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Reservation- Solution To The Problem

Written by: Abeer Kumar and Divyam Agarwal, Final Year Students - Amity law School, New Delhi
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  • "I try to look upon the problem not in the sense of religious minority, but rather in the sense of helping backward groups in the country. I do not look at it from a religious point of view or a caste point of view, but from a caste point of view that a backward class ought to be helped, and I am glad that this reservation will be limited to ten years.." Jawaharlal Nehru addressing the Constituent Assembly, May, 1949.

    Reservation has always been a fiercely debated topic as the future of millions of students hangs in the balance. It is an issue, which will make an even seemingly unbiased individual question his own prejudices. The question of merit, caste and class keeps recurring time and again inspite of the forward-looking vision of the constitution makers who attempted to visualize an undivided and equal society.

    Opposing reservations at the higher educational level is a justifiable issue. The student community is not biased on grounds of caste or class; neither does it question the fundamental rights encircling this issue.

    In 1979, the Mandal Commission was established to assess the situation of the socially and educationally backward. The commission didn't have exact figures for a sub-caste, known as the Other Backward Class (OBC), and used the 1931 census data to estimate the OBC population at 52%, and further classified 1257 communities as backward. Determining that 52% of our people are Other Backward classes, of course, is not enough.

    To make its recommendations operational, the Mandal Commission had to specify which castes in each state were backward. And to do so it had to assess several things about them: from nebulous things like the extent to which they were discriminated against socially to easy-to-get things like the extent to which they were represented in services, elected bodies, etc.[1]

    In 1980, the commission submitted a report, and recommended changes to the existing quotas, increasing them from 27% to 49.5% [2]. The report was implemented in 1990 amid a great deal of controversy, and led to the resignation of the then acting Prime Minister, V.P Singh .According to 2001 census, out of India's population of 1,028,737,436 the Scheduled castes comprises 166,635,700 and Scheduled Tribe 84,326,240, that is 16.2% and 8.2% respectively. There is no data on OBCs in the
    census [3]. However, according to National Sample Survey's 1999-2000 round around 36 per cent of the country's population is defined as belonging to the Other Backward Classes (OBC). The proportion falls to 32 per cent on excluding Muslim OBCs. A survey conducted in 1998 by National Family Health Statistics (NFHS) puts the proportion of non-Muslim OBCs as 29.8 per cent. [4] In other words, we do not have a reliable Census headcount for the OBCs, except that made by State-level Backward Class Commissions, which are not really Census-like in nature. It may be useful to have a detailed caste-wise census to look at the actual numbers. This could be attempted at least in the coming Census.

    An economic Census of the Central Statistical Organisation in 1998 reveals that of 31 million enterprises nearly 12 percent were owned by SC/STs and 33 percent by OBCs. Hence, the assumption that weaker sections are only employees or seekers may not be correct.

    Under Article 340 of the Indian Constitution, it is obligatory for the government to promote the welfare of the Other Backward Classes (OBC).

    Article 340(2) states, "A commission so appointed shall investigate the matters referred to them and present to the president a report setting out the facts as found by them and making such recommendations as they think proper."

    Consequent to the notification of the Constitution (Ninety-Third Amendment) Act, 2005, effecting the 104th Amendment to the Constitution in January this year, the Government of India indicated its intention to provide reservation for students coming from the socially and educationally backward classes of citizens, popularly known as ?Other Backward Classes (OBCs) in higher educational institutions.

    Therefore, Article 15 of the Constitution, after clause (4), the following clause is inserted; (5) Nothing in this article or in
    sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational referred to in clause (1) of article30.

    The 93rd Amendment Act, 2005 inserting Article 15(5) is without doubt introduced to overcome the law laid down by the Hon'ble Supreme Court in an unanimous judgment by 7 judges in P.A. Inamdar & Ors. v. State of Maharashtra [5] declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. This judgment was an attempt to bring clarity to two previous judgments by the Hon'ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka  [6] and Islamic Academy of Edn. v. State of Karnataka [7] by a constitution bench that interpreted the Pai Foundation judgment. The Hon'ble Supreme Court ruled on the following issues in relation to minority and non-minority unaided higher education institutions.
    i. reservation policy,
    ii. admission policy,
    iii. fee structure,
    iv. regulation and control by the state, and
    v. the role of committees dealing with admission and fees,

    The amendment is aimed at providing greater access to higher education, including professional education, to a large number of students belonging to socially and educationally backward classes of citizens and SCs/STs and the OBCs by the government has not been able to so far been able to provide quality primary education through state funded schools. Infact, the official data of central university reveals high drop out rates amongst SC/ST school children.

    Also, reservation at University and super specialty level will not serve its so-called purpose unless these students continue education till Class X. The Government instead of strengthening the education system at the primary and secondary level is concentrating in giving more and more reservation at the tertiary level.

    The Prime Minister's Office, on the 27th of May 2006, constituted an Oversight Committee to monitor the implementation of this decision and directed that the Committee would, inter alia, look into the following aspects and submit its report by 31st August, 2006: Implementation of 27% reservation for the OBCs in institutes of higher learning and Assessment of additional infrastructure and other requirements for increasing the overall availability of seats to a level so that the present level of seats available to the general category students does not decline.

