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The
Background
The controversy regarding the reservations in private unaided
medical and engineering colleges in India arose after the Supreme
Court held on August 12, 2005 that unaided minority and
non-minority institutions had the absolute right to admit students
of their choice in medicine, engineering and other professional
courses without government interference. The anomalies created by
the Supreme Court Judgment have given the BJP an opportunity to
try and get mileage while asking for reservations in minority
institutions.
The
announcement of the Human Resources Development Minister regarding
the government’s intention to reserve 27 per cent of the seats for
the Other Backward Castes in central educational institutes
started an intense debate. It is also termed as Mandal II and ‘mandalisation
of education’
by the students and the media.
The Central
Government is trying to implement reservations in the central
institutes using the power it has accrued from amending the
Constitution (104 Amendment, now known as 93rd Amendment)
providing for special provisions for educationally, socially
marginalised and other backward sections of the society along with
the SCs and STs. The government was forced to amend the
Constitution to provide for reservations in self-financing
institutions by the militant struggles of the students across the
country. The amendment was made after the Supreme Court had ruled
that the government does not have any control over the private
unaided institutes in a series of its judgments starting from the
TMA Pai case
in 2002 to the more recent
P A Inamdar case. The
Amendment enlarges the scope of Article 15 of the Constitution,
which provided reservation of seats to SC, ST, and OBC students in
government-aided educational institutions only. The Amendment
would enable Parliament as well as the State Legislature to make
appropriate laws for this purpose.
The country has lived with the caste-based reservations for over
five decades. The primary focus of reservations has been on the
SCs/STs, up until a veteran politician brought the OBC issue to
the fore.
Specifically,
the Government wants the Indian Institutes of Technology (IIT),
the Indian Institutes of Management (IIM) and all federally funded
universities to reserve 27 per cent of their seats for Other
Backward Castes (OBC), over and above the 22.5 per cent quota for
SC/ST students. The proposal to reserve 49.5 per cent of seats in
`elite' institutions of higher learning is the main reason for the
heat generated.
Apart from the
UPA manifesto that has put it on the agenda in general terms, in
December 2005, Parliament approved the 104th Constitution
Amendment Bill seeking reservation for SC, ST and OBC candidates
in non-minority unaided private educational institutions. The
Supreme Court has intervened and ordered the government to table
the facts related to the proposed increase of OBC reservations.
A vacation
bench of Justice Arijit Pasayat and Justice L S Panta ordered the
Union of India to answer to three crucial questions:
1. What is the basis of the norms for fixing the OBC category?
2. What is the rational behind fixing it?
3. If the proposed reservation is implemented, what are the
modalities and the basis for modalities?
The History
Of Reservations
The subject of reservations is a vast one, in terms of a
historical account. A great deal has been written against
reservations policies since the acceptance of the Mandal
Commission Report in 1991 in favour of reservations in higher
education and government services for the other backward classes
of India. To look on the position in the foreign states,
Americans, were influenced by the Indian experiment and
‘affirmative
action’
was introduced in the 1960s with a view to giving a share to the
discrimination African- Americans, Native Americans and other
ethnic minorities. Other countries of Europe and America including
Great Britain are now thinking along the lines of some reservation
or affirmative action for ethnic and other minorities who are
victims of discrimination by the dominating groups.
In the Indian
context, reservations were introduced during the last decades of
the 19th century at a time when the subcontinent could be broadly
divided according to two main forms of governance British India
and the 600 princely states. Some of these princely states were
progressive and eager to modernize through the promotion of
education and industry; and by maintaining unity among their own
people, like Mysore in south India and Baroda and Kolhapur in
western India. Thus, the very first records of implementing
reservations policies are from these princely states.
Though it was
only with the arrival of Ambedkar that the minorities acquired a
leader of stature and education who could also make a political
difference. The question of reservations was also discussed in the
round table conferences and provisions were made in the Communal
Award of 1935 in spite of opposition by Mahatma Gandhi. Ambedkar
was appointed member of the Viceroy’s Executive Council and he
submitted a memorandum titled, ‘On the Grievances of the Scheduled
Castes’. The scheduled castes were allowed 8.5 per cent
reservation in central services and other facilities for the first
time in the history of India in 1942.
