INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA & ORS.

A opinions in the majority decision in Keshavananda Bharati. To destroy its identity is to- abrogate the basic structure of the Constitution ........ The main object behind the theory of constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day." (emphasis added, para 28).

89.The prevention of destruction of the "constitutional . identity" is the chief rationale in using the basic structure doctrine in instances of constitutional amendment such as the one we are concerned with in the instant matter. Constitutional identity, and continuance of such an identity are the primordial issues, and the identity ought not to be destroyed. Often a problem is encountered with issues of identity. The issue of change in identity, and debates about it can take extremely abstract and metaphysical form as with regards to the Ship of Theseus 28 or the Theseus' Paradox. In the classical narrative, in the metaphysical speculations about the paradox, reference is with respect to the ship in which Theseus, and other youth of Athens, returned from Crete having killed a minotaur that demanded sacrifice of Greek youth every year. Because the ship was of such importance, Athenians preserved it in the harbor for generations, replacing its boards that had become dilapidated by new ones, where at one point all the boards had been replaced. This apparently led to the fertile Greek minds, prone as they were to metaphysical speculation, to ask whether the ship, after every part had been replaced by another newer part, was indeed the same ship or not. For the formalists, the identity had changed because none of the original parts were there; and in fact the extreme amongst them claimed that the identity had changed when the first part was itself changed. For the functionalists, the ship was identically the same because the parts that replaced the worn out parts were of the same quality, shape and size and performed exactly the same functions as previously specified. In either case, both the

H 28. Plutarch: Theseus, trans. John Dryden.

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& ORS. [B.SUDERSHAN REDDY, J.] puritanical originalists delighted in the squabble without there being any pragmatio resolution.

90Copy pinpoint90. Unfortunately, we as constitutional adjudicators do not have the luxury of facile metaphysical speculations, and imposing conclusions arrived thereupon on this country, by ignoring the practical impact of the ship and the larger purposes that it is supposed to serve. Indeed our ship, the Constitution; was never intended to remain in the harbour and was intended to set sail. The narrative of our Ship of Theseus takes a different form for us. c

91Copy pinpoint91. We liken our Constitution to the Ship of Theseus, with the difference that the ship itself has been provided with sufficient wood, and tools to fashion new boards, and it was to actually set sail. The Ship of our Nation, the Constitution, set sail on its journey in 1950, on uncharted oceans of time, circumstances and challenges. We set sail with a ship as it was then designed, nevertheless knowing that certain features were quintessential to being a ship that could sail such oceans; and we set sail towards a target, almost like Columbus, with the understanding that sailing in a particular direction would get us to a particular destination. We even promised ourselves, that notwithstanding our prior history of bickering, of degradation of humans amongst us by ascribed status, and of economic poverty, we would have, by the time of reaching our goal, ensured that certain invaluable qualities, such as dignity, fraternity, security and integrity of our nation-state, inform all aspects of social. order. In fact the achievement of those qualities was to be the goal. The directions we were given were that if we strive to achieve, in actual fact, JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; and EQUALITY of status and opportunity; within the context of organizing our polity as a secular, socialist and a democratic republic, and the State itself, necessarily follows certain principles of policy, we would achieve those goals. We were enjoined to roam the high seas until we H

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A achieved a state of acceptable achievement of those goals, neither knowing the length of time nor the length of that journey. In fact we also knew, that achievement of those goals was never going to be a matter of some quantitative assessment of those goals, but always a maintenance of the path towards, and B sustaining what we may have already achieved. We also knew that along that journey, many of the boards, and indeed even certain parts of the main structure may appear to be or actually become a detriment to our progress. Hence, we were also given liberty to change some of those parts, in terms of c replacing those parts with exact same ones, or mostly similar ones, or even radically differently designed ones. The caveat was that, if the changes were such that the destination could not be reached, or that the motive force for powering the journey would become truncated, or debates could not be conducted within the settled principles of civility, or that on the course of 0 that journey too many were actually getting pushed off the ship, or that the changes were such that the ship would turn into a tiny raft, in which the people on the margins would necessarily get pushed into the ocean, etc., the ship of our nation, the E Constitution, would sink. If inappropriate changes were made, the ship would sink; and if the appropriate changes were to not be made the ship would sink. Neither wrong action, nor abstinence from action was permissible.

92Copy pinpoint92. In this regard, this Court, charged with the responsibility of ultimately interpreting the design of the structure of that ship, stated thus:

"{C]onstitutional adjudication is like no other decision- making. There is a moral dimension to every major constitutional case: the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities; and because of the good sense of the judges when interpreting it. It is that informed freedom of action of judges that helps to preserve and

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& ORS. [B.SUDERSHAN REDDY, J.] protect our basic document of governance." (para 30 of A M. Nagaraj).

93Copy pinpoint93. Proceeding on the rationale as enunciated in the cited . paragraphs, this Court in M. Nagaraj, then enunciated that the "theory of the basic structure is based on the principle that a 8 change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore one has to apply the principle of over-arching principle to be gathered from the scheme and the placement and the structure of an article in the Constitution. For example, the placement of Article 14 in the equality code; the placement C of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Courf'.

94Copy pinpoint94. Yet, the question remains? How do we discern whether a particular aspect is a part of the basic structure or not? In M. D Nagaraj, this Court reaffirmed the working test laid down by Chan_drachud J., in Indira Nehru Gandhi: "For determining whether a particular feature of the Constitution is a part of the basic structure, one has to perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance.•

95Copy pinpoint95. In this regard, it was noted in M. Nagaraj that concepts like "equality", "representative democracy" etc., are delineated over various articles. "Basically Part Ill of the Constitution consists of equality code, the freedom code and the right to move the courts. It is true that equality has several facets. However, each case has to be seen in the context of the placement of an article which embodies the foundational value of equality."

96Copy pinpoint96. Two consequences follow from the above: our earlier assessment, that the test we are to apply in instances like the H

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A addition of clause (5) to Article 15, is not about truncation of one activity that was previously deemed by this court to be one of the essential features of one of the many occupations that are a part of one of the many freedoms guaranteed in the freedom code; and that we not only have to assess the negative S impact, but also the positive impact of an amendment. This follows from the realization that while we may classify aspects important for that ship to sail towards its goals into neat analytical categories, the ship itself, and the nation it carries functions in accordance with the action and reaction of each c category upon other categories. Consequently, we must take into account the fact that the changes that are made may while truncating one small element, may also be strengthening many other elements, and thereby strengthening the very basic structure of the Constitution. Thus care needs to be exercised 0 to avoid rhetorical flourishes about the importance of one small activity that may be truncated i11 order to achieve larger purposes. Obviously, some small activities could be of primordial importance. Some rights may be important, but not of primordial importance, and their importance has to be assessed in terms of their place in the overall context of constitutional values, and goals.

97Copy pinpoint97. If indeed one essential activity of the many essential ones that form the freedom to engage in one of the occupations of the many occupations that are a part of the many freedoms guaranteed by the Constitution, conflicts with an amendment that intends to strengthen the process of achievement of one of the main navigational tools and thereby the goals of the nation-state itself, should such an amendment be declared to be unconstitutional and against the basic structure? Shouldn't G one also look at the damage that such a declaration can cause to many of the other basic features of the Constitution, and also the loss of diverse strengths that such an amendment is likely to impart to many other essential or basic features of our Constitution? We opine that by not undertaking an assessment H of such factors we would almost certainly lead to erroneous

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& ORS. [B.SUDERSHAN REDDY, J.] judgments that would destroy the basic structure of the A · Constitution. In the present context what is involved is a judicial ·review of an amendment to the Constitution that seeks to strengthen the egalitarian aspects of our social order. Consequently, the conflict, in th~ instant case, has to be evaluated in terms of whether disallowing the amendment might B damage, significantly, the prospects of promoting intrinsic and inherent parts of our equality code - the egalitarian and social justice components - that are essential elements of our basic structure. Such a test would give us a more nuanced appreciation of how setting aside, as violative of the basic c structure, the provisions of clause (5) of Article 15 with respect to admissions to non-minority unaided educational institutions, would impact our Constitution, as a fundamental instrument in country's governance.

98Copy pinpoint98. Consequently, in evaluating whether the provisions of clause (5) of Article 15 with respect to unaided private educational institutions violate the basic structure doctrine the questions to carry out the test would be as follows: (1) the place of clause (5) in Article 15 in the context of the equality code; (2) its importance with respect to the Constitution as an instrument of governance, including the mandatory, though not justiciable, provisions of Directive Principles of State Policy, and the goals of ensuring dignity for all citizens, with fraternity amongst groups of them, thereby ensuring the unity and integrity of the nation; and (3) an assessment of the importance of the right of the educators to only admit students based on their choice, and thereby, also possess, the consequential right to disregard the impact of social, educational, cultural and economic disadvantages suffered by groups and individuals in those groups, in terms of access to higher education, and the damage that such a disregard might do to the very purpose of the occupation, and the broader objectives of the nation that such an occupation is to serve.

