04-14-2008, 01:05 AM
<b>Quota in private institutions: Govt's move unlawful </b>
Abraham Thomas | New Delhi (Pioneer, April 14, 2008)
Bhandari verdict a hurdle for UPA
Once quota for Other Backward Classes is approved for Central educational institutions, the Government "will likely target" private unaided institutions.
This prediction by a judge in the five-member Constitution Bench of the Supreme Court that recently upheld the OBC quota law in Central educational institutions has assumed significance with the <b>Congress declaring on Saturday that the Government will now bring private unaided institutions under quota umbrella.</b>
Justice Dalveer Bhandari held that reservation in <b>private unaided institution is violative of basic structure of the Constitution and hence unconstitutional</b>. Justice Bhandari's comments are significant because the remaining four judges on the Bench left the question open to decide in another appropriate petition filed by an affected unaided institution.
On an issue other judges preferred to skip, Justice Bhandari saw reason to decide. He said, "The Government will likely target unaided institutions in the future. At that time, this Court will have to go through this entire exercise de novo.... <b>Therefore, looking to the extraordinary facts, I have decided to proceed with this aspect of the matter in the larger public interest."</b>
Justice Bhandari held, "Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' Article 19(1)(g) right to carry on an occupation (an essential fundamental right)."
While the Government could afford to ignore the single judge's view being in minority, the fact that other judges have left the question open is indeed a cause of worry. In his reasoning, Justice Bhandari relied upon previous judgements of the Supreme Court delivered by an eleven-judge Bench in TMA Pai Foundation case (2002) further affirmed by a seven-judge Bench in PA Inamdar case as recently in 2005.
Quoting Pai, the single judge held, "Selecting students or employees goes to the heart of an organisation's autonomy. The essence of an unaided educational institution is the freedom to manage its affairs."
If the Government was to impose reservation in private unaided institutions, Justice Bhandari visualised four major problems that would occur. <b>"At least four problems will likely arise: One, academic standards suffer; Two, attracting and retaining good faculty becomes more difficult; Three, the incentive to establish a first rate unaided institution is diminished; and ultimately the global reputation of our unaided institutions is severely compromised."</b>
Cementing his views with the Inamdar decision, Justice Bhandari said, "The State cannot impose quotas on unaided institutions. To do so would nationalise seats." He even quoted portion from Inamdar judgment that said, "The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on <b>lesser percentage of marks, i.e., on any criterion except merit."</b>
In conclusion, the single judge was quick to add a caveat assuming that the non-inclusion of unaided institutions from the reservation ambit under the Central Educational Institutions (Reservation in Admissions) Act 2007 speaks about the legislature's understanding of the Pai and Inamdar judgement. Yet, with political rumblings proving it a farce, the single judge's note of caution is sufficient indicator to order a rethink.
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Abraham Thomas | New Delhi (Pioneer, April 14, 2008)
Bhandari verdict a hurdle for UPA
Once quota for Other Backward Classes is approved for Central educational institutions, the Government "will likely target" private unaided institutions.
This prediction by a judge in the five-member Constitution Bench of the Supreme Court that recently upheld the OBC quota law in Central educational institutions has assumed significance with the <b>Congress declaring on Saturday that the Government will now bring private unaided institutions under quota umbrella.</b>
Justice Dalveer Bhandari held that reservation in <b>private unaided institution is violative of basic structure of the Constitution and hence unconstitutional</b>. Justice Bhandari's comments are significant because the remaining four judges on the Bench left the question open to decide in another appropriate petition filed by an affected unaided institution.
On an issue other judges preferred to skip, Justice Bhandari saw reason to decide. He said, "The Government will likely target unaided institutions in the future. At that time, this Court will have to go through this entire exercise de novo.... <b>Therefore, looking to the extraordinary facts, I have decided to proceed with this aspect of the matter in the larger public interest."</b>
Justice Bhandari held, "Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' Article 19(1)(g) right to carry on an occupation (an essential fundamental right)."
While the Government could afford to ignore the single judge's view being in minority, the fact that other judges have left the question open is indeed a cause of worry. In his reasoning, Justice Bhandari relied upon previous judgements of the Supreme Court delivered by an eleven-judge Bench in TMA Pai Foundation case (2002) further affirmed by a seven-judge Bench in PA Inamdar case as recently in 2005.
Quoting Pai, the single judge held, "Selecting students or employees goes to the heart of an organisation's autonomy. The essence of an unaided educational institution is the freedom to manage its affairs."
If the Government was to impose reservation in private unaided institutions, Justice Bhandari visualised four major problems that would occur. <b>"At least four problems will likely arise: One, academic standards suffer; Two, attracting and retaining good faculty becomes more difficult; Three, the incentive to establish a first rate unaided institution is diminished; and ultimately the global reputation of our unaided institutions is severely compromised."</b>
Cementing his views with the Inamdar decision, Justice Bhandari said, "The State cannot impose quotas on unaided institutions. To do so would nationalise seats." He even quoted portion from Inamdar judgment that said, "The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on <b>lesser percentage of marks, i.e., on any criterion except merit."</b>
In conclusion, the single judge was quick to add a caveat assuming that the non-inclusion of unaided institutions from the reservation ambit under the Central Educational Institutions (Reservation in Admissions) Act 2007 speaks about the legislature's understanding of the Pai and Inamdar judgement. Yet, with political rumblings proving it a farce, the single judge's note of caution is sufficient indicator to order a rethink.
http://dailypioneer.com/indexn12.asp?main_...t&counter_img=1