There has been always tussle between judiciary and government. This tussel leads to amendment for educational reservation and it is one of the and first example of it. Although first amendment has bought many changes, the author who is legal professional, tries to bring some overview specifically about reservation in educational institution.
Introduction
Reservation is synonyms with affirmative action policies in India. There are different kinds of reservation at different sphere may beon the ground on gender, caste andat employment or at educational institution or in parliament or in judiciary etc. However, did draft Constitution has reservation policies? when constitution came into force did it provide scope for reservation? How did reservation become constitutional obligation and fundamental right?
Draft of the Constitution of India.
Constituent assembly proposed only two kinds of reservations, first in legislative bodies in state as well as in centre and second in government jobs. That is some seats were reserved in lower house of the central and state legislature (Art 330 and 332) also some seats were reserved for backward classes in government jobs (Art 16(4)). Babasaheb Ambedkar insisted to keep the express provision about reservation in public employment without leaving discretion to the legislature or executive. Noticeably there was no express provision which has scope for reservation in the original constitution. It is another question of the fact that who were initially provided reservation such as whether for only SC or ST or OBC or EWS etc.
Adoption
The newly adopted constitution becomes the mother of all the laws, rules, orders. Therefore, any other laws have to be in accordance with constitutional law. 26 November 1949 India adopted the constitution and it came into force from 26 January 1950. That means from that period laws or amendment can be made according to the constitution of the India. First general election of the India held in October 1951 and around April 1952 first elected Lok Sabha was constituted. Under article 368 constitution provided power of amendment to elected Parliament however the Constituent assembly ceased to function at January 1950 and there was no upper house of parliament until 1952 and Rajya Sabha had not yet come into existence. Contemporarily because of the Dravidian movement State of Madras issued government orders, or G.O which were called “communal G.O”, giving reserved seats in education institution based on Caste or community.
State of Madras v. ChampakamDorairajan
In the academic year 1949-50 the state of Madras has only four medical colleges, because of “communal G.O” s seats were divided based on caste. After Constitution came into force two students challenged the “communal G.O” on the grounds that it violated Article 29(2) of the Constitution. The article says that State will not deny the admission into educational institution funded by State on the only grounds of religion, race, caste, language or any of them. This convey that admission can be denied on other valid and lawful ground. But two students, ChampakamDorairajan and Srinivasan, was denied admission on only ground of caste as they belong to Brahman. The supreme court said that the article 29 (2) provide power to State to deny the admission only on the ground not specified and students can be denied the admission if she has no essential qualification. But in this situation the students were academicallymeritorious and qualified comparatively with other non-brahmin students. Herein admission denied for no fault of the students except they are brahmin.
To arrive at conclusion Supreme court relied on article 16. Article 16(1) says about equality of opportunity for all citizen in matters relating to public employment and there is express provision under the same article which is article 16(4) which is exception to this subsection 1 of the same section giving state, power to make special provision for the backward class. The supreme court said that there is no article in part 3 of the constitution akin to this article (16(4)) which expressly talks about reservation in education institution. The advocate General of the state of Madras argued that article 46 of the constitution called upon the government to promote educational interest of the weaker section. The supreme court while rejecting the argument said that this omission of express provision of providing reservation in educational institution is significant also article 46 is part of Directive Principles of State policy and cannot override fundamental right guaranteed under article 29 (2).
First Amendment of Constitution
In a month after the Supreme Court’s judgment Nehru Introduced a bill in provisional parliament to amend the Constitution for the very first time.At around May 1951 and elected parliament constituted in around April 1952. One of the topics of amendment was related to reservation in educational institution. Whereas Nehru made it clear that this amendment is not to revive the communal G.O of state of Madras but to fulfil the article 46. Express exception to rule of equality was bought about and inserted article 15(4) which talks reservation for socially and educationally backward class. Unlike article 16 (4) which spoke only for the general backwardness while newly inserted article 15(4) said that these backward classes had to be socially and educationally backward. The word “socially and educationally” borrowed from the article 340 which gave the President power to appoint a Commission to investigate the conditions of socially and educationally backward classes. The bill was passed on 2 June 1951 and over 20 of 228 members voted against it.
Conclusion
There arise many questions such as how the bill was introduced in non-elected Parliament? or should merit decides who will get the seat? Or how do you define merit, through the Lense of privileged? But the real question is how a society remedies historical years of backwardness by the privileged ancestors? The constitution tried to give this answer by providing opportunities without breaking the rule of equality. Babasaheb Ambedkar said that reservation is the exception to rule of equality and it should not eat up rule altogether. Therefore, limited amount of reservation in a way of affirmative policies has been provided to give the opportunities to backward class.
Reference
- First Amendment of the Constitution of India: S3WaaS https://share.google/X3a7zVTls8Ch7jzk0
- ChampakanDorairajan Case : Manupatra https://share.google/EkwyEWQVXNhMYyDWX
- Constituent Assembly Debates, Vol. 7 (30 November 1948)https://www.constitutionofindia.net/debates/30-nov-1948/
Author Name- Adv Ganesh Nanandkar
