CONSTITUTIONAL GOVERNANCE- I

PROJECT

“CONSTITUTIONAL VALIDITY OF THE 93RD AMENDMENT”

Submitted To: Submitted By:

Ms. Vini Singh Gaurav Chaliya
Assistant Professor Roll No. 1547
Constitutional Governance-I Kashish Kumar
Faculty of Law Roll No. 1508
Semester: I

NATIONAL LAW UNIVERSITY

JODHPUR
 TABLE OF CONTENTS

Contents
INTRODUCTION..............................................................................................................3

THE AMENDMENT..........................................................................................................6

LEGAL ISSUES.................................................................................................................7

1. 93RD AMENDMENT: WHETHER VIOLATIVE OF ARTICLE 19 (1) (G)........7

2. CREAMY LAYER: JUSTIFICATION?.............................................................10

SOCIAL ISSUES..............................................................................................................14

CONCLUSION.................................................................................................................16

ACKNOWLEDGEMENT

2
It gives me immense pleasure to express my gratitude to all who supported and helped
me in completing this project. I extend my heartfelt gratitude to Ms. Vini singh for being
the guiding light and a source of inspiration throughout the course of this project. I also
thank her for allowing me to work on such an insightful topic.
I would also like to thank all the library and support staff for helping me in procuring the
materials required to complete this project. Lastly I would like to thank the almighty
under whose benevolent presence this project could be completed.

INTRODUCTION

3
“Nowhere else in the world is there competition to assert backwardness and then to claim
we are more backward than you. This truth was recognised as an unhappy and disturbing
situation and such situation was noted by this Court as a stark reality in Indra Sawhney's
case [Mandal case]”. Supreme Court of India observed these words, when it put a stay
on the operation of the Central Educational Institutes Reservation Act in March 20071.

Reservation is a highly debatable topic in our country. It has virtually split the country in
terms of unity. People from both sides of the table have enough artillery aimed at each
other to explain their stand. We have numerous people; politicians, intellectuals,
academicians, industry captains, students, etc who have a point or two to make in the
light on the controversy of reservation.

While reservation is disputable in government & government-aided educational institutes,

what is more disputable is the move to extend the ambit of reservation to private
educational institutes by the enactment of the 93rd Amendment.

In the PA Inamdar Case2, the Supreme Court held that private education institutions
comes under trade or profession under Article 19(1) (g) of the Constitution of India which
everyone had a fundamental right to practice. It was derived from this statement that
government cannot direct private institutions to control their policies and making of any
provision regarding reservation of backward classes.

And it is to cross this very legal hurdle, the Parliament brought about the 93rd
Constitutional Amendment. This isn’t the first time in the Constitutional history of India,
that an amendment is enacted to nullify a prominant decision of the Supreme Court. In
the Indra Sawhney Case3, the Supreme Court held that reservation could be made at the

1
On 29th March 2007, the Supreme Court of India, as an interim measure, stayed the law providing 27 percent reservation for Other
Backward Classes in educational institutions like IITs and IIMs. This was done in response to a public interest litigation — Ashok
Kumar Thakur v. Union of India . The Court held that the 1931 census could not be a determinative factor for identifying the OBCs
for the purpose of providing reservation. The court also observed, "Reservation cannot be permanent and appear to perpetuate
backwardness".
2
AIR 2005 SC 3226
3
(1995) 5 SCC 429

4
time of recruitment, but not in matters of promotion. The 77 th Amendment was brought to
nullify this decision.

Thereafter, the constitutional validity of the 93rd Amendment has been challenged in a
Writ Petition under Article 32 in the case of Ashok Kumar Thakur v Union of India4. The
petition has also resulted in a stay order of the operation of the Central Educational
Institutions(Reservation in Admission) Act, 2006; which followed the 93rd Amendment.
Though the Supreme Court is yet to deliver a clear verdict on the validity of the 93 rd
Amendment, members of the legal views are in debate as to whether an infringement can
be made on Article 19 (1) (g) of the Constitution of India & whether a compromise can
be made on the aspect of Secularism, as this amendment clearly excludes the private
running minority institutions.

Therefore the issues that shall be covered in this project are whether the Amendment goes
against the basic structure of the Constitution of India. Also, as held in the Indira
Sawhney Case5, there is no mention of exclusion of the creamy layer from the purview of
the benefits of this Amendment, thereby raising a question mark on the validity of the
Amendment?

This project shall examine the technical aspects of the Amendment, analyse the cases
related to it & debate the pros & cons of the Amendment with relation to existing
provisions of the Constitution.

