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A Study on the 93rd Amendment of the Indian Constitution.

Introduction

An amendment in the constitution is the change brought in the constitution, which requires a different procedure from that is used for enacting a law. Around 104 Constitutional amendments have taken place in the Indian Constitution since 1950 when it was first enacted. Article 368 provides how an amendment can take place in the Constitution. Although the amendment is a crucial responsibility, India is one of the countries to make frequent changes in the constitution to make better polity. The 93rd amendment, 2006 of the Indian Constitution added clause (5) to Article 15, which agitated the nation.

The newly added clause ensured that nothing shall prevent the State from introducing any special provision, relating to the admission to educational institutions, for the socially and educationally backward classes of citizens or Scheduled Castes or Schedule tribes. The educational institution includes private institutions also, it can be either aided or unaided by the state but does not include minority educational institutions. The government considered reservations as an aspect to bring equal economic progress in all the sections of society. But over the years, the conditions of the backward people have been improved at a fast pace because of the reservations, but the general category people have remained roughly the same.

Justification of 93rd amendment

After independence, many people in society were leading a miserable life because of their financial status. Due to false beliefs, they were exploited for many years. So the government thought of reserving a position for them in society. The moto of the government was to bring an educational boost in the socially backward classes, who are sidelined in society. The reservations mentioned in clause (5) of Article 15 for the Schedule caste, Schedule tribes and other backward classes of citizens, in the educational institution, were derived from clause (4) of Article 15, which ensures the state to make special provisions for them.

One of the main reasons for the 93rd amendment was “social exclusion” and “unfavorable inclusion”. People were divided based on the caste system and the backward classes faced discrimination. Some sections of people were considered as untouchables and they received differential treatment. The government faced many issues with structured inequality in society, so they wanted to bring provisions and legal measures in the form of reservations. The right to education directly flows from right to life guaranteed under Article 21 of the constitution, so the opportunities in the field of education should not be confined only to a higher section of people, and therefore, the government must provide education to all sections of the society.[1]

Another main issue was that the number of seats in aided or the state maintained educational institutions had less number of seats compared to private aided institutions. So to promote the backward classes for admission in the unaided educational institution, except the minority institutions, the need of extending the provision of Article 15 arose. The 93rd amendment allowed both parliament and the state legislature to make special provisions for the advancement of the backward classes both in aided as well as an unaided private educational institution.

Exemption of minority institutions from the purview of Article 15(5)

Article 30(1) of the constitution ensures the right to all minorities to establish and administer educational institutions, so to protect their rights, they are excluded from these operations of the 93rd amendment. The situation was different before but over the years through various judgments, the minorities have restored their special rights. In TMA Pai Society v. Union of India[2], the court held that the private educational institutions established and administered by minorities as well as non-minorities are on equal footing, the rights under Article 19(1) (g) and Article 29/30 are considered to be the same. This decision was a disaster for the minorities because the court brought them to a lower pedestal than it was intended to be. Post TMA Pai’s decision, many issues arose regarding the admission, exams, and fees in the educational institutions.

Justice S.B Sinha in a leading case observed that:

“Minority institutions do not have a higher right under Article 30, they are only conferred with certain additional protection.”

He insists that Article 30(1) is not a special right, it’s only additional protection.[3] The situation of minorities reached a dead end. To elevate the minorities they had to wipe out the previous judgments, so the Congress Government worked on an amendment bill. The 93rd amendment bill was introduced, even though the opposition government raised voice against the exemption of minorities, it did not affect the implementation. Therefore, the minorities were restored with their special rights. Even the aided minority educational institutions are exempted from communal reservations.[4]

Quantum of reservation

The Mandal Commission case[5], settled the dispute of the quantum of reservation for backward classes, the judgment upheld two things:

  1. 27% quota for backward classes.

  2. Total beneficiaries to the backward class, schedule caste, and schedule tribe should not exceed 50 percent of the population.

The commission had also suggested an additional 10% vacancies for the “other economically backward sections of the people”, but this proposal was rejected by the Court. However, thereafter in a case, the “other backward classes” were recognized under Article 15(5) in a case.[6] In Devadasan v. Union of India,[7] the policy of accumulating the vacancies and carrying the unfilled quota forward to succeeding years was followed, but the court invalidated this policy because the quota of reservation in the following years exceeded the 50 percent limit fixed by the government.

