An attempt to raise some questions on the nature of Article 15(5) brought in by the 93rd amendment.
Some of the questions may have already been raised, argued and answered already. A little repetition doesn’t harm, IMHO 🙂
Article 15(5)
Nothing in this article or in sub-clause (g) of clause (1) of article 19 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 the 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, other than the minority educational institutions referred to in clause (1) of article 30
Question 1:
How can the State assume that any, and every, special law made with respect to admissions to educational institutions transgresses the rights given to minorities under Article 30(1)?
Multiple SC judgements have held that the spirit of Article 30(1) is to ensure
(a) Minorities are not denied rights to establish educational institutions
(b) Law does not take away the minority character of the institution
How can the State assume that any, and every, law made in relation to admissions
will destroy the minority character of the institution?
Question 2:
Why can not the question of whether a particular law, for e.g. the RTE Act, steps over the rights granted to minorities under Article 30(1) be left to the interpretation of the Courts?
Question 3:
Admissions is just one part of the ‘administration’ process. By granting a blanket cover for admissions under this amendment, is not the State saying that it does not have any power to impose any law related to any aspect of establishing or administering a minority institution? Does Article 30(1) grant such blanket rights?
For e.g. (sounds trivial – do excuse) if tomorrow a state government brings in a law that no person can teach in a school unless he/she has studied at least up to 10th grade, quoting the above amendment, minorities can very well argue that the State does not have ANY power to impose even elementary standards when it comes to teachers’ recruitment?
Question 4:
Article 15(5) allows the State to make special laws for non-minorities only. Is this not discrimination? How is this not violative of Article 14?
Question 5:
The spirit of the Constitution allows the State to make special laws to favor disadvantaged groups/communities. Laws related to SC/ST etc all fall under this category.
The 93rd amendment has 2 parts to it.
(a) Power to make special laws related to admission
(b) Applicability of the laws made under (a)
(a) grants a privilege
(b) imposes a duty
While the Constitution allows laws falling under (a), there is no example, and therefore it is against the spirit of the Constitution, to make laws under (b) that applies ONLY to some groups and not to others. Is (b) therefore not unconstitutional?
Pranasutra 
Great post, keep it coming. Otherwise people might forget about this landmark constitutional amendment.
Actually you are not going to find anyone defend Art 15(5). We have to keep in mind that the openly stated goal of “Idea of India” is to treat the constitution as a tool, a ‘document of transformation’. The insiders know what the so-called transformation is.
So you can imagine that in a few years, the great ‘transformation’ which will ONLY be delivered using the channel of Edu Control will be at a point of no-return. When that happens, these laws will be looked upon with disgust – the new powers will discard Art 15(5) with great contempt.
At that future point maybe 10, 20, 30 years from now, people will look upon these 5 years as a period where something could have been done, and our #Core Team as a group that was of a superior strategic mind who got unfairly targeted and boycotted.
Now my attempt at the answers
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1. the basic issue of ‘minority character’ is to UPHOLD the instituitonal authority , projection, and integrity of minority education. Take your own example : in the normal course of ops, it is NOT in institutions interest that they would hire a 10th fail as a teacher. BUT if in specific instances it makes some short-term/tactical sense to hire (say a 10th fail genius) then they cannot be held back by some outside rules that prevents this.
2. Art 14 is pretty much dead. The entire #IOI Transformation Project is to compromise this – then hold the distorted structure for a 2-3 generations and then society re-shapes itself, and then at that point they release it. Game over.
3. Minorities are not like SC/ST . actually even ST are not like SC. The IOI brigade has created this false alliance without compromising on institutions. If you were a Core minded leader, then it is easy to imagine that SC should be given institutions on par or even superior to minorities. Somewhat like the HBCU (Black colleges and Univs) in USA.
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Thank you for your excellent take.
One day they will make it appear as if they realised the demands of #core were very valid and perhaps make the changes. – the day when these laws are no longer useful.
Highlights the importance of not just securing #core, but securing it NOW!
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