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2. Clause (5) of Article 15 of the Constitution reads as follows:

“Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” Clause (5) of Article 15 of the Constitution, therefore, enables the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. The constitutional validity of clause (5) of Article 15 of the Constitution insofar as it enables the State to make special provisions relating to admission to educational institutions of the State and educational institutions aided by the State was considered by a Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India & Ors. [(2008) 6 SCC 1] and the Constitution Bench held in the aforesaid case that clause (5) of Article 15 is valid and does not violate the “basic structure” of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. In the aforesaid case, however, the Constitution Bench left open the question whether clause (5) of Article 15 was constitutionally valid or not so far as “private unaided” educational institutions are concerned, as such “private unaided” educational institutions were not before the Court. This batch of writ petitions has been filed by private unaided educational institutions and we are called upon to decide whether clause (5) of Article 15 of the Constitution so far as it relates to “private unaided” educational institutions is valid and does not violate the basic structure of the Constitution.

i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution.

ii) Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution.

Validity of clause (5) of Article 15 of the Constitution Contentions of learned counsel for the petitioners:

5. Mr. Mukul Rohatgi, learned senior counsel for the petitioners in Writ Petition (C) No.416 of 2012, submitted that in T.M.A. Pai Foundation & Ors v. State of Karnataka & Ors. [(2002) 8 SCC 481] the majority of the Judges of the eleven-Judge Bench speaking through Kirpal C.J. have held that the fundamental right to carry on any occupation under Article 19(1)(g) of the Constitution includes the right to run and administer a private unaided educational institution. He submitted that in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625] Chandrachud, CJ., writing the judgment for the majority of the Judges of the Constitution Bench, has held that Articles 14, 19 and 21 of the Constitution constitute the golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual. He submitted that in the aforesaid case, the Constitution Bench held that Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending power of Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of the Constitution is, therefore, a basic feature of the Constitution and this basic feature is destroyed by providing in clause (5) of Article 15 of the Constitution that nothing in Article 19(1)(g) of the Constitution 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. Mr. Rohatgi explained that a nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of T.N. [(2007) 2 SCC 1] relying on the aforesaid judgment in Minerva Mills case (supra) has similarly held that Articles 14, 19 and 21 of the Constitution stand on altogether a different footing and after the evolution of the basic structure doctrine in Kesavananda Bharati (supra), it will not be open to immunize legislation made by Parliament from judicial scrutiny on the ground that these fundamental rights are not part of the basic structure of the Constitution. He submitted that in the aforesaid judgment, this Court, therefore, has also held that the existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including the power of judicial review under Article 32 is incompatible with the basic structure of the Constitution and, therefore, such an exercise, if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19 of the Constitution. Mr. Rohatgi submitted that Bhandari, J. has taken the view in Ashoka Kumar Thakur v. Union of India (supra) that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution and, therefore, the Ninety-third Amendment of the Constitution is ultra vires the Constitution.

11. Mr. Dhavan submitted that in T.M.A. Pai Foundation case (supra) the majority judgment has determined the content of the right of a private educational institution under Article 19(1)(g) of the Constitution and the content of this right comprises the (a) charity, (b) autonomy, (c) voluntariness, (d) non-sharing of seats between the State Governments and the private institutions, (e) co-optation and (f) reasonableness principles. He submitted that clause (5) of Article 15 of the Constitution inserted by Parliament by way of amendment, however, provides that nothing in Article 19(1)(g) of the Constitution shall prevent the State from making any special provision, by law, for admission to private educational institutions of persons belonging to socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. He vehemently argued that by clause (5) of Article 15 of the Constitution the power that is vested in the State is such that it can destroy the essence of the right of private educational institution under Article 19(1)(g) of the Constitution as determined by this Court in T.M.A. Pai Foundation case (supra) and therefore the constitutional amendment inserting clause (5) in Article 15 of the Constitution is destructive of the basic structure of the Constitution.