4
MANU/SC/3169/2007

5
SUPRA NOTE 3

5
THE AMENDMENT6

THE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 2005

NO. 93 OF 2005

[20th January, 2006.]

An Act further to amend the Constitution of India.

Be it enacted by Parliament in the Fifty-sixth Year of the Republic of
India as follows:-

1. Short title and commencement.-

(1) This Act may be called the
Constitution (Ninety-third Amendment) Act, 2005.
(2) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint.

2. Amendment of Article 15.-In article 15 of the Constitution, after

clause (4), the following clause shall be inserted, namely:-
"(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.".

T. K. VISWANATHAN,
Secy. to the Govt. of India.

6
http://indiacode.nic.in/coiweb/amend/amend93.htm

6
LEGAL ISSUES

93RD AMENDMENT: WHETHER VIOLATIVE OF ARTICLE 19 (1)

(G)

According to Article 19 (1) (g) of the Constitution of India:-

19. Protection of certain rights regarding freedom of speech, etc.— (1) All
citizens shall have the right—
(g) to practise any profession, or to carry on any occupation, trade or
business.

“Education used to be a work of charity in old times but gradually it became an

'occupation'. Some of the judicial dicta go on to hold it as an 'industry'. But it is settled
that establishing and administering of an educational institution for imparting knowledge
to the students is an occupation, protected by Article 19(1)(g) and additionally by Article
26(a), if there is no element of profit. As of now, imparting education has come to be a
means of livelihood for some professionals and a mission in life for some altruists.”7

Though there exists in many institutes reservation for NRIs, obviously for lucrative
capitation fee benefits, then why isn’t the question of merit being compromised being
raised by the institutes? When some of these private educational institutes reserve seats
for money, why cant they take social responsibility of affirmative action as contribution
towards social equity & social justice?

Imposition of quota of State seats or enforcing reservation policy of the State on the
available seats in unaided professional institutions are acts constituting a serious
encroachment on the right & autonomy of private educational institutions. This aspect has
been stated by the SC.8

7
Supra note 2

8
ibid

7
“The expression "education" as stated in constitution of india includes all stages like from
primary school level to postgraduate level. It includes professional education. The
expression "educational institutions" means institutions that impart education, where
"education" is as understood hereinabove.”9

Thus the enabling legislation technically allows the government to enforce reservations
not just in higher education institutions but in all educational institutions starting from the
nursery upwards.’ Since, it is an acknowledged fact that reservation compromises merit,
this would mean an indiscriminate infringement of rights to set up educational institutions
& desecration of the vision of so many an educationist.

In the PA Inamdar Case10, the issues for consideration that were raised by the Hon’ble
Supreme Court were;

1) To what extent the State can regulate the admissions made by unaided (minority or
non-minority) educational institutions? Can the State enforce its policy of reservation
and/or appropriate to itself any quota in admissions to such institutions?

The Hon’ble Supreme Court responded by saying that that neither the policy of
reservation nor any quota or percentage of admissions could be carved out to be
appropriated by the State in a minority or non-minority unaided private educational
institution.

The main point here is that if there is complete absence of aid to private institutes by state
then why these instution should follow the reservation policy? Hence, a bare
interpretation of the 93rd Amendment implies that there is no rationale for any such
policy.

The second question for consideration was,

(2)Whether unaided (minority and non-minority) educational institutions are free to
formulate their own admission procedure?
9
ibid
10
ibid

8
‘Article 19(1)(g) guarantees all citizens the right to practise any profession or to carry on
any occupation, trade or business. The right to run an educational institution of one's
choice is certainly recognised as a fundamental right under this Article. An interpretation
of this Article with the fundamental features of the Constitution implies that this right is
subject to reasonable restrictions in the interests of the sovereignty and integrity of India,
the security of the state, friendly relations with foreign states, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence.’ 11
The policy obliging private institutions to reserve seats is no way a fundamental duty nor
a reasonable restriction in the favour of the state. In fact, read with some points raised in
the SOCIAL ISSUES section of this project, such an obligation is not in the interest of
the society-based State.

This was the factor the Supreme Court considered in the P.A. Inamdar Case12 while
overruling reservations in private unaided educational institutions, as it found the entire
quota regime as an unreasonable restriction in the exercise of a fundamental right under
Article 19(1)(g).

