Article 19(1)(g) belongs to the Golden Triangle Articles 14, 19
and 21 are the three fundamental rights that stand above the rest, as was argued by him.

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.

In the case of T.M.A. Pai, it was held that “it is important to note that education falls within the
meaning of "occupation" under 19(1)(g). This is so because a large number of persons are
employed as teachers and administrative staff. For them, education is an occupation. Pai stated:
"20”. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business.
Their fields may overlap, but each of them does have a content of its own. Education is per se
regarded as an activity that is charitable in nature.

9
1973 (4) SCC 225 (Para 485).

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The private educational institutions have a reputation and personality of their own, and in order
to maintain their atmosphere and traditions, they must have the right to choose and select the
students who can be admitted to their courses of studies. This analogy was inherent in St.
Stephen College vs. University of Delhi10. The same was observed in the Pai foundation case,
“The reputation of an educational institution is established by the quality of its faculty and
students, and the educational and other facilities that the college has to offer. The private
educational institutions have a personality of their own, and in order to maintain their
atmosphere and traditions, it is but necessary that they must have the right to choose and select
the students who can be admitted to their courses of studies”.

It was held by Hon'ble Mr. Justice Dalveer Bhandari11 that the institutions in such case, will no
longer be able to admit the highest-scoring students; they will not attract the best students and
will not be able to churn out the best. Forced to admit students with lower marks, the University's
final product will not be as strong. After excluding the creamy layer, the cut of marks will drop.
The overall effect will weaken the incentive to establish the unaided institutions. The skills,
knowledge and creativity to compete globally will be lost. The teachers will be asked to teach a
class in which half the students are advanced relative to the other half. The shortage of top rate
faculty will get worst. It will have a negative impact on the circumstances seeking employment
in the knowledge economy. The top rated institutions visited by domestic as well as international
entities for recruitment will pace the effect of the reservation and given the dramatic effect as
aforesaid the reservation will have on the society as a whole. Article 19 (1) (g) will be abridged
for violation of the Constitution basic structure.

Hon'ble Mr. Justice Dalveer Bhandari thus held "I sever the 93rd Amendment's reference to
"unaided" institutions as ultra vires of the Constitution." He referred to justification of severance
by adopting the principle of severability from the judgment in R.M.D. Chamarbaugwalla vs.
Union of India12. Shri Raj Kumar Pandey submits that the view of minority, where the majority
have not expressed any opinion in a Constitution Bench, may not be binding upon a subsequent

10
1992 (1) SCC 558.

11
in para 525
12
AIR 1957 SC 624

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decision of the Supreme Court rendered by a number of Judges larger than the minority, but the
same is binding upon the High Court.

In R. Chitralekha and Anr. v. State of Mysore13, while considering the validity of a viva-voce
test for admission to a Government medical college, it was observed14 that colleges run by the
Government, having regard to financial commitments and other relevant considerations, would
only admit a specific number of students. It had devised a method for screening the applicants
for admission. While upholding the order so issued, it was observed that "once it is conceded,
and it is not disputed before us, that the State Government can run medical and engineering
colleges, it cannot be denied the power to admit such qualified students as pass the reasonable
tests laid down by it. This is a power which every private owner of a College will have, and the
Government which runs its own Colleges cannot be denied that power."

In Minor P. Rajendran v. State of Madras and Ors15 , it was observed that 16"so far as
admission is concerned, it has to be made by those who are in control of the Colleges, and in this
case the Government, because the medical colleges are Government colleges affiliated to the
University. In these circumstances, the Government was entitled to frame rules for admission to
medical colleges controlled by it subject to the rules of the university as to eligibility and
qualifications." The aforesaid observations clearly underscore the right of the colleges to frame
rules for admission and to admit students. The only requirement or control is that the rules for
admission must be subject to the rules of the university as to eligibility and qualifications. The
Court did not say that the university could provide the manner in which the students were to be
selected In the case of unaided private schools, maximum autonomy has to be with the
management with regard to administration, including the right of appointment, disciplinary
powers, admission of students and the fees to be charged." Unaided institutions may admit
students of their choice, subject to an objective and rational procedure of selection. They might
admit a small percentage of students belonging to the weaker sections of the society by granting
those sections freeships or scholarships, if not granted by the Government.

