From a #Core point of view, there can be no dispute that the “Pramati Educational and Cultural Trust and Others Vs Union of India and Others” judgement on the issues of validity of the 93rd amendment to the Indian Constitution and the validity of Article 21A/RTE Act is the single most important judgement in India’s history.

The purpose of this post is to give an insight into this important judgement so that more and more people are aware of what actually the Supreme Court of this country delivered as the rationale behind upholding the sectarian education laws of this country.

This post will not get into the analysis of the judgement per-se, but will focus on summarising and highlighting the various aspects of the judgement, with respect to Article 15(5) i.e. the 93rd amendment.

In a subsequent post, we will look at the judgement of the validity of Article 21A.

The 93rd Amendment of the Indian Constitution:

Date of delivery: May 06 2014

Nature of bench: 5 Judge Constitutional bench – Justice R M Lodha, Justice A K Patnaik, Justice Sudhansu Jyoti Mukhopadhaya, Justice Dipak Misra and Justice F M Ibrahim Kalifulla.

Nature of judgement: Unanimous, authored by Justice Patnaik.

Background:

As part of hearing the Society for Unaided Private Schools of Rajasthan v. Union of India & Anr case, the 3-judge bench in that case made a reference to a Constitutional Bench to determine the validity of

Article 15(5) of the Constitution inserted via the 93rd amendment of the Constitution in 2005 Article 21A of the Constitution inserted via the 86th amendment of the Constitution in 2002

A strange situation had developed due to which the above reference had to be made. In 2008, in Ashoka Kumar Thakur v. Union of India & Ors, the Supreme Court’s Constitutional bench had deliberated over the validity of Article 15(5) and held that it is indeed constitutional and does not violate the basic structure of the Constitution. However, it held that it’s interpretation was applicable only to State held institutions and aided educational institutions. This was because in the particular case, no “private unaided” educational institutions were party to the case!!

(It’s a strange situation where the highest court of the land leaves open the question of the validity of a significant amendment ONLY because no affected party had questioned it. The very same courts apply the *suo moto* principle on many other not-so-serious issues)

With regard to Article 21A, even though the Supreme Court, in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr, had held the RTE Act to be constitutionally valid, it had not ventured into evaluating Article 21A.

So, when Pramati Educational, and other institutions, approached the Court, the above 2 questions related to validity were taken up.

Counsels for the Petitioners:

An entire galaxy of legal luminaries operating in the Supreme Court of India appeared for the petitioners belonging to Hindu private unaided schools. This included R F Nariman, Mukul Rohatgi, Rajiv Dhawan and Anil B Divan.

For the minority institutions, arguing for non-applicability of the RTE Act, Ajmal Khan and T R Andhyarujina appeared as counsels.

Counsels for the Union of India:

Mohan Parasaran appeared for the UOI on the issue of validity of Article 15(5)

K V Vishwanathan appeared for the UOI on the issue of validity of Article 21A

Key provisions of the Constitution:

A quick summary of some of the important provisions of the Constitution touched upon in this judgement. Note that a summary has been provided below, and not the actual wording of the provisions.

Article 15(5): Amendment inserted that allows the state to take away seats in Hindu educational institutions for SCs, STs, BCs and DGs,

Article 15(1): Prohibition of discrimination on grounds only of religion, race, caste, sex, place of birth

Article 14: Equality to one and all before law

Article 19(g): The right for every citizen to practise any profession, or to carry on any occupation, trade or business

Article 21: Protection of life and personal liberty of every citizen

Article 21A: Right to free and compulsory education for all children between 6 and 14 years of age

Objections raised by the Petitioners:

Mukul Rohatgi’s main contention was that Art15(5) infringes upon the rights guaranteed under Art19(g) to practise any occupation. He opined that Art19(g) was a basic feature of the Constitution and the 93rd amendment altered the liberty guaranteed under that. He contented Art15(5) abrogated Art19(g) and hence was ultra vires of the Constitution.

R F Nariman argued that since Art15(5) explicitly leaves out minority institutions, it violates Art14 bu which all have to be treated equally. He termed the 93rd amendment as discriminatory and violative of the basic principle of equality of the Constitution.

R F Nariman next argued that Art15(5) forces schools to give up seats and thus violates the liberty guaranteed under Art19(g). He argued that the SC itself in PA Inamdar had opined that private institutions cannot be forced to reserve seats, which can have an impact on their excellence. Art15(5) takes away the choice for admission of students and hence violates Art19(g)

R F Nariman argued further that the amendment creates a roadblock for the schools to achieve excellence in their activity and thus violates the right to excellence under Art21 and Art51A(j) of the Constitution.

