Parliament’s 27% mandate? Not quite

The 93rd Constitution Amendment was enacted to overcome the apex court’s decision in the Inamdar case.

In the acrimonious controversy about the 27 per cent reservation for OBCs in centrally owned institutions a repeated justification for the move pleaded by HRD Minister Arjun Singh and later by others, including the PM, is that Parliament as recently as December 2005 gave its mandate for this move by passing the 93rd Constitution Amendment Act.

If the 93rd Amendment was really designed and enacted by Parliament in December 2005 to enable the government to reserve a quota for OBCs in centrally administered institutions, there would be much to be said in justification for the government’s move on OBC quotas. But this is not the case. Whatever the merits of the move, it is vital for the lay people to know that the 93rd Constitution Amendment Act, passed in December 2005, cannot be its justification. Only a legal understanding of the problem of reservations can reveal that the government’s plea is disingenuous. Why was the 93rd Amendment to the Constitution made in 2005? It was made not because the central government did not have the power to make reservations for OBCs in educational institutions till 2005. If the Centre intended to do that since 1951, it had the power as a specific amendment was made in Article 15 (4), enabling the central and state governments to make “any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and Tribes”. The “socially and educationally backward classes” included the OBCs. With this specific power the central government made reservations only for SCs/STs and not for OBCs. This was despite the fact that several states like Karnataka and Tamil Nadu had made reservations for not only SCs/STs but also for OBCs in institutions of higher learning — and not only in state-owned and state-aided institutions but also in those that were privately owned. Even after the Mandal judgment of the Supreme Court in 1992, which gave the go-ahead for 27 per cent reservations of OBCs in public service, for over 14 years the central government did not think of OBC reservations until Arjun Singh’s sudden announcement in April 2006.

Why did successive central governments not make such reservations all these years and why did the present government think of them only in April 2006? One can only speculate on the factors that caused the government to make this move. But it is significant to note that reservations, with the help of Article 15 (4), do not even require a law to be made by Parliament. They could have been instituted by mere executive order.

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Now coming to the 93rd Constitution Amendment passed by Parliament in 2005. It was enacted by Parliament for a totally different purpose — to overcome the August 12, 2005, decision of the Supreme Court in the Inamdar case. In that case, the apex court had struck down the existing reservations made by state governments in private unaided medical and engineering institutions, because it held that such institutions had a fundamental right to occupation guaranteed by Article 19(1) (g) of the Constitution and the states did not have the power to impose such reservations on them.

Prior to the Inamdar case, several states had for over 15 to 20 years made reservations in private, unaided professional institutions for SCs/STs and OBCs. The Inamdar case, for the first time, declared these reservations illegal. Parliament, therefore, rightly reacted and made the 93rd Constitution Amendment by a new Article 15 (5) in 2005, giving specific power to make reservations for the advancement of any socially and educationally backward classes of citizens or for SCs/STs and declared that nothing in the fundamental right of a private educational institutions to prevent making such reservations. Thus the 93rd Amendment had a very limited objective — to restore the status quo ante to the Inamdar’s case and enable the states to make reservations even in private unaided educational institutions.

Given this background, the 93rd Constitution Amendment passed by Parliament cannot be a justification for the central government’s current move to reserve 27 per cent seats for OBCs in centrally owned intuitions. It is only fair that the government should not make use of the so-called parliamentary mandate of 2005 for it, and candidly state the real justification for this step when, for so many years, it had not felt the need to take it.

The writer is a senior advocate of the Supreme Court and a former solicitor-general of India
editor@expressindia.com

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