Reservation in Private and Unaided Institutions

2005: the Ninety Third Amendment, in force 20 January 2006, inserting article 15(5) and displacing Inamdar for non-minority institutions while expressly preserving minority institutions under article 30(1).

2008: Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. The amendment and the Central Educational Institutions (Reservation in Admission) Act 2006, providing twenty seven per cent for the other backward classes in central educational institutions, were upheld so far as State-maintained and aided institutions were concerned, with the creamy layer to be excluded from the other backward classes; the position of private unaided institutions was left over.

Since. The validity of article 15(5) as applied to private unaided non-minority institutions has been upheld, and the working out has been by legislation and by the fee and admission regulation described below.

Where the line runs now

Minority institutions, aided or unaided. Outside article 15(5) by its own words. Article 30(1) protects them, subject to regulation for standards.

Non-minority unaided institutions. Within article 15(5), so the State may make special provision by law for admission of the backward classes.

Aided institutions. Within article 15(5) and also subject to article 29(2), which forbids denial of admission on grounds only of religion, race, caste or language in an institution maintained by the State or receiving State aid.

All institutions. Subject to regulation in the interest of academic standards and to prevent maladministration and profiteering, which is T.M.A. Pai.

Why the minority exception is contested

The exception produces a result that is hard to defend on any principle other than the text: the same unaided college is subject to reservation if it is run by a non-minority body and not if it is run by a minority body.

The argument for it. Article 30(1) is a protection for minorities, whose institutions exist because the majority's institutions did not serve them; imposing the State's admissions policy on those institutions defeats the purpose.

The argument against. Article 15(5) is directed at the advancement of backward classes, whose members are found in every community, and exempting an entire category of institutions from it distributes the burden of a national commitment unequally.

And the practical consequence is an incentive to acquire minority status, which is why the T.M.A. Pai holding that the unit of determination is the State matters so much.

Comparison with the United States

Private institutions. The Constitution does not reach a private university at all, there being no state action; what reaches it is Title VI of the Civil Rights Act 1964, which forbids discrimination on the ground of race, colour or national origin under any programme receiving federal financial assistance.

That is why Students for Fair Admissions decided the Harvard case under Title VI and the North Carolina case under the equal protection clause, and treated the standards as the same. A private American university is regulated because it takes federal money, and an Indian private institution is regulated because article 15(5) says so.

And the direction is opposite. American law uses the statute to forbid race-conscious admission in a private institution; Indian law uses the amendment to require caste-conscious admission in one.

A worked example

Three unaided colleges: one run by a linguistic minority, one by a religious minority, one by a trust with no minority character.

The third is within article 15(5) and may be required by law to reserve.

The first two are outside it, if they qualify as minority institutions with the State as the unit under T.M.A. Pai.

All three may be required to admit on merit from a common entrance test, to charge no capitation fee and to submit to fee regulation, on the T.M.A. Pai and Inamdar regulatory principle.

The cases

Facts. P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226, concerned unaided professional colleges, minority and non-minority, and the State's appropriation of quotas in their admissions, the compulsory common entrance test and the regulation of fees.

Held, by seven judges. Neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions carved out to be appropriated by the State in a minority or non-minority unaided educational institution. A minority institution may admit students of its own choice, including non-minority students and members of its own community from other States, to a limited extent only, and not so as to lose its minority status and the protection of article 30(1).

Why it matters here. It is the holding that article 15(5) was enacted to displace, and it must be cited with that consequence attached.

Facts. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, was an eleven judge Bench convened to settle the rights of minority and non-minority educational institutions under articles 19(1)(g), 29 and 30.

Held, by eleven judges. Among eleven questions answered, the unit for determining a religious or linguistic minority under article 30 is the State and not the country, since India is divided into linguistic States and article 30(1) places religious and linguistic minorities on a par; an aided institution has less autonomy than an unaided one; the State may regulate in the interest of academic standards and against maladministration; and the right to administer does not include a right to maladminister.

