Implications of the 93rd Constitution Amendment Act

The 93rd Constitution Amendment Act, termed by Minister of Human Resource Development, Arjun Singh as only a piece of "enabling legislation", may have opened Pandora's box by amending Article 15 of the constitution to provide for reservations for OBCs in all "educational institutions" including private, whether aided or unaided, excepting minority educational institutions.

What was the driving force and the hurry for the 93rd constitution amendment?

The Supreme Court delivered an unanimous judgement by 7 judges on August 12, 2005 in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. All political parties without exception were unhappy with the Supreme Court's recent judgement in the P.A. Inamdar case and there was a consensus among all political parties for amending the Constitution to impose the State's reservation policies on the private unaided colleges too.

The Government reacted very quickly. The Minister for Human Resource Development, Arjun Singh, drafted and piloted the 104th Constitution Amendment Bill which was passed in the Lok Sabha on December 21st with 379 votes in favour and one vote against and one abstaining. The Rajya Sabha also passed it on December 22nd with 172 votes in favour and only two against. The BJP had protested that minority education institutions should also come under the purview of this bill, but did not oppose the bill in principle.

The 104th Constitution Amendment Bill became the the Constitution 93rd amendment Act, 2005 when President Kalam signed it on January 20, 2006 after coming very close to withholding his assent to the Bill. President Kalam had raised a number of queries and Prime Minister Manmohan Singh was apparently able to address all queries to the President's satisfaction.

According to the Constitution 93rd amendment Act, 2005,

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."

While the Amendment was clearly intended to bring all private institutions, whether aided or unaided, under the purview of the Government's policies on reservation and fee structure, it has also quietly achieved much more than that by widening the scope of the Amendment Act to specifically include the term "admission to educational institutions". Article 15 of the constitution, as it was originally framed in 1950, stated the following and did not include the term "admission to educational institutions".

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
   (a) access to shops, public restaurants, hotels and places of public entertainment; or
   (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
   
3. Nothing in this article shall prevent the State from making any special provision for women and children.

Article 15 was first amended by the the Constitution (First Amendment) Act, 1951 enacted on June 18, 1951. While this Amendment mentions "educational advancement", it does not use the term "admission to educational institutions" either. According to that amendment,

It is laid down in Article 46 as a directive principle of State policy that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is proposed that article 15(3) should be suitably amplified.

Amendment of article 15.
To article 15 of the Constitution, the following clause shall be added:-
"(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.".

Note that the term "admission to educational institutions" has been inserted in the 93rd Amendment but "educational institutions" has been left undefined . I'm not sure if the Constitution defines "educational institutions" anywhere. If there is indeed no definition of it in the consitution, the term "educational institutions" could be interpreted by the current or any future government to include all schools from nursery schools upwards and could also include institutions like NIITs, and others offering specialised training. This is the beginning of a slippery slope.

Minister of HRD, Arjun Singh termed this Act as an "enabling legislation" and said all States would be required to draft their own laws to ensure implementation of this Constitution amendment. Now that this "enabling legislation" is in place, the Central Government has chosen to fire the first salvo by proposing reservations in all higher educational institutions coming under the purview of the Centre, including the IITs and the IIMs. Most state governments are likely to follow suit.

The "enabling legislation" is insidious and technically allows the government to enforce reservations not just in higher education institutions but in all educational institutions starting from the nursery upwards.

Given that the government has not been able to so far, and is no position now, to be able to provide quality primary education through state funded schools to all children, there is every likelihood that the government will find it tempting to extend reservations upto 50% (not any higher only because of a Supreme Court ruling that all reservations together can't amount to more than 50%) to all private, unaided primary schools too at some time in the future and abdicate its own responsibility of providing quality primary education for all children.

Comments

[Aswin K]

Hi,
Thanks a lot for giving the legal view. I was actually looking for 104th ammendment on the constitution site. I has not realised the difference in numbering 'bills' and 'acts'. And, is the supreme court judgement restraining reservation to 50% available anywhere?? I would like to know the precise logic behind that number.

[N S Kapur]

I am looking for the actual Text of the National Commission For Minority Institutions (Amendment) Bill Passed By the Parliament on March 28,2006 and which came into force as Act No.18 Of 2006. Pls help and oblige. From:- N S Kapur 'nskapur@hotmail.com;

[Umesh Sethi]

I run a web design and small visa consulting firm. I endorse those who stand against this dividing measure of reservations. My website home page proudly declares my support for those against quotas.
Let equality rule !
Visit www.workandstudyoverseas.com home page to check

Umesh

[Yash Kumar Bansal]

Hi,
Thanx for giving this important information with relevent dates.A rather complex matter has been described in easily understandable form...

But some questions often teseases me...
1. What we common people can do when all those fair people elected by none but us take such unfair decisions unanimiously?
2. Which kind of protests can give results??..
3. Can a Constitutional Amendment be revert back???...

Plz help me out to ans these questions....

