The Centre on Thursday maintained in the Supreme Court that the 93rd amendment, inserting clause 5 in Article 15, to provide reservation for weaker sections in private unaided educational institutions did not violate the basic structure of the Constitution.
Making this submission before a Constitution Bench comprising Justices R.M. Lodha, A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla, Solicitor-General Mohan Parasaran and Additional Solicitor-General K.V. Viswanathan said the petitioners’ contention to the contrary was misconceived.
Mr. Parasaran said Article 15(5) was consistent with the socialistic goals set out in the Preamble to, and the Directive Principles of, the Constitution to ensure the march and progress of the weaker sections.
“The Right to Education Act enacted pursuant to Article 21(A) of the Constitution to provide for admission of children in unaided private educational institutions does not in any manner change or destroy the identity or abrogate the fundamental right of these institutions guaranteed under Article 19(1)(g) [right to carry on any profession or trade],” Mr. Parasaran said.
When Justice Patnaik asked if exempting minority institutions from admitting students from weaker sections violated equality, Mr. Parasaran said the Constitution had given minorities the fundamental right to establish and administer educational institutions of their choice and this right could not be interfered with.
When the judge pressed further asking if weaker sections among the minorities could be given admission, he said it might be a laudable objective, which could not be decided in this case.
“Exempting minority educational institutions falling under Article 30 from the purview of Article 15(5) is to conform to the constitutional mandate of additional protection for minorities. It is a limited right that is recognised and not an absolute and unfettered right,” he said. Impairment of the fundamental right by itself was not a ground for holding the amendment to be ultra vires the Constitution.
“Article 15(5) advances the constitutional goals and strengthens the objectives sought to be achieved by the Constitution and enables Parliament to undertake legislative measures in the said direction. Far from either affecting any basic features of the Constitution or undermining or affecting its basic structure, it strengthens it,” he said.
