NOTES AND COMMENTS

RESERVATIONS IN PRIVATE UNAIDED

EDUCATIONAL INSTITUTIONS: LEGAL
AND THEORETICAL REFLECTIONS
Abstract
The comment seeks to establish that the rights test developed in I.R
Coelho v. State of Tamil Nadu equates the basic structure review to the
fundamental rights; judicial review and its application must be restricted
for ascertaining the constitutionality of laws inserted in the ninth schedule.
An attempt is made to prove this proposition by analysing the opinion of
Bhandari J in Ashoka Kumar Thakur v. Union of India on the question of
constitutionality of imposition of reservations in private educational
institutions. The comment seeks to prove that notwithstanding the increased
importance of private unaided educational institutions in the Indian
education sector, the narrow dictates of formal equality cannot preclude the
imposition of reservation on them. However, it is proposed that less
rigorous reservations should be imposed on unaided private educational
institutions as the imposition of 50 per cent reservation could weaken the
incentive to establish them.

I Introduction

THE CONSTITUTION of India works because of its generalities and

the good sense of the judges while interpreting it. It is that informed
freedom of action-of the judges that helps to preserve and protect our
basic document of governance.' There is a moral dimension to every
major constitutional case where the language of the text is not necessarily
a controlling factor.f The basic structure doctrine remains one of the
greatest silences in the Indian constitutional law and often evokes arguments
of judicial overreach.f Upendra Baxi, while echoing the same concern,
writes:"

1. M. Nagarqj v. Union of India (2006) 8 SCC 212 at 245. Hereinafter cited as M.

Nagarqj.
2. Fali S. Nariman, "Court and the Constitution", The Tribune, April 14, 2006.
3. Abhinav Chandrachud, "How Legitimate is Non-Arbitrariness? Constitutional
Invalidation in the Light of Mardia Chemicals v. Union of Indid', 2 Indian] Canst L
179 (2008).
4.Upendra Baxi, "The Rule of Law in India", 6 SUR Int'/ ] ofHuman Rights 19
(2007).
72
2011] Notes and Comments 73

The ineffable adjudicatory modes also mark a new and a bold

conception: "constituent power" (the power to remake and
unmake the Constitution) stands conjointly shared with the Indian
Supreme Court to a point of its declaring certain amendments as
constitutionally invalid.
The Supreme Court in T.MA. Pai Foundation v. State of KarnatakaS
had held that citizens have a right to establish educational institutions
under article 19(1) (g) of the Constitution." The controversy related to
state-imposed reservation in unaided private educational institutions had
its genesis in the controversial paragraph 68 in the decision of the Supreme
Court in T.MA. Pai Foundation.? This paragraph was paraphrased by the
Supreme Court in Islamic Academy v. State rif KarnatakrJ into seven parts
to clarify that unaided professional colleges should also make provisions
for students from the poor and backward sections of society wherein the
government could prescribe the percentage of seats according to local
needs, and different percentages could be fixed for minority and non-
minority institutions." The Supreme Court in PA. Inamdar v. State of
Maharashtra10 paraphrased paragraph 68 into just two parts and held that
it was constitutionally impermissible to impose any seat-sharing quota or
reservation policy by the state on unaided private professional colleges."!
The court also added that any state-imposed reservation in unaided private
educational institutions would be an unreasonable restriction in the exercise
of a fundamental right under article 19(1)(g).12 Pratap Bhanu Mehta
criticized the Court's approach in P.A. Inamdar,u
On 21 December 2005, the Constitution (Ninety-third) Amendment
Act, 2005 inserted clause (5) in article 15 of the Constitution. After this

5. (2002) 8 see 481. Hereinafter cited as T.MA. Pai.

6. Id. at 591.
7. Id. at 549. The paragraph was extremely problematic as it had started with an
affirmation that it would be unfair to apply the same rules and regulations regulating
admissions to both aided and unaided professional institutions but went on to
suggest that, as a condition of recognition, the state could allot a certain percentage
of seats to fulfill its objectives according to local needs.
8. (2003) 6 see 697. Hereinafter cited as Islamic Academy.
9. !d. at 725-26.
10. (2005) 6 see 537. Hereinafter cited as PA. Inamdar.
11. u. at 597-98.
12. Id. at 601.
13. Pratap Bhanu Mehta, "5-7-11 Justice", Indian Express, Aug. 18,2005.
74 Journal of the Indian Lalli Institute Vol. 53 : 1

amendment, the Parliament enacted the Central Educational Institutions

(Reservation in Admission) Act, 2006 with the avowed purpose of
facilitating greater access to higher education by providing for 27 per
cent reservation for OBCs in the educational institutions controlled by
the central government. The Act did not give effect to the mandate of
the newly introduced clause (5) under which special provisions relating to
admissions could have been enacted for both aided and unaided private
educational institutions. The petitioners unsuccessfully challenged the validity
of clause (5) in Ashoka Kumar Thakur v. Union of India14 on the ground
that it violated the basic structure doctrine.P The majority did not express
any opinion on the constitutionality of the imposition of reservation on
unaided private educational institutions as no such institution had
approached the court. The only judge to do so was Bhandari J. who
opined that the imposition of any reservation on unaided private
educational institutions was violative of the basic structure doctrine. Several
eminent constitutional law experts have criticized the majority for not
expressing any opinion on the issue.l" It is inevitable that the question will
be agitated before the court in the future and the opinion of Bhandari J.
remains the only expression from the court on the issue.
The present piece seeks to analyze the opinion of Bhandari J. in light
of the decisions of the court in M. Nagaraj and I.R Coelho v. State of Tamil
Nadu. 17 The first part of the paper explains the decision of the Supreme
Court in M. Nagaraj. The second part discusses the decision of the court
in Coelho and explains its nexus with the decision in M. Nagaraj. The third
part discusses me opinion of Bhandari J. in Ashoka Kumar Thakur and
argues that Coelho's rights test simpliciter cannot be used to check the
constitutionality of reservations in private unaided educational institutions.
The fourth part seeks to address other arguments that have been raised
against the constitutionality of reservations in private unaided educational
institutions.

14. (2008) 6 SCC 1. Hereinafter cited as Ashoka KJ#11Iar ThakNr.

