The recent verdict of the five member constitution Bench of the Supreme Court on OBC reservations was widely welcomed and was described as a historic one from various quarters including the political and academic spheres. The Court endorsed the proposed OBC reservation in Central government institutes and the earlier stay-order given by the two-member division Bench was annulled. The stay order by the Supreme Court in implementing the Central Educational Institutions (Reservation in Admissions) Act 2006 had invited widespread criticism from several quarters. It was perceived as judicial encroachment on the powers of the Parliament and an act of unwarranted judicial activism. Now the Supreme Court has corrected its own earlier interim order that put the proposed reservations on hold and shown the green signal for providing reservations in Central government institutes.
The key judgment delivered by the Chief Justice on 10th April was significant for many reasons. Firstly, the Court acknowledged that the Parliament has the power to make necessary amendments to the Constitution. The Court in the Kesavanatha Bharati Case held that the basic structure of the Constitution cannot be amended. Subsequently it was argued that the basic structure of the Constitution is enshrined in the section on fundamental rights in Part III and it cannot be amended. The Court rejected all such arguments and held that the Ninety-Third Constitutional Amendment is constitutionally valid so far as it relates to state maintained institutions and aided educational institutions. The Court also observed that in the absence of challenge by private unaided institutions, it may not be proper for the Court to decide whether the Ninety-Third Constitutional Amendment is violative of the "basic structure" of the Constitution so far as it relates to private unaided educational institutions.
Changing Judicial Drift
In many of the recent judicial pronouncements, neo-liberal and corporate influences were vividly reflected. In the BALCO case, the employees union of a government company had challenged its divestment on various grounds including the arbitrary and non-transparent fixation of its reserve price. The Supreme Court while dismissing the petition held that public interest litigation is now tending to become publicity interest litigation or private interest litigation. The same judicial tendency is also visible in many other cases including the ONGC case where the government decided to sell off developed offshore gas and oilfields to a private joint venture. In the Narmada case the Court did not entertain the argument that the Sardar Sarovar project was proceeding without comprehensive environmental consideration and without even the necessary environmental impact studies. The court desperately stated that the Narmada Bachao Andolan is an anti-developmental organization. The Supreme Court upheld Kerala High Court's judgement that banned bandhs. The Court even questioned the right of workers to strike in a case vis-à-vis Tamil Nadu government’s decision to dismiss 170,000 state government employees. Most of the recent pronouncements where the Court has been biased towards neo-liberal interests relate to democratic rights, worker’s rights, right of common people to live and right to education and employment.
Even though Justice Dalveer Bhandari in his dissenting opinion was eager to annul the provisions for reservations in private institutes in his concurrent opinion, the present judgment is no doubt a departure from neo-liberal judicial outlook. The majority held that “We feel that such questions could be decided as the main questions that are involved in these petitions are specific regarding Act 5 of 2007, we leave open the question as to whether the Ninety-Third Amendment to the Constitution by which subclause (5) was inserted is violative of the basic structure doctrine or not so far as it relates to "private unaided" educational institutions to be decided in other appropriate cases”. The Court while rejecting all major contentions of the anti-reservation lobby that was supported by corporate interest upheld the true spirit of equality and the principle of social justice enshrined in the Constitution. Undoubtedly the present verdict is an exception as it sets itself apart from all other recent pronouncements, which interpreted the Constitution for capitalist interest on the lines of a neo-liberal outlook.
The judiciary is an integral component of the State and hence State interests persistently reflect in judicial pronouncements. However, many eminent judges in the higher judiciary in the past have interpreted the Constitutional designs of equality and fundamental rights through the eyes of the downtrodden. Judges like Justice V.R. Krishna Iyyer, Justice Chinnappa Reddy, and Justice Bhagawati are among those stalwarts who made such Constitutional interpretations. But presently most of the judicial proclamations have discarded such traditions of judicial interpretation and lined up with neo-liberal perceptions. Indeed many recent controversies in education including that of the private unaided institutions are a consequence of such judicial assertions. The 93rd Constitution amendment itself was done to annul the outcomes of this judicial approach.
