In a significant political push, the Indian National Congress has called on the Central government to introduce a law ensuring reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) in private, non-minority educational institutions. The demand was reiterated by Congress leader Jairam Ramesh, who cited a recent parliamentary committee recommendation and stressed the need to operationalise Article 15(5) of the Constitution.

The issue, which has lingered for years, gains renewed urgency amid growing concerns over equity in higher education and the increasing privatisation of educational institutions.

🧾 The Constitutional Provision: Article 15(5)

Article 15(5) was inserted into the Constitution through the 93rd Constitutional Amendment Act, 2005, which came into effect on January 20, 2006. This clause empowers the State to make special provisions for the advancement of socially and educationally backward classes (SEBCs), including SCs and STs, in terms of admissions to educational institutions, including private unaided institutions, but explicitly excluding minority institutions protected under Article 30(1).

The text reads:

“Nothing in this article or sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions…”

📌 Present Status of Reservation in Private Institutions

• While reservation in public educational institutions is already operational under Article 15(4), Article 15(5) allows extending the same to private non-minority institutions.

• A law is required to give effect to this constitutional provision.

• The Central Educational Institutions (Reservation in Admission) Act, 2006 was enacted to ensure reservations in central government institutions, including deemed universities. However, it does not cover private unaided institutions.

• Many states, including Tamil Nadu and Maharashtra, have tried to implement reservation policies in private institutions, but with mixed success due to judicial and legislative ambiguities.

⚖️ Judicial Position and Challenges

The constitutionality of Article 15(5) was challenged in the Ashoka Kumar Thakur vs Union of India (2008) case, where the Supreme Court upheld the provision but left open the question of its applicability to private unaided institutions, especially in light of the T.M.A. Pai Foundation (2002) and P.A. Inamdar (2005) judgments.

In P.A. Inamdar, the Court ruled that:

• Private unaided institutions (including minority and non-minority) cannot be forced to implement reservation.

• Regulatory oversight is permissible to ensure fairness and transparency but not reservation mandates, as it infringes on institutional autonomy and Article 19(1)(g) — the right to practice any profession or carry on any occupation.

Thus, a delicate balance is required between affirmative action and institutional autonomy.

🧠 Expert Opinions 

• The Parliamentary Standing Committee on Education in its 364th Report recently recommended legislation to implement Article 15(5) fully, covering private institutions.

• Several experts support reservations in private institutions as a logical extension of social justice in a rapidly privatising education system.

• However, legal scholars caution against infringing upon the autonomy of private players, arguing for incentive-based mechanisms like linking subsidies or tax benefits to compliance

🔍 Why This Matters Now

India’s higher education landscape is increasingly dominated by private players:

• Over 78% of higher education institutions are private.

• They account for nearly two-thirds of total enrolment, according to AISHE 2023.

If socially backward groups are to receive equitable access, a law to ensure reservation in private institutions may be the next frontier in India’s affirmative action journey.

🔚 Way Ahead

1. Comprehensive legislation is needed to implement Article 15(5), balancing social justice with institutional freedom.

2. Stakeholder consultation with private institutions, minority bodies, and education experts is essential to ensure legal robustness.

3. Encouraging diversity through incentives, capacity building, and monitoring mechanisms can serve as a parallel model.

4. A central monitoring body may be created to oversee implementation, redress grievances, and track impact.