15. The basic structure doctrine is a test evolved by the court in Kesavananda
Bharati v. State of Kerala, AIR 1973 SC 1461 to put fetters on the Parliament's power
of amendment. See, generally, Upendra Baxi, "The Constitutional Quicksands of
Kesavananda Bharati and the Twenty-Fifth Amendment" (1974) 1 sec (JIJNr) 45.
16. See, for instance, Sudhir Krishnaswamy & Madhav Khosla, "Reading AK
ThakNr v. Union of India: Legal Effect and Significance", 43 EClJn & PIJI Wk!y 56
(2008).
17. (2007) 2 SCC 1. Hereinafter cited as CoelhlJ.
2011] Notes and Comments 75

II The decision in M. Nagaraj - Mathew J.'s

test affirmed
The Constitution Bench of the Supreme Court in M. ·Nagaraj was
confronted with the question as to whether the amendments to the
Constitution which introduced new provisions in article 16 regarding
reservations in public employment were violative of the basic structure of
the Constitution. The seventy-seventh amendment to the Constitution in
1995 inserted clause (4A) to article 16 authorizing reservations in
promotions for scheduled castes and scheduled tribes to remove the
limitation indicated in Indra Sawhney v. Union of India 18 which held that
there could be no reservations in promotions. The eighty-first amendment
inserted clause (4B) to article 16 authorizing that the carry-forward vacancies
were to be ignored while calculating the ceiling limit of ftfty per cent. The
eighty-fifth amendment to the Constitution was required to undo the
decision in Ajit Singh (II) v. State of Punjab,19 wherein it was held that
despite the insertion of clause (4A) in article 16, the seniority of the
reserved category promotees could not be counted in the promoted
category from the date of their continuous offtciating in the promoted
post as compared to the candidates belonging to the general category
who were senior to them in the lower category but were promoted at a
later date. The eighty-fifth amendment introduced in 200.1 'granted
consequential seniority to reserved category candidates who had acquired
accelerated promotion.
The two grounds of challenge against these amendments were that
the Parliament had amended article 16 to overcome judicial decisions
thereby damaging the basic feature of judicial review and the amendments
had enlarged the scope for reservation thereby damaging the basic feature
of equality. The court in M. Nagaraj adopted two tests, namely the 'width
test' and the 'identity test', which were to be applied disjunctively, to
ascertain if the impugned amendments were violative of the basic
structure.j''
It is important to explore as to why Bhandari J did not use the width
and identity test in A.K. Thakur, particularly when the 9yd amendment
was concerned with the equality code indicated in articles 14, 15 and 16
of the Constitution. Bhandari J preferred to follow the rights test that

18. 1992 Supp (3) see 212. Hereinafter cited as Indra Sawhney.
19. (1999) 7 see 209.
20. u. at 268.
76 Journal of the Indian Law Institute Vol. 53 : 1

had evolved out of a nine-judge bench decision in Coelho. One plausible

explanation could be that Bhandari J felt compelled to apply the rights
test as a bench of a larger quorum had rendered the decision in Coelho. It
is important to appreciate the difference, if any, between the tests
developed by the court in M. Nagartfi and Coelho. The opinion of the
court in M. Nagartfi suggests that it was conscious of the distinction
between equality as a fundamental right and equality as a basic feature of
the Constitution.F' A careful reading of the judgment in M. Nagartfi
suggests that the court has advocated the application of essence of rights
test before using the width and identity test. The essence of rights test
will enable the court to identify the constitutional principles that the
'width test' seeks to protect. The court stressed that some of the
constitutional principles may be so important and fundamental that they
become part of the basic structure of the Constitution.F The court stated
that it was only by linking constitutional provisions to such overarching
principles that one would be able to distinguish essential from less essential
provisions of the Constitution.P The court held that in order to qualify as
an essential feature, a principle has to be binding on legislature as an
entrenched part of constitutional law after which it could be examined
whether the principle was fundamental enough to bind even the amending
power of the Parliament.f" After employing the essence of rights test, the
court in M. Nagartfi reduced the concept of equality, which is delineated
over several articles, to the equality code indicated by articles 14, 15 and
16 of the Constitution as it embodies the foundational value of equality.25
The underlying theme of the opinion in M. Nagartfi suggests that first,
the constitutional principle, which is a part of the basic structure, and
whose violation by means of an amendment has been challenged, must
be identified. Second, the constitutional principle might be delineated over
several articles but it has to be seen in the context of the placement of
specific articles of the Constitution that embody its foundational value.
Third, the width and identity test will enable the identification of
constitutional limitations whose obliteration will lead to the obliteration
of the constitutional principle and hence. the basic structure of the
Constitution.

21. Sudhir Krishnaswamy, Democrary and Constitutionalism in India: A Stut!Y of the

Basic Structure Doctrine 78 (Oxford University Press, New Delhi, 2009).
22. Supra note 1 at 243.
23. Ibid.
24. Ibid.
25.u. at 247.
2011] Notes and Comments 77

The test of overarching principle or essence of rights test is not a new

test developed by the court in M. Nagar4 Its foundation could be traced
to the opinion of Mathew J in Indira Gandhi v. Raj Narai".26 In Indira
Gandhi} the short question before the court was whether clauses (4) and
(5) of article 329-A transgressed the basic structure of the Constitution.
Chandrachud J. was of the opinion that the right to equality conferred by
article 14 was a part of the basic structure of the Constirution.V
Thereupon, Chandrachud J employed the classic nexus test as enunciated
by Das J in Anwar Ali Sarkar v. State oj West Bengaj28 to conclude that any
differential treatment of the elections to the office of prime minister
from elections of other members of Parliament would be violative of
article 14.29
In Indira Gandhi, Mathew J opined that article 14 was not a feature of
the basic structure of the Constitution and asserted that whether a particular
feature forms part of the basic structure has to be determined on the
basis of the specific provisions of the Constitution.I" Chandrachud J had
asserted four unamendable features which formed part of the basic
structure, two of which were mentioned verbatim in the preamble.I' Mathew
J was of the opinion that though the preamble enumerates great concepts
embodying the ideological aspirations of the people but those concepts
were particularised and their essential features delineated in various
provisions of the Constitution. 32 Mathew J. was emphatic in rejecting the
articulation of the basic structure in abstract magnificent obsessions and
emphasised that: 33
It is impossible to spin out any concrete concept of basic structure
out of the gossamer concepts set out in the Preamble. The specific

26. (1975) Supp. SCC 1. Hereinafter cited as Indira Gandhi.

