The second area of uncertainty is whether private unaided institutions can come under the purview of reservations. The 93rd Amendment was occasioned by the issue of private institutions in the first place. But strangely, the court refused to pronounce on this constitutional issue on the grounds that no private party was impleaded in the matter. But this is precisely the issue that provoked Justice Bhandari’s dissent to one of the strongest defences of the rights of unaided institutions to date in Indian judicial history. The regulatory uncertainty on this issue is likely to continue for a long time, and may be an indication of how divisive this issue will yet be.

This issue is directly related to an issue that the court settles incidentally: whether minority institutions should be exempt from the purview of reservations. The court has upheld special status for minority institutions, but in doing so seems to have confused, as it has in the past, two different issues. The court has been rightly concerned in the past and has insisted that an institution should not lose its minority character merely because it receives state funding. But it does not follow from that fact that the Constitution requires that there be a distinction between minority and majority institutions if they do not receive any state funding. In other words, the court has lost an opportunity to detach freedom of association from being irrevocably imprisoned in the categories of minority and majority. But the fact that it could not come to a determination on unaided institutions has left the majority-minority distinction inscribed in areas where it is unnecessary.

... contd.