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99Copy pinpoint99. It is now a well settled principle of our constitutional jurisprudence that Article 14 does not merely aspire to provide for our citizens mere formal equality, but also equality of status and of opportunity. The goals of the nation-state are the securing for all of its citizens a fraternity assuring the dignity of the B individual and the unity of the nation. While Justice - social, economic and political is mentioned in only Article 38, it was also recognized that there can be no justice without equality of status and of opportunity {See M. Nagaraj). As recognized by Babasaheb Ambedkar, at the moment that our Constitution just c set sail, that while the first rule of the ship, in the form of formal equality, was guaranteed, inequality in terms of access to social and economic resources was rampant and on a massive scale, and that so long as they individually, and the social groups they were a part of, continue to not access to social and economic resources that affords them dignity, they would always be on 0 the margins of the ship, with the _,ver present danger of falling off that ship and thereby never partaking of the promised goals of that ship. Babasaheb Ambedkar with great foresight remarked that unless such more fundamental inequalities, that foster conditions of injustice, and limit liberty of thought and of conscience, are eradicated at the earliest, the ship itself would be torn apart.

100Copy pinpoint100. In this regard, it was recognized early on as we, as a nation-state, set sail that while revolutionary change, using the force and might of the State. might actually bring about the realization of that state of equality much faster. However, it was also recognized that the violence it would unleash could potentially destroy our nation-state itself, and the end goal may be the creation of a State that would not be conducive for other cherished values of peace, harmony, co-existence, and a democratic set up in which reasoned and reasonable argument and debate would inform our social, political and economic choices. Some may say that this was a compromise, that in fact the framers of our constitution made the wrong choice, and that we should have opted for a revolutionary mode of change,

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& ORS. [B.SUDERSHAN REDDY, J.] if necessary by shedding of.bloodshed of our own people. A Some others argue that we should have opted for a pure market economy, right from the beginning, so that the inefficient governmental regulations would not have hindered our economic progress. However, they seldom have answers as to when, or over wh.at time frame could it be conceived that a B state of equality of status and opportunity, and social, economic and political justice would inform all walks of our lives, so that each and every citizen would be enabled to lead a life with dignity, that both promotes fraternity and also is promoted by such a fraternity, and of active participation, to the fullest extent c of their natural talents, to participate in full measure in the making of choices, social, political and economic. Nor do the free market proponents answer whether the operation of the laissez- faire free markets would not lead to a perpetuation of ever widening disparities between the haves and the have-nots. D Historical human experience militated against a trust in any such answer even if it were given.

101Copy pinpoint101. Consequently, the State was given the responsibility to balance the exigencies of the needs, between social justice and formal equality, between a command and control economy E and a private sector with freedom to make its choices within a regulated environment, keeping in mind. the larger needs of the nation, between the imperative to promote economic growth, and development in its classical sense, in which the progress of people was measured on all dimensions of human dignity. F Indeed, these imperatives of statecraft, of governance of the nation state, were even transcribed into fundamental, though non-justiciable, Directive Principles of State Policy. The fact that they were made non-justiciable was not to deny their absolute essentiality, but rather that the legislatures, and the executive G under the supervision of the elected representatives, were best placed to make choices with regard to issues of policy, while the judiciary endowed with the responsibility of interpreting and upholding the Constitution. An irroortant and particular aspect of our Constitution that should always be kept in mind is that H

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A various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself. To the extent there was to be a conflict, on account of scarcity, it was certainly envisaged that B the State would step in to ensure an equitable distribution in a manner that would be conducive to common good; nevertheless, if the state was to transgress beyond a certain limit, whereby the formal content of equality was likely to be drastically abridged or truncated, the power of judicial review c was to curtail it. However, as long as the policy initiatives of the State were in consonance with principles of equity and justice inherent within the equality code, and indeed even the freedom code, via Article 21 's guarantee of the right to life, and for promotion of freedom of expression and thought, especially to promote excellence in our debates and arguments in the 0 political sphere so that democratic richness could be better served, or were framed in pursuance of the Directive Principles of State Policy, that were based on reasonable and intelligible classifications, the courts were to have no further place in entering the field of policy choices. The courts could of course, E also, impose positive constitutional obligations on the State, where the abnegation of those positive and affirmative obligations, encoded within fundamental rights itself, were so gross as to constitute a fraud on the face of the Constitution.

102Copy pinpoint102. Given the magnitude of the task of the State, and immense human tragedies that could continue to occur unabated or even increase, and conditions of inequalities could intensify even further, beyond the unconscionable levels at which they already are, it can only be surmised that the power of the G State to frame policies in furtherance of the national goals, including the goals of social justice, achievement of human dignity of all people and groups of people, improved access to better articulation of thoughts and aspirations by individuals and groups of people in the democratic processes and in social H

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& ORS. [B.SUDERSHAN REDDY, J.] choices made in their communities, and equality of status and opportunity with respect to social, economic and physical resources i.e., all material resources that are useful for productive activities, as granted and used within the limits of the constitutional vision and design, to achieve such tasks to be commensurate, is indeed an essential element of governance. Derogation of such powers, through a whittling down by judicial fiat, below the level at which the Constitutional structure, provisions and vision provides would necessarily be an alteration of the very identity of our Constitution.

103Copy pinpoint103. In a recent decision, GVK Industries Ltd v. /T029 by C a Constitutional Bench, it was held:

"One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and the machinery of Government to be able to pursue the constitutional vision into indeterminate and unforeseeable future .... Our Constitution charges various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation ...... . Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the constitutional text have to be perforce admitted .. ."

104Copy pinpoint104. To be sure, powers granted to the State are not unlimited, and indeed our constitutional jurisprudence specifies that Part Ill is one such zone of limitation. The rigour and discipline of fundamental rights, granted to citizens are to be the checks on the power of the State. Fundamental rights are

29. c2011) 4 sec 36. H

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A indeed vital for the survival of our society, and provide guarantees that protect our citizens against totalitarianism, are conducive for full expression of human creativity, and in fact foundational for human dignity. Further, the substance of justice is inscribed into such fundamental rights, that are both B substantive and procedural and are available to all the citizens, along with powers granted to the State to realize social justice and real and "in facf' equality of status and opportunity for those who are disadvantaged. Consequently, it cannot be taken to mean that the zone of limitation would then operate to frustrate c the obligations of the State, to achieve goals of social justice and egalitarian order, by placing primordial importance on formal equality and freedom. Formal rights of some power cannot become the foundation to whittle away powers that are necessarily implied in order to achieve national goals. The question is of balance, and it is the act of balancing between 0 the compulsions cast upon the State by the moral, political and legal imperatives of the status of vast chunks. of our people in disadvantaged and deprived positions that could only be deemed to be egregious and unconscionable by any notions of empathetic conscience, and the imperatives that all the rest also be provided meaningful levels of protections guaranteed by fundamental rights. It is not without reason that Fundamental Rights and Directive Principles of State Policy along with the grant of power to the State to achieve intrinsic egalitarian and social justice aspects inscribed on many of the fundamental rights themselves, that have been called the twin wheels of the chariot of national progress. In this regard it has been held in Keshavananda that harmony between Directive Principles of State Policy and Fundamental Rights is one of the most important of elements of the basic features or structures of the G Constitution.

105Copy pinpoint105. In this respect, the placement of clause (5) of Article 15 in the equality code, by the 93rd Constitutional Amendment is of great significance. It clearly situates itself within the broad H egalitarian objectives of the Constitution. In this sense, what it

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& ORS. [B.SUDERSHAN REDDY, J.] does is that it enlarges as opposed to truncating, an essential A and indeed a primordial feature of the equality code. Furthermore, both M. Nagaraj and Ashoka Kumar Thakur stand for the proposition that enlargement of the egalitarian content of the equality code ought not to necessarily be deemed as a derogation from the formal equality guaranteed by Article 14, B 15(1) or 16(1). Achievement of such egalitarian objectives within the context of employment or of education, in the public sector, as long as the measures do not truncate elements of formal equality disproportionately, were deemed to be inherent ·-- . parts of the promise of real equality for all citizens. As stated c succinctly in M. Nagaraj, it is an issue of proportionality. ·concept of proportional equality expects the State to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy" and further that "[U]nder the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not of his but social." With regard to distribution of social opportunities and social benefits, Kapadia J. (as he then was) notes that some define "social justice in terms of rights", and some others, like Friedrich Hayek in terms of "desert" without any regard to the relative advantages or disadvantages as between individuals, and some others, socialists, on the basis of Aeeds. With regard to these three different rationale, this Court recognized that all three have to be accommodated under the equality code, with those fulfilling the "desert based" criteria located under formal equality zone, and those fulfilling the ~need based" or the "disadvan~ged based" criteria under the zone covered by proportional equality. To this we need to add another important point. The critical aspect of the authenticity of constitutional claims of the disadvantaged, on whose behalf State exercises its power, is the fact that it is social circumstances which have prevented those individuals from performing to their full potential, and thereby compete on a level playing field with those who might satisfy the "desert H