27. Id. at 257.
28. AIR 1952 SC 75.
29. Sudhir Krishnaswamy has criticized the extension of the article 13 judicial
review analysis to constitutional amendments by Chandrachud J. See supra note 21
at 76.
30. Supra note 26 at 137. Mathew J. had observed in his inimitable style, "I
cannot conceive of rule of law as a twinkling star up above the Constitution. To be
a basic structure, it must be a terrestrial concept having its habitat within the four
corners of the Constitution."
31. Id. at 252.
32. Id. at 138.
33. Ibid.
78 Journal of the Indian Law Institute Vol. 53 : 1

provisions of the Constitution are the stuff from which the basic
structure has to be woven.
The court came to the conclusion that the impugned amendments to
article 16 furthered equality and were not violative of the basic structure
of the Constitution. It has been suggested that the decision of the court
reiterates the special nature of constitutional commitment accorded to the
scheduled castes and the scheduled tribes in the matter of job reservation.I"
Despite the enunciation of the overarching principle or the essence of
rights test, the court in M. Nagarqj scrutinized the impugned amendments
against the text of article 16(4). Kapadia J. has held: 35
[TJhe concept of the "catch-up" rule and "consequential seniority"
are not constitutional requirements. They are not implicit in clauses
(1) and (4) of Article 16. They are not constitutional limitations.
They are concepts derived from service jurisprudence. They are
not constitutional principles. They are not axioms like, secularism,
federalism, etc. Obliteration of these concepts does not change
the equality code indicated by Articles 14, 15 and 16 of the
Constitution.
The "catch-up rule" and "consequential seniority" are not constitutional
requirements and so is the fifty per cent limit on reservations which has
been categorised by the court as an inviolable constitutional principle of
the equality code. The court could have arrived at the same conclusion
after justifying that the "catch-up rule" and "consequential seniority",
being judicially evolved concepts, were not central to the principle of
equality unlike the principle of "creamy layer". The court, after starting
on the right note, fell in the trap of article 13 fundamental rights review
in M. Nagarqj. According to one author, the decision in M. Nagarqj has
intensified the conflation of the basic structure review and article 13
fundamental rights review.P" The 'damage or destroy' standard had
extended article 13 judicial review to constitutional amendments with the
obvious requirement that such amendments must cause greater damage
to rights than other forms of state action under article 13 judicial review. 3?

34. Parmanand Singh, "Tension between Equality and Affirmative Action: An

Overview", 1 Jindal Global L Rev 109 (2009); See, generally, Sameer Pandit, "M.
NagartfJ v, Union ofIndia: Legal and Theoretical Reflections", 49 JILl 249-59 (2007).
35. Supra note 1 at 268.
36. Supra note 21 at 78.
37. Ibid.
2011) Notes and Comments 79

The 'damage or destroy' standard operates on the premise that there are
certain features or elements which constitute the basic structure or
framework of the Constitution or which, if damaged or destroyed, would
rob the Constitution of its identity so that it would cease to be the
existing Constitution and would become a different Constitution.V The
author has argued that the width test is essentially a tool to extend article
13 judicial review to constitutional amendments for compliance with
fundamental rights but the decision in M. Nagar,!! suggests that where a
constitutional amendment obliterates a fundamental right provision, the
constitutional amendment would be unconstitutional under the basic
structure review. 39 Recent academic writings have suggested that the
Supreme Court in M. Nagarqj has substituted the 'damage or destroy'
standard and instituted a new standard of a 'width' and 'identity' test. 40
The present author is in agreement with this view. It has also been
suggested that the 'width' test has been developed to examine the latitude
of power given to the legislature by the amendments and an amendment
can only be tested against the width test at the time of implementation of
the same."! This view seems to be erroneous as the court has envisaged a
dual role for the 'width' test: 42 The test for judging the width of the
power and the test for adjudicating the exercise of power by the concerned
state are two different tests which warrant two different judicial
approaches. The court clarified that the question of reservations made
under state enactments will be subject to the test for adjudicating the
exercise of power by the concerned state by placing requisite quantifiable
data before it. 43 The court, however, proceeded to apply the width test
to check whether the impugned amendments obliterated the constitutional
limitations mentioned in article 16(4).44

38. Minerva Mills v. Union of India (1980) 3 SCC 625 at 671. Hereinafter cited as
Minerva Mills.
39. Supra note 21 at 79.
40. Supra note 16 at 59.
41. Mohsin Alam, Prasan Dhar et al., "Reservations and the Basic Structure: The
Evolution of Equality as an Essential Feature of the Constitution" in Anirudh
Krishnan & Harini Sudersan, Law of Reservation and Anti-Discrimination With Special
Emphasis on Education and Employment, 661-62 (LexisNexis-Butterworths Wadhwa,
New Delhi, 2008).
42. Supra note 1 at 276.
43. Ibid.
44. Ibid.
80 Journal of the Indian Law Institute Vol. 53 : 1

It is interesting to note that subjecting any amendment to 'identity'

test is superfluous, as any amendment that passes the 'width' test will
invariably survive the 'identity' test as well. To put it differently, when the
impugned amendments in M. Nagarqj were held not to obliterate the
constitutional limitations prescribed in article 16(4) and article 335, it was
clear that they would lead to no alteration in the equality code indicated
by articles 14, 15 and 16 of the Constitution. The superfluous nature of
the 'identity' test in M. Nagarqj makes it easier to accept the proposition
advanced above that the 'width' and 'identity' test has replaced the 'damage
or destroy' standard which required that amendments must cause greater
damage to rights than other forms of state action under article 13 judicial
review.

III The decision in Coelho • Is basic structure

review an extension of fundamental
rights review?