In the TMA Pai Case13, the question was that of to what extent the rights of aided private
minority institutions be regulated to administer be regulated and was responded to with
the SC saying that the right under Article 30(1) cannot be such as to override the national
interest or to prevent the Government from framing regulations in that behalf.

Also, it was clearly held that unaided professional institutions should be given greater
autonomy in determination of admission procedure, & state procedure should be minimal
& only with a view to maintain fairness & transparency in admission procedure & to
check exploitation of students by the charging of exorbitant money or capitation fees.14

11
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 2, 2007)
12
Supra note 2
13
MANU/SC/0624/1994

14
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 3, 2007)
pg 2387

9
The 93rd Amendment doesn’t check the maintenance of fairness in procedure &
transparency so as to invite state interference.

CREAMY LAYER : JUSTIFICATION

In the case of Indra Sawhney II v Union of India15, it was held that any executive or
legislative action refusing to exclude the creamy layer from the benefits of reservation
will be violative of Articles 14, 16 (1) & 16 (4). The creamy layer has no place in the
reservation system.16 The students in the General Category are on equal footing with the
students of the creamy layer. Thus by including the creamy layer, there will be violation
of the right to equality & hence violation of the doctrine of basic structured. The purpose
of reservation is to create the creamy layer, by not excluding the creamy layer in this
Amendment; the concept of equality is being violated. Equality is a basic feature of the
Constitution.

‘Non Exclusion of the creamy layer will be totally illegal offending the route of the
Constitution and cannot be allowed to be perpetuated by Constitutional Amendments.’ 17
‘A clumsy move by the Kerala Government to enact that there was no creamy layer in
Kerala was held to be invalid.’18

15
AIR 2000 SC 498
16
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 1, 2007)
pg no. 279
17
Id at pg no. 280
18
Ibid

10
By not excluding the creamy layer, the very policy of affirmative action & the purpose of
the amendment is defeated; creamy layer members will end up cornering most of the
benefits, leaving rest of their community members backward.

When the issue of reservation rocked the nation on a major scale, it was the Indra
Sawhney Case that said that the ‘creamy layer’ was to be kept out of the purview of
reservation, so as to ensure that that the deserving entail themselves of affirmative action,
& so that benefits of reservation are not cornered by a section of people who are able to
do so because of the community they belong to.

Taking precedence from the Indra Sawhney Case19, it is only logical that the creamy layer
be excluded from the ambit of reservation. The Government is said to have failed; in not
explaining why the ‘creamy layer’ is not excluded from the benefits of the 93 rd
Amendment. The Supreme Court has re-iterated this sentiment in the petition 20
challenging reservation for OBCs in the central educational institutions.

The Government's contention that creamy layer rule would be applicable only to Article
16 (4) (providing reservation in appointment) and not to Article 15 (5) (making special
provisions for advancement of educationally and socially backward classes), does not
hold and is in fact a violation of the right to equality as mentioned in Article 14. If
affirmative action for backward classes in terms of employment excludes the ‘creamy
layer’, then what is the rationale to not exclude the ‘creamy layer’ from educational
benefits?

As per the Directive Principle under Article 46;

46. Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections. —The State shall promote with
special care the educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of
exploitation.
19
Supra note 21
20
Supra note 4

11
But this is only a constitutional obligation of the state. Keeping in mind Article 19(1)(g)
can such an obligation be imposed upon the private sector? This cannot be answered by a
simple “yes” or “no”? It has to be examined, whether, along with other duties which a
private citizen has towards the state under Article 51(A), affirmative action can also be
imposed upon the private citizen?

It is not a fundamental duty for a private citizen to follow the policy of affirmative action.
Implementing something on account of government prerogative in a private sector is
never legally right. The separation between state and private entities are quite distinct and
guaranteed. Every individual has the freedom to run an educational institution without
violating any constitutional laws, but enacting a constitutional amendment to direct
private entities to provide reservation in educational institutions violates the
constitutional right of a citizen to do business with reasonable intervention.

The Madras Government had reserved seats in state medical & engineering colleges
based on certain criteria- caste, race, religion etc, through a Communal Government
Order in 1932. The constitutional validity of the Order was questioned. The Supreme
Court ruled that the reservation policy was void as it ignored merit. In response to this,
the Government inserted Article 15 (4) through a Constitutional Amendment. It helped
the State to make special provisions for protection of interest of backward classes of
citizens.