Immediately
after the adoption of the Constitution, the provision of
reservation under Article 16 was challenged through a writ
petition filed in the Madras High Court (State
of Madras vs Champakam Dorairajan,
April 1951). The case came before the Supreme Court of India. It
was held that the communal government order of the Madras
government fixing the proportion of students of each community
that could be admitted to state educational institutions was ultra
vires under Article 29(2). Post-independence India has witnessed
many landmark cases which have affected the administration as well
as interests of the scheduled castes, scheduled tribes and other
backward classes. In the famous case of
Balaji vs
Mysore state in 1962,
reservation orders were challenged on the grounds that the lists
of backward classes were prepared only on the basis of caste and
that this was unconstitutional. Then, the Supreme Court struck
down the Mysore Backward classes list. Similar claims were again
taken up in the
Chitralekha case
(Chitralekha
vs Sstate of Mysore, 1964).
In this case, the Supreme Court interpreted the
Balaji case
somewhat differently.
Jayasree
vs State of Kerala
(1976), the Supreme Court accepted the logic of the Kerala High
Court that economic backwardness plays a part in social and
educational backwardness. In the Thomas case (State
of Kerala vs N H Thomas, 1976)
the Supreme Court upheld caste based reservation. The Supreme
Court also observed that the aim of the Constitution is to
eliminate caste from the affairs of the state. Yet certain
backward castes have to be recognized and classified for
compensatory measures so that caste can be abolished ultimately.
The
implementation of the recommendations of the Mandal Commission was
challenged and opposed not only by angry students belonging to the
Hindu upper castes, but also by the Supreme Court bar association.
A writ petition was filed in the name of Indira Sawhney, one of
the practising advocates of the Supreme Court. The promotion of
scheduled castes was discussed and the Supreme Court held that
there should be no reservations in promotion. In spite of all the
opposition to Mandal, reservations in favour of the other
back-ward classes to the extent of 27 per cent was upheld and the
gitationists were disappointed. Reservations were originally
provided for the scheduled castes and scheduled tribes. It was
extended to the other backward classes at the national level in
1993. As in the days of old when some people raised the various
cries, ‘religion in danger’, nowadays a new slogan is being
raised:
abolish
reservations because merit and efficiency are in danger.
Reservations Vs. No Reservations
The word 'Reservation'
is mostly misconstrued, misunderstood, vague, and even mythical.
There is a general belief that those who oppose reservations are
free from casteist considerations -- while those who support
reservations are casteist, or vote hungry. The truth is that there
are many sincere people on both sides. So the question is
Do We Need
Talent Or Reservations To Build Our Country?
Most typical arguments made by those who oppose the very concept
of reservations in higher education along with those who propose
it, are discussed here.
The opponents often consider it that reservations result in denial
of seats to those with merit in the General Category. But in most
cases, as per the proponents thousands of general category
candidates with basic merit are competing for a few hundred seats.
The number of reserved seats is limited to a few tens. Thus the
maximum "loss" due to reservations is highly limited. Most general
category candidates with merit lose out only because the number of
available seats far outstrips the number of candidates with merit.
But now when then reservations will rise up to 49.5% then it can
not be said that so. It will only make the competition doubly
tough (and it’s already one of the toughest in the world) for
students who can’t avail the reservations resulting in denial of
seats to the General Category. That will mean - more stress, more
frustration and more discontent.
The opponents
of the reservations say that it results in diluting the quality of
professionals (by letting in those with lower marks). When the 50%
of the seats that gets filled up is not exactly based on the
talent, it is bound to affect the quality of the students. It will
also faint the brand image of the premier institutes as the image
of the premier institutes is that it produces students of quality
much better than most other will only get tarnished a bit as the
other half might not have had the kind of background and aptitude
as is the norm. But the proponents pay heed to the fact that the
reservations are at the entry stage. Each reserved category
student has to later qualify in the examination before becoming a
doctor or engineer. The "merit"
required for qualifying to be a doctor or engineer is NOT lowered
by reservations. This is the reason why many reserved category
students take longer to complete the course -- as also are some
times withdrawn from the course. For this very reason, the
students who pass out from private colleges too do not result in
significant lowering of quality of professionals. The reality is
that, many fit candidates are today denied opportunity simply
because of shortage of seats. The advocates of meritocracy must
answer as to why they conveniently forget about ‘talent' when
seats are sold in the name of NRI quotas or through massive fees
hikes. Why don't they oppose reservation of education for the rich
through privatisation of higher education? If they are so
concerned about talent, why they don't advocate further extension
of central educational institutions like IITs and IIMs by
increasing their seats and reducing the fees?
