An attempt to raise some questions on the nature of Article 15(5) brought in by the 93rd amendment.

Some of the questions may have already been raised, argued and answered already. A little repetition doesn’t harm, IMHO 🙂

Article 15(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

Question 1:

How can the State assume that any, and every, special law made with respect to admissions to educational institutions transgresses the rights given to minorities under Article 30(1)?

Multiple SC judgements have held that the spirit of Article 30(1) is to ensure
(a) Minorities are not denied rights to establish educational institutions
(b) Law does not take away the minority character of the institution

How can the State assume that any, and every, law made in relation to admissions
will destroy the minority character of the institution?

Question 2:

Why can not the question of whether a particular law, for e.g. the RTE Act, steps over the rights granted to minorities under Article 30(1) be left to the interpretation of the Courts?

Question 3:

Admissions is just one part of the ‘administration’ process. By granting a blanket cover for admissions under this amendment, is not the State saying that it does not have any power to impose any law related to any aspect of establishing or administering a minority institution? Does Article 30(1) grant such blanket rights?

For e.g. (sounds trivial – do excuse) if tomorrow a state government brings in a law that no person can teach in a school unless he/she has studied at least up to 10th grade, quoting the above amendment, minorities can very well argue that the State does not have ANY power to impose even elementary standards when it comes to teachers’ recruitment?

Question 4:

Article 15(5) allows the State to make special laws for non-minorities only. Is this not discrimination? How is this not violative of Article 14?

Question 5:

The spirit of the Constitution allows the State to make special laws to favor disadvantaged groups/communities. Laws related to SC/ST etc all fall under this category.

The 93rd amendment has 2 parts to it.

(a) Power to make special laws related to admission
(b) Applicability of the laws made under (a)

(a) grants a privilege
(b) imposes a duty

While the Constitution allows laws falling under (a), there is no example, and therefore it is against the spirit of the Constitution, to make laws under (b) that applies ONLY to some groups and not to others. Is (b) therefore not unconstitutional?

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