Reservations in private institutions is not per se violative of the Basic Structure of the Constitution: Supreme Court

‘Unaided private institutions, including those imparting professional education, cannot be seen as standing out of the national mainstream’

November 07, 2022 08:55 pm | Updated 09:06 pm IST - NEW DELHI

A bench of Supreme Court judges during a verdict on 10% quota in colleges and government jobs for the poor or EWS (Economically Weaker Sections), in New Delhi on November 7, 2022.

A bench of Supreme Court judges during a verdict on 10% quota in colleges and government jobs for the poor or EWS (Economically Weaker Sections), in New Delhi on November 7, 2022. | Photo Credit: PTI

Justice Dinesh Maheshwari, who led the majority opinions on the five-judge Bench which upheld the Economically Weaker Section (EWS) quota on Monday, held that “the 103rd Constitution Amendment which permits the state to make special provisions cannot be said to breach the Basic Structure of the Constitution”.

Justice Maheshwari was addressing the “impact” of the Amendment, which introduced EWS quota, on admissions to private unaided institutions.

Also read: Will EWS quota cut share of pie of those competing on merit, asks CJI

Justice S. Ravindra Bhat, who authored the minority opinion for himself and Chief Justice U.U. Lalit, also observed that “reservations in private institutions is not per se violative of the Basic Structure [of the Constitution]”.

The government, through the Attorney General of India and advocate Kanu Agarwal, had relied on Supreme Court precedents, which included the Society for Unaided Private Schools of Rajasthan and the five-judge Bench judgment in Pramati Educational and Cultural Trust, to argue that the court had upheld 25% reservation in favour of EWS under the Right of Children to Free and Compulsory Education Act, 2009.

Also read: Editorial | Arbitrary and exclusionary: On EWS quota

Justice Bhat reasoned that reservations as a concept cannot be ruled out in private institutions where education is imparted. “Unaided private institutions, including those imparting professional education, cannot be seen as standing out of the national mainstream,” Justice Bhat observed.

Also Read | What’s wrong in using economic criteria for reservation, asks Supreme Court

“These institutions constitute material resources of the community in which the state has vital interest, and are not merely bodies set up to further the private objective of their founders, unlike in the case of the shareholders of a company,” Justice Bhat said.

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