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"Basic Structure Not Violated" : Supreme Court Upholds Application Of EWS Quota To Private Unaided Educational Institutions

Ashok KM
7 Nov 2022 5:00 PM GMT
Basic Structure Not Violated : Supreme Court Upholds Application Of EWS Quota To Private Unaided Educational Institutions
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The Supreme Court held that 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided educational institutions.

Constitution (103rd Amendment) Act, 2019

The amendment inserted Clause (6) to Article 15 which reads as follows:

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) 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, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

One of the issues considered by the Constitution Bench was whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

Cannot be said to breach the basic structure

The majority judgments by Justices Dinesh Maheshwari and Pardiwala relied on the judgment in Pramati Educational and Cultural Trust (Registered) and Ors. v. Union of India and Ors.: (2014) 8 SCC 1 to answer the above issue in the negative. In Pramati, it was held that the Constitution (93rd Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution could not be said to have altered the basic structure or framework of the Constitution and is constitutionally valid.

Justice Maheshwari held that the 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions.

"In view of the aforesaid, Article 15(6), which is the subject matter of challenge and which provides for reservation for the "EWS other than the SC, ST and OBC-NCL" in private unaided educational institutions, cannot be said to be altering the basic structure. It is constitutionally valid.", Justice Pardiwala noted in his judgment.

Reservations in private institutions is not per se violative of the basic structure

The minority opinion by Justice S. Ravindra Bhat also addressed this issue and observed that EWS reservation is equally applicable to unaided private institutions. However, given that my analysis under question on 'exclusion' holds the Amendment to be violative of the basic structure, the question herein has been rendered moot, Justice Bhat said.

The Judge said that reservations in private institutions is not per se violative of the basic structure.

"Reservations as a concept cannot be ruled out in private institutions where education is imparted. They may not be State or State instrumentalities, yet the value that they add, is part of the national effort to develop skill and disseminate knowledge. These institutions therefore also constitute material resources of the community in which the State has vital interest, and are not merely bodies set up to further private objective of their founders, unlike in case of the shareholders of a company. Such institutions are seen as part of the State's endeavour to bring educational levels of the country up, and foster fraternity,..."

Case details

Janhit Abhiyan vs Union Of India | 2022 LiveLaw (SC) 922 | WP(C) 55 OF 2019 | 7 Nov 2022 | Justices CJI U U Lalit, Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J B Pardiwala

Headnotes

[From Judgment by Dinesh Maheshwari J ]

Constitution of India, 1950 ; Articles 14, 15, 16 - Constitution (103rd Amendment) Act, 2019 - Constitution validity of EWS Quota upheld (3:2 Majority) - Reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India - Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India - The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by (1) permitting the State to make special provisions, including reservation, based on economic criteria (2) permitting the State to make special provisions in relation to admission to private unaided institutions (3) in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation - Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of fifty per cent. because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India. (Para 102 -104)

Basic Structure Doctrine - Provisions contained in Articles 15 and 16 of the Constitution of India, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature. Moreover, even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution. (Para 101)

Words and Phrases - "Other than" - The words "other than" in Articles 15(6) and 16(6) of the Constitution of India should be read as "in addition to", so as to include SCs/STs/OBCs within EWS has also been noted only for rejection for the simple reason that the suggested construction is plainly against the direct meaning of the exclusionary expression "other than" as employed in, and for the purpose of, the said Articles 15(6) and 16(6). (Para 89)

[From Judgment by Bela M. Trivedi J ]

Constitution of India, 1950 ; Articles 14, 15, 16 - Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14. (Para 20)

Reservation - Time span of the reservation policy - We need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism - if time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society

[From Judgment by J B Pardiwala J ]

Constitution of India, 1950 ; Articles 14, 15, 16 , 46 - There can be reservation for certain weaker sections other than the SCs/STs and socially and educationally backward classes - The words "weaker sections" used in Article 46 cannot be read to mean only the Scheduled Castes or the Scheduled Tribes nor the same can be interpreted on the principle of ejusdem generis, as argued. The expression refers to all weaker sections and in particular the Scheduled Castes and the Scheduled Tribes. (Para 79-82)

Interpretation of Statutes - Constitution - If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction - The statutory rule of interpretation expressed "Expressio unius est exclusion alterius" (the express mention of one person or thing is the exclusion of another) is not strictly applicable to constitutional interpretation - The provisions of a constitution should be construed in the widest possible manner - There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitution. (Para 87,129)

Reservation - Reservation is not an end but a means – a means to secure social and economic justice - Reservation should not continue for an indefinite period of time so as to become a vested interest. (Para 190)

[From Judgment by S. Ravindra Bhat J (and CJI U U Lalit) ]

Constitution of India, 1950 ; Articles 14, 15, 16 - Constitution (103rd Amendment) Act, 2019 - The total and absolute exclusion of constitutionally recognised backward classes of citizens - and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of nondiscrimination - The insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of nondiscrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution - While special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structurethe same is not true for Article 16, the goal of which is empowerment, through representation of the community (Para 189-193)

Constitution of India, 1950 ; Article 15(6) - Unaided private educational institutions would be bound under Article 15(6) to provide for EWS reservations. (Para 194)

Basic Structure Doctrine - It is therefore, inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution. The enabling provision in question's basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court's inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. (Para 157)

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