In the OBC reservation debate, a key issue – and a more serious issue – which took a backseat is the imposition of caste based quotas in private educational institutions. The 93rd Constitutional Amendment introduced a new clause in the Constitution (Article 15(5)) enabling the State to make a special provision for advancement of socially and educationally backward classes in private educational institutions, irrespective of whether they receive aid from the state. It has an express exemption for minority-run-educational-institutions. In effect, this Amendment enables the State to impose caste based quotas in unaided private educational institutions. This Amendment is subversive of some of the most basic liberties in this country. The fact that it did not generate a strong debate in Parliament and in the media is indicative of extent of political correctness in public discourse. Thankfully, we have a Constitution where “liberty” is not a dirty word, something to be sacrificed at the altar of “equality”. After the Supreme Court’s ruling in Keshavanada Bharti (1973) – India’s unique contribution to field of Constitutional Law – any constitutional amendment which negates the basic structure of the Constitution is unconstitutional and does not have any effect. The 93rd Amendment violates the basic structure of the Indian Constitution in a four-fold manner.

First and foremost, this Amendment destroys the very essence of academic freedom. Although not expressly enumerated in the Indian Constitution, academic freedom – like the right to free press – is a special concern of the constitutionally guaranteed right to free speech and expression (Article 19(1)(a)). The right to free speech and expression is an integral part of a democratic set up and is part of the basic structure of the Constitution. Any constitutional amendment which negates the very essence of the constitutional right of free speech and expression is liable to be struck down as unconstitutional.
What constitutes academic freedom? The eminent judge, Justice Felix Frankfurter of the American Supreme Court gave a cogent working definition by outlining the “four essential freedoms” that should constitute academic freedom. He said academic freedom entails the right of a university to “determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” (Sweezy (1957)) The 93rd Amendment enables the State, instead of the concerned educational institution, to determine “who may be admitted to study”. The State is going to decide the criterion for admission. If this Amendment is upheld, the State could then be empowered, by a constitutional amendment, to decide who may teach, what may be taught and how it should be taught in private institutions. While nationalization of economic activity may be constitutionally permissible (even though economically indefensible), nationalization of educational process is not only constitutionally impermissible, but marks the end of democracy. The eminent educationist and former President Dr. Sarvepalli Radhakrishnan in his report on University Education in 1956 poignantly observed – “We must resist, in the interests of our own democracy, the trend towards governmental domination of the educational process.” Chief Justice Kirpal, speaking for a bench of eleven judges in T.M.A. Pai (2002), made the same point when he spoke about the right of private educational institutions to “pursue intellectual excellence and being free from governmental controls.” The 93rd Amendment suffocates the constitutionally protected freedom of academic institutions by trying to control their admission process.

Second, the 93rd Amendment violates the essence of the equality clause in the Constitution. The Supreme Court in a number of cases right from Keshavananda Bharati decision in 1973 to the Indra Sawhney-II decision in 2000 has affirmed that equality is part of the basic structure of the Constitution. If the stated theme of the 93rd Amendment was to impose the obligation of social justice on private unaided educational institutions, there is no justification for excluding it when it comes to minority unaided educational institutions. The irrelevance of the objective of giving preferential treatment comes out in sharp contrast when it comes to professional education, which has little nexus with the minority status. Why should a Christian or a Muslim professional educational college be exempt from admitting students from a backward class into engineering or a medical course when the same obligation is imposed on other colleges? If the objective of the government was to preserve the minority character of these institutions, the Amendment could have obligated these institutions to admit students from the respective minority communities. Secularism mandates that State cannot use religion as a basis for either imposing a duty or denying a benefit. The 93rd Constitution Amendment uses religion as the basis for discriminating against non-minority educational institutions and minority students. At a practical level, this Amendment would encourage “institutional conversion” whereby non-minority institutions would try to get members from the minority community on board and designate themselves as a minority institution to escape from the affirmative action obligation. This has happened in the past – the most glaring example being Ramakrishna Math claiming to be a minority institution! Our constitution makers conceptualized minority rights to be anti-discriminatory provisions. The 93rd Amendment turns this upside down by making it a charter for reverse discrimination. This is a violation of Equality and Secularism which form part of the Basic Structure of our Constitution.