In Coelho, the court was considering the constitutionality of article 31B

of the Constitution which enabled the union and states to insert laws in
the ninth schedule by way of a constitutional amendment to put them
beyond the rigours of part III. Article 31B, inserted in the Constitution
by the Constitution (First amendment) Act, 1950, was envisioned as a
harbinger of land reforms but it soon became a protective umbrella for
a catena of legislations. The numerous constitutional amendments through
which laws were inserted into the ninth schedule were challenged as being
violative of the basic structure of the Constitution. The extent and nature
of immunity that article 31B can validly provide became the crucial
constitutional question before the nine-judge bench. The court came to
the conclusion that all amendments to the Constitution made on or after
24 th April, 1973 by which ninth schedule was amended by inclusion of
various laws therein shall have to be tested on the touchstone of the basic
or essential features of the Constirution.P After the unanimous verdict of
the court, ninth schedule ceased to be a protective umbrella for hitherto
unchallenged legislations.
The Supreme Court in Coelho held that there was a difference between
the 'rights test' and the 'essence of rights test' though both formed part
of application of the basic structure doctrine.t'' One author has opined

45. Supra note 17 at 111.

46. Ibid. at 108.
2011] Notes and Comments 81

that according to Coelho, M. Nagaraj held that in respect of the amendments

of fundamental rights, it was not the change in a particular article but the
change in the essence of the right must be the test for the change in
identity.V He could not find the expression 'essence of rights' in M.
Nagaraj.48 Another jurist has argued that the judgment in Coelho is not
conducive to clarity and had introduced nebulous concepts like the essence
of the rights test. 49 Why then the court in Coelho referred that in M.
Nagaraj, essence of the rights test was used? It has been established above
that the essence of the right test is nothing but the test of overarching
principle. The court held in Coelho: 50
When in a controlled Constitution conferring limited power of
amendment, an entire chapter is made inapplicable, "the essence
of the right" test as applied in M. Nagaraj case will have no
applicability. In such a situation, to judge the validity of the law, it
is "rights test" which is more appropriate. We may also note that
in Minerva Mills and Indira Gandhi cases elimination of Part III
in its entirety was not in issue.
Though the court in Coelho has stated that when fundamental rights
are excluded altogether, the essence of the right test would have no
applicability, but it has not consigned it to the dustbin of constitutional
history. The court has stressed that individual examination of laws could
determine whether the constitutional amendments by which they were
inserted in the ninth schedule damage or destroy the basic structure of
the Constitution. The court heldr'!
Therefore, first the violation of rights of Part III is required to be
determined, then its impact examined and if it shows that in
effect and substance, it destroys the basic structure of the
Constitution, the consequence of invalidation has to follow.

47. M.P. Singh, "Ashok Thakur v. Union ofLndl«: A Divided Verdict on an

Undivided Social Justice Measure", 2 NUJS L Rev 208 (2008).
48. Ibid.
49. Soli J Sorabjee, "Evolution of the Basic Structure Doctrine: Its Implications
and the Impact on Constitutional Amendments", available at: http:!/ docs.googie.com/
Doc?id=dct39c8s_101j38gp3if (Visited on Jan. 17, 2011).
50. Supra note 17 at 108.
51. Id. at 110.
82 Journal of the Indian Law Institute Vol. 53 : 1

The court summarised its findings in conclusion wherein it stressed

that both rights test and essence of the right test had to be applied to
check whether a ninth schedule law was violative of the basic structure of
the Constitution. 52 Sudhir Krishnaswamy has suggested that it is not clear
whether the court had one or two tests in mind. 53 In any case, the
decision of the court in Coelho cannot be read in a manner to totally
exclude the application of the essence of the right test. 54 It will be
erroneous to. suggest that the decision in Coelho will be the standard for
scrutiny of all constitutional amendments henceforth.P Even if one were
to assume that Coelho ignores the essence of rights test completely, it
could be argued that the rights test has to be employed only for the
judicial review of laws placed in the ninth schedule.
. The decision of the court in Coelho evoked two different kinds of
academic responses. Virendra Kumar, while extolling the judgment, has
remarked that the decision marked an important doctrinal development
of the court's basic structure jurisprudence, from its emphasis on the
relationship between the doctrine and fundamental rights to its clarification
that it is basic structure that the doctrine protects and not so much
individual articles. 56 Kamala Sankaran is of the opinion that the Supreme
Court is going back to the Golaknath-era because a lot of fundamental
rights were held to be part of the basic structure.V Soli J. Sorabjee has
remarked that the judgment in Coelho has in effect restored the decision in
Golak Nath regarding non-amendability of the Constitution because of
infraction of fundamental rights, contrary to the judgment in Kesavananda
Bbarati's case. 58 Sudhir Krishnaswamy has argued that as both M. Nagarqj

52. Id. at 111.

53. Supra note 21 at 79.
54. Kamala Sankaran, "From Brooding Omnipresence to Concrete Textual
Provisions: IR Coelho Judgment and Basic Structure Doctrine", 49 JIU 248 (2007).
55. It is noteworthy that except K.G. Balakrishnan CJI, the remaining four judges
in M. Nagarqj were members of the bench in Coelho. It is difficult to imagine that
the test developed in M. Nagarqj for judicial review of constitutional amendments
was to be discarded just after two and a half months of its enunciation.
56. Virendra Kumar, "Basic Structure of the Indian Constitution: Doctrine of
Constitutionally Controlled Governance [From Kesauananda Bbarti to I.R. Coelho]",
49 JIU 397 (2007).
57. See Supra note 54 at 248. The Supreme Court held in l.C. Golak Nath v. State
of Punjab, AIR 1967 SC 1669, that fundamental rights cannot be derogated by the
Parliament in exercise of powers under article 368 of the Constitution.
58. Supra note 49.
2011] Notes and Comments 83

and Coelho dealt with threats to fundamental rights provisions, the court
developed basic structure review as an extension of article 13 fundamental
rights review coupled with the additional requirement of proving a more
intense level of constitutional injury before the court. 59 While applying the
essence of rights test, the court contextualises an abstract constitutional
principle by interweaving it with specific articles in the Constitution. On
the other hand, while applying the rights test, the court inquires if the
violation of fundamental rights violates the essential features of the
Constitution.

IV Ashoka Kumar Thakur - Rights test spells

doom for article 15(5)
The decision in Ashoka Kumar Thakur was seen as a continuation of
the court's philosophy in Indra Sawhnry.6o The Supreme Court's decision
in Ashoka Kumar Thakur marked one more instance where the court
showed deference to the legislature. In this background, Bhandari J's
invalidation of state-imposed reservation in unaided private educational
institutions is an aberration. Bhandari J's opinion has evoked a mixed
academic response.f According to Bhandari J, the two-step effect test
(also known as the impact or rights test) was to be used to check if 93rd
amendment suffered from unconstitutionality by imposing reservation in
private educational institutions.V M.P. Singh is of the opinion that Bhandari
J, while scrutinising the 9yd amendment, has mixed up legislation and
amendmenr.P An explanation for the same lies in the fact that Bhandari J
relied on the direct impact and effect test developed in Coelho that subjects
ordinary laws to the basic structure doctrine. Bhandari J had asserted that
article 19(1) (g) was a facet of the basic structure of the Constitution and
belonged to the cherished golden triangle. 64 It has been suggested that
article 19(1)(g) is not a facet of the basic structure of the Constitution
because it could be limited under the specified grounds mentioned in

