Reservation and The Right to Equality

INTRODUCTION

The right to equality is the most fundamental right a man has. This is the right that occupies its place in almost every constitution. It is the right to equality from which all liberties are guaranteed. Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution . But can the state extend this duty and obligation to the private sector? Therefore the question broadly is whether the horizontal application of the acts extending to private unaided educational institutions violates the Basic Structure of the Constitution?

This question is in with regard to the 86th and 93rd amendment acts. The 86th Amendment inserted Article 21A which provided for free and compulsory education to all children between the age of 6 and 14 years. The right of children to free and compulsory education act of 2009 was enacted to enforce the right under article 21A. The act provided for horizontal affirmative action by reserving 25% seats in all schools (i.e. State run, State funded or Privately run) in favor of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes. It further provided that the private schools cannot charge any fee, tuition or otherwise to those admitted against this 25% quota. Instead the State would reimburse the private schools for these 25% students. The 93rd Amendment inserted Article 15(5) which provided a right to the state to make laws for the advancement of any socially and ed...

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...obstacle in achieving socio-economic rights by the way of constitutional amendment. Justice Radhakrishnan held that clause (5) was inserted in article 15 to get over the obstacle that the state cannot impose reservation in private unaided professional educational institutions, the rule laid down in Pai Foundation as well as in Inamdar. Hence holding that the reservation provision constitutionally valid. The standard of review used by justice Radhakrishnan was that article 19(1) (g) was not a facet to the basic structure of the constitution and hence abrogation of article 19(1) (g) does not change the basic structure of the constitution and therefore is not unconstitutional.

The question whether the Reservation Provision is constitutionally valid when it horizontally imposes reservation of seats on a private unaided school remains unanswered in both the cases.