the 82 nd and the 85 th Amendments) in the last decade were made to lend
constitutionality to affirmative-action policies.
68
InVinod Kumarv.Union of India,^69 the Supreme Court held that the relaxation
of qualifying marks and standards of evaluation in matters of reservation in promo-
tion for SCs and STs were not permissible in view of Article 335 of the Constitution.
Article 335 states that the claims of SCs/STs in appointments to government services
‘shall be taken into consideration consistently with the maintenance of efficiency
of administration’. The 82 nd Amendment introduced a proviso to Article 335 ,
which provided that nothing in the article shall prevent the making of any provision
in favour of SCs/STs for relaxation in qualifying marks in any examination or
lowering the standards of evaluation for reservation in matters of promotion.
The 85 th Amendment amended clause 4 A of Article 16 of the Constitution –
which was introduced by the 77 th Amendment in 1995 to extend reservation in
promotion for SCs/STs, something thatIndra Sawhneyhad prohibited – to ensure
that promoted SCs/STs retain their seniority after promotion. This amendment was
again made to reverse the effect of the Supreme Court decisions inAjit SinghIIv.
State of Punjab.
70
In this case, the court had held that a reserved-category promotee
cannot be considered senior to a general-category promotee who was promoted
later but was senior at the lower level.
71
Another affirmative-action provision was introduced by the 93 rd Amendment in
- 72
The newly inserted Clause 5 of Article 15 provides that nothing contained in
Article 15 or Article 19 ( 1 )(g)
73
shall prevent the state from making any special
provision for admission to educational institutions for the advancement of any
socially and educationally backward classes of citizens or for the SCs/STs. The
unique (and somewhat radical) aspect of this amendment was that it covered even
‘private educational institutions, whether aided or unaided by the state’; only the
minority educational institutions under Article 30 ( 1 ) were exempted from the scope
of this provision.^74 As expected, the constitutional validity of this amendment was
challenged before the Supreme Court in Ashoka Kumar Thakurv.Union of
India.^75 The Supreme Court inThakurheld Article 15 ( 5 ) to be valid, though it
(^68) The constitutional validity of the 81 st, 82 nd and 85 th Amendments was challenged before the
Supreme Court, which upheld their validity.M Nagarajv.Union of India( 2006 ) 8 SCC 212.
(^69) ( 1996 ) 6 SCC 580. The same view was taken by the court inIndra Sawhneyv.Union of
IndiaAIR 1993 SC 477.
(^70) ( 1999 ) 7 SCC 209. (^71) Singh,Shukla’s Constitution of India,p. 112.
(^72) The government enacted the Central Educational Institutions (Reservation in Admission)
Act 2006 to provide reservation for SCs, STs and OBCs in central educational institutions.
(^73) Article 19 ( 1 )(g) confers an FR on all citizens ‘to practice any profession, or to carry on any
occupation, trade or business’.
(^74) It is worth noting that the Supreme Court inP.A. Inamdarv.State of Maharashtra( 2005 ) 6
SCC 537 has held that private unaided educational institutions are not subject to the
requirement of reservation.
(^75) ( 2008 ) 6 SCC 1.