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93RD AMENDMENT: WHETHER VIOLATION OF BASIC
STRUCTURE

“In the Mandal Case, the need for excluding creamy layer has been emphasised. The
failure to exclude creamy layer or the inclusion of forward castes in the list of backward
class is totally illegal & would violate the principle of equality enshrined in Articles 14 &
16 which are part of the basic features of the Constitution.” 21

“As given in the Kesavananda Bharati Case22, the Constitution can be amended without
altering the basic structure of the constitution. Acc to the view taken by Jaganmohan
Reddy in this case, social, economic, & political justice & Justice AN Ray, secularism are
essential features of the constitution.”23

The challenge to the 93rd Amendment on the basis that it violates the concept of equality
as enshrined in our Constitution does not arise because of the provision for reservation,
but on the ground that this facet of reservation is indiscriminate & applied without any
scientific rationale, as no exclusion has been made of the ‘creamy layer’.

The Kesavananda Bharati Case24 judgement is likely to play an important role in

interpreting and challenging the new constitutional amendment, imposing the State's
reservation quotas on private unaided colleges, to determine if it violates the basic
structure of the constitution or not.

Renowned justice Nani Palkhivala was of the belief that Parliament's amending power is
not absolute, the amending power is subject to inherent and implied limitations which do
not permit Parliament to destroy any of the essential features of the Constitution and
thereby damage the basic structure of the Constitution.

21
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 3, 2007)
pg no.2025
22
1973(4) SCC 225
23
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 3, 2007)
pg nos. 2023, 2024
24
AIR 1973 SC1461

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SOCIAL ISSUES

Affirmative action can have both positive as well as negative impacts. Our society is
multi cultural and therefore caste and religion has been woven into our social structure,
the concept of reservation on the basis of caste is a very sensitive issue. When legislations
are enacted, they are meant to serve a positive purpose for society, but many critics feel
that the Amendment would further split society & further inflame existing caste tensions
in society, thereby defeating the very purpose of building a society free of caste-based
discrimination; as envisaged by the makers of our Constitution.

But the argument that society should disregard caste is contested by some. "Caste-based
structures and casteism persist widely across the country and caste-based disadvantages
mark the lives of most low-ranked stigmatised communities. Caste remains coterminous
with class, and exceptions to the rule are rare. Given this and the fact that the new
economic regimes have led to tremendous economic dislocation and distress for many
service, agricultural and menial labour groups, the criterion of caste as an indicator of
backwardness measured in terms of literacy, access to adequate living and health
facilities, sustainable livelihoods and income is still valid."25

“Block reservations for OBCs will result in their being grabbed by the creamy layer,
without any benefit flowing to those who really need benefits and concessions. 26 The
result being that there will continue to be inequality in society, with no trickle down
effects foreseeable also, thus defeating the purpose of social justice & the purpose of the
Amendment.

A large proportion of academicians & students are of the opinion that admission of
almost half the intake of scholars on considerations other than merit will dilute academic
standards in respected institutions of learning, & unfairly shut out the bets & brightest.
Moreover, student leaders believe that caste-based quotas are regressive & will resurrect
casteism & generate caste-based tensions & hostility on the country’s campuses.”

25
Dr. A.R. Vasavi an alumna of Delhi and Michigan State universities and currently professor of sociology
at the National Institute of Advanced Studies, Bangalore in the article on the webpage, infra note 29.
26
http://www.educationworldonline.net/eduworld/article.

14
If further caste-based quotas are legislated, caste consciousness and temperatures are
certain to rise on campuses. This should not the end-result of a legislation in our country.
While it is understandable for the Britishers to have followed such divisive policies, in
the context of modern Indian polity, such a legislation is socially invalid.

15
CONCLUSION

In the case of Ashok Kumar Thakur v Union of India27, the Hon’ble Supreme Court has
held that; the petition challenging the Constitutional validity of the 93 rd Amendment came
before a 5-judge Bench, the issue shall be left to the consideration of a 11-judge Bench.
The basic issues which need to be considered by the larger Bench, are as follows:

(1) Whether the 93rd Constitution Amendment Act, 2005 and Article 15(5) are
unconstitutional as being violative of the basic structure of the Constitution?

(2) If the Amendment is valid, how is it to be interpreted and implemented?

(3) Whether the 93rd Amendment insofar as it empowers the government to make special
provisions by way of reservations in educational institutions (including private
educational institutions) is violative of the basic structure of the Constitution?

(4) Whether the 93rd Amendment confers on the State an unbridled power to make special
provisions for "socially and educationally backward classes", without indicating the
circumstances when such provision may be made, and without imposing any limit either
on the contents or duration of such special provisions and is, therefore, wholly destructive
of the right of equality of the citizens and thereby violative of basic structure?

