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