Third, the 93rd Amendment destroys the very essence of liberty – the right to be let alone. Every individual has the right to pursue his own interests as long as he is not causing any harm to the public. The Indian Constitution does recognize this conceptualization in Article 19 which gives the citizen five valuable liberties (freedom to speak and express, move, associate, assemble and the right to practice trade, occupation or business). The Constitution does enable the State to impose restrictions on these invaluable rights, but they have to be “reasonable”. The Constitution even identifies the grounds on which these “reasonable restrictions” can be imposed. (Articles 19(2) to 19(6)) Very few constitutions have used such an approach to protect liberty. The message is unequivocal – one cannot trust law makers when it comes to the protection of our basic liberties. This carefully erected balance – between liberty and public interest, between liberty and responsibility, and between liberty and equality – forms part of the basic structure of the Indian Constitution.
The 93rd Amendment upsets this carefully erected balance by ostensibly trying put equality over liberty. A bench of seven judges of the Supreme Court in Inamdar held that caste based quotas in private institutions would amount to an unreasonable restriction on the right of private educational institutions to run the institution. The 93rd Amendment tries to overrule this Supreme Court ruling by enabling the State to impose unreasonable restrictions on the right of individuals to run an educational institution and in the process upsets carefully erected balance created by the Constitution in Article 19. As Justice Lahoti pointed out in the Inamdar case, state regulation of admissions would amount to “nationalization of seats” which cannot be a “reasonable restriction”. If the 93rd Amendment is upheld, it will create a wrong precedent. There will be no constitutional constraint in the future to stop the government from imposing an unreasonable restriction on the other liberties. Equality alone cannot be a valid justification for narrowing the scope of an already truncated liberty clause. While it’s true that liberty without equality would lead to anarchy, it’s also equally true that equality without liberty would lead to tyranny. By enabling the State to impose unreasonable restrictions on liberty, the 93rd Amendment sounds a death-knell for the liberty clause in the Constitution which is part of the basic structure of the Constitution. The 93rd Amendment validates an old maxim – our liberties are in great danger when the legislature is in session.

Fourth, the 93rd Amendment also violates the right to free speech and expression by compelling institutions to endorse caste as a criterion for admission. An educational institution that intends to run the institution for the benefit of backward sections of the society, but does not intend to use caste as a criterion for admission, will now be compelled to endorse caste since the government identifies “backward classes” primarily based on caste. The educational institution is precluded from designing its own social justice mechanism and is compelled to adopt a selection process which will entail an enquiry into the caste of the applicant. Even if the institution is against caste, the Amendment leaves it with no option but to admit students on the basis of caste. Compelling private educational institutions to use caste as a criterion amounts to “compelled speech” and this goes against the freedom of expression since right to express also includes within its ambit right not to express.
Further, caste is a prohibited criterion under the Indian Constitution for identifying backward class and by a convoluted interpretation, it became a permissible criterion. Even if it is permissible for the government to use caste in the admission process in state institutions and in the hiring process for state employment, thrusting it on private institutions violates the core of the liberty clause in the Constitution.

The pernicious effect of this Amendment can be illustrated by two real life examples. The truck drivers in the State of Tamil Nadu raised funds and constructed an engineering college to increase the educational opportunities for their children. Similarly a NRI constructed a college in Maharashtra with the sole objective of advancing the interests of Scheduled Tribe students. Nothing in the Constitution should stop these educational institutions from admitting students to serve their objective since they are not relying on the State for support. Not so under the 93rd Amendment. The State is now going to decide the admission policy and the institutions have no option but to comply. The 93rd Amendment creates a command and control mechanism in higher education.

The Amendment is now before the Supreme Court and the Basic Structure Doctrine amply equips the Court to strike down this Amendment. The Basic Structure Doctrine was intended to be used in the rare case when the core values enshrined in the Indian Constitution are under threat. The 93rd Amendment attacks the core values of Liberty and Equality in the Indian Constitution and I hope the Court strikes it down.

UPDATE

The Comments section makes an interesting point about severability – once the exemption for minority institutions is taken out, Article 15(5) can still stand on its own. This argument is inconsistent with established constitutional jurisprudence on severing the unconstitutional part from the constitutional part. (See the classic judgment of Justice Venkatram Ayyar in 1955 in RMDC case which outlines the principles of severability). The essence of these principles can be summarized as follows:
For a legislation to be severed, it has to satisfy two conditions
First, the constitutional part must be able to stand on its own, after the unconstitutional part has been severed.
Second, the Court in the process of severing the legislation cannot go against the intention of the Parliament.
In the case of 15(5), the first test is satisfied. Article 15(5) can stand on its own after removing the exemption. But severing the exemption for minority institutions would violate the second test. The effect of severing the exemption is that state will now be empowered to impose caste based quotas in minority institutions. This goes against the express intention of Parliament not to impose the obligation of affirmative action on minority institutions.
Therefore, the entire Article 15(5) has to sink once the Court comes to the conclusion that the exemption violates Secularism and Equality.