Creamy layer principle in 93rd Amendment

Creamy layer refers to people who are members of backward classes but they are socially and economically advanced. If the creamy layer is not excluded in the 93rd amendment then it would be ultra-virus. The affirmative action taken by article 15 is to eradicate social and economic inequality and provide people educational support who are economically backward. So the special right of Article 15(5) cannot be given to the creamy layer of backward classes to promote egalitarian equality ensured by Article 14. When the State classifies people and gives preferential treatment, it should keep in mind that the unequal of the same group should be eliminated.

In Indra Sawhney case,[8] they observed that the “means test” has to be applied, it imposes a limit on the income level and eliminates persons from backward class. It acts as an economic indicator to evaluate the OBC category. The learned judge in that case supported this test because it was already done by the Kerala Government.[9] People who were no means economically backward, belonging to the backward class, started reaping all the benefits which were meant for other people in the backward class. The people belonging to the creamy layer are socially and educationally advanced to compete with the forward class. It is not logical to argue that “once a backward class is always a backward class” because the purpose of the 93rd amendment is the development of the backward class. The backward class should be defined by the economic criteria only, so the creamy layer will be eliminated on that criteria.[10]  As per Article 340 of the constitution, the Government has the power to appoint a commission to investigate the conditions of backward classes. These are the first two Backward Class Commissions established to investigate the backward classes:

First Commission – Kalelkar Commission

  1. Kalelkar Commission was the first Backward class commission to be set up by the presidential order on 29 January 1953. They prepare basic criteria to investigate the social and educational background of the people in backward classes. Then a report is prepared with the summary of observations and recommendations to improve their conditions. This commission’s report was rejected by the government because the commission did not apply objective tests to determine the conditions of backward class people. So there was a need for second commission.

Second Commission – Mandal Commission

  1. This commission was established on 1st January 1979, and its main motto was to identify the qualified socially and educationally backward classes. Even before the commission, many states had high reservations for the economically low people, for example, Karnataka. This commission recommended the government to implement 27% reservation quota for OBC, and the total sums up to 49.5% quota in public universities and government jobs.

The creamy layer principle should be considered as a serious aspect of equality code, therefore they have to be excluded from SCs and STs, to justify the reservation principle.[11] Therefore, the creamy layer and non-creamy layer should be treated differently because they are not equals, failing to remove the creamy layer will be such illegality offending the base of the Constitution of India.

Whether the Basic Structure of the Constitution is affected by the 93rd Amendment?

Basic structure doctrine means that certain basic features of the Indian Constitution should not be altered through amendments. Justice J.R Mudholkar delivered the following words:[12]

“Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be within the purview of Art. 368?”

Then after a few years, the doctrine of basic structure was propounded by Justice Hans Raj Khanna in the Supreme Court’s landmark decision.[13] Every provision in the constitution can be altered but it should not alter or destroy the basic structure or foundation of the constitution. The essentiality of the constitution should not be affected and amendments should not change the identity of the constitution. After this case, many cases worked out this doctrine, for example, Bhim Singhji v. Union of India[14], Waman Rao v. Union of India[15] and Indira Nehru Gandhi v. Raj Narain.[16]The identity test or width test was laid down to determine the validity of an amendment. The width test examines the scope of the amendment and checks whether it affects the basic features of the constitution.[17] While examining the 93rd Amendment of the Constitution, the width test brings down few issues like the 50% ceiling for all reservation, creamy layer in backward classes, the economically weaker section in the backward class, and the overall administration inefficiency.

Another problem that arises in this amendment is that reservations imposed on unaided institutions affect the basic structure. The unaided institutions exist to provide public service like education, they cannot be forced to reserve seats for a particular section of people, and it is an unreasonable restriction. The Supreme Court held that establishing and administering an educational institution was also trade or profession, and everyone has a fundamental right to practice. The government should not interfere in the management of the institution, it is an implicit right ensured to them, and therefore directing them to reserve seats is unconstitutional.[18] If a citizen is not given the power to exercise his fundamental right to carry on occupation under Article 19(1) (g), then it violates the basic structure of the constitution. To restore the basic structure of the Indian Constitution, the 93rd Amendment has to be suspended.