59. Supra note 21 at 80.

60. Kalpana Kannabiran, "Road map for reservation in higher education", The
Hindu, April 18, 2008.
61. Sudhir Krishnaswamy & Madhav Khosla, supra note 16 at 56; Mohsin Alam,
Prasan Dhar et al., supra note 41 at 666; M.P. Singh, supra note 47 at 205; Parmanand
Singh, supra note 34 at 111-12.
62. Supra note 14 at 665.
63. Supra note 47 at 205.
64. Supra note 14 at 666.
84 Journal of the Indian Law Institute Vol. 53 : 1

article 19(6) and article 15(5) has not taken away the right of the citizens
to establish an educational institution.P'' It is too late in the day to argue
that article 19(1)(g) is not a facet of the basic structure. The present paper
argues that despite article 19(1)(g) being a part of the basic structure of
the Constitution, the 9yd amendment cannot be held to be violative of
the basic structure of the Constitution.
Bhandari J emphatically asserted that subjecting article 19(1)(g) to
article 15(5) did not per se violate the basic structure as most of the
fundamental rights could be limited. The relevant question, according to
Bhandari J, was whether the amendment merely abridged or completely
abrogated article 19(1) (g).66 Bhandari J, by relying on the decision in
Mineroa Mills, countered the argument that the abridgment of article 19(1)(g)
in a limited area of admission to educational institutions did not violate
the basic structure of the Constitution.P" Chandrachud J. in Minerva Mills
had stated that a total deprivation of fundamental rights, even in a limited
area, can amount to abrogation of a fundamental right just as partial
deprivation in every area can. 68 It is very important to understand the
import and context of this statement particularly when it played a decisive
role in Bhandari ]'S invalidation of reservation in private unaided
institutions.
Article 31C had been challenged as being violative of the basic structure
of the Constitution as it provided that rights conferred by articles 14 and
19 will be no barrier against passing laws for giving effect to the principles
laid down in part IV (directive principles of state policy). During the oral
submissions in Mineroa Mills, the Solicitor General had contended on
behalf of the state that it was possible to conceive of laws, which will not
attract article 31C since they may not bear direct and reasonable nexus
with the provisions of part IV. 69 The petitioners had argued that the
mere fact that some laws may fall outside the scope of article 31C was
no answer to the contention that the withdrawal of protection of articles
14 and 19 from a large number of laws destroyed the basic structure of
the Constitution.i'' Chandrachud J held that the argument of the state was
of not tenable as a total deprivation of fundamental rights, even in a

65. Parmanand Singh, supra note 34 at 112; M.P. Singh, supra note 47 at 212-13.
66. u. at 676.
67. u. at 677.
68. u. at 655.
69. Ibid.
70. Ibid.
2011] Notes and Comments 85

limited area, could amount to abrogation of a fundamental right. He

further elaborated that right of free speech and expression would be
meaningless for an author who writes exclusively on foreign matters if he
is prohibited from writing on foreign matters." It has been noted above
in part II of this paper that Chandrachud J had extended the article 13
judicial review even while scrutinising the constitutional amendments.
Chandrachud J employed the same standard in Minerva Mills and came to
the conclusion that article 31C abrogated articles 14 and 19 which were
basic features of the Constitution. In Minerva Mills, Bhagwati J, who came
to the conclusion that the amendment in article 31C, far from damaging
the basic structure of the Constitution, strengthens and reinforces it, had
observed: 72
If the exclusion of the Fundamental Rights cannot be excluded
for giving effect to the Directive Principles set out in Clauses (b)
and (c) of Article 39 without affecting the basic structure, I fail to
see why these fundamental rights cannot be excluded for giving
effect to the other directive principles.
Sudhir Krishnaswamy suggests that Bhagwati J's analysis in Minerva
Mills makes a clear distinction between article 13 fundamental rights judicial
review and basic structure review. 73 The underlying theme of Bhagwati
J's opinion is that a court, while engaging in basic structure review,
should not focus only on how the fundamental rights in the Constitution
get affected by the impugned amendment but instead should also focus
whether constitutional identity has been irrevocably altered even when
basic features are expressed in terms of the fundamental rights. 74 Bhagwati
J had stated in Minerva Mills: 75
I agree with Mathew, J., that whether a particular feature forms
part of the basic structure has necessarily to be determined on the
basic of the specific provisions of the Constitution.
It has been suggested that Mathew J understood the identification of
the basic structure out of the specific provisions of the Constitution while
Bhagwati J identified the basic structure not only out of the specific

71. Ibid.
72. Supra note 38 at 714.
73. Supra note 21 at 82.
74. Ibid.
75. Supra note 38 at 673.
86 Journal of the Indian Law Institute Vol. 53 : 1

provisions of the Constitution but also beyond them.I" This provides an

explanation to the fact that Bhagwati J considered that the overriding of
equality in article 14 by articles 31A, 31B and 31C was consistent with the
value of egalitarianism, as reflected in article 14 and directive principles,
which was a part of the basic structure.i"
Chandrachud J had stressed that total deprivation of fundamental
rights, even in one limited area, may amount to an abrogation of the
basic structure. The 9yd amendment has only subjected the unaided private
educational institutions to reservation and has not totally deprived them
of their fundamental right under article 19(1) (g). Bhandari J has used the
rights test in a manner that the entire model of judicial review of the 9yd
amendment appears to be the judicial review of a legislation affecting
fundamental rights. Bhandari J has opined that impact of rights test
requires considering the impact on the citizens engaged in unaided education
as an occupation and not on the entire constitutional framework. 78 This
makes it clear that Bhandari]'s conception on the entire constitutional
framework was the effect of the impugned amendment on the effect of
citizens engaged in aided and unaided education as an occupation. The
myopic nature of the scrutiny is evident from the fact that Bhandari J has
asserted that the effect of aided institutions is irrelevant, as government
funding will invariably lead to greater regulation. The reason behind this
narrow conception of the basic structure test is admittedly the second
paragraph of the conclusion of the court in Coelho. 79 Bhandari ]'S
conception of the rights test reduces the scrutiny of constitutional
amendments to the judicial scrutiny of ordinary laws. Should the 9yd
amendment which inserts a new clause into the equality code of the
Constitution be checked only against article 19(1)(g) and its impact on the
entire constitutional framework be overlooked?
Theoretically, while employing the rights test, the court inquires whether
the violation of fundamental rights violated the essential features of the
Constitution. The problem in the application of the rights test is that it is
virtually article 13 judicial review in disguise as the court will never inquire

