People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 18

May 18, 2008


A Welcome Judgement On OBC Reservations

K K Ragesh

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 April 10, 2008 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 93rd 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 might not be proper for the court to decide whether the 93rd constitutional cmendment 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 organisation. 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 Tamilnadu 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 93rd amendment to the constitution by which sub-clause (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 recognised the right to education as 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 percent free seats and 50 percent payment seats. The court also recognised elementary education as a fundamental right and thus limited the scope of the Mohini Jain judgment. The court did not recognise 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 neo-liberal agenda in education, but it was a total reversal of past positions. While recognising 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 recognised 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.