Whether reservation affects the fundamental right guaranteed under Article 14?

Article 14 ensures equality before the law, the crux of the article is that no one should be discriminated against based on race, caste, religion, sex, or place of birth. In Minerva Mills Ltd. v. Union of India[19], Chief Justice Chandrachud observed that:

“Three Articles of the Indian Constitution and only three stands between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19, and 21.”

Articles 14, 19, and 21 constitute the golden triangle, it has prime importance in the Indian constitution.[20] But articles 15 and 16 intend to promote substantive equality. Article 14 ensures general right, but Article 15 and 16 ensures the same right in favor of some people in a few circumstances.[21] The equality and reservations are two conflicting topics, reservation is an arbitrary provision that violates the right to equality. In the Indian constitution, the right to equality is ensured under Article 14 to 18. Article 15 ensures that there should be no discrimination based on sex, caste, age, place of birth. But 93rd Amendment which added clause (5) to Article is discriminative and violates the right to equality.

The reservations for backward classes in educational institutions have enraged both the media and the upper caste elite. If the government jobs are reserved for backward classes then it would compromise the aspect of merit, competent students who want to enter the institution with merit cannot avail the opportunity. In one of the cases, the percentage of marks has been reduced in the admission criteria for backward classes, the difference in the admission criteria for the general category and backward class was of more than 10%.[22] Therefore the general category is facing total discrimination and the fundamental right to equality is violated.

Conclusion

The present situation in educational institutions and other places demands only the class of a person and not by the standard of an individual candidate. The government implementation of about 27% of allocation for OBCs in the education institution has directly or indirectly affected millions of people in the country. Article 15(5) was introduced to achieve a casteless society and economic equality in society. But India has turned into a caste-ridden society and it’s divided into classes of people. There are many people economically backward in the forward class but they cannot avail of the reservation opportunity because they belong to the general category. The spirit of the creamy layer of the backward class does not be worthy of these reservations, they procure the seats which the economically backward students deserve. The reservations should be based on the economic conditions of the people and not based on caste which they belong to. To attain an egalitarian society, the government has to eliminate socio-economic inequalities and should protect the fundamental right of equality.

Pooja

4th year, B.B.A., LLB(Hons)

SASTRA Deemed University

References

[1] Mohini Jain v. State of Karnataka, A.I.R. 1992 S.C. 1858.

[2] TMA Pai Society v. Union of India, (2002) 8 S.C.C. 481.

[3] P.A. Inamdar v. State of Maharashtra, (2005) 6 S.C.C. 537.

[4] Federation of Catholic Faithful v. State of Tamil Nadu, 2014(4) C.T.C. 432.

[5] Mandal Commission Case, Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477.

[6] Ashok Kumar Thakur v. Union of India, WP (Civil) No. 265 of 2006.

[7] Devadasan v. Union of India, A.I.R. 1964 S.C. 179.

[8] Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477.

[9] K.S. Jayasree v. The State of Kerala, A.I.R. 1976 S.C. 2381.

[10] K.C. Vasanth Kumar v. State of Karnataka, A.I.R. 1985 S.C. 1495.

[11] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 S.C.C. 396.

[12] Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845.

[13] Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

[14] Bhim Singhji v. Union of India, (1981) 1 S.C.C. 166.

[15] Waman Rao v. Union of India, (1981) 2 S.C.C. 362.

[16] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

[17] M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.

[18] Bapuji Educational Association v. State, I.L.R. 1985 K.A.R. 80.

[19] Minerva Mills Ltd. v. Union of India, (1980) 3 S.C.C. 625.

[20] Bachan Singh v. State of Punjab, (1982) 3 S.C.C. 24.

[21] Dasaratha v. State of Andhra Pradesh, A.I.R. 1961 S.C. 564.

[22] Preeti Srivastava v. State of Madhya Pradesh, (1999) 7 S.C.C. 120.

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