76. Supra note 41 at 654.

77. Ibid.
78. Supra note 14 at 676.
79. Supra note 17 at 111. The second paragraph of the conclusion of the court in
Coelho reads, "The actual effect and impact of the law on the rights guaranteed under
Part III has to be taken into account for determining whether or not it destroys
basic structure. The impact test would determine the validity of the challenge."
2011] Notes and Comments 87

if the violation of fundamental rights violated the essential features of the

Constitution if it reaches the conclusion that the fundamental right in
question was a part of the basic structure of the Constitution. Bhandari J,
after coming to the conclusion that article 19(1)(g) was a part of the basic
structure, did not explain as to why article 15(5) of the Constitution, an
addition to the equality code, has to comply with article 19(1)(g) of the
Constitution to survive the basic structure review. It becomes important
to understand as to what kind of difference might arise if the essence of
rights test is used. It has been discussed above that the court in M.
Nagaraj could have arrived at the same conclusion but with a clearer
exposition of the basic structure review. The use of the essence of rights
test will require the identification of the constitutional principle, which is
a part of the basic structure, and whose violation by means of the 93rd
amendment has been challenged. The definitive test as formulated by
Bhagwati J in Minerva Mills is that while engaging in basic structure review
one should not focus only on how the fundamental rights in :the
Constitution get affected by the impugned amendment but instead should
focus whether constitutional identity has been irrevocably altered even
when basic features are expressed in terms of the fundamental rights. In
the absence of any decision stating that article 19(1)(g) is a part of the
basic structure, Bhandari J has stressed on the fact that article 19(1)(g)
belongs to the golden triangle and is thus a part of the basic structure of
the Constitution. The explanation could be extended to contend that
article 15(5) is an illustration of article 14 and also belongs to the golden
triangle thereby making the conflict between article 15(5) and article
19(1)(g) virtually irreconcilable. In other words, the use of the essence of
rights test would require scrutinising the 93rd amendment against some
identifiable constitutional principle like equality.
William H. Rehnquist has written in his treatise on United States
Supreme Court that constitutional law requires vision and common sense
as well as careful legal analysis.f" Rajeev Dhavan, who was arguing for
the petitioners in Ashoka Kumar Thakur, has commended Bhandari J for
showing the courage to invalidate the imposition of reservation on private
unaided institutions by the 93rd amendment.f! Is this reduction in the level

80. William H. Rehnquist, The Supreme Court: How It Was, How It Is? 69 (Knopf
Press, New York, 2001).
81. Rajeev Dhavan, Rsseruedl: How Parliament Debated Rsserostions 1995-2007 203
(Rupa & Co., Delhi, 2008).
88 Journal of the Indian Law Institute Vol. 53 : 1

of scrutiny of constitutional amendments to ordinary laws really

commendable?
V Basic structure and article 15(5): Addressing
the probable arguments
M.P. Singh has also argued that article 19 is available only to citizens
who do not include juristic persons such as companies and other
incorporated bodies, which run the educational institutions. It is submitted
that the argument is of no use because the court in T.M.A. Pai stated that
citizens have a fundamental right to establish educational institutions. It is
one thing to say that citizens have a fundamental right to establish
educational institutions and another thing to say that companies and
incorporated bodies cannot claim a fundamental right to establish
educational institutions.
The last argument raised by M.P. Singh is that imposing reservations
on private educational institutions is justified because fundamental rights
have horizontal application and they are available against private persons.
This argument merits a closer look. Rajeev Dhavan through his written
arguments had contended that article 15(5) sub silentio amends article 12
of the Constitution and thereby alters the very basis of the fundamental
rights chapter, which is directed against state action and not private
persons or institurions.V This argument finds no mention in the opinion
of Bhandari J because it is solely based on the premise that the amendment
abrogated article 19(1)(g) which is a facet of the basic structure of the
Constitution. The argument that the 93 rd amendment overrides the division
between state sector and private sector should not be of much consequence
because several articles in part III impose obligations on private
individuals.F The Supreme Court in M.e. Mehta v. Union of IndiaB 4 had
held that article 15(2) of the Constitution by virtue of being applicable to
private individuals introduces horizontal effect and makes the doctrine of
state action evolved in the United States irrelevant in the Indian context.
Ashish Chugh has argued that the trauau»: preparatoires of article 15(2)
indicates that it not only seeks to prohibit discrimination on the basis of
certain categories but also includes the expression of prejudice to the

82. (2008) 6 SCC 216.

83. Articles 17, 23 and 24 of the Constitution expressly impose obligations on
private individuals.
84. (1987) 1 SCC 395.
2011] Notes and Comments 89

detriment of the disadvantaged sections of society.85 The Delhi High

Court in Naz Foundation v. Government of Ncr of Delht"d6 has held that
article 15(2) incorporates the notion of horizontal application of rights by
prohibiting discrimination of one citizen by another in matters of access
to public spaces.
The question whether a particular entity is 'state' within the meaning
of article 12 of the Constitution is relevant in deciding the issue of
maintainability of the writ petition before the Supreme Court under
article 32 of the Constitution. The Supreme Court has held in Zee Telejilms
v. Union of India87 that the pre-requisite for invoking the enforcement of a
fundamental right under article 32 is that the violator of that right should
be state. 88 Sudhir Krishnaswamy has stated that the state-private distinction
does not stand on the same footing as democracy, equality and secularism
as an inviolable constitutional principle and, being an important but
malleable principle, it cannot be said to be a part of the basic structure of
the Constitution.V Pratap Bhanu Mehta has also opined that no court in
India would be radical enough to hold that the private-public distinction
is a part of the basic structure of the Constitution.l''' The imposition of
reservations in private sector is a vexed one and has generated considerable
controversy. S.B. Sinha J in his dissenting opinion in Islamic Academy
addresses this question and emphatically denies that clauses (3) and (4) of
article 15 could be extended by way of imposition of restriction or
regulation so as to impair the right of a citizen of India under article
19(1)(g) or article 30 thereof.?' Sinha J rules out the imposition of
reservation in private unaided institutions under article 19(6) of the
Constitution, subsequently affirmed by the court in its decision in P.A.
Inamdar. 92 It is important to note what Sinha J stated, "In any event the

