Reservation in Education

"Or for the Scheduled Castes and the Scheduled Tribes". They are named separately and do not have to be shown to be socially and educationally backward: their inclusion in the Presidential Lists under articles 341 and 342 does that work.

It is an enabling clause. No citizen can compel a State to make a provision under it.

Article 15(5) and the private institution

The Ninety-third Amendment answered a different judgment. After the eleven-judge decision in T.M.A. Pai Foundation and the decisions that followed it, the position was that the State could not impose its reservation policy on a private unaided educational institution, because that would infringe the institution's own right to occupation under article 19(1)(g) and the autonomy those decisions recognised. That line is treated in [The Eleven-Judge Answer] and [After the Eleven-Judge Answer].

Article 15(5) reverses that result for reservation, in terms: special provision may be made "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.

Three consequences follow.

Private unaided non-minority institutions may be required to reserve. That was the whole object.

Minority institutions are expressly excluded. So a minority institution, aided or unaided, is outside article 15(5). This is the point at which topic 3 meets topic 7, and it is developed in [Minority Institutions and the Right to Education Act].

The exclusion of minority institutions has itself been attacked as producing an inequality between two kinds of private institution. The answer given is that article 30(1) is itself a constitutional right, so excluding its holders from a burden is not an arbitrary favour but respect for another provision of the same Constitution.

Article 15(6) and the economically weaker sections

The One Hundred and Third Amendment inserted articles 15(6) and 16(6) in 2019, permitting special provision, including reservation of up to ten per cent, for economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5). The Explanation leaves "economically weaker sections" to be notified by the State on the basis of family income and other indicators of economic disadvantage.

Two features are examinable and both are novel.

Economic criteria alone. Every earlier basis of reservation required social backwardness. Indra Sawhney had held in terms that a backward class cannot be identified only and exclusively by economic criteria, and had struck down a ten per cent reservation for economically backward sections on that ground.

Exclusion of the backward classes. The benefit is confined to those NOT covered by clauses (4) and (5), so a poor member of a Scheduled Caste is excluded from it.

Facts. Janhit Abhiyan v. Union of India, decided 7 November 2022 by five judges. Challenge to the 103rd Amendment on three grounds: that reservation on economic criteria alone breaches the basic structure; that excluding the backward classes violates the Equality Code; and that ten per cent in addition to existing reservations breaks the fifty per cent ceiling.

Held. By 3:2 the amendment was upheld. Reservation structured singularly on economic criteria does not violate any essential feature and does not damage the basic structure. Excluding the classes covered by articles 15(4), 15(5) and 16(4) balances non-discrimination against compensatory discrimination and does not violate the Equality Code. And ten per cent in addition does not damage the basic structure on account of the ceiling, because that ceiling is itself not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4). The extension to private unaided institutions was likewise upheld.

Why it matters. It changes what the fifty per cent rule means, which is why it belongs in [The Ceiling on Reservation] as well as here. And it establishes that economic disadvantage is now a constitutionally sufficient basis for a special provision, which every earlier decision had denied.

A worked example

A State notifies that in admissions to its medical colleges, twenty-seven per cent of seats are reserved for socially and educationally backward classes, fifteen per cent for the Scheduled Castes, seven and a half per cent for the Scheduled Tribes, and ten per cent for economically weaker sections, and applies the same percentages to private unaided colleges, including one run by a linguistic minority. A general-category candidate and the minority college both challenge it.

The general candidate on the total. Sixty per cent taken together exceeds fifty. On Indra Sawhney the ceiling applies to reservations under article 16(4); on Janhit Abhiyan the ceiling is not inflexible and in any event does not govern the EWS reservation, which rests on articles 15(6) and 16(6). So the correct analysis separates the two: the fifty per cent rule bites on the 49.5 per cent under clauses (4) and (5), which is within it, and the further ten per cent stands outside.

The general candidate on the EWS quota. After Janhit Abhiyan the objections that it rests on economic criteria alone and that it excludes the backward classes both fail.

The private unaided non-minority college. Article 15(5) expressly reaches private institutions whether aided or unaided, so it must comply.

The minority college. Article 15(5) expressly excludes the minority educational institutions referred to in article 30(1). It is outside the clause and cannot be compelled. Whether it is a minority institution is a separate question of fact, and that is [Who Is a Minority?].

Quick revision

• Article 15 as enacted had clauses (1) to (3) only. It could not authorise reservation in education.
• Champakam struck down the Communal Government Order; the First Amendment 1951 inserted article 15(4) in response. The Constitution's own footnote records it.
• Article 15(4): "special provision for the advancement" is wider than reservation; "socially AND educationally backward" is conjunctive; SC and ST are named separately.
• Article 15(5), Ninety-third Amendment 2005, reaches private institutions aided or unaided, and expressly excludes minority institutions under article 30(1).
• Article 15(6), 103rd Amendment 2019, permits up to ten per cent for economically weaker sections other than those in clauses (4) and (5).
• Janhit Abhiyan upheld it 3:2: economic criteria alone are permissible, the exclusion is permissible, and the fifty per cent ceiling is not inflexible and applies only to reservations under 15(4), 15(5) and 16(4).

Test yourself

1. Why did the First Amendment happen, and what does it tell you about article 15 as enacted?

2. Distinguish "socially and educationally backward classes" in article 15(4) from "backward class of citizens" in article 16(4).

3. What judgment did the Ninety-third Amendment answer, and which institutions did it deliberately leave out?

4. State the three grounds of challenge in Janhit Abhiyan and the answer given to each.

5. What did Janhit Abhiyan change about the meaning of the fifty per cent ceiling?