Another
argument given by the adversary against reservations is that India
does not have the money or resources to increase the number of
seats in our professional colleges. Also that, it will force more
students to move to other countries for their higher education as
if one can not find good seats in India, they would not be left
with options other than to move to the other countries and the
foreign institutes will only be glad to accept the Indian
students. On the other hand the promoters believe that the youths
should realize that we do have enough money and resources. It is
vested interests (such as a section of the Indian Medical
Association) who have been lobbying with the government NOT to
increase the number of seats -- because in their myopic vision,
this would create too many professionals in the country. The fact
is that India is woefully short of professionals. Also they
describe it to be ironical that those people who are crying hoarse
over the loss of merit have never bothered to raise their voice
when the government was commercialising education and allowing all
sub-standard institutes to be set-up across the country.
Then comes the
issue of social inequality. As per the contenders of reservations,
social inequity in India (in terms of under-representation of some
identifiable communities within the elite) is due to general lack
of merit of the concerned community. However the supporter of
reservations say this is a racist (or casteist, if you may) stand
that we need to reject outright.
It is often argued that granting political equality to each
individual Indian will result in every one getting what they
deserve where as the reality is that when the seats are in short
supply (as they are grossly so, these days), a lot of individuals
who are "deserving" end up not getting admissions that they
deserve. Conversely, the advocates of reservation state this would
remain so even if there were no quota seats! The principle of "political
equality"
is valid only when the number of seats matches the number of those
who deserve to get seats; and only when the problem of glaring
economic inequity has been successfully tackled by society.
Some
sections of the opponents feel reservations to be acceptable on
economic criteria; but not based on caste. After all we are all
Indians. Nonetheless the proponents feel, both economic and caste
criteria will need to be considered for social upliftment measures
by the government. We cannot "claim"
to be Indians (in a colour-blind, caste-blind way) where college
admissions are concerned, and yet continue to have rigid castes on
ground, whose members do not even inter-marry! This is an argument
of convenience.
Another
genuine argument against reservations is that it will divide
India, by asking for the caste of people. If 56 years are
insufficient for the so-called uplift of backward classes, then
does the government intend to continue the reservation system for
an indefinite period? This is a serious issue to be pondered over.
Isn’t it fair to say that instead of abolishing the caste system,
this policy reinforces it?
By
implementing the reservation regime, hatred towards castes will be
enhanced which will lead to aggravated tensions not only in the
IIT and IIM classrooms, but across the entire country. Democratic
government will fail to achieve its purpose and the hidden
intention of the government to increase their vote banks will
remain unfulfilled in the long run because the rest of the
population will ultimately lose faith in the so-called democratic
system. However on this note, the backer of reservation have no
doubt that we will continue to ask for a person's caste and
religion at least for the purpose of marriage -- for a very very
long time to come. I do not believe that these real cultural
diversities need to "divide
India".
Let us accept reality -- that we are a country of many
identifiable religious, linguistic, cultural and caste communities
who would not normally inter-marry.
We will need
to build our country's unity within this diversity. I feel that it
is important that we collect and maintain hard data regarding the
caste & religious composition of our people
-- to ensure that no single identifiable group would corner social
resources disproportionate to their numbers. It has ALWAYS been
such iniquitous cornering of resources that has divided countries
-- anywhere in the world. Hiding of facts from census reports has
never succeeded in preserving a country's unity!
Also
Reservations (in India) are different from Affirmative Action (in
the US). It is true that Affirmative action in the US works
without fixed quotas, and is voluntary -- at least in a nominal
sense. But in practice, institutions and private companies have
set up quota targets for themselves. The government periodically
conducts audits, and penalizes organizations that are lax in
implementing Affirmative Action by withdrawing government
contracts. Tax breaks too are offered to encourage Affirmative
Action. Since 1965, Affirmative Action has created a large "creamy
layer"
of blacks -- though bulk of the blacks still remain ghettoized. It
would seem that they now would need to introduce an "economic
criterion"
too in their Affirmative Action. But wouldn't that be socialism?