85. Ashish Chug, "Fundamental Rights - Vertical or Horizontal?" (2005) 7 SCC

(Jour) 9.
86. 2010 Cri LJ 94 (Del).
87. (2005) 4 SCC 649.
88. Id. at 681.
89. Sudhir Krishnaswamy, "In Defence of Larger Interests", The Telegraph, January
31, 2006. See, generally, M.P. Singh, "Protection of Human Rights against State and
Non-State Action" in Dawn Oliver & Jorg Fedtke (eds.), Human Rights and the
Private Sphere: A Comparative Stutfy 180-212 (Routledge-Cavendish, Abingdon, 2007).
90. Pratap Bhanu Mehta, "Is 93rd amendment constitutionally tenable?", The
Economic Times, June 6, 2006.
91. Supra note 8 at 767.
92. Ibid.
90 Journal of the Indian Law Institute Vol. 53 : 1

executive policy of the state cannot be thrust upon the citizens without
any valid legislation."93 The phraseology of article 15(5) indicates that it is
necessary for the state to make any special provision for the advancement
of these weaker sections by law, and not by any executive action.I" Sinha
J also stresses that clauses (3) and (4), being enabling provisions, do not
confer any preferential right and the state can take appropriate steps
under them only for uplifting the weaker sections. While the enabling
provisions in the Constitution do not confer any fundamental rights, yet
they are reflective of interests of certain sections of the society. The court
in M. Nagaraj has emphatically asserted: 95
But if Article 16(4) is taken as an application of Article 16(1) then
the two articles have to be harmonized keeping in view the interests
of certain sections of the society as against the interest of the
individual citizen of the society.
Article 15(5), which is permissive in nature and seeks to balance
equality with positive discrimination, has to be tested on the anvil of the
equality code of the Constitution. It is submitted that Bhandari J has
wrongly restricted the scope of the judicial scrutiny of article 15(5) to the
unaided educational institutions. The error becomes particularly glaring
because an addition to the equality code could not be termed as
unconstitutional without considering its impact on the entire code as
considered by the court in M. Nagaraj.

VI Conclusion: Article 15(5) is just a usual

suspect and is not unconstitutional
Sudhir Krishnaswamy has rightly observed that while article 15(5)
could be shown to neither advance the interests of its beneficiaries nor
that of the nation but bad policy is not always bad legally.96 He has also
argued that the complexity of basic features must be considered to be an
integral aspect of the character of basic structure review. He considers
that the court should use basic structure review to preserve basic
constitutional values at a level of generality sufficient to allow the
Parliament to make substantial changes to the Constitution under its

93. Ibid.
94. V. Venkatesan, "Legal Backing", Frontline, May 5, 2006.
95. Supra note 1 at 251.
96. Sudhir Krishnaswamy, supra note 89.
2011] Notes and Comments 91

amending power. Thus, according to him, if an amendment is challenged

as destroying the basic feature of equality, the court will invariably uphold
it, if the state can possibly justify the amendment under any reasonable
and constitutionally defensible version of equality.
The version of formal equality might suggest that the imposition of
reservations on private unaided institutions like government institutions
leads to equal treatment of unequal institutions thereby violating article 14
of the Constitution which is a part of the basic structure of the Constitution.
Article 15(5) has been inserted into the equality code to foster substantive
equality and the narrow dictates of formal equality cannot nip it in the
bud. The court has never struck down afftrmative action measures because
of considerations of formal equality. In the ultimate analysis, the court
will have to harmonise the two competing versions of equality. The court
in Ashoka Kumar Thakur has clarified that the principles laid down in
Indra Sawhn~ will equally apply to reservations under articles 15(4) and
15(5).97 The court might conclude that even the imposition of 49.5 per
cent reservations on unaided private educational institutions do not result
in reverse discrimination. It is interesting to note that in state educational
institutions, scheduled castes, who constitute 16.2 per cent of the population,
have 15 per cent reservation and scheduled tribes, who constitute 8.2 per
cent of the population, have 7.5 per cent reservation. In addition to the
reservation for SCs/STs, article 15(5) envisages the imposition of 27 per
cent reservation on unaided private educational institutions for other
backwards classes (OBCs) who constitute 52 per cent of the population
according to the Mandai Commission Report. 98 The petitioners in Ashoka
Kumar Thakur had strongly stressed, albeit unsuccessfully, on the fact that
the government had not conducted a fresh study to ascertain the percentage
of socially and educationally backward classes of citizens. In such a
scenario, it seems highly unlikely that the court will come to the conclusion
that the imposition of 27 per cent reservation in unaided private educational
institutions leads to reverse discrimination.
The imparting of education is the duty of the state but unfortunately
it has failed in keeping pace with the changing conditions of the country.
It has been suggested that in the 1960's and 1970's, non-governmental
entities began to make inroads into professional and technical education
and the state was not able to meet this increased demand for such

97. Parmanand Singh, supra note 34 at 112; M.P. Singh, supra note 47 at 202.
98. P.S. Krishnan, "Logical Step", Frontline, May 5, 2006.
92 Journal of the Indian Law Institute Vol. 53: 1

education.f" The spurt of private educational institutions and their increased

importance in the education sector forced the court to change its
philosophy expressed in Uns! Krishnan, J.P. v: State of.Andbra Pradesh l OO
that education could not be considered 'trade', 'business' or 'profession'
within the meaning of article 19(1) (g) to the capitalist conception of
education in T.M.A. Pai which recognised education as an 'occupation'
within the meaning of article 19(1)(g).101 The changing economic scenario
in the country after 1991 resulted in the philosophy that the state cannot
have a monopoly in matters of education which in turn reduced the
pressure on the state educational institutions and also led to the increased
importance of private unaided educational institutions in the Indian
education sector. In a paper written in December 2007, Devesh Kapur
and Pratap Bhanu Mehta pointed out that the percentage of seats in
engineering in private universities rose from 15 per cent in 1960 to 86.4
per cent while in medical colleges, the proportion of private seats has
risen from 6.8 per cent in 1960 to 40.9 per cent in 2003. 102 They have
also highlighted that according to estimates, 90 per cent of the business
schools are private educational insritutions.l'P In order to grant degrees,
all unaided private educational institutions have to get affiliated with a
state-operated government university.P" According to Virendra Kumar,
this alone is a valid ground for the imposition of reservations on private
unaided institutions. lOS
Kapur and Mehta have pointed out that affirmative action politics in
India is obsessed with quotas with scant regard to primary and secondary
education or abysmal condition of colleges. Mehta has also lamented the
fact that the state, after failing to fulfill its responsibilities in the sphere of
education, has decided to come down heavily on the private sector.