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A based" criteria. In fact the very notion that unequals ought not to be treated as equals is also founded on the notion that those with lesser or lower background opportunities could not be expected to match the performance of those with much better opportunities. The fact that it is the State that seeks to enhance B through its policies, such rights of disadvantaged, because it has the duty to ensure their realization, cannot be taken to mean that every element of every individual right of the less disadvantaged could be used to frustrate the realization of those rights. c 106. A brief historical excursus, into our constitutional jurisprudence, would also be necessary at this stage to realize that the egalitarian conception is inbuilt in the equality code. In M.R. Balaji v State of Mysore30 , Article 15(4) was treated as an exception to Article 15(1). However, in Devadasan v. Union D of lndia 31 , decided a year later, the Court found that reservations to appointments and posts would not violate Article

14. Devadasan, followed the ruling of M.R. Balaji and held that excessiveness of reservations under Article 16(4) is an issue to be recognized. Subba Rao, J, ii his dissenting opinion opined that Article 16(4) was not an exception but "preserved a power untrammeled by the other provisions of the Article." The decisive break came in State of Kera/av. N.M. Thomas32 in which Article 16(4) was held to not be an exception to Article 16(1 ), laying down the' principle that State action in pursuit of egalitarianism cannot in principle be seen as antithetical to broader codes of equality, but rather a means to realize true equality of status and opportunity amongst hitherto excluded groups. This position found its resounding acceptance in Indra Sawhney v Union of lndia33 , in which it was held in no uncertain terms that egalitarianism is an intrinsic element of conception of equality under Articles 14.

30. AIR 1963 SC 649.

31. AIR 1964 SC 179.

32. AIR 1976 SC 490.

H 33. (1992) Supp (3) sec 211.

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& ORS. [B.SUDERSHAN REDDY, J.]

107Copy pinpoint107. A purely technical argument may be made that this A Court in Indra Sawhney had reflected upon egalitarianism in the context of Article 16(4) and public employment, and hence ought not to be seen as a part of our constitutional jurisprudence with respect to admissions to private unaided educational institutions. This may be a case of splitting hairs to deny the B validity of an over-arching principle. In countless cases, involving . the private sector, this Court has held that legislation to achieve social and economic justice cannot be held to be a violation of fundamental rights. (See: State of Kamataka v Ranganatha Reddy34) What they could be and ought to be tested on was c the anvil of reasonableness of classification, and extent of intrusion, where the Constitution itself did not specifically provide for untrammeled power to completely eliminate the private sector from a particular field of activity. This Court's decisions in M. Nagaraj, and equally importantly, Ashoka D Kumar Thakur, have unequivocally held, based on Indra Sawhney, that the concept of egalitarianism is an essential and vital element of the equality code, and in Ashoka Kumar Thakur that principle was applied in the context of education. The Court refused, in Ashoka Kumar Thakur, to look at whether clause (5) of Article 15 as applied to non-minority private unaided colleges would violate the basic structure, on the ground that no private unaided college was before it. However, that does not mean that the principles enunciated in Ashoka Kumar Thakur, that egalitarianism was an intrinsic part of our equality code with respect to the field of education could be limited only with respect to public and aided institutions.

108Copy pinpoint108. We opine that the same principles which this Court found to be applicable in finding egalitarianism to be a part of the equality code, at the level of being essential features informing the entire equality code, per force have to also be applied to the context of private sector unaided educational institutions. When we speak of egalitarianism being an

34. (1977) 4 sec 471.J H

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A essential and a necessary component of the equality code, which is a finding that this Court arrived at in Indra Sawhney, M. Nagaraj and in Ashoka Kumar Thakur, we cannot in the same breath then turn around and say that the same concerns, of national purpose, goal and objectives that inform the B constitutional identity miraculously disappear in the context of the private sector. It is indeed true that the extent of State involvement in the field of higher education has dramatically declined on account of its own financial position. At least a part of the problem of the financial situation of the State could be c reasonably linked to increasing privatization and liberalization of the economy, and one of the essential elements of that process of privatization has been the demand of the private sector that the State reduce its deficits, even as tax rates were cut, by reducing its involvement in various social welfare activities. This has had an impact on the ability of the State to 0 invest as much as it could have in education, including higher education. An essential understanding was that because the private sector would expand even in areas such as higher education, the burden on the State o' providing such services would decline. The burden of the &1ate does not comprise merely of the burden of its financial outlays. The burden of the State obviously also comprises of the positive obligations imposed on it, on account of the egalitarian component of the equality code, the directive principles of State policy, and the national goals of achievement of an egalitarian order and social justice for individuals and amongst groups that those individuals are located in. If the State had clearly articulated that its goal was to withdraw from such crucial and vital fields, such as higher education, and that it was also not expecting the private sector to carry any of the burdens of ensuring an egalitarian order and realize the goal of social justice in at least some measure, then the dimensions of constitutional litigation on that front could very well have taken a different shape, and questions about whether such actions constitute a fraud on the face of the Constitution could certainly have gained great salience. H

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& ORS. [B.SUDERSHAN REDDY, J.]

109Copy pinpoint109. Certainly, the State has the power under clause (6) A of Article 19, to totally or partially exclude the participation of private sector in the field of higher education. As TMA Pai stated, having allowed the private sector into the field of education, including higher education, it would be unreasonable, pursuant to clause (6) of Article 19, for the State B to fix the fees and also impose reservations on private unaided educational institutions. Nevertheless, if we take into consideration the width of the original powers under clause (6) of Article 19, one would necessarily have to find that the State would at least have the power to make amendments to the c ·Constitution to partially resurrect some of those powers that it . had possessed to control access to higher education, and achieve goals of egalitarianism and social justice. What the State had done was to allow private sector to function in the field of higher education, to supplement the roJe of the State in 0 the field which has been recognized even in TMA Pai. The power of the State to allow such participation of the private . sector could only have existed if the State had the power to devise policies based on circumstances to promote general . welfare of the country, and the larger public interest. The same cannot be taken to mean that a constitutional amendment has occurred, in a manner that fundamental alteration has occurred in the basic structure itself, whereby the State is now denuded of its obligations to pursue social justice and egalitarian ideals, inscribed as an essential part of our constitutional identity, in those areas which the State feels that even resources in the private sector would need to be used to achieve those goals. The argument that the policies of liberalization, privatization and globalization (LPG) have now cut off that power of the State are both specious, and fallacious. Such policies are only instances of the broader powers of the State to craft policies that it deems to serve broader public interests. One cannot, and ought not to deem that the ideologies of LPG have now stained the entire Constitutional fabric itself, thereby altering its very identity.

110Copy pinpoint110. In the first place, it is not a completely well accepted H

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A principle that liberalization, privatization and globalization has · led to the welfare or that it has been an unalloyed good of everyone. As very prominent thinkers and policy specialists have been arguing for nearly two decades, that the unthinking and extreme beliefs in LPG have led to many deleterious B impacts globally, cannot be ignored. (See the work of Nobel Laureate, Joseph Stiglitz: Globalization and its Discontents35). Another Nobel Laureate, Kenneth Arrow, and renowned economists such as Samuel Bowles and Steven Durlauf have also posited that the ideological notions that all governmental c programs to achieve egalitarian goals are ineffective has fundamentally eroded the very culture of nations, and the moral and constitutional commitments of the policy makers to pursue ,. such goals, with the "dismal prognosis of immutable inequality. 36" Moreover, it is also very well recognized that 0 markets, instead of eradicating discriminations and disadvantages, may in fact perpetuate the same. (See Cass R. Sunstein, "Free Markets and Social Justice"37 , and also Reservation and Privc:te Sector: Quest for Equal Opportunity and Growth, Ed. Sukhadeo Thorat, Aryama and Prasant NegP8). The falsity of the knee jerk beliefs that markets are necessarily efficient, and will necessarily find optimal and just solutions for all problems, was again provided by the recent global financial crisis. That unregulated laissez faire free markets would only lead to massive market failures, even with respect to those aspects in which markets are supposed to function efficiently, such as wealth generation has to be accepted as a fundamental truth. With respect to other social values and goals, it has also been shown that the complete evisceration of the power of the State to regulate the private sector would lead to massive redistributions of incomes. assets and resources in favour of the few, as against the multitude,

35. W.W. Norton and Company (2002).

36. Meritocracy and Economic Inequality, Oxford University Press.

37. Orford University Press (1997).

H 38. Rawat Publication (2005).