Rajiv Dhawan pleaded with the court to apply the ‘identity test’ and the ‘width test’ to the 93rd amendment. His argument was that the width of the power vested with the State due to this amendment overrides the right given to citizens under Art19(g) and hence it is violative of the basic structure of the Constitution.

Anil B Divan argued that the amendment has been brought in with the aim of gaining political mileage with socially and economically backward classes and that the court needs to protect liberty when political parties are intent on pleasing particular classes for preferential treatment.

Anil B Divan then argued that the purpose of Art30 was to ensure equality of minorities with respect to majority, but Art15(5) actually reverse discriminates by treating minorities favourably. He argued that the amendment actually goes against secularism.

Submissions by the counsels for Union of India:

Mohan Parasaran argued that the 93rd amendment was only an enabling provision, and that reserving a small portion of seats in private unaided schools does not take away any of their rights under Art19(g).

Mohan Parasaran mentioned that per P A Inamdar, the SC opined that there was nothing in the Constitution to take away seats from private unaided institutions and hence the Parliament introduced the 93rd amendment to obtain this power.

Mohan Parasaran next argued that minorities enjoy a special constitutional privilege vide Article 30 and hence have been excluded. Since minorities are especially protected, this exclusion does not violate the equality principle of Art14.

Opinion of the Bench:

The bench reviewed the “Statement of Objects and Reasons” of the bill for the 93rd amendment and concluded that the intention of the Government was to enable equal opportunity to socially and economically disadvantages classes by way of reserving these seats. It opined that in spite of the provisions of Art15, over the years, many classes have had opportunities denied in educational institutions. Therefore, it felt, that the amendment actually “amplifies” the provisions of Art15. It considered the amendment as “an enabling provision to make equality of opportunity promised in the Preamble in the Constitution a reality.”

It then opined on whether Art15(5) violates Art19(g). It quoted TMA Pai and stated that running educational institutions is per-se a charitable activity. It further quoted TMA Pai and said that though Art19(g) does grant the right to admit students of choice into an institution, “this right and autonomy will not be affected if a small percentage of students belonging to weaker and backward sections of the society were granted freeships or scholarships, if not granted by the Government”. It felt such reservations were the actual charitable element of running educational institutions.

The bench too felt that Parliament overcame the “handicap” introduced by P A Inamdar in concluding that there was no provision to reserve seats in private unaided institutions by bringing in the 93rd amendment.

The bench opined, taking support from TMA Pai and P A Inamdar, that all provisions of Art19 can be subjected to reasonable restrictions but reserving seats was beyond the permitted reasonable restrictions. Hence Parliament was right in adding Art15(5) which brought seat reservations under the “reasonable restrictions” umbrella.

The bench then looked at whether Art15(5) satisfied the “width test”. It said that Art15(5) can be used ONLY to make laws that are applicable to socially and economically backward classes, and SCs/STs. A law made for any other class cannot take shelter under Art15(5). Further, any law made regarding any aspect other than admissions to educational institutions can also NOT take refuge under this amendment. Therefore, the bench concluded that the amendment passes the width test.

The bench then reviewed the contention of R F Nariman that Art15(5) treats aided and unaided institutions alike. However, it said that any enabling law, as long as the State compensates for the seats taken away as part of reservation, is fine. Although any law will be subjected to the test of Article 14, the amendment by itself does not state that it will not comply with the requirements of equality. Hence the objection was over-ruled.

Next, the bench dealt with the contention of Anil Divan that preferential treatment of minorities was inappropriate. It relied upon the judgement in Ashoka Kumar Thakur v. Union of India and said minorities enjoy special privileges as a protected class due to Art30 and hence the 93rd amendment does not violate Art14.

The bench then opined that such preferential treatment of minorities actually enhances the secular credentials of the nation, and does not harm it !!

The bench then dismissed the contention of R F Nariman that the amendment prevents institutions from reaching their goals of excellence. It felt that the integration of disadvantaged classes into the mainstream overrides any such concerns.

With all these explanations, the Supreme Court upheld the validity of the 93rd amendment. The exact words in the judgement were as follows.

“29. We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashoka Kumar Thakur v. Union of India (supra) that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1) (g), a basic feature of the Constitution is not correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting clause (5) of Article 15 of the Constitution is valid”

Thus, the 93rd amendment of the Indian Constitution came to stay.