Constitution 93rd Amendment Act, 2006

The Supreme Court delivered a judgement 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. So, to impose the State’s reservation policies on the private unaided colleges, this amendment was enacted.

Further, the act aims to provide greater access to higher education including professional education to a larger number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The number of seats available in aided or State maintained institutions, particularly in respect of professional education, was limited in comparison to those in private unaided institutions.

It is laid down in article 46, as a directive principle of State policy, that the State shall promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. To promote the educational advancement of the socially and educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions, other than the minority educational institutions referred to in clause (1) of article 30 of the Constitution, it was enacted to amplify article 15.

Important provisions

• It inserted clause (5) in Article 15 of the Constitution with a aim to promote the educational advancement of the socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes through special provisions relating to admission of students belonging to these categories in all educational institutions, including private educational institutions, whether aided or unaided by the State.
• In article 15 of the Constitution, after clause (5), was 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.”
• Reservation of seats in Central Educational Institutions: out of the annual permitted strength in each branch of study or faculty:
• 15% seats shall be reserved for the Scheduled Castes;
• Seven and one-half percent seats shall be reserved for the Scheduled tribes;
• 27% seats shall be reserved for the Other Backward Classes.
• Act not to apply to:
• a central educational institution established in the tribal areas referred to in the 6^th Schedule of the Constitution;
• a minority educational institution.

Implications

• This act was enacted to fulfil the Constitutional obligation of uplifting the backward classes.
• According to the critics, it “unequivocally destroys the essence of equality embedded in the Constitution by excluding educational institutions established by minorities and subjecting non-minority established institutions alone to bear the burden of weaker sections that are less meritorious.”
• Article 15 (5) excluding minority institutions inconsistent with Article 15 (4)
• There is no provision to remove educational disparities among BCs
• Former Minister of HRD, Arjun Singh had termed this Act as an “enabling legislation, which means it is insidious and allows the government to enforce reservations not just in higher education institutions but in all educational institutions starting from the nursery upwards.
• The Amendment widening its scope of implementation by specifically including the term “admission to educational institutions”. While Article 15 was first amended by thethe Constitution (First Amendment) Act, 1951 enacted on June 18, 1951. This particular amendment mentions “educational advancement”, it does not use the term “admission to educational institutions”. So, by this scope of the amendment act has been widely increased.

Supreme Court’s observation on 93^rd Amendment Act

The Supreme Court upheld the law providing a quota of 27 per cent for candidates belonging to the Other Backward Classes in Central higher educational institutions. But it directed the government to exclude the ‘creamy layer’ among the OBCs while implementing the law. The institutions will also include the Indian Institutes of Technology and the Indian Institutes of Management. It thus paved the way to giving effect to the Central Educational Institutions (Reservation in Admission) Act, 2006, from the academic year 2008-2009. It excludes the minority institutions from Article 15(5), by reasoning: “It does not violate Article 14 as minority educational institutions are a separate class and their rights are protected by other constitutional provisions.”

According to the CJI, “The 93rd Amendment Act does not violate the basic structure of the Constitution so far as it relates to State maintained institutions and aided educational institutions. Article 15(5) of the Constitution is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory.”

He agreed with the decision to The CJI said: “Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.”

But it was made clear that the creamy layer should be excluded from the socially and educationally backward classes. Further, the creamy layer principle would not apply as far as the Scheduled Castes/Scheduled Tribes are concerned.