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Considering step two test in Ashoka Kumar Thakur, on the anvil of I.R. Coelho, it was held while examining the impact test on the constitution framework, the reservations in private unaided educational institutions will give rise to the problem of maintaining academic standards, attracting and retaining good faculty will become a disincentive to establish a first rate unaided institution, which will affect global reputation of unaided institutions and will compromise them. It was held by Hon'ble Mr. Justice Dalveer Bhandari in para 525 that the institutions in such case, will no longer be able to admit the highest-scoring students; they will not attract the best students and will not be able to churn out the best. Forced to admit students with lower marks, the University's final product will not be as strong. After excluding the creamy layer, the cut of marks will drop. The overall effect will weaken the incentive to establish the unaided institutions. The skills, knowledge and creativity to compete globally will be lost. The teachers will be asked to teach a class in which half the students are advanced relative to the other half. The shortage of top rate faculty will get worst. It will have a negative impact on the circumstances seeking employment in the knowledge economy. The top rated institutions visited by domestic as well as international entities for recruitment will pace the effect of the reservation and given the dramatic effect as aforesaid the reservation will have on the society as a whole. Article 19 (1) (g) will be abridged for violation of the Constitution basic structure. Hon'ble Mr. Justice Dalveer Bhandari thus held "I sever the 93rd Amendment's reference to "unaided" institutions as ultra vires of the Constitution." He referred to justification of severance by adopting the principle of severability from the judgment in R.M.D. Chamarbaugwalla vs. Union of India AIR 1957 SC 624.

8. The Constitution (Ninety Third Amendment) Act is not only a valid and justified exercise of the amending power of Parliament, but also does not, in any manner, violate the basic structure of the Constitution. In fact, the insertion of sub clause (5) in Article 15 lends strength to the basic structure of the Constitution by giving further contents and strength to the rights conferred by Articles 14, 15, 16, 17, 19, 21 of the Constitution and mandate contained in the Directive Principles of State Police, in particular Articles 38, 39, 41 and 46. The Amendment Act maintains the structure of Article 15, intact. On the contrary, continued denial of educational opportunities to SCs, STs, SEBCs would have been a gross violation of the Basic Structure of the Constitution and its Basic Feature of Equality.

9. The said amendment is intended to provide meaningful equality of educational opportunity by eliminating the existing inequalities in access to education. This Hon'ble Court has emphasized many a time that equality is a positive right and requires the State to minimize the existing inequalities and to treat unequals or the underprivileged with special care as envisaged in the Constitution. (Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217; St. Stephens College vs. University of Delhi, (1992) 1 SCC 558). The petition turns a blind eye to widespread discrimination and lack of access to education to the weaker sections of society. Given the inequities and inequality of status and opportunity marring Indian Society and the ground reality of widespread disparity in access to education and employment for the SCs, STs, SEBCs and OBCs, the scheme envisaged under Article 15 (4), 15 (5), 16 (4A) and 16 (4B) and Article 46 and Part XVI of the Constitution is designed to reduce and eliminate inequality including social inequality which clearly and incontrovertibly forms part of the basic structure of the Constitution. Clause (5) of Article 15 was inserted through the Constitution (Ninety Third Amendment) Act to enable and equip the State to implement the said mandate. Article 15 (5) has been inserted in the Constitution in order to open avenues of education including higher, professional and technical education to SCs, STs and OBCs who have been denied their right in this regard. Without such reservation, the SCs, STs, and SEBs and OBCs will not be able to secure a fair share of this opportunity. While reservation for SCs, STs has not been seriously contested with reference to the basic structure, reservation for SEBCs also does not abrogate or abridge the basic structure of the Constitution as has been settled in a number of judgments of this Hon'ble Court.

A ruling is generally considered to be binding on lower courts and the courts having smaller bench structure. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and accepts an organic development of the law besides providing assurance to the individual and certainty in the transactions vide M.A. Murthy vs. State of Karnataka 2003 (7) SCC 517 and also State of Punjab vs. Devans Modern Brewans Limited (2004) 11 SCC 26.

When the Court is divided, the judgment of majority constitutes the law declared and not the view or observance of the Judges in the minority vide John Martin v. State of West Bengal (1975) 3 SCC 836. Where the majority has not expressed any opinion, the decision of the minority in strength, even if by a single Judge amongst five, has the effect, if the reasons are given of the judgment of the Supreme Court to be binding upon the High Court under Article 141 of the Constitution of India. The principle underlying the decision is binding on the High Courts. In Ashoka Kumar Thakur's case, the question answered by Hon'ble Justice Dalveer Bhandari, namely whether the Ninety Third Amendment violates the basic structure of the Constitution by imposing reservation on unaided institutions, did arise in the case, and was apparently argued by the counsels appearing for the parties. The Hon'ble Judge posed the question and answered it by elaborate reasoning citing the entire case law on the subject on the touchstone of I.R. Coelho's case. He has not only answered the question but has also, in adopting the principles of severability of the offending party, consciously, declared the Ninety-Third Amendment as it refers only to the unaided institutions, as ultra vires the basic structure of the Constitution of India. The ratio of the decision is a binding precedent, and thus once the Constitution (Ninety-Third Amendment) Act 2005, to the extent that it refers to unaided institutions, has been held to be ultra vires, the High Courts are bound with the ratio, as to under Article 141 of the Constitution has to follow it and on the same analogy on which Article 15 (5) as has been declared to be violative of the basic feature of the Constitution of India, of the right to occupation and its abridgment, the provisions of Section 4 of the UP Act No. 23 of 2006 cannot be saved, to that extent.