A close scrutiny of the recent judgments in education unveils the neo-liberal influences in the Judiciary. In the Mohini Jain case the Court held that private managements should not collect fees excessive of the fee chargeable in government colleges for an equivalent course. The Court observed that the right to education is a fundamental right implied in the Article 21(Right to live) of the Constitution. The right to live includes the right to live decently. Education is a means for decent livelihood and hence the court recognized the right to education a fundamental right. The Unnikrishnan Case was a setback to the Mohini Jain verdict. The Court considered the views of private managements running education institutes and formulated a scheme-popularly known as the Unnikrishnan scheme for admissions i.e. 50% free seats and 50% payment seats. The Court also recognized elementary education as a fundamental right and thus limited the scope of the Mohini Jain judgment. The Court did not recognize the argument that imparting education is a fundamental right under Article 19 (1) (g) of the Constitution. The Court only observed that education was never considered a trade, occupation or business in our country.
Neo-liberal Revelations in Education
The verdict of the 11-member constitution Bench of the Supreme Court in the TMA Pai Foundations case was not only an advancement towards court sponsored neoliberal agenda in education, but it was a total reversal of past positions. While recognizing the right to establish education institutions as a fundamental right under article 19 (1) (g), the court made an astonishing U-turn and opined that education is an occupation or business. In its supreme proclamation the Court permitted private managements to decide and collect a ‘reasonable’ fees and admit students through its own procedure of admissions. While the Court in the Mohini Jain Case was concerned about needy students who are denied education due to their inability to pay exorbitant fee, the Pai case verdict was eager to preserve the business interest of private investors in education. The arguments of the Breton Woods institutions echoed in the courts. And the court stated that education is no more a ‘public good’ but a ‘private good’! The Court also restricted the government from intervening in the ‘autonomy’ and fundamental right of private managements to decide matters of admission and fee structure. The higher judiciary while conferring judicial stamp on commercial interests of private institutes did not bother about the ruthless denial of education to deprived students. The Court failed to provide any relevance to the concept of equality and social justice in its neo-liberal judicial interpretation.
The Pai Case judgment was interpreted further in favor of corporate-capitalist interest in the Inamdar verdict. The seven-member constitution bench in the Inamdar case averted reservations in privately run institutions completely. The Supreme Court displayed supreme intolerance and prejudice against widespread criticisms of the judgment. The power of the Parliament was also questioned implicitly when the matter was being discussed in the House. Consequently the Parliament had to pass the 93rd Constitution Amendment to prevail over the judgment in the Pai case and the subsequent cases. The amendment states "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 insofar 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. And hence the absolute autonomy conferred to private institutes under Article 19 (1) (g) has been overruled.
Prior to enacting any legislation to provide reservations or regulate fees and admissions in private self-financing institutions, the government ensured reservations in central government institutes. Thus, the Parliament enacted the Central Educational Institutions (Reservation in Admissions) Act 2006. Even in the absence of such a Constitutional provision there is no legal obstacle in providing reservations in government institutions. In the Indra Sahni case (Mandal case) the court had already upheld reservations in employment. The entire argument recognized by the court while endorsing job reservations is more or less applicable to educational reservation also. It must be recalled that while opposing job reservations the anti-reservation lobby had made an argument to first initiate reservations in education. It was also argued by them that reservations are discriminatory in nature and contravene Article 14 of the Constitution. The Court in the Mandal case rejected all such arguments and hailed the principle of reservation. But the same anti-reservation camp now argued that reservations must be limited only up to secondary level, as they will adversely affect excellence in higher education.
Hippocratic Decry on Merit
The argument that the academic quality of doctors and engineers created through the process of reservation is inferior is entirely unfounded. In all the southern states reservations for SC-ST and OBC were ensured in education many decades back extending up to 50% to 69% and the experience there shows that academic standards are much above those in other states where reservations are limited only to the SC and ST. In these states more than 80% marks are required for admissions in majority of the professional institutes including for reserved seats. When all students have to appear for the same year-end examination in order to obtain their degree, how can anyone argue that such affirmative actions lead to deteriorating standards? It is not the input but essentially the output that determines excellence. This hypocrite fretfulness about academic excellence has never been expressed on the mushrooming of private professional colleges including medical colleges where merit is defined and substituted with crude money power.
The two-member division Bench, while issuing a stay on the implementation of reservations last year made many subjective observations. Without any material evidence the bench said, “reservation cannot be permanent and appear to perpetrate backwardness.” Blaming the Government for enacting a law to provide reservations, the Bench did not hide its intolerance and said “nowhere in the world Castes queue to be branded as backward. Nowhere is there a competition to become backward. With this Act the subject of the equality is unduly put under strain.” On the government submission that the 1931 census is the basis for fixing 27% quota for OBCs, the bench said what might have been the data in 1931 census cannot be a determining factor now. The Court did not consider the fact that reservations are already provided in states like Maharashtra, UP, Punjab, HP, and Gujarat and in all southern states on the basis of the same material facts and data. But the Bench eagerly stated that there is no explanation for the lack of firm data for determining backwardness and held that ‘unequals are treated as equals’. The Court asked, "You have waited for 57 years. Why can't you wait for one more year"? And hence undermined its own principles that delay in justice be a denial of justice. The Mandal Commission had visited many states and conducted several studies before finalizing its report. The SC endorsed that report and since then reservations in employment have been in force. Irrespective of all such facts the Bench was eager to put the law on hold on the basis of its own subjectivism.
