Let alarm bells ring : Validity of the 93rd Amendment. Diwakar Shastri
Recently the Supreme Court of India delivered an important judgment upholding the Central Educational Institutions (Reservation in Admission) Act and 93rd Amendment to the Constitution. The 93rd Amendment reads as follows: ¶Amendment of article 15. In article 15 of the Constitution, after clause (4), the following clause shall be 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¶.
Justice Dalveer Bhandari, while upholding OBC Reservation in Central Educational Institution, in agreement with the other members of the Bench, had said that ¶imposing reservation on unaided institutions violates the basic structure of the Constitution by abrogating their right under Article 19(1)(g) to carry on an occupation¶. The other members remained silent on this point saying that non-government educational institutions had not challenged the amendment.
A Pandora’s box
While the matter is of great significance for the non-government educational institutions, it is of vital importance to the private sector as a whole. Because if this amendment goes unchallenged and it is accepted that Parliament can legislate ignoring the Fundamental Right under Article 19(1)(g) of the Constitution, namely, ¶All citizens shall have right to practise any profession, or to carry on any occupation, trade or business, it will open a Pandora’s box. Then Parliament can pass another Act providing for reservation in the private sector as a whole.
The Chief Justice’s obiter dictum in the OBC judgment that ¶If any Constitutional Amendment is made which moderately abridges or alters the equality principle under Article 19(1)(g), it cannot be said that it violates the basic structure of Constitution¶ is, to say the least, very strange, as it adds an element of subjectivity in a statutory definition. This may prove to be the thin edge of the wedge and the Executive and Legislature may try to use it for their dubious ends.
Infringement
Dr. Pratap Bhanu Mehta, Chairman, Centre for Policy Research, Delhi, and a former Member and Convener of the Knowledge Commission of India, has drawn pointed attention to this danger. Thus the question of validity of 93rd Amendment is not limited to reservation for the OBCs in non-government Universities etc. nor to OBC reservation in private sector but to a more basic point as to whether ¶moderately¶ abridging a Fundamental Right violates the basic structure of Constitution or not. If the obiter dictum of the CJI is accepted in relation to this Fundamental Right other Fundamental Rights may also be ¶moderately¶ abridged or altered.
http://www.hindu.com/op/2008/06/15/stories/2008061550831600.htm
