The 93rd Amendment vs Article 15(1)

Introduction

This is part-2 of a two-part article that attempts to show why the 93rd Amendment of the Indian Constitution, that inserted Article 15(5), is discriminatory and against Constitutional principles.

The first part shows the origins of Article 15(1) and explains how its intent was to have an over-arching principle of non-discrimination across all provisions, and how only certain classes are exempt, in order to provide benefits needed for their upliftment.

The key summary of part-1 is as below

  • Article 15(1) is the underlying, foundational, principle that mandates non-discrimination.
  • Special beneficial provisions can be made for a few classes
    • For women and children, via Article 15(3)
    • For socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, via Article 15(4)
  • No other class or community in our society can similarly be exempt from the non-discriminatory principle.

Background of Article 15(5)

By mid-2005, the troika judgements of ‘TMA Pai – Islamic Society – PA Inamdar’ by the Supreme Court had established that the privileges guaranteed to religious and linguistic minorities under Article 30(1) does not include a blanket protection from having to admit students belonging to under-privileged sections of society. In other words, the SC said that the State can insist, and take away, a small percentage of seats in schools and other educational institutions to further any larger national cause.

In TMA Pai, the Supreme Court said the following..

It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats”

Against this background, and to overcome the direction, the 93rd Amendment to the Constitution, that inserted Article 15(5), was conceived.

The components of Article 15(5)

First, let us read the entire Article 15(5) together

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

Let us split this clause into 3 parts for better analysis

Part A:

This part ensures the State can make special provisions related to admissions in educational institutions for the benefit of certain classes

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..”

  • This part grants a benefit
  • The benefit is applicable to socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes

The only key question regarding this part, from a discrimination point of view, is whether the targeted classes can avail such benefits. The answer is yes – due to Article 15(4) – as noted above.

Part B:

This part describes an obligation – that of providing seats to ensure the benefit described in Part-A materialises.

“…to educational institutions including private educational institutions, whether aided or unaided by the State…”

This obligation is imposed upon

  • State run educational institutions
  • Private educational institutions, both aided and unaided

The inclusion of private educational institutions has been contested hotly in Pramati and other cases, and the Supreme Court has held that such an obligation does not violate any other fundamental right, especially the right to occupation under Article 19(1)(g)

From a discrimination point of view also, since no particular class of citizens are targeted under this part, there is no direct conflict.

Part C:

This part describes who gets exempted from the obligation imposed in Part B.

“…other than the minority educational institutions referred to in clause (1) of article 30″

Article 30 talks about religious and linguistic minorities and hence those two classes are exempted from having to admit students as determined by the State.

  • This part is in clear conflict with Article 15(1) which prohibits discrimination based on religion, race, caste, sex or place of birth.
  • Unlike women and children, for whom discrimination is allowed via Article 15(3) and ‘socially and economically backward sections and SCs and STs’, for whom discrimination is allowed via Article 15(4) – there is simply no provision anywhere in the Constitution which allows special provisions to be made for religious and linguistic minorities.

Remember: The legal justification for such an exemption CANNOT be drawn from Article 30 because the Courts had already held (via TMA Pai et al) that no such protection related to admissions is available under Article 30. In fact, it is good to recall that the very purpose of the 93rd amendment is to correct the lack of protection from Article 30. Otherwise the need for such an amendment itself would not have come up.

Conclusion:

Therefore, it is clear Article 15(5), introduced via the 93rd amendment goes against the non-discrimination principle and hence against our Constitution.

Post Script:

The only way the 93rd amendment would survive the test of non-discrimination is if Article 15 had a sub-clause that stated something like the following

Nothing in this article shall prevent the State from making any special provision for religious and linguistic minorities”

This could have been the real Article 15(5) and the current 5th sub-clause would perhaps then be Article 15(6).

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