Why it matters here. It fixes the unit of minority status, which decides which side of the article 15(5) line an institution falls on.

Facts. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, challenged the Ninety Third Amendment and the Central Educational Institutions (Reservation in Admission) Act 2006.

Held, by the Supreme Court. Both were upheld so far as State-maintained and aided institutions were concerned, with the creamy layer to be excluded from the other backward classes; the position of private unaided institutions was left over.

Why it matters here. It carries article 15(5) into effect and confirms that the creamy layer rule applies in education as it does in employment.

Distinctions

What beginners get wrong

"Inamdar is still good law on reservation in unaided colleges." It states the position before article 15(5), which was inserted to displace it for non-minority institutions.

"Article 15(5) covers all private institutions." It expressly excludes the minority educational institutions referred to in article 30(1).

"Minority status is determined nationally." T.M.A. Pai holds the unit is the State.

"Article 29(2) applies to every institution." It applies to an institution maintained by the State or receiving aid out of State funds.

Limits and criticism

The minority exception is a structural anomaly and is the most criticised feature of article 15(5).

Minority status has become a regulatory category rather than a cultural one, which is a predictable consequence of attaching a valuable exemption to it.

The regulatory principle is doing more work than the reservation principle, since common entrance tests, fee committees and merit conditions affect more admissions than the quotas do.

And the comparison with the United States is uncomfortable for both: one country requires a private institution to use caste, the other forbids it to use race, and each thinks the other has misunderstood equality.

Quick revision

1. Article 19(1)(g) and article 30(1) are the competing rights; article 29(2) applies to State-maintained and aided institutions.
2. T.M.A. Pai, (2002) 8 SCC 481: eleven judges; the unit of minority status is the State; regulation for standards is permissible.
3. P.A. Inamdar, AIR 2005 SC 3226: the State may not enforce reservation or appropriate a quota in any unaided institution, minority or not.
4. The Ninety Third Amendment inserted article 15(5), in force 20 January 2006.
5. Article 15(5) covers private institutions aided or unaided, other than minority institutions under article 30(1).
6. Ashoka Kumar Thakur, (2008) 6 SCC 1: amendment and Act upheld for State and aided institutions; creamy layer excluded.
7. In the United States a private university is reached by Title VI because it takes federal money, and the statute forbids what article 15(5) requires.

Test yourself

1. Set out article 15(5) and identify its exclusion. That nothing in article 15 or in article 19(1)(g) 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 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. The exclusion is express: minority educational institutions referred to in article 30(1) are outside the clause, so the same unaided college is subject to reservation if run by a non-minority body and not if run by a minority body.

2. Why was the Ninety Third Amendment necessary? Because P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226, held by seven judges that neither the policy of reservation could be enforced by the State nor any quota or percentage of admissions carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Article 15(4) was expressed to operate notwithstanding article 29(2) but said nothing about article 19(1)(g), under which a citizen's right to run an institution falls, so the existing enabling clause could not reach a private institution's admissions. Article 15(5) was drafted to override article 19(1)(g) expressly.

3. What did T.M.A. Pai settle about minority status, and why does it matter here? That the unit for determining whether a community is a religious or linguistic minority for article 30 is the State and not the country as a whole, the reasoning being that India is divided into linguistic States so a linguistic minority can only be identified in relation to a particular State, and that since article 30(1) places religious and linguistic minorities on a par the same unit must serve both. It matters because article 15(5) exempts minority institutions, so the unit of determination decides which institutions fall inside the reservation power and which fall outside it.

4. Compare the reach of the two systems into a private university. In India article 15(5) reaches a private educational institution directly, aided or unaided, and permits the State to require reservation in its admissions, subject only to the minority exclusion. In the United States the Constitution does not reach a private university at all, there being no state action; what reaches it is Title VI of the Civil Rights Act 1964, which applies because it accepts federal financial assistance, and which was the basis on which the Harvard part of Students for Fair Admissions was decided. The reach is comparable and the direction is opposite: one requires caste-conscious admission, the other forbids race-conscious admission.