When the case was referred to the Constitution Bench headed by the CJI, the anti-reservation camp repeated the same arguments. They invented that reservations ‘would have wide ramification and divide the country on caste basis’ hence made an impression that it is reservations that have fashioned caste! It was also argued that reservations will result in anarchy and affecting communal harmony, thereby sabotaging the constitutional right to equality. It was further argued that the 93rd Constitution Amendment infringes upon the rights of private institutes under Article 19(1) (g) to profess practice any trade occupation or business and would nationalize private institutes. The Court did not entertain such arguments. It was further argued that the amendment itself was against the basic structure of the Constitution as it infringes upon the fundamental right to equality and occupation. While endorsing the powers of the Parliament, the remarks made by the CJ Justice K.G. Balakrishnan are extremely significant. He observes, “The judgment in Kesavananda Bharati's case clearly indicates what the basic structure of the Constitution is. It is not any single idea or principle like equality or any other constitutional principles that are subject to variation, but the principles of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the Directive Principles of the State Policy envisaged in Part IV of the Constitution. The Constitution (Ninety-Third Amendment) Act, 2005 is to be examined in the light of the above position. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed and some of the illustrations given as to what constitutes the basic structure of the Constitution would show that they are not confined to the alteration or modification of any of the Fundamental Rights alone or any of the provisions of the Constitution. Of course, if any of the basic rights enshrined in the Constitution are completely taken out, it may be argued that it amounts to alteration of the Basic Structure of the Constitution. For example, the federal character of the Constitution is considered to be the basic structure of the Constitution. There are many provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs”.
Reservation in Private institutions
Even though the Court did not take a conclusive view on reservations in private institutions, the above observation indicates the vivid justification for the 93rd amendment even on the question of private institutions. Ensuring reservations and social control is the factual objective of the 93rd amendment. The amendment is a consequence of the Pai case and subsequent case verdicts that sought to restrict reservations and regulations in private institutes. In the Statement of Objects and Reasons of the 93rd Constitution amendment it has been stated that: "At present, the number of seats available in aided or State maintained institutions, particularly in respect of professional education, is limited in comparison to those in private unaided institutions. To promote the educational advancement of the socially and educationally backward classes of citizens, i.e., the OBCs or the Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions other than the minority educationnal institutions referred to Clause (1) of Article 30 of the Constitution, it is proposed to amplify Article 15”. The 93rd amendment will be momentous only if it is ensured in private institutes. The present distinctive verdict will truly be historic once the Court endorses reservations in private institutions. That will be a correction of many past verdicts that were tuned on the lines of neo-liberal perceptions. The true spirit of the Constitution will only be hailed through such a pro-people interpretation of the Constitution.
Reservations are not an absolute remedy to eradicate social inequalities but they are only a beginning. The caste system itself is perpetrated and linked with the ownership of land and its imbalanced distributions. The social oppression spearheaded by the caste system can wholly be eradicated only through comprehensive land reforms and true democratization of society. The OBCs have been denied their due share in jobs and education so far and it is the general category that dominates these spheres. Reservation can lead to a road of equality and equal access. But true social justice and equal access can only be ensured through government policies, which guarantee job and education for all.
In the backdrop of the present judgment the government has to immediately initiate a legislation to regulate fees and admissions and to ensure reservations in private institutions. As far as professional institutions are concerned, the total figure of private institutions is more than government institutions. Efforts by state governments to ensure social justice in private institutions have not materialized due to judicial intervention. Unless and until reservations are ensured in private institutions the true objective of the 93rd amendment cannot be materialized. However, a mere provision of reservation will not enable the admission of deprived section students to higher and professional institutions. The exorbitant fee chargeable in such institutions is unaffordable for students from backward sections. Hence, there have to be strict regulations on fees. Social justice in education can only be safeguarded by bringing private self-financing institutions under strict social control and by extending reservation and ensuring affordable fee in such institutions. Progressive and democratic sections have to rise immediately for ensuring that such an objective is materialized.