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& ORS. [B.SUDERSHAN REDDY, J.) thereby generating even greater inequalities. This would also A suppress the ability of the State to exercise moral authority, and force, to keep competing interests, spread across groups, regions, and classes, from degenerating into a war of all against all. The necessity of such a role for the State should not be doubted, nor its Constitutional duty whittled down. This B potential danger, and consequences, of evisceration of the role of the State was anticipated by the farmers of our Constitution. That is the reason why, the Preamble specifically articulates that ensuring the dignity of human beings, and fraternity amongst groups of people, to be vital for the integrity and security of the c nation.

111Copy pinpoint111. Article 38 of the Constitution mandates that "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life." This is a clear transcribing of a promise made in the Preamble, to all the people of our country, and in particular those who were socially disadvantaged, and who continue to be disadvantaged, that justice shall inform all institutiorls-olQur national life. What does Article 38 mean, when it talks about "institutions informing our national life"? Clearly higher education, and more particularly professional educational institutions imparting education in the medical, technical & engineering, scientific, managerial and legal fields, are to be recognized as being vital to the national well being, and determine the character of life, and social order throughout the nation. Each and every particular educational institution is a part of a large scale national endeavour to educate our youngsters. The word "institution" is capable of many meanings. It could be used in a narrow sense; however, ·it is also used, for instance, to refer to a broad class of fields of human and organizational endeavours: we talk about press and the media as an institution, we talk about legislative field as an institution, we talk about the executive as an institution, and indeed we talk about the judiciary, and the organizations engaged in the act H

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A of dispensing justice, collectively as an institution. We talk about universities, and seats of higher learning, collectively as an institution. At this level of generality, certainly the entire field of "higher education" is to be conceived as an institution informing our national life. The educated youngsters coming out of the B portals of our each individual college enter into jobs that may require different degrees of discretionary judgment, which in turn may also affect the lives of other people, including those in socially and educationally disadvantaged groups. Consequently, we have to necessarily hold that Article 38 c necessarily includes within its coneeption of "institutions informing our national life", all institutions that perform the role of imparting higher education.

112Copy pinpoint112. However, we must hasten to add that this conception of social justice is to be found not just in Article 38, in part IV D of our constitution. The same concern for social justice is also reflected in Clause 2 of Article 15 which states that: "No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to - (a) access to shops, public E restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds, or dedicated to the use of general public." Further, Clause 4 of Article 15 specifies that "Nothing in this article or in clause (2) F of Article 29 shall prevent the State from making any speciat provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and· Scheduled Tribes".

113Copy pinpoint113. The purport of Article 15 (2) can be gathered from G the Constituent Assembly debates. Babasaheb Ambedkar elucidated on the same saying that "To define the word 'shop' in the most generic term one can think of is to state that 'shop' is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service ..... IH

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& ORS. [B.SUDERSHAN REDDY, J.] Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word 'shop' used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to."39 In as much as education, pursuant to TMA Pai, is an occupation under sub-clause (g) of clause (1) of Article 19, and it is a service that is offered for a fee that takes care of all the expenses of the educational institution in rendering that service, plus a reasonable surplus, and is offered to all those amongst the general public, who are otherwise qualified, then such c educational institutions would also be subject to the discipline of clause (2) of Article 15. In this regard, the purport of the above exposition of clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing D a society in which Equality of status and opportunity, and Justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages. E There are two potential interpretations of the use of the word "only" in clause (2) of Article 1540 •• 0ne could be an interpretation that suggests that the particular private establishment not discriminate on the basis of enumerated grounds and not be worried about the consequences. Another F interpretation could be that the private establishment not just refrain from the particular form of overt disc~imination but also ensure that the consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the G functioning of the social, cultural and economic order. Whether sub-clause (a) of clause (2) of Article 15 is self-executory or

39. Constitutent Assembly Debates - Vol. VII.

40. Mahendra P. Singh, • V.N. Shukla's Constitution of India", 11th Ed. (Eastern Book Company, 2008) H

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A not is irrelevant in the context of reservations. If the State does enact "special provisions" for the advancement of socially and educationally backward classes, it does so in order to prevent the perpetuation of social and educational backwardness in certain classes of people generation after generation. B

114Copy pinpoint114. If a publicly offered service follows a particular rule that achieves the same or similar consequences as the proscribed discrimination, and tends to perpetuate the effects of such discrimination, then it would violate the principle of substantive equality. In the case of admissions to colleges, it is an acknowledged fact, in both TMA Pai, and in fact even by Bhandari J., in his opinion in Ashoka Kumar Thakur, that the test of merit, based on some qualifying examinations or a common entrance test, actually is particularly prone to rewarding an individual who has had access to better schools, family lives, social exposure and rr.eans to coaching classes. This would mean that many of the youngsters, who hail from disadvantaged backgrounds are severely handicapped in demonstrating their actual talents. This would be even more so in the case of Scheduled Castes and Scheduled Tribes. Given E that social and educational, background of the parents, and of general community members, has an important bearing on how well the youngsters learn and advance, it would only mean that complete dependence on such tests which do not discriminate and grade, in terms of real merit relative to peers in similar circumstances, but on the basis of so called absolute abilities, we would end up selecting more students from better social and educational backgrounds, thereby foreclosing or substantially truncating the possibility of individuals in such disadvantaged groups from being able to gain access to a vital element of modern life that grants dignity to the individuals, and thereby to the group as a whole, both in this generation, and in future generations. In light of the specific command of Article 38, of infusing our institutions of national life with social justice, we hold that a proper construction of clause (2) of Article 15 would H

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& ORS. [B.SUDERSHAN REDDY, J.] in fact be to prohibit a complete dependence on such context A (social and educational backwardness) insensitive tests. When viewed against this perspective, it would have to be discerned that reservations based on social and educational backwardness would in fact promote the selection of those who are truly meritorious amongst each group, on account of their B demonstrated ability to be in the higher rungs of achievement within comparable situations of life's circumstances and disadvantages. Such systems, with the same normative imperatives are used in other countries, and in fact more economically successful countries, with a demonstrated record c of immense scientific and technical achievements over the past hundred years: for example, the United States of America. Peer group norm referenced grading is extensively used there. The idea is simple: that given a minimal level of achievement of competence, grading as between similarly situated and 0 provisioned individuals would reflect both true talents and also individual variations in behaviour such as hard work, diligence, the ability to overcome challenges etc.

115Copy pinpoint115. Even if one were to assume that at some conceivable level, some youngsters from Socially and Educationally E Backward Classes, or Scheduled castes and Scheduled Tribes are actually relatively less proficient, at the entry point, than those belonging to the upper crust of India, there could be other mitigating factors. It is perfectly plausible to assume that youngsters who were socially deprived of .appropriate scholastic content in earlier years, do make it up and narrow the gap over time. 41 ·

116Copy pinpoint116. In addition, there are many other advantages that one could conceptualise that could emanate from social redistribution, of access to higher education, including professional education, in favour of disadvantaged groups. One talks about a knowledge economy that requires us to

41. Introduction in Meritocracy and Economic Inequality, ed by Arrow, Samuel Bowles and Steven Durlaf. .H

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A continuously ensure that we push the brightest amongst all of us to the top or be available in the labour market. However, the supply constraints of skilled labour, including professionals, and college educated graduates is also a major problem. We start with one perfectly reasonable assumption that undergirds all of B our equality jurisprudence: that we would find, as a matter of pure genotype, equal levels of talent, and abilities, including those needed for scholastic abilities, in all social groups, and other divisions such as religion or gender. This is not just a scientifically proven fact, notwithstanding the efforts of c misguided racist and junk science, but also a veritable ontological and ethical assumption. This would mean that unless this pool is expanded, to identify and provide opportunities for the best performers across all those groups, we would not have exploited our human resources as well as we could. This would in tum mean that the economic gains that were possible if the 0 imperfections in the supply side of the labor market had been overcome, have been lost on account of such imperfections, and also would continue to be lost in the future. 42

117Copy pinpoint117. In addition to the above, we also need to be very E careful about certain arguments that are raised in the context of reservations. These arguments suggest that reservations would weaken India's capacity to innovate, and retain its competitive edge in the high tech industries. It would appear that there are at least two problems associated with this. One F problem seems to be the implicit assumption that those who have benefited from reservations have not participated, and that such students in the future will not participate, in innovative contexts. No empirical data, which has been systematically collected, and is free of implicit cognitive biases against G reservations, to the best of our knowledge, has ever been placed before any court of law. To the contrary, proponents of reservations point out to the fact that certain regions of the country, which have had reservations for nearly hundred years,

42. Sukhadeo Thorat, Aryama and Prasant Negi (Eds.) Quest for Equal H Opportunity and Growth (2007).

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& ORS. [B.SUDERSHAN REDDY, J.] in fact have witnessed an explosion of private unaided colleges in technical & engineering, and scientific fields, and also arguably are the regions i.n which high tech industry is flourishing. The argument that academic standards in our institutions of higher education need to be high may be valid; nevertheless, we would also need to be careful in assessing whether any decline in standards, if any, has been on account 1 of students in reserved categories entering institutions of higher · education, or on account much wider systemic weaknesses in the field of higher education, including the way our universities 1 are managed, and the levels of research conducted or not c conducted. Without separating such causal factors, it would be constitutionally impermissible, and indeed unethical to lay the blame for any loss of academic standards on students in reserved categories.

