93rd Constitutional Amendment

Introduction

The provision for amendment of the constitution is made with a view to overcoming the difficulties which may encounter in the future in the working of the Constitution. Such a difficulty was once seen in 2005 and hence an amendment was made to Article 15 of the constitution of India. This amendment is the 93^rd amendment to the constitution which added a new clause (5) to Article 15.

Amendment of Indian Constitution [Article 368]

Need for Amendment

The founding fathers of the Indian Constitution were keen to avoid excessive rigidity. They were anxious to have a growing Constitution, which can grow with a growing nation and change circumstances of the time. But they also don’t want a very flexible one so that it should not a playing of whims and caprices of the ruling party. That’s why they adopted a middle course. It is neither too rigid to necessary amendment, nor too flexible for undesirable changes.

In Keshavanand Bharti v. State of Kerala[1] it was said that if no provision were made for the amendment of the Constitution, the people would have recourse to an extra-constitutional method like a revolution to change the Constitution.

Procedure for Amendment

i) A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by the majority of total membership to the House and by the majority of not less than 2/3 of the members of that House present and voting. After this President has to give his assent to it.[2]

ii) But a Bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the ½ States.

Thus various Articles of the Constitution are divided into three categories-

1. Amendment by Simple Majority

Article 5, 169 & 239-A. These Articles are specifically excluded from the procedure prescribed under Article 368.

2. Amendment by Special Majority

All constitutional amendment comes under this except mentioned above.

3. Special Majority and Ratification by States

Article 54, 55, 73, 162, 241, 279A[3], 124 to 147, 214 to 231, 241, 245 to 255, 368 itself, any of the lists of VII schedule and IV Schedule i.e. fundamental matters where State have important power.

Any part of the Constitution can be amended including Fundamental Rights; only the Basic Structure can’t be amended which was defined in various case laws.

Article 15 before the 93rd Amendment

Article 15 provides that there shall be no discrimination on grounds of religion, race, caste, sex or place of birth.

However clause (4) of Article 15 provides that State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

This reservation system was applied to all government institutions perfectly. But there was a difference in opinion relating to reservation in private educational institutes.

In Islamic Academy v. State of Kerala[4], the Court held that the State could not fix fees and also admissions could be done on the basis of common admission tests and on the basis of merit only.

However in P.A. Inamdar v State of Maharashtra[5] the Court overruled the Islamic Academy Judgment, ruling to the effect that the “State could fix the quota for admission to private professional educational institutions.”

In T.M.A Pai Foundation v State of Karnataka[6] the Supreme Court held that the State could not make the reservation of seats in admissions to privately run educational institutes. There the admission could be done on the basis of merit secured by students in the Common Admission Test conducted by the State of these institutions.

The 93rd amendment added clause (5) to Article 15

By the Constitution (93^rd Amendment) Act, 2005, the Parliament inserted clause (5) in Article 15 with effect from 20-01-2006 to nullify the effect of aforesaid judgment:

“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.”

Article 15 after the 93rd Amendment

 After this amendment the State can make provisions for reservation even in private educational institutions.

In Pramati Educational and Cultural Trust v. UOI[7] the Supreme Court held that Clause (5) of Article 15 of the Constitution, not an exception or a proviso overruling Article 15 but an enabling provision to make equality of opportunity promised in Preamble to Constitution.

Also in Ashok Kumar Thakur v. UOI[8] , it was said that by excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of India is maintained and not destroyed. They are separate class and their exclusion from Article 15 (5) is not violative of Constitution.

Conclusion

The inclusion of Clause (5) to the Article 15 of Indian Constitution is basically for the implementation of equality in opportunity in the matter of education. If it was not made then there will be a different rule that applies to government and private educational institutions, which is a direct violation of Article 14 i.e. right to equality. That’s why there is a huge relevance of this amendment in the constitutional history of India.

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References:

[1] AIR 1973 SC 1461

[2] The Constitution (24^th Amendment) Act, 1971.

[3] Ins. By the Constitution (One Hundred and First Amendment) Act, 2016, Section 12.

[4] AIR 2003 SC 3724

[5] (2004)8 SCC 139

[6] AIR 2003 SC 355

[7] AIR 2014 SC 2114

[8] AIR 2008 SC (Supp) 1