‘Quota legislation can be challenged in court’

NEW DELHI: When Parliament unanimously passed the Bill providing for reservation for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Castes (OBC) in non-minority unaided private educational institutions in December 2005, a PIL that was filed to challenge the bill, was dismissed by the Supreme Court.

 

“There is no cause of action for this challenge at this stage,” the court said. Its brief observation left open the scope for possible challenges in the future to tinkering with the Constitution with the intent of widening the gap between non-minority and minority unaided institutions.

 

The Bill, a fallout of the Supreme Court’s observation in the PA Inamdar case, received support from all political parties, some of which are ruling various state governments. Andhra Pradesh, Tamil Nadu, Kerala, Himachal Pradesh and other states are ready with necessary enactment to implement the legislative intent in letter and spirit.

 

When SC reopens on July 10, it could expect many petitions seeking scrapping of the enabling law.

 

“Reservation legislation enacted by the Centre or state governments in the aftermath of the December 2005 amendment can be challenged now,” says noted constitutional expert KK Venugopal.

 

While Venugopal declined to indicate the grounds on which these challenges could be made, he does not rule out ‘discrimination’ being the basic ground on which the court could accept a petition challenging any constitutional amendment.

 

Both minority and non-minority institutions enjoy the right to administer their colleges. While Article 30 ensures this right for minority institutes, non-minority establishments enjoy protection under Article 19(g), which guarantees the freedom to run an institution or trade of one’s choice and without governmental interference.

 

Thus, the affected non-minority unaided institutes could have a strong ground of ‘discrimination’. The Constitution abhors discrimination on the basis of caste. Venugopal, who has argued in most of the reservation-related cases, hopes a challenge petition wouldn’t face the first hurdle in satisfying the court that the case indeed raises a constitutional issue of far-reaching importance and ramification.

 

Though the lawmakers have made reservation a continuous process much against the constitutional provisions that envisage its revision every decade, the Mandal commission judgment asserted that government couldn’t impose reservation beyond 50 per cent in educational institutes.

 

Constitutional expert P Rao says that is the consistent view of the Supreme Court. That view prevails as the Constitution only enables Parliament to enact special laws for the underprivileged and deprived section of a class of citizens.

 

When the Tamil Nadu government reserved over 70 per cent seats in its educational institutes for SCs and STs, the apex court referred the matter to a Bench of 11 Judges. Though it declined to stay the enactment, the apex court asked the government to increase the seats proportionately if it wanted to go ahead with that percentage.

 

Rao, however, doesn’t agree with the view that an unaided non-minority institution could challenge the current enactment on the ground of discrimination alone.

 

“Minority institutions have been given a special status, one shouldn’t forget,” he says.

 

Giving yet another twist to this debate, lawyer PA Jose recalls the much-discussed PI Inamdar verdict that set the lawmakers rolling out another constitutional amendment.

 

Author of Justice and the Underprivileged, Jose said the Bench headed by the then Chief Justice RC Lahoti had found discrepancy in seat quota among the minority, non-minority and aided and unaided institutions. Thus, the Bench said this could be rectified only by an appropriate enactment.

 

In the Inamdar case, a seven-judge Bench had held that it was for the Central government, or for the state governments, in the absence of a central law, to come out with a detailed, well-thought-out piece of legislation on the subject. “Such a legislation is long awaited. Earlier the Union of India and the State Governments act, the better it would be,” it added.

 

The Inamdar effect

 

Three days before the last Independence Day, the Supreme Court disposed of a large number of petitions by aided, unaided, minority and non-minority education institutes. Most of them were regarding the denial of autonomy and interference in seat allocation for SCs, STs and OBCs.

 

In the PA Inamdar and Others v State of Maharashtra judgement, a seven-judge Bench comprising the then Chief Justice RC Lahoti and Justices YK Sabharwal, DM Dharmadhikari, Arun Kumar, GP Mathur, Tarun Chatterjee and PK Balasubramanian unanimously held that enforcing the reservation policy in unaided professional institutions constitutes an encroachment on the rights of these institutions.

 

It explained that merely because of a financial crunch faced by the state, it cannot force private educational institutions, which intend to provide better professional education, to make admissions on the basis of its reservation policy to less meritorious candidates.

 

But, before this judgment could come into effect this academic session, Parliament amended the relevant constitutional provision (Article 15(4)) bringing unaided non-minority private institutes also into the ambit of 27 per cent quota for SCs, STs and OBCs.