118Copy pinpoint118. Setting aside the question of whether candidates who have been enabled to secure admission to professional colleges have participated in innovation in the high tech context, we also address a morefundamental issue. The very notion of innovation implicit in such arguments reveals a fundamental flaw. Innovation occurs across diverse fields, in diverse contexts, and with respect to diverse social needs. Two aspects need to be recognized in this. There is a fundamental distinction between invention and innovation. An invention is a new technical solution to a specific technical problem. Joseph Schumpeter43 distinguishes this from innovation, which implies productisation of that technical solution, in the form that actually meets the needs of customers or consumers, located across various regions, with varying degrees of specificity. In order to be able to innovate, there is a need to ensure that the innovation process is informed about the social needs, circumstances, and cultural factors that could affect the effectiveness of the innovation in the field. Within the universal class of innovations one would also find need to innovate in a manner that meets the requi:-ements that are specific to

43. Capitalism, Socialism and Democracy, Martino Fine Books (2010); H

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A geographic area, particular social group or even according to the level of prior technological adaptation in particular facet of social or economic life of a community. Some technological inventions, say general technologies, may not need much of user inputs, and a one size fits all solution may be fine for most B people. However, some innovations may need to be highly specific, and tailored to specific circumstances. Another layer of complexity could be visualized: innovation, particularly when it is based on specific information, that is more liKely to be gained through long years of exposure to specific crafts, c problems, social patterns etc. Such information tends to be "sticky" - i.e., it is not easily specifiable and transferable, is specific to people who actually have had the relevant exposure, and may need to be addressed at the location of the problem. Further, it would also mean that unless the putative innovator actually knows what the problems are, in a region, or specifically 0 to a community, he or she would not even know that the problem really exists to begin the process of adapting technical inventions to solve those particular problems. In as much as the innovator does not belong to such communities, even if they are broadly aware of the problem, they may not have sufficient E "sticky" knowledge about it to innovate an appropriate product or service or solution to effectively solve such problems. (See: Eric von Hippel, Democratizing lnnovation44)

119Copy pinpoint119. Given above, we address the issue of various F innovations that may be required at the lower levels of social strata in India. One may need to apply technology for a particular localized problem, say in remote villages, such as a network or a web interface that allows women to pictorially navigate certain sites to find out the best prices for their produce. To G design such a web interface, the designer would need to know the language of the end user, as well as the particular culture, and levels of cultural identification of the end users. Additional factors may also be surmised such as knowledge of cultural variations, particular social mores and problems emanating

H 44. MIT Press (2006).-

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& ORS. [B.SUDERSHAN REDDY, J.) from such mores. Would a person who has a broad exposure to emerging or new technologies, as well as the level of knowledge that is imparted at graduate level engineering courses, and who is also more aware of the local problems, or community specific problems be in a better position to engage in the innovative tasks appropriate for such a situation? It is entirely conceivable that the youngsters who have entered collegiate level courses, based on reservations, may be more adept at adapting existing technical solutions to particular problems because of their background. Most certainly one could conceive of situations in which such youngsters by virtue c of their social backgrounds may be the only ones who would have the knowledge that a problem exists, or the cultural and emotional commitment to acknowledge that such problems also need to be addressed and solved, for both personal gain as well as social gain. How do we compare the social value of D such activities, which may be getting enhanced on account of youngsters from socially and educationally backward classes and Scheduled Castes and Scheduled Tribes being admitted to colleges, both professional and non-professional, as against the value generated from being employed in some multi- E national company? Why should the Constitutional discourse undervalue the importance of the former? Are the lives of · people from socially disadvantaged backgrounds to be deemed to be not a constitutional concern? The fact that the former may not be quantifiable, or in popular and elite culture not acknowledged, does not mean that they are less valuable. F

120Copy pinpoint120. We can conceive tremendous gains in another respect also. Increasingly, with technological advances, the choices made by societies with respect to which technology is chosen for implementation, which technology is discarded, G which technology is promoted and the costs, both direct and indirect, such as environmental externalities, would have a tremendous impact on social and economic aspects, that range from global to local in impact. The implementation of such technologies has an impact on multiple constitutional H

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A rights, from Article 21 to issues of hidden bias against the lower classes. If the people in these socially and educationally backward classes, and in Scheduled Castes and Tribes are to engage in these debates, about the choices being made, assess the impacts on their own lives, and articulate, then surely B they would also require youngsters from amongst themselves who could understand the vast changes taking place in the socio-economic organizations, on account of rapid technological changes, and explain to them, or understand them and articulate their hopes, fears and aspirations. This would c mean that apart from Article 21 implications for the dignity of lives of other members of such disadvantaged groups, there are also implications about Article 19 freedoms themselves. These rights are extended to all citizens, and one of the fundamental reasons why they are extended is to ensure that every citizen is capable of engaging in a civil, reasoned, and 0 reasonable debate about social, economic and political choices. This would obviously deepen and enrich the democratic processes of this country, and thereby make it more stable. E· 121. In a recent judgment, this Court, has explicitly recognized that the meaning and purport of each article of the Constitution has to be gleaned from the text of the article, and also the meaning of that text as it may be further informed and transformed by other provisions in the other parts of the F Constitution. The meaning and extent of a fundamental right cannot be gleaned only from the specific text of that particular amendment; rather it needs to be gleaned from the matrices of inter-relationships, with other fundamental rights and provisions in other parts of the Constitution, thereby recognizing G the transformations effectuated on each other [GVK Industries Limited (supra)]. In that sense, the nature of judicial review of a constitutional amendment, in which over-arching principles informing all of the fundamental rights have to be gleaned and subjected to the test of abrogation of basic structure, comprises H a particular form of constitutional interpretation in which the

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& ORS. [B.SUDERSHAN REDDY, J.] essences of each of those over-arching principles has to be A gleaned and an amendment to the constitution has to be evaluated as being lawful or unlawful, in terms of implied limitations of power, as it effects those essences.

122Copy pinpoint122. In light of the above we find that by the insertion of 8 Clause (5) of Article 15, the 93rd Constitutional Amendment has empowered the State to enact legislations that may have very far reaching beneficial consequences for the nation. In point of fact, each and every one of the beneficial consequences we have discussed as being possible, would enhance the social justice content of the equality code, provide for enhancements of social and economic welfare at the lower end of the social and economic spectrum which can only behoove to the benefit of all the citizens thereby promoting the values inherent in Article 21, promote more informed, reasoned and reasonable debate by individuals belonging to various deprived segments of the population in the debates and formation of public opinion about choices being made, and the course that political and institutional constructs are taking in this country. Consequently we find that clause (5) of Article 15 strengthens the social fabric in which the Constitutional vision, goals and values could be better achieved and served. Or in terms of the analogy to Ship of Theseus, Clause (5) of Article 15 may be likened to a necessary replacement and in fact an enhancement in the equality code, so that it makes our national ship, the Constitution, more robust and stable. F

123Copy pinpoint123. At present, statistics 45 reveal that we just about manage to provide access to about 11 % or so of the college going age group with access to higher education. Coupled with this, the role of the State, which a lot of the disadvantaged G people feel is in the hands of the upper crust (including the creamy layer of such groups), in higher education is increasingly dwindling in terms of seats provided through state

45. Devesh Kapur & Pratap Bhanu Mehta, Morgaging the Furture? Indian Higher Education (2007). H

724 SUPREME COURT REPORTS {2011] 6 S.C.R.

A funding or aid. For instance nearly 85% or more of all engineering seats are in the private sector and about 50% in the field of medicine; and the number of aided and government colleges in other fields have just not kept pace. If a vast majority of our youngsters, especially those belonging to disadvantaged B groups, are denied access in the higher educational institutions in the private sector, it would mean that a vast majority of youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all. That would c constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale.

124Copy pinpoint124. Indeed at one level the recommendation of Bhandari J., in Ashoka Kumar Thakur that high quality institutions catering to the primary and secondary schooling needs of socially and D educationally disadvantaged groups, and scheduled castes and scheduled tribes have to be increased on a war footing is a sound one. This need has been felt for a long time and yet the State, which a lot of those youngsters might perceive to be in the hands of the upper crust, has not .:!one enough. However, E the argument that access to excellent schooling for all our children, including those from disadvantaged backgrounds, ought to be provided cannot be turned on its head, and then used to deny the necessity of reservations in higher education today. Many youngsters from such disadvantaged backgrounds, who are getting into institutions of higher education today on account of reservations, may at best be characterized as only being insignificantly or at best marginally less proficient than the students in the unreserved categories at the starting point. If their social and educational disadvantages are taken into account, it would not be unreasonable to conclude that they may in fact be more meritorious and deserving of access to higher education. It would be unjust to keep denying their claims for access and justice, on promises made and unkept, and new promises that may take too long to fulfill, even if one were to assume that they

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& ORS. [B.SUDERSHAN Rl=DDY, J.] would in fact be fulfilled. Promises are not enough to avert A social catastrophes.

