Article 15(5) under which special provision can be made for the representation of socially and educationally backward classes (SEBCs) in privatized higher education, is only an enabling provision which means that the issue of representation of SEBCs as students & staff (both academic & administrative) in private higher education is now dependent upon the sweet will of Legislature & the Executive of each State. Even where the political will could be mustered to implement the mandate of Article 15(5) the judicial hurdles continue to surmount. For example, the State Legislature of Uttar Pradesh passed the Admission o Educational Institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006 in order to override the decision in Inamdar by making provision of reservation of seats for Scheduled Castes, Scheduled Tribes and other SEBCs, in admission to educational institutions, including private educational institutions. But the Allahabad High Court prevented the enforcement of this Act on one pretext of the other and finally gave a fatal blow to it by declaring the key provisions of the Act unconstitutional in 2011. Hence, the judicial policy of postponement of social justice continues deep into private higher education.
Moreover, the exemption by Article 15(5) to minority educational institutions referred to in Clause (1) of Article 30 has suppressed the question of representation of SEBCs belonging to minority communities popularly known as “Pasmanda” in private higher education. On this question public & private higher education look like mirror images of each other. This is one of those classical examples where both the Parliament & the judiciary come together to pursue a policy of denial of representation to SEBCs at all spaces which can be termed as higher.
Dr. Ayaz Ahmad, Associate Professor, Unitedworld School of Law (UWSL)
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