[k.s.Kulkarni]

APPEAL TO SUPREME COURT JUDGES
SIR,
IT IS VERY FERVENT APPEAL THAT IN SPITE OF SUPREMECOURT HAS INSISTED ON CET BUT TAMILNADU GOVERNMENT IS SCRAPPING CET WHICH IS THERE FOR YEARS.GOVT IS TELLING THAT RURAL STUDENTS ARE DOING WELL IN CET, THEN WHY THERE IS A EXAMINATION, SCRAP THE EXAMINATION FOR RURAL STUDENTS, THIS IS ONE KIND OF STATEGY TO GET RURAL VOTES WHICH IS NOW INITIATING BY DRAVIDIAN PARTIES, THESE PARTIES ARE VERY POPULAR IN DIVIDING PEOPLE INTO BC,MBC, AND SO CALLED FORWARD CLASS,FINALLY FORWARD CLASS PEOPLE ARE VERY BELOW POVERTY LINE IN TAMILNADU, SINCE OF RACISAM TOWARDS FORWARD CLASS, BY THE GOVERNMENT.
iF YOU TAKE INTO CONSIDERATION OF OFFICIAL CENSUS IN RURAL BC, AND MOST BACKWARD CLASSES(MBC) EACH AND EVERY FAMILY IN RURAL AND URBAN ONE IS DOCTOR, AND ONE IS IN U.S.
IS IT THE YARDSTICK TO SEE THE BACKWARDNESS BECAUSE OF THE CASTE WHICH HE HAS BORN.SINCE ALL PEOPLE IN BC CLASSES AND OBC CLASSES ARE VERY RICH AND ALL ARE DOCTORS IN THE FAMILY, EVEN NOW THEY WANT RESERVATION TO THEM MEANS THIS PEOPLE HAVE GOT NO BONE IN THE BODY, IT IS SHAME TO SAY THAT THEY ARE PARASITES, ALWAYS WANT RELIEFS FROM THE GOVERNMENT TO GET POSTS, THIS MEANS THEY HAVE BECOME LAZY PEOPLE, BECAUSE OF GOVT BENEFICTS, AND THIS RESERVATION DOES NOT GO TO REALLY POOR PEOPLE,
IT GOES TO THE RICH PEOPLE IN BC,MBA OBC CLASSES ONLY ENJOYING, COOLIE WALA IS ONLY COOLIEWALS, THEY ARE NOT IMPROVING BECAUSE OF RESERVATION, IT GOES TO ELIYE SEGMENT IN BC,MBC.
I APPEAL SUPREMECOURT TO STAY ON ABOLISHING CET IN TAMILNADU,BY THE DRAVIDAN PARTY GOVT IN TN.
THEN WHY THERE IS A COURT AND SUPREME COURT, IS TAMILNADU IS A SEPERATE COUNTRY TO ENACT LAWS THEMSELVES BY THE PARTY.
IT IS PLIGHT THAT PRESENT CONGRESS GOVT IS BECOME PUPPET IN THE HANDS OF DRAVIDAN PARTIES, WHO ARE RULING OUR COUNTRY NOW IN THE NAME OF CONGRESS, BECAUSE OF 40 MPS THAT DMK HAS GOT.
I APPEAL SUPREME COURT NOT TO ABOLISH CET IN TAMILNADU, AND TELL THEM NOT TO VOILATE SUPREME COURT.
THAT IS WHY INFOTECH COMPANIES ARE FILTERING STUDENTS FROM TN RURAL BECAUSE OF POOR ENGLISH
REG
K.S.KULKARNI
COIMBATORE

[josephraj]