125Copy pinpoint125. One of the things that has exercised our minds has been that in the debates in popular discourse of the elite in India it is assumed that imposition of reservations on private 8 unaided educational institutions would have a great and deleterious impact on the freedom of educators, i.e., those who promote, operate, finance and teach in those private u".laided educational institutions, to choose their own students. We hold that granting such a freedom would by itself be the actual C problem. Our societal hierarchy, and in fact one of the sustaining forces of caste system, and caste like structures in even other religious groups, apart from endogamy, lack of relative vertical and occupational mobility, has been the normative assumption that only some amongst us, belonging to certain social groups, deserve to study and gain the D" knowledge that truly provides ability to critically evaluate and attempt to change their world. Caste system may have been many things, but it was also about systematic exclusion from portals of knowledge. To allow that to happen again, now, in the garb of a right of the educator to choose his/her own E students, and a formal pretense of non-discrimination while turning a blind eye to the discrimination inherent in the system of selection for entry, which does not test real talent or ability would tantamount to a desecration of all constitutional values. F

126Copy pinpoint126. The learned Senior Counsel, also seemed to be advocating the position that we ought to assume that TMA Pai, as explained in P.A. lnamdar, is the final word with respect to the content of sub-clause (g) of clause (1) of Article 19 even in the context of a basic structure review. This we hold leads us G into a tautological cul de sac. However, we believe the methodology adopted by us, as enunciated in M. Nagaraj case, • and as gleaned from our constitutional jurisprudence, would over come such an impasse. A tautology is one in which the assumption contains all the elements of the conclusion in a H

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A logical argument. The tautology in the basic structure review urged upon us is this: Premise 1: Any derogation from any of the essential features of any kind of activity guaranteed freedom under sub-clause (g) of clause (1) of Article 19 would constitute an abrogation of the basic structure of the Constitution; Premise 9 2: the freedom of unaided educational institutions to not be subject to reservations with respect to admission of students is an essential aspect of the freedom to pursue the occupation of starting, operating, teaching in and managing educational institutions; and ergo, Conclusion: reservations would c necessarily destroy the basic structure of the Constitution.

127Copy pinpoint127. The power of tautological arguments is that they sound very reasonable. However, what we should look for is not the reasonableness of the tautological arguments, within the context of the argument itself. Rather, the structure of the D tautological arguments have to be examined with respect to the assumptions made, and the world that has been ignored, before accepting such arguments to be valid and persuasive.

128Copy pinpoint128. In the first place, the assum 1tion that sub-clause (g) E of clause (1) of Article 19 protections offered to private citizens, as enunciated by TMA Pai, and elaborated by P.A. lnamdar, to be the ultimate word with respect to what the contents of such activities are is inapposite, in the context of a Basic Structure test. Notwithstanding the fact that it is acknowledged that the F Constitution can be amended in accordance with Article 368 to take away the basis of a judgment of this Court, the proposed methodology would have us adopting the view that the starting point for the evaluation of impact of clause (5) of Article 15 with respect to the basic structure would also have to accept the views expressed by this court in TMA Pai to be given and deemed to be immutable, as if carved in stone.

129Copy pinpoint129. In the first place, we note that in neither of the two judgments, were features of the protections afforded to private unaided educational institutions evaluated in terms of the basic structure doctrine. Except for two references, in two paragraphs

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& ORS. [B.SUDERSHAN REDDY, J.) in a judgment spanning 450 paragraphs in total, TMA Pai does not speak of the basic structure doctrine at all. In paragraph 8, the said expression is mentioned, but it is a recitation of the submissions made by one of the. litigants in the case. This shows that in fact the basic structure doctrine was argued by opponents of reservations as one of the grounds to deem reservations to be unconstitutional. The Court obviously did not proceed on that ground. Instead, it chose to do so only on the grounds of the contents of sub-clause (g) of clause (1) of Article

19. In terms of M. Nagaraj's ratio, what we have is a finding of this court in TMA Pai that freedoms of private unaided c educational institutions under sub-clause (g) of clause (1) of Article 19 extends to the concept of being free from imposition of reservations, but not an analysis or finding about the status of that specific freedom, i.e., freedom to be free from reservations, within the freedom code itself, much less an 0 analysis of how that freedom to be free from. reservations relates to the equality code, and constitutional identity in terms of its institutions of governance. Indeed, we do not even find that this Court has engaged in an analysis of the relationship of that right to be free from reservations in light of the powers granted to the State, under sub-clause (ii) of clause (6) of Article E 19 to even abrogate, partially or wholly, the participation of private citizens in any of the activities guaranteed by sub-clause (g) of clause (1) of Article ·19. In as much as the issue of the content of the freedoms of non-minority unaided institutions came about collaterally, and were not the main issue under F consideration, and notwithstanding the fact that this Court did issue an authoritative ruling with respect to such institutions under sub-clause (g) of clause (1) of Article 19. We also find that this Court did not engage in any discussion with respect to right to life under Article 21, nor to sub-clause (a) of clause G (1) of Article 19 and its impact over all on the principles, and the actual processes, of democracy, which would certainly include within itself the rights of people of all segments, regions and groups to possess the appropriate level of knowledge to H

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A be able to debate, discuss and influence social, political and economic choices of institutions. Such choices could have a vast impact on vital aspects that inform right to life under Article 21.

130Copy pinpoint130. In light of the above, we are unimpressed by the 8 arguments that TMA Pai, as explained by P.A. lnamdar also provide the appropriate content for undertaking an "essences of rights test" i.e., an "over-arching principles" test, as enunciated by M. Nagaraj, to assess whether a Constitutional amendment, such as the 93rd Constitutional Amendment, C violates the Basic Structure. Indeed we are acutely aware that TMA Pai, is an eleven judge bench judgment, and P.A. lnamdar to be a seven judge bench judgment. However, the very eloquent silence of the two benches as to whether the contents they have read into sub-clause (g) of clause (1) of Article 19 to constitute a basic feature of the Constitution, is itself a clear indication that this Court, in those judgments was not engaging in that type of analysis. This Court, through another constitutional bench, Islamic Academy, had also exhaustively examined the ratio in TMA Pai, and there is not even a whisper therein that there is any indication in TMA Pai, that the right of private unaided educational institutions to be free from reservations would constitute a right of such magnitude that its partial truncation would abrogate the basic structure of our Constitution and change its very identity. What TMA Pai did was essentially to engage in a "reasonableness standard" test based on the text of Article 19(1){g). Nothing more.

131Copy pinpoint131. This Court, in P.A. lnamdar, warns us that "certain recitals, certain observations and certain findings in" TMA Pai G are "contradictory inter se ....... There are several questions which have remained unanswered ... .". Certainly, the issue of whether the State can impose reservations, on private non- minority unaided educational institutions, pursuant to a Constitutional amendment, are not even raised in TMA Pai. H

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& ORS. [B.SUDERSHAN REDDY, J.] Moreover, while some aspects of the contents of education as an occupation have been noted, many other" aspects have not ' been evaluated, especially in light of the goals of egalitarian social order, and ensuring of social justice, richness of democratic processes and attitudes that inform them, and ultimately dignity of vast swaths of humanity. Hence, to depend on the analysis in TMA Pai, with regard to the constitutional status of the contents of the rights of non-minority unaided educational institutions, in the context of a basic structure review would not only be inapposite, but also lead the Court down the wrong path. c

132Copy pinpoint132. In light of the above, we are nec~ssarily compelled to look at those unexamined aspects, including the contents of the very occupation that is guaranteed by sub~clause (g) of clause (1) of Article 19. This is imperative because a test of a constitutional amendment on the anvil of the basic structure doctrine using the "essences of rights" test i.e., the "over-arching principles test" is an entirely different exercise from a mere "unreasonableness test" undertaken by this Court in TMA Pai.

133Copy pinpoint133. This Court, in TMA Pai, declared the establishment of educational institutions by citizens to be an "occupation" as comprehended in the text of sub-clause (g) of clause (1) of Article 19. In doing so, the Court cited approvingly, and extensively, from Corpus Juris Secondum. In particular, the word "occupation" is stated to be a very "comprehensive term, which includes every species of the genus, and encompasses the incidental, as well as the main, requirements of one's vocation, calling, or business." Consequently, it would necessarily mean that in describing "education" as an occupation, the Court, in TMA Pai, certainly meant that it needs to be comprehended in its entirety, even if for the .specific purposes of the questions it set out to answer in that particular case, the Court did not deal with all such incidental and other requirements of the calling.