Reservations
in India primarily benefit the creamy layer within the eligible
groups. This is true in India, as it has been in the US too. This
is so because, WITHIN the quota group, the selection is always
based on merit. How can this be otherwise? The basic aim of the
reservation policy was to give students belonging to SC/ST/OBC
equal opportunities because of their social disadvantages and lack
of resources and exposure. But the question is whether this
purpose has been accomplished with reservation quotas.
Reservations were part of the constitution when it was released in
1950. However, that was supposed to be a temporary measure and to
serve for a limited period. But even after 56 years, the policy
claims to be a measure to promote equality and freedom. We can "skim
out"
the cream from the quota groups -- this will benefit the reserved
groups, but
will further
increase the shortage in the general category.
Is this what the society wants? The only solution is to increase
the number of seats.
Conclusion
I am all in the favor of having laws and rules to make sure that
the underprivileged get more opportunities and it’s the duty of
the government to think about that. But then, that should be done
at the primary and elementary school level and not at the
professional level or if the government wants it can make separate
schools and colleges for reserved category people. Reservation in
higher education is violation of Article 26, Para 1 of Universal
Declaration of human rights. Article 26.
(1) Everyone
has the right to education. Education shall be free, at least in
the elementary and fundamental stages. Elementary education shall
be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally
accessible to all on the basis of merit.
And having a
reservation based on the caste system is nothing but laughable.
The real differentiator is the financial background and not the
caste background.
It is an
assault on talent; after all, intellect has no caste.
Let’s not try to solve a problem, which existed in 80’s and
earlier now, without validating if it makes sense in the current
situation.
Having said
that - it only pains to know that the authorities in the
excitement of forcing the laws forget that steps like this will
only create more mediocres. We, as a country, have had our share
of mediocrity - it’s time to move a ladder up. Education is a mere
tool. There is no dearth of education in India. What we need to
develop in India is a sense of entrepreneurship. That is one area
no reservations will ever work, or even needed.
Dr Ambedkar
and the framers of the constitution envisaged the reservation
provision for ten years, so that the society is synchronized.
Instead of pursuing the spirit, the ruling elite used it as a
tool, political weapon, and keeps the national habitat divided.
Shall reservation be perpetual? Reservation conceptually means a
small percentage of whole. The reservation has been used by haves
among the SC/ ST at the huge cost of the really needy people. The
present India is divided only in haves and haves not, not
otherwise. It shall be proper to have reservation a sensible
proportion for these haves-not as a whole, not dividing them in
caste, creed , sex, religion- the true spirit envisaged by the
framers of constitution. Study Dr. B. R. Ambedkar in totality not
in isolation who stood for national integration , not its
fragmentation.
The opposition
to reservation arises from those sections that include a large
number of the economically deprived. Actually, both the votaries
and opponents of reservations seem to consider admission into the
limited number of seats and recruitment to the limited number of
jobs available as the crucial question for their economic
progress. Reservations are one of the important issues raised by
the national movement to uplift the socially oppressed sections of
our society. Though the reservations were intended as a temporary
measure, the failure of the successive governments in ensuring
equitable and speedy economic development led to their
continuation and made them a contentious issue. We must understand
that it is not the policy of reservation that lies at the root of
the problem but it is the limited number of employment and
educational opportunities that is the root cause.
Due to this
failure of the successive governments, meritorious students are
suffering because they are being precluded from their seats and
backward class students are suffering because even if they are
meritorious, the quota tag will always be attached to them
wherever they go. Even if some people argue that the basic level
of education is not the same, it is not the fault of students from
the general categories.
Some people do
argue that reservations have benefited only a small section of the
people. It has become a political game and the people who should
get this opportunity do not get it. People who have money and
power get fake backward class certificates and prove before the
government that they deserve reservation. At the level of facts,
this is true and it becomes nothing else than a sheer attempt to
amputee the budding wings of people from General Quota. But
instead of pointing to the futility of reservations it only points
to an important fact-that unless democratic movement becomes
strong enough to get the provision of reservations effectively
implemented, this limitation will continue and cannot be avoided.
This decision
is a step for setting wrong trend. - Today, it is demanded for
these premier institutes. Tomorrow, somebody will demand the same
for actual placements in the other fields including the private
companies. So, why should there not be reservations in the field
of Acting, Art, etc. Is there an end to it? In the end, I would
just say that India and reservations can bloom together only when
reservations are made on reasonable basis.
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The
author can be reached at: suvigyasaxena@legalserviceindia.com /