13
AIR 1964 SC 1823
14
Supra, at page 380
15
AIR 1968 SC 1012
16
at page 795

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Further in the case of Sudha Tiwari v. State of U.P,17 the Allahabad high court held that the
Constitution (Ninety-Third Amendment) Act 2005, in so far as it enables to provide reservation
for admission to unaided educational institutions, is violative of the basic structure of the
Constitution of India, as it has been held in Ashok Kumar Thakur vs. Union of India,18 , and
further, for the same reason, Section 4 of the UP Admission to Educational Institutions
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006
(UP Act No. 23 of 2006) is also declared to be invalid and ultra vires, to the extent it relates to
providing reservations, in admission of students to private unaided and self finance educational
institutions in the State of UP.

However, in the recent case of Indian Medical Association v Union Of India19, the question to
be examined of equity in higher education in India was answered and it laid out certain principles
that could be relevant in every field of education. The college sought to admit only students who
are wards or children of current and former Army personnel and widows of Army personnel.
And thus students who otherwise would have been eligible for admission challenged the policy
in a slew of writ petitions. The Indian Medical Association (IMA) also challenged it. The ACMS
is recognised as a private, unaided, non-minority professional institution. The Supreme Court
Bench comprising Justices B. Sudershan Reddy and Surinder Singh Nijjar, however, found that
the ACMS’ admission policy set at naught the legislative intent in the Delhi Act 80 of 2007 to
ensure excellence by mandating that all admissions be made on the basis of inter-se merit within
each of the categories of students.

The court had an opportunity to examine the validity of Article 15(5). The Reddy-Nijjar Bench
differed with Justice Bhandari and considered the inclusion of Clause 5 of Article 15 by the 93rd
constitutional amendment as of great significance. “It clearly situates itself within the broad
egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed
to truncating an essential and indeed a primordial feature of the equality code,” the Bench
explained. It held that clause 5 of Article 15 strengthened the social fabric in which the
constitutional vision, goals and values could be better achieved and served. The provision, the

17
CMWP No. 22511 of 2009
18
(2008) 6 SCC 1
19
[2011] 6 S.C.R. 599 600

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Bench suggested, could be likened to a necessary replacement and in fact an enhancement in the
equality code so that it made the Constitution more robust and stable.

Arguing in the favor of Constitution 93rd amendment, prof M.P. Singh20, says that Bhandari J
decided the issue of validity because it had been argued before the Court and required to be
settled to avoid uncertainty and delay when the government targeted these institutions in future.
Relying upon Minerva Mills Ltd. v. Union of India, in which the determination of the dispute
was not dependent upon the determination of the disputed amendment, he felt that since
amendments are often enabling provisions and if they “clear the way for future legislation that
would in fact violate the basic structure, the Court need not wait for a potential violation to
become an actual one.”21 Laying down the test that “an amendment alters the basic structure if its
actual or potential effect would be to damage a facet of the basic structure to such an extent that
the facet’s original identity is compromised” Bhandari J mixes up “legislation” and
“amendment” and says that to determine if “legislation” violates constitutional limitations two-
step effect test is to be applied:

“Step one requires us to first ask if legislation affects a facet of the basic structure” and “at step
two we ask if the effect on the facet of the structure is to such an extent that the facet’s original
identity has been altered.” Clarifying the test he says that “the form of an amendment is
irrelevant; it is the consequence thereof which matters.”