134Copy pinpoint134. The Court also cited approvingly the observations of H

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A the University Education Commission, headed by Dr. Radhakrishnan as its Chairman, and in particular the following is very important: "Liberal Education - All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of B achieving the good life, it is due to the faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.(emphasis supplied)" This obviously c implies that the darkness of ignorance, prejudice and unfounded belief, wherever it may be found, including amongst the socially and educationally disadvantaged classes, and those who have been subjected to grossly inhuman deprivations and unjust discriminations, such as Scheduled Castes and Scheduled Tribes, has to be eliminated. Not just equality, but 0 freedom itself would lose any meaning and content, if such darkness were to pervade amongst large swaths of our people. Certainly, in as much as the word "occupation" comprehends within itself all incidental, as well as the main requirements of the vocation, we ought to reasonably be able to conclude that E education as an occupation would certainly have to comprehend as one of its chief goals the tasks to which liberal education, in so far that all education is liberal education, has to necessarily serve.

135Copy pinpoint135. Furthermore, certain other aspects of education as an occupation also have to be taken into account to assess the nature of content of the rights granted to "educators" under sub- clause (g) of clause (1) of Article 19. Note should also be made of the fact that the Court in TMA Pai has specifically G characterized the nature of the occupation to be "charitable", and in fact specifically notes that private educational institutions have been started by educationists, philanthropists etc. This was so because "[E]ducation is a recognized head of charity."

136Copy pinpoint136. A charitable activity, is also a philanthropic activity. H

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& ORS. [B.SUDERSHAN REDDY, J.] Charity, the basis on which the charitable activity is undertaken, such as the setting up of, managing and operating educational institutions, is defined to include the following meanings: giving voluntarily to those in need, an institution or an organization for helping those in need, kindness & benevolence, tolerance in judging others and love of one's fellow men. In a similar vein, philanthropy involves a love of mankind46 • If one were to take a synoptic view of history of mankind, one would realize that educational institutions, as formal structures for learning, were invariably started by the State, or by citizens who had a great love for their fellow human beings. In societies which were c homogenous, and not hierarchically ordered, this love extended to all its members. The idea was that equipping as many youngsters as possible with knowledge would strengthen the society, bring in the benefits of enlightenment that darkness, caused by ignorance, prejudices and unfounded beliefs, denies to the individuals as well as the society. No philanthropist, with love for mankind, would want to educate a person who says that he or she wants to be enlightened only for personal benefit or for using the knowledge gained to perpetuate injustices in the society or strengthen inequality. Of course TMA Pai, by declaring that reasonable fees has to be collected, to cover capital costs, day to day operations etc., has brought in an element of financial viability. However, one should not then view that TMA Pai would have intended, when it accepted that education as an occupation could only be charitable in nature, that it would also be devoid of intrinsic and essential qualities such as love for mankind as the motivating factors in starting educational institutions.

137Copy pinpoint137. However, in hierarchical societies, marked by endemic inequalities, and where hierarchy had ossified, this G "love of mankind", which was the primary, and inherent, motive of education as a charitable or a philanthropic occupation, was extended only to individuals who belonged to the communities to which such philanthropists belonged to. Time, knowledge, and

46. The Concise Oxford Dictionary (1990). . H

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A philosophical constructs that inform our love for mankind change. Even societies in which race was used to impose horrific economic and social conditions on those who belonged to enslaved races, have changed. Great universities, such as Harvard which many decades ago did not admit students from a formerly enslaved races, or women, or those with other disadvantages, have with the march of time recognized that the very notion of education as a philanthropic activity would lose its motive force, and the essentiality of its purpose, of imparting liberal education that leads people from darkness to light and c that is inner soul would be derogated from if individuals from other races, or women, or those who face social disadvantages are also not provided access. In this regard, many universities have also come to the view that one of their essential purposes lies in providing higher education to ensure that in every sphere of social action, in which choices are made that impact 0 differentially on different segme::ts of the society, there be diversity of representation from all segments of the society. This is recognized as necessary to enrich and strengthen democratic processes, by bringing diversity of views and ensuring that debate occurs in a reasoned and reasonable manner, which in turn integrates the society and polity. Knowledge has expanded by leaps and bounds, and not all of it can be taught at the stage of secondary school education. The ability to engage with this expanding knowledge, to auto- didactically keep pace with such expanding frontiers, is typically provided only at collegiate level:47 This implies that unless access is provided on a wide scale, across all swath of the population, the debates about social, political, economic and technological choices would be uninformed, and therefore also likely to be unreasoned and unreasonable, thereby threatening the democratic process and social integration that is vital for fraternity and unity of the nation threatened. Noting the pernicious influence of marketplace throngs that seek to subordinate the higher status of higher education, Frank

47. Leaming To Be: The World of Education Today and Tomorrom - Unesco H Paris 1972.

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& ORS. [B.SUDERSHAN REDDY, J.] Newman, Laura Couturier and Jami~ Scurry write that from "the A establishment of the first college in America in 1636, there has been an understanding that higher education, though it clearly provides private benefits, also served community needs ..... steadily expanded from preparation of young men for leadership .... to preparation of a broad share of population for 8 participation in the workforce and civic life .. ." (See The Future of Higher Education - Rhetoric, Reality and the Risks of the Market48).

138Copy pinpoint138. Moreover, great universities have also begun to recognize that merit cannot be assessed purely on past performance, in exams or as revealed by grades. They recognize that a more composite manner of evaluation ought to be implemented. For these reasons, they look at not merely the marks secured at the qualifying level, or aptitude tests. They also evaluate the desirability of admitting students on the basis of recommendatipns of their teachers, the statements of purposes written by prospective students, and consider many . other factors such as background experiences. For instance a demonstrated desire to undertake social service, or being part of activities that demonstrate an acknowledgement of social responsibility are also taken into account. There are three reasons why they do that.

139Copy pinpoint139. One is that grades and marks, at the secondary lev~I may not necessarily indicate why a youngster has scored a certain level of marks or not, thereby not being a substantially- F accurate measure of ability to pursue studies at the collegfate level. The second relates to expectations of universities as to how knowledge gained would be used by the wider society and its impact on society. Those multiple other means provides G them, obviously not perfectly, but a more granulated and textured view about the background of the youngster, the particular circumstances under which the youngster was expected to study, and yet achieved what he or she achieved.

48. Jossey Bass, 1st Ed (2004) H

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140Copy pinpoint140. The third is the recognition that knowledge is generated and applied in diverse social contexts. Consequently, from a pedagogic and educational perspective, it is felt that having a diverse student body would enable the scholars to interact, learn about the diversities in life, and social 8 worlds, and appreciate the diverse points of views and needs. This obviously enhances the learning environment for students, and is viewed as an essential component of the environment of the university in which all students from diverse backgrounds would study. It is viewed as a necessary component of the C "knowledge inputs" and also an essential aspect of learning to be. We must recognize that many Indians, essentially from the upper crust, would not have had the opportunity to study in such universities, which are centers of great academic excellence, if those universities, educationists, and their philanthropists who had financed such institutions had stuck to archaic notions of inherent inequality amongst huma1 beings, and insisted only on the demonstrated ability to get high marks. Our students were selected because they had demonstrated an ability to excel within the background of our current socio-economic circumstances, and their academic accomplishments may or may not have been equivalent to what youngsters in similar cohorts in those nations, and indeed all across the World, actually accomplished. It was also felt that it was important for other students in such universities to interact with Indians, learn about our ancient culture, our lives and our circumstances, and view the knowledge they were gleaning from text books, whether sciences, social sciences or humanities, from the perspective of entire humanity, including India.