DUE TO RESERVATION CONTINUATION OUR INDIA IS GOING TO FACE GREAT DANGER, SINCE MERIT BASE IS WRECKING.
I APPEAL TO ALL INCLUDING POLITICAL PARTIES NOT TO TRAP PEOPLE FOR VOTE.
GENERALLY RESERVATION HAS STARTED IN TN 60 YEARS BACK, ONLY FOR ANTI NORTH ANTI HINDI ANTI BRAHAMINS MOVEMENT, HENCE TAMILNADU MOVEMENT IS DIFFERENT, DO NOT CLUB THIS WITH INDIAN SCENARIO.THIS IS A VERY DANGEROUS MOVE, AND IF WE START GIVING RESERVATION THERE WILL BE NO END.IT WILL END UP IN CASTE CLASH AND INDIA IMAGE IN GLOBALLY WILL GO TO DARK.
NOW LET US ANALYSE THE RESERVATION FROM BEGINING.
THIS IS PURELY A TAMILNADU STYLE DRAMA.IN TN POLITICAL INTERFEARENCE IN EACH AND EVERY FIELD EVEN IN EDUCATION,EVEN IN TEMPLE ADMINISTRATION , POLITIAL PARTIES WHO ARE ALL ANTI HINDU IS INTERFEARING IN TEMPLE ADMISISTRATION, IT IS REALLY SHAME ON THEIR PART.THE RECENT ORDER OF POOJARIES IN TN CAN BE OF ANY CASTES.THIS IS GOOD EXAMPLE OF GOVERNMENT INTERFEARING IN EACH AND EVERY NOOK OF MAN'S LIFE.IT IS CONDEMNABLE .
WHERE BRAHAMINS WILL GO IF POLITICAL PARTIES ASKING THEM TO GO AWAY FROM TEMPLE.SHOW MERCY ON THEM, AFTERALL THEY ARE ALSO HUMAN BEINGS LIKE BC,MBC,SC(TAMILNADU STYLE OF SPLITTING HINDU SOCEITY)
THE RECENT SURVERY SHOWS IN TN, EVEN OC QUOTA IS OCCUPYING BY BC, MBC, AND SC.OC'S HAVE REALLY BECOME VERY POOR CLASS OF TAMILNADU.SINCE WHEREEVER YOU GO RIGHT FROM LKG ADMISSION THERE WILL BE OC,OBC, MBC, AND SC,ST AND NOW MINORITY COLUMN IS THERE, THOUGH THEY COME UNDER BC IN TAMILNADU .
IT IS LIKE MALE AND FEMALE IN TN IS CALLED OC, BC,MBC,
DRAVIDAN PARTIES HAVE INJECTED THE BAD BLOOD INTO THE PEOPLE, TO SEGREGATE BRHAMINS, BECAUSE THEY WERE WHITE IN COLOR.GENERALLY TAMILINS ARE WEAK IN SEX LIKE MUSLIM BECAUSE OF EATING NON VEG MORE.THAT IS WHY THEY ARE VOILENT PEOPLE.
IN TAMILNADU ALL THE BC ARE VERY RICH THAT IS WHY GOVT IS NOT INTERESTED IN INCOME LIMIT POLICY FOR OBC.
IT IS REALLY DANGEROUS TO CLASSIFY THEM BC, AND GIVING FILL BENEFICTS TO THEM, THERE SHOULD BE LIKE FILTER TO SEE WHO IS REAL OBC.IMPOSE INCOME LIMIT TO DETERMINE THE ACTION.
PLEASE DO NOT FOLLOW TN MODEL THAT IS RACIAL, AND FUNNY PART IS FOR THESE RACISAM THERE IS NO HUMAN RIGHTS COMMISSION,NO POLITICAL PARTY ARE BOTHERED TO SEE TO IT.
TAMIL BRAHAMINS ARE LIKE KASMIRIPANDITS OF NORTHERN iNDIA.NO POLITICAL PARTIES ARE SUPPORTING SINCE THEY ARE NOW VERY SMALL NOS.
ANNA UNIVERSITY WHICH IS A GOOD UNIVERSITY IS NOW UNDER THE CLOUDS OF POLITICAL PRESSURE, AND EACH AND EVERY TIME ADMISSION TIME IT IS A BIG PROBLEM, I THINK BECAUSE OF TOO MUCH INTERFEARING OF POLITICAL PARTIES IN TN UNIVERSITY NAME HAS SPOILED.
SASTRA UNIVERSITY, VIT ARE GAINING GOOD NAME BY IMPARTING MERIT STUDENTS AND ALL IT COPANIES ARE COMING TO SASTRA, VIT FOR PICKING BRIGHT STUDENTS.
HENCE I CONCLUDE NOT TO HEAL TAMILNADY'S CRY FOR RESERVATION AND OTHER POLITICAL PARTY CRY.GIVE INCOME BASED MERIT BASED SCOREBOARD.

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[raman mishra]

sir,
we are living in the era of 20th century and no one is socially backward means all are living with global thought.if any body think that he/she is a backward person then only due to his or her economical condition bound them to think like this. if those people were economically sound then they never bother about such type of political agenda.we will happy if our national groth comes higher then any of the developed nation.

[josephraj]

Sir,
When Supreme court is asking TN Govt why there is excess reservation in TN that is 70%, Govt that is DMK Govt is replying more then 88%people are backward classes.What it means,really 88% are Backward ? then Govt is not doing any measures for developement or 88% politically motivated cheating making richer castes into Backward classes or MBC for availing concessions.
This is really cheating Supreme court concept reservation not beyond 50%.
Please take a new survey in Tamilnadu who is really bakward, in the name of Backward major rich influenced caste should not take advantage.
Please give reservation on economically basis not on caste basis.This is very much dangerous if you adopt caste basis, then caste based parties will emerge just like Tamilnadu and they will dictate terms to give 90% reservation.
vote catching politicians also agree since votes only will be taken important for them.Then the entire country will spoil.
Please do not kill one community because they are soft in tamilnadu, that is brahamins.
I am a christine but my mother is a poor brahamins at that time.
now after joining christanity we have become rich.
also, in tamilnadu govt is purposely doing anti hindu campaign even in TV, since each and every political party is having one TV.especially Tamizan TV, of PMK,is the worst, most of the night times they are only preaching Christine and Muslims prayers for votes.
We must treat all castes as same.
This is my humble appeal to supreme court.

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Nice Post

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