    No doubt the constitution guarantees by way of the above-mentioned Articles a fundamental right for the realization of one?s own potential, and it is the duty of the state to make available all plausible resources for achieving the same. But then bigger problems looming large in our faces are the questions of quality, the basis for identification of backward classes and inclusion of the creamy layer in the proposed Reservation Bill.

    At a time when India enters its 60th year of independence one is compelled to question the social progress of this country. However, India's economic growth rate is estimated at a whopping 6-8% per year, with economists still foreseeing the potential to exceed 9-10%. The country has superseded other developing nations with poverty depleting at a massive pace from more than half to less than a quarter since 1991. On the other hand, it was reported in The Hindustan Times that students securing 90% and above failed to get into colleges of their choice whereas two students who scored 6/100 in the AIEEE have been selected for admission in the engineering course of BIT, Mesra. The VC said that same 50 reserved seats are vacant and chances are that students who scored 1-2% maybe considered for admission. The implementation of 27% reservation no doubt would instill a level of confidence in the backward class candidate; however much is dependent upon his successfully completing his course.

    Another aspect that has been overlooked is the state of literacy in this country. The comparisons with other countries are stated as follows:
    Illiteracy in India and some neighboring countries. Percentage of adult illiterate population 2000
    China 15.0
    India 44.2
    Indonesia 13.0
    Myanmar 15.3
    Sri Lanka 8.4
    Thailand 4.4
    Source: Statistical Yearbook, 1999 UNESCO and Census of India 2001- Provisional Population totals.

    The state of literacy is also reflected in the dropout and enrolment percentage in the primary and upper primary level of education.
    According to Vinod Raina, a member of the Central Advisory Board on Education, 80 Million of India's 200 million children between six and 14 years of age are not in school at all. Of the remaining 120 million, only 20 million are expected to reach the tenth year of school, with the rest dropping out along the way. [8]
    DROP OUT RATE (2003-04)
    Class (I-VIII)
    Classes (I-X)
    (as high as 90% in Bihar) Source : Annual Report 2004-05, Ministry of Human Resource Development.

    Thus only about 10% of children in the eligible age group complete their high school. The percentage is much lower among girls and rural children.

    The inability of backward classes not being able to compete in gaining admission to higher education is a consequence, not a cause of their backwardness. The cause of their backwardness lies elsewhere and so by forcing them into higher education will not magically remove their backwardness.

    Quotas, are economically inefficient. Assume that the full cost of, say, a 4-year IIT education is $50,000 (or about Rs 22 lakhs). Further assume that a quota student ends up benefiting less than the full cost, say, $10,000, while a non-quota student gets at least $50,000 of benefits. The net loss is then at least $40,000. Instead of wasting $40,000 on one backward class student at the IIT, if the money were spent school education, 20 students could have been educated (with an average spend of $2,000) and out of which perhaps one would have been sufficiently bright enough to gain admission in the IIT on merit & subsequently compete within the system as well. This is the tactical flaw with the quota system: they have the sequencing wrong, and instead of creating more opportunities at the school level, it tries to equate outcomes at the college level. [9]

    Reserving a few slots at the top without allowing and enabling the deprived groups to climb up even the lower rungs of the education ladder is political chicanery. If data available are any indication, as of now India's demand for higher education is by 35 percent of the relevant age group. Contrast this with the present enrolment of 9 to 11 percent compared to 45 to 85 percent in Developed countries. Contrast this also with the fact that India's present outturn of degree holders is just about 7.5 percent. [10]

    In India, constant pressure is on filling a certain quota regardless whether or not the caliber of those hired in jobs or admitted in educational institutions is consistent with the "maintenance of efficiency" and well being of the institutions. What is of paramount importance in India is that target numbers must be met even if that involves going down the merit hierarchy. Affirmative action advocates no such generosity for it acknowledges the importance of competition and merit. As it benefits those who are almost as good as the ones from the general category, a person from a disadvantaged background must still score very well in terms of qualification required for the position. [11]

    Therefore a plausible repercussion of reservation, besides reverse discrimination would be that of retarded and paralytic development of the backward classes. Meaning that if a backward class student scores, say 90%, that student would be denied admission in a general category seat, even though that student has the requisite criteria suitable for that seat, that candidate would only be allowed admission under the quota system and therefore branded as a backward class member for life.

    The concept of backward class promotes a sense of inferiority and ostracism for those who belong to that category even when merit permits them to compete at an equal footing.

    Another inevitable repercussion would be that the mandatory percentage required for admission would never be a pre-requisite for a backward class candidate. This would kill the academic inclinations of the student, with a constant delusion in his mind that the quota even at the service sector would cradle him.

    Plausible Solutions proposed by the Authors

    I) Primary Education:
    Every individual is like a building, if the foundation of the building is weak it is inevitable that the entire structure will fall. The same is true for an