141Copy pinpoint141. Knowledge is the vital force that unites people. G Knowledge is generated in diverse circumstances, in the practical arenas that range from a highly technical and clinical laboratory, to the humble farmer, or a hut dweller eking out a bare subsistence. It is an accumulated gift of humanity to itself. The knowledge that non-minority educational institutions seek H to impart, is not knowledge that they have created. That

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& ORS. [B.SUDERSHAN REDDY, J.] knowledge was shared by people who have generated such knowledge out of love for humanity. Knowledge is shared by human beings all over the world out of love for humanity. Knowledge was passed down from the dark and forgotten past, out of love for humanity. To attempt to convert that knowledge into "gated communities of exclusion" would be to sow the seeds of destruction of humanity. Non-minority educational institutions claim that they ought to have the right to choose only those who have demonstrated a certain level of proficiency in tests, where the differences between those who get selected and those who are discarded may be insignificant, or do not c take into account the impact of differences in social and educational backgrounds on the performances in those tests. They also claim the right to be free from any state based imposition of reservations, thereby denying any social responsibility in ensuring that those who are the best within the socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes. To claim a right to distribute it only to a few, who are selected on the basis of tests which do not reveal the true talents spread across diverse groups, and communities in this country, is to destroy the very foundation by which such non-minority educational institutions are given access to knowledge. To partake of knowledge, from the common pool, that is a gift of humanity, including our common ancestors, to all of humanity, and then to deny the responsibility to share it with the best amongst youngsters who are located in diverse groups would be a betrayal of humanity. F

142Copy pinpoint142. Knowledge is also power. It empowers the individual. It also empowers the group to which that individual belongs to, and has culturally been induced to show greater affinity for. Consequently, the propagation of knowledge only amongst G certain groups, whether done deliberately, or done on supposed objective tests of merit that are context and background insensitive, would lead to massive imbalances in the level of power to understand, and articulete, amongst social groups. Let us not deny the truth. We were a horrifically divided society. We H

738 SUPREME COURT REPORTS [2011) 6 $.C.R.

A if humanization is a viable possibility. Within history, in concrete, objective contexts, both humanization and dehumanization are possibilities for a person as an uncompleted being conscious of their incompletion ..... But while humanization and dehumanization are real B alternatives, only the first is the people's vocation. This vocation is constantly negated, yet it is affirmed by that very negation. It is thwarted by injustice, exploitation, oppression, and the violence of the oppressors; it is affirmed by the yearning of the oppressed for freedom and justice, and by their struggle to recOYer their lost humanity. c Dehumanization, which marks not only those whose humanity has been stolen, but also (though in a different way) those who have stolen it, is a distortion of the vocation of becoming more fully human ...... This struggle is possible only because dehumanization, although a D concrete historical fact, is not a given destiny but the result of an unjust order that engenders violence in the oppressors, which in turn dehumanizes the oppressed."

Elsewhere, that great scholar continues: E "Because it is a distortion of being more fully human, sooner or later being less human leads the oppressed to struggle against those who made them so. In order for this struggle to have meaning, the oppressed must not, in seeking to regain their humanity (which is a way to create it) become in turn oppressors of the oppressors, but rather restorers of the humanity of both.

"This, then, is the great humanistic and historical task of the oppressed: to liberate themselves and their oppressors as well. The oppressors, who oppress, exploit, and rape by virtue of their power, cannot find in this power the strength to liberate either the oppressed or themselves. Only power that springs from the weakness of the oppressed will sufficiently be strong to free both. Any H

INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 739

& ORS. [B.SUDERSHAN REDDY, J.] attempt to "soften" the power of the oppressor in deference to the weakness of the oppressed almost always manifests itself in the form of false generosity; indeed, the attempt never goes beyond this. In order to have continued opportunity to express their "generosity," the oppressor must perpetuate injustice as well. An unjust social order must perpetuate injustice as well. An unjust social order is the permanent fount of this "generosity," which is nourished by death, despair and poverty. That is why dispensers of false generosity become desperate at the slightest threat to its source ..... True generosity consists c precisely in fighting to destroy the causes which nourish false charity."

144Copy pinpoint144. Our non-minority unaided educational institutions, including professional educational institutions, in claiming to be engaging in a charitable occupation, and yet claiming the right to ignore the conditions of social injustice and inequality that have a bearing on academic accomplishments of students at a young age, which are the indicia of oppression, would necessarily perpetuate the conditions of lack of access to knowledge that can transform the praxis of socially and educationally disadvantaged groups. The occupation they would be engaging in would be imbued with.'"false charity." For the past two decades, this country has been in the throes of early "amor" with the false but mesmerizing promises of laissez faire free markets, liberalization, privatization and globalization. F The State, in the throes of that false passion, believed that it would lead to generation of such wealth, that it could then take on the task of providing access to higher education to hitherto ·excluded classes and groups. However, that promise has turned out to be false and a mirage. It is now apparent to the G State that denial of access to higher education, to socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes, would potentially be dangerous to the ship of our nation, the Constitution. The 93rd Amendment, by . necessitating a wider analysis of different facets of our H

740 SUPREME COURT REPORTS [2011] 6 S.C.R.

A constitutional constructs, and the ontology that it is based on, has revealed new dimensions of understanding our past, present, and how we might approach the future. The verities of historical human experience, that passing ideological passions had buried, stand forth now, in their glorious hue of a true path to a humanized destiny. It is imperative, that our institutions of higher learning, which are a part of our national life, be freed from this false charity that can only lead to a dehumanized social order.

145Copy pinpoint145. Our Constitution is based on an ontology of humanism. It is based on the recognition of the dehumanization of vast swaths of our people in a hierarchical society. It is based on the acknowledgment of the truth that as long as endemic inequalities remain entrenched, the cultural constructs of the inherited notions of hierarchy and of social worth based on social status would not disappear, and further intensify the conditions of dehumanized existence of all human beings, irrespective of their stature. The disadvantaged are obviously brutalized and dehumanized, by the very structure in which they are compelled to live in. If the mas >es of India were to start believing, which thankfully they do not, and hopefully will not in the future, that their dehumanized condition is immutable, then also the ship of our constitution would have lost its way. If they conclude, that dehumanization is the only normal order based on what some keep propagating, and then further conclude that the only way out for them would be to violently revolt and oppress the oppressor, the ship would sink.

146Copy pinpoint146. Education is one of the principal human activities to establish a humanized order in our country. Its ontological specification is simple: every individual, in every group, is worthy of being educated. In as much as certain resources, such as seats in institutions of higher education, including professional education, are scarce, then they have to be allocated. The allocation can only be based on the fundamental ontological assumption that those who excel, within equal social

INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 741

& ORS. [B.SUDERSHAN REDDY, J.] circumstances, should be rewarded with access to higher education. Any other formula of distribution of such access, would be fundamentally inhl!man, and violate Article 14 of our Constitution. Given our past history of caste and gender based discrimination, and the continuation of endemic inequalities, in social, economic and cultural spheres, including education at all levels, giving freedom to an educator to choose who he or she would want to teach, and teach only those who belong to socially and educationally advanced groups, would be a curse on our constitutional project. The fact that non-minority unaided educational institutions insist on "social disadvantages blind" c admission policies is proof that they are not recognizing the true purpose of education as an occupation. Hence, State intervention is a categorical imperative, both morally and within our constitutional logic.

147Copy pinpoint147. In light of the above, we hold that the claimed rights of non-minority educational institutions to admit students of their choice, would not only be a minor right, but if that were in fact a right, if exercised in full measure, that would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems, so that they can appreciate how they can apply their formal knowledge in concrete social realities they will confront. F

148Copy pinpoint148. Consequently, given the absolute necessity of achieving the egalitarian and social justice goals that are implied by provisions ofclause (5) of Article 15, and the urgency of such a requirement, we hold that they are not a violation of G the basic structure, but in fact strengtheh the basic structure of our constitution. Consequently, we also find that the provisions of Delhi Act 80 of 2007, with respect to various categories of reservations provided therein to be constitutionally valid. H

742 SUPREME COURT REPORTS [2011] 6 S.C.R.

A VIII

CONCLUSIONS:

(A) The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, B Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 (Delhi Act 80 of 2007) or any provisions thereof do not suffer from any constitutional infirmities. The validity of the Delhi Act 80 of 2007, and its provisions, are accordingly upheld. c (B) The Notification dated 14-08-2008 issued by the Government of National Capital Territory of Delhi permitting "the Army College of Medical Sciences, Delhi Cantonment, Delhi to allocate hundred percent seats in the said college D for admission towards of Army personnel in accordance with the policy followed by the Indian Army" is ultra vires the provisions of Delhi Act 80 of 2007 and also 1

unconstitutional. The same is accordingly set aside. (C) The admission procedures '.levised by Army College E of Medical Sciences, Delhi Cantonment, Delhi for admitting the students in the first year MBBS course from a pre- defined source, carved out by itself and its parent society, are illegal and ultra vires the provisions of the Delhi Act 80 of 2007. F (D) Clause (5) of Article 15 does not violate the basic structure of the Constitution.

RELIEF G For the aforesaid reasons the impugned judgment of the Delhi High Court is set aside. Consequently, the respondents are directed to admit the Writ Petitioners into the First Year of MBBS Course in Army College of Medical Sciences, if the Writ Petitioners still so desire, for they have been deprived of their legitimate right of admission to the course, for no fault of theirs,

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& ORS. [B.SUDERSHAN REDDY, J.] notwithstanding the rank secured by them in the CET. It is true that they have appeared at the common entrance examination held long ago and qualified themselves to get admitted but were deprived of the same on account of the illegal admission policy of Army College of Medical Sciences permitted by the Government of Delhi. In the circumstances, all the respondents are accordingly directed to ensure that the Writ Petitioners are admitted into the First Year MBBS Course in the ensuing academic year by creating supernumerary seats. However, we make it clear that the admissions already made by Army College of Medical Sciences are saved and shall not be c affected in any manner whatsoever.

The appeals and the writ petitions are accordingly ordered.

R.P. Matters disposed of.