Further, differentiating between the expressions “abridge” and “abrogate” he says that while
abridgement is valid “the legislation must be struck down” if it abrogates. Applying the twin
tests laid down by him to Article 15(5) the judge finds that it excludes 19(1)(g), “a facet of the
basic structure of the Constitution” and a part of the golden triangle recognized in Minerva even
though it was much milder than the amendment in Article 31-C decided in Minerva. To bring
home his point on Article 15(5) vis-à-vis Article 19(1)(g), the judge relies upon and quotes
extensively from Pai and Inamdar, which the Amendment was meant to overrule, that according
to those decisions the government could not take any measure of reservation in admissions to
private unaided educational institutions except the regulation for ensuring admissions on merit.

20
Vice-Chancellor, WB National University of Juridical Sciences, Kolkata. Formerly Professor,
Head & Dean, Faculty of Law, University of Delhi.
21
Thakur, p 134

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But he admits that Parliament could subject Article 19(1)(g) to Article 15(5) even if the Court
had “held that reservation in unaided institutions was an unreasonable restriction that could not
be saved by Article 19(6)”22 and that subjecting Article 19(1)(g) to Article 15(5) does not per se
violate the basic structure.23

He further argued that as stated in the case of Kesavanada24 and I.R. Coelho25, in the 42nd
amendment they found an abuse of power, which is not so in this case and therefore they are
justified in implementing the amendment. In the case of elimination of “triangle of Article 21
read with Article 14 and Article 19”; and that in case of Fundamental Rights the actual effect and
impact on the rights will be taken into account for determining if the amendment destroys the
basic structure. But above all, as Conrad has suggested, the amendment must have an element of
abuse of power or of some collateral purpose appearing behind the purported scope of the
amendment. So long as it is made in the normal conditions after due deliberations in Parliament
and, wherever required, also in the Legislative Assemblies of the states and is not against the
interests of any vulnerable or politically insulated section of the society such as the minorities or
SCs or STs, it must be presumed to be valid.

Article 15(4) clearly provides that the State may make “any special provision for the
advancement of any socially or educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes” which definitely includes provision for reservation in
admissions to educational institutions. Nobody can doubt, or has ever doubted that under this
provision the State could make special provisions for the stated classes in private educational or
other institutions. If there were any possibilities of restricting the application of Article 15(4)
only to public or state aided educational institutions or other bodies until that article was being
treated as an exception to Article 15 or Article 29, that has also been removed after it has been
accepted that Article 15(4) like Article 16(4) is not an exception to, but an integral part of the
equality provisions. If in a matter such as Pai or Inamdar where special provisions for the classes
covered in Article 15(4) were not in issue, the Court announces that the state cannot make such
provisions in private educational institutions because of the interpretation it gave to Article

22
Id at 163-164.
23
Id at 164 & 166.
24
AIR 1973 SC 1461
25
(2007) 2 SCC 1

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19(1)(g), it does something which goes clearly against the express provisions and very
foundations of the Constitution as adopted by the Constituent Assembly, made special provisions
including reservation for such classes.26

The analysis of all the above cases and opinions, has lead to a conclusion, which is stated in the
following page.

Conclusion

26
See Part XVI of the Constitution which has been there from the very beginning and Parts
IX and IX-A inserted by 73rd and 74th Amendments.

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That the 93rd constitutional amendment is valid and there is no violation of basic structure. The
amendment is in terms with the positive affirmation action by the state. It does not abrogate the
right of occupation of the citizens in the country. . That the lofty ideals of the Constitution to
secure social, economic and political justice to its citizens cannot be realized unless efforts are
made to remove social, economic and political inequality prevalent in society. Education in
general and higher education, in particular, offers opportunities for hitherto disadvantaged
sections of society to proceed on the both of progress to achieve social, economic and political
equality. efforts of the State alone in the field of education cannot bring about better
opportunities for inclusion in the education system delivering to its citizens a hope of achieving
social, economic and political equality. Private investment in higher education especially has
grown by leaps and bounds in the past two decades. Therefore, all educational institutes
including those established with private investment will have to shoulder responsibility along
with State funded institution in delivering the goals set out in the Constitution. And thus the 93rd
constitutional amendment is a tool to develop the nation’s education system, and must be
accepted as constitutionally valid.

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