Disaffirming action

Written by Mallepalli Laxmiah | Published on: October 1, 2005
A recent judgement by the Supreme Court of India denies the underprivileged equal access to education

Appropriate: take possession of; take to oneself, especially without authority (Concise Oxford Dictionary).

In a judgement delivered three days before Independence Day, 2005, in the case of Inamdar and Ors vs. State
of Maharashtra and Ors
(Case No. Appeal (civil) 5041 of 2005), the seven-judge constitution bench of the Supreme Court of India frequently used the word appropriation (by the State). The word was used each time to denote the role of the State in allotting quotas for reservation of seats in educational institutions. It said, "Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution".

The Supreme Court judgement reduced the role of the State to an ‘appropriationist’ when it comes to imposing any quota of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes (add Physically Handicapped and Ex-Servicemen). The natural outcome of this judgement was a raging controversy between the Supreme Court and Parliament. Members of Parliament cutting across party lines unequivocally criticised the judgement which pronounced that the State cannot impose any reservations in the case of private unaided educational institutions whether minority or non-minority establishments. The criticism evoked a sharp reaction from the Chief Justice of India on the parliamentarians’ response during a case related to reservations for Dalit Christians.

At the root of the controversy lies the issue of the government’s role in ensuring education to all, whether the educational institutions are run by government or by private parties, whether aided or unaided. The Inamdar judgement will go into the annals of judicial history as one more judgement against the interests of the poor, the weak, the marginalised and the discriminated. The Inamdar judgement will join the pantheon of judgements such as Champakam Dorairajan vs. State of Madras whence the then Law Minister of India, Dr. BR Ambedkar piloted the first ever amendment to the Constitution in 1951. The amendment necessitated the introduction of Clause 4 in Article 15 of the Indian Constitution. Article 15(4) provides a blanket provision that nothing shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 15(4), not originally contained in Article 15 as originally enacted, was inserted by the Constitution (First Amendment) Act, 1951 following the decision in the Champakam Dorairajan case, which set aside reservation of seats in educational institutions on the basis of caste and community. Years later, the Indra Sawhney case of 1992 set aside the protection of SC and ST interests by abolishing reservation in promotions wherein it was held that reservation should be confined to the initial appointment and cannot be extended in matters of promotion. This resulted in the 77th Amendment to the Constitution, which restored the provisions.

Post-Mandal judicial pronouncements have adversely affected the interests of Scheduled Castes and Scheduled Tribes in the civil services. In 2000, Clause 4(B) was inserted into Article 16 by the 81st Amendment to the Constitution, again to neutralise the Indra Sawhney judgement on the issue of filling up of backlog vacancies. In the year 2001, Article 16(4)(A) was amended by virtue of the 85th Amendment to provide consequential seniority in promotions to the Scheduled Castes and Scheduled Tribes which they had lost as a result of the Ajit Singh Janjua case. Article 335 was amended by the 82nd Amendment in the year 2000 to provide for relaxation of standards in the matter of promotions. Few judgements, such as that in the RK Sabharwal case, still affect recruitment through reservation. The judgement in the Inamdar case is only the latest among a plethora of judgements that have seriously affected the interests of Scheduled Castes, Scheduled Tribes and Other Backward Classes, precluding the enjoyment of their rights as provided by the Constitution.

The Inamdar case judgement of 2005 was a logical continuation of the TMA Pai Foundation case on the issue of admissions and administration in minority educational