(5) Whether depriving the protection of Article 19(1)(g) to non-minority institutions

(while excluding minority institutions from Article 15(5)), after the decision in P.A.
Inamdar v. State of Maharashtra 2005 (6) SCC 537 which held that non-minority
institutions enjoyed a similar protection, upsets the delicate balance of the Constitution,
and is inconsistent inter-alia with the principles of secularism and thereby is violative of
the basic structure?

27
Supra note 2

16
On the basis of the points that we have discussed, we conclude that; keeping in mind the
concept of social equality & social justice, reservation, in order to bring those who are
backward, to the societal fore, is necessary. The purpose of this amendment is justified
but it is invalid by keeping few things like-

1. Inequality is promoted by not excluding the creamy layer; keeping in line the
opinion of the Supreme Court to exclude the creamy layer.

2. The concept of Secularism is defeated by not including Minority institutes; even

those that receive aid.

3. It is an unreasonable restriction and unreasonable exception to Article 19 (1) (g)

of the Constitution of India to burden a private institute with state obligation.

If the amendment does not affect the basic structure of constitution and aim towards
positive affirmative action, then there would be less controversy surrounding the
Amendment, as there is now.

As the ball literally hangs in the Supreme Court of India, counsels from both sides are
spending sleepless nights, as the decision whether to hold the Amendment as valid or not
is certain to brew social unrest in the country.

Therefore, being a country which preaches the concept of social equality, social justice &
social equity, it is with no doubt that we can say that affirmative action is necessary. We
should not allow the capricious Indian polity to use the Constitution as a tool for vote-
garnering. Keeping in mind the objective of the makers of our Constitution to mitigate
the blemishes of caste-based discrimination which has been woven in our social fabric,
reservation is a tool of positive discrimination. Also, the success of affirmative action
policies in countries like the US legitimizes the need for such measures in our country.
“Education is the best catalyst of change and educating the backward classes is the surest
way to improve their self- image and raise their social status.”28

28
The Second Backward Classes (Mandal) Commission Report

17
But unfortunately, populism takes precedence over prudence in our country. Reservation
has become a plank for garnering votes & thereby merit is sacrificed at the altar of vote
bank politics. Ensuring all sections of society are adequately represented in the social
infrastructure, does improve the societal structure. Hence, what is needed is an inclusive
affirmative policy that is based on social engineering, rather than vote bank politics, that
causes societal schism.

It is grossly improper for the Parliament to deliberately ignore the judgment of the
Supreme Court in making Laws.29

‘Reservations must be adopted to advance the prospects of the weaker sections, but while
doing so, care should be taken not to exclude the legitimate expectations of other
segments of the community.’30

While the nature & purpose of the 93 rd Amendment may sound constitutionally valid,
what is a matter of concern is the actual content of the Amendment. Compromising on the
doctrine of the basic structure as elaborated in the celebrated Keshvananda Bharati
Case31 is not desirable. It is prayed that for the purpose of social equity & social justice,
that there be a policy of intelligent affirmative action, where keeping in mind the basic
structure of the Constitution. ‘Also, private institutions need to shed their baggage of
blind dismissal and antagonism to reservation. They can as in the US, become partners in
supporting the aspirations of the long disadvantaged.32

BIBLIOGRAPHY
29
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 2, 2007),
Preface
30
Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa, 2nd Ed., Vol 1, 2007)
pg no. 249
31
Supra note 31
32
Supra note 29

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WEBSITES
1. www.google.com
2. www.manupatra.com

LAW JOURNALS
1. ALL INDIA REPORTER

BOOKS
1. Arvind P. Datar, Commentary on the Constitution of India, (Wadhwa & Wadhwa,
2nd Ed., Vols 1,2,3 2007)

CASES
1. PA Inamdar v State of Maharastra Ref; AIR 2005 SC 3226
2. Indra Sawhney v Union of India Ref; (1995) 5 SCC 429
3. Ashok Kumar Thakur v Union of India Ref; MANU/SC/3169/2007
4. TMA Pai Foundation v State of Karnataka Ref; MANU/SC/0624/1994
5. Islamic Academy of Education v State of Karnataka Ref; MANU/SC/2473/2005
6.His Holiness Kesavananda Bharti Sripadagalvaru and Ors.
v. State of Kerala and Anr Ref; AIR1973SC1461
7. Indra Sawhney II v Union of India Ref; MANU/SC/0771/1999

BARE ACTS
Constitution of India

19