99. AX. Ganguly, "Constitutional Law (Fundamental Rights)" XLI ASIL 141-
42 (2006).
100. (1993) 1 SCC 645. Hereinafter cited as Unni Krishnan.
101. T.M.A. Pai, supra note 5 at 535; Unni Krishnan, id. at 752-753.
102. Devesh Kapur & Pratap Bhanu Mehta, "Mortgaging the Future? Indian
Higher Education", 4 Brookings-NCAER India Polif} F01'HfII 2007-08 123 (2008).
103. Ibid.
104. Kevin D. Brown & Vinay Sitapati, "Lessons Learned from Comparing the
Application of Constitutional Law and Federal Anti-Discrimination Law to African-
Americans in the US and Dalits in India in the Context of Higher Education", 24
Harv Black Letter L J 45 (2008).
105. Virendra Kumar, "Dynamics of Reservation Policy: Towards a more Inclusive
Social Order", 50 JIU 514-15 (2008).
2011] Notes and Comments 93

Bhandari J stressed in his opinion that the imposition of quota regime on

private unaided educational institutions would be counterproductive.l"
The underlying theme of the opinion of Bhandari J is quite similar to the
opinion of S.B. Sinha J in Islamic Academy.107 Bhandari J strongly
emphasised on the negative impact reservations will inflict on campus
recruitments in unaided institutions, thereby overlooking the opinion of
the court in Indra Sawhney which held that reservations were not anti-
meriterian.U" The Constitution has to keep pace with the changing
conditions of the society and the decisions in T.MA. Pai and P.A. Inamdar
were wrongly criticised for being overly capitalistic.P" The private unaided
educational institutions are here to stay and giving constitutional protection
to them is not against the scheme of the Constitution. In an interim order
passed by the Supreme Court in Modern Dental College & Research Centre v.
State of Madrya Pradesh,110 it has been reiterated that private unaided
institutions have to generate their own resources and consequently they
must enjoy a larger degree of autonomy as compared to the aided
institutions or the state government institutions. The court, while
confronted with the challenge to the constitutionality of a state legislation
under article 15(5), must ensure that the imposition of reservations in
unaided private institutions on the lines of state education institutions
should not lead to a situation wherein they voluntarily opt out of the
education sector. It would amount to killing the goose that laid golden
eggs. The scenario pointed out by Bhandari J could be a harsh reality that
imposition of reservations on unaided private institutions could weaken
the incentive to establish unaided institutions.
The court has arrived at modus vivendi in the past which has acted as a
tiebreaker in resolving convoluted questions of constitutional law. In this
exercise, the court while upholding the constitutionality of article 15(5)
might accept a modus vivendi to impose less rigorous reservations on unaided

106. Supra note 14 at 677-78.

107. See, generally, Ananth Padmanabhan, "Privatisation of Higher Education in
India: Constitutional Perspectives and Challenges", available at: http://
aka.lawstudent.in/bcjeervaCess'!}.htm (Visited on Jan. 17, 2011).
108. Ashoka Kumar Thakur, supra note 14 at 679; Indra Sawhn~} supra note 18 at
751.
109. See Krishna Iyer, "Higher Education and Minority Rights", The Hindu, May
13,2003.
110. (2009) 7 SCC 751 at 758. Hereinafter cited as Modern Dental College & Research
Centre.
94 Journal of the Indian Law Institute Vol. 53 : 1

private educational institutions than reserving 49.5 per cent of the seats.
The court, being the final arbiter on the interpretation of the Constitution
and on the extent of reservation, must ensure that positive discrimination
does not result in reverse discrimination. The court in M. Nagarrg had
observed: 111
If the extent of reservation goes beyond cut-off point then it
results in reverse discrimination. Anti-discrimination legislation has
a tendency of pushing towards de facto reservation. Therefore, a
numerical benchmark is the surest immunity against charges of
discrimination:.
Rajeev Dhavan has suggested that the imposition of 50 per cent
reservations in unaided private educational institutions will revive the
overruled decision of the court in Unni Krishnan wherein the court had
devised the scheme under which 50 per cent of the seats were free and
open for the general category while the remaining 50 per cent of the seats
were paid seats. Rajeev Dhavan has rightly pointed out: 112
Would the Government pay commercial rates for its quota? Would
the institution provide scholarships? Would the fees for this
Government quota be subsidized as intended by many States? If
there was to be a subsidized quota in aided and unaided colleges,
are we not back to the 'half-baked' socialist scheme of
Unnikrishnan?
Kirpal J in T.M.A. Pai had opined that Unni Krishnan model was
problematic because it required non-quota students to subsidise students
under the quota system. Keeping this proposition in mind, the court
should not give its imprimatur to 50 per cent reservations in unaided
private educational institutions.
The court's interim order in Modern DentalCollege & Research Centre has
given primacy to the autonomy of private unaided institutions by
emphasizing that the state government cannot unilaterally decide to usurp
the admission procedure of a private unaided institution on the pretext
that it is not complying with the safeguards enunciated in P A. Inamdar. l 13
This proposition of law has obfuscated the law laid down in P A. lnamdar

111. Supra note 1 at 250.

112. Rajcev Dhavan, "Professional Education and the S.c.", The Hindu, September
5,2003.
113. Supra note 110 at 757.
2011] Notes and Comments 95

and might have to be resolved by a larger bench.U" However, it is clear

that the argument that private unaided institutions must be given more
autonomy as compared to aided institutions might preclude the imposition
of 50 per cent reservations on them by the state. The court in Ashoka
Kumar Thakur left an extremely pivotal question of constitutional law to
be decided in future. The jury is still out on the constitutionality of article
15(5) and a clear verdict on the same would be eagerly awaited.

Sbioendra Singh*

114. S.N. Singh, "Constitutional Law-I", XLV ASIL 136-38 (2009).

* Law Clerk-cum-Research Assistant to Dalveer Bhandari J, Supreme Court of
India. The author is grateful to S.B. Sinha J who was extremely kind to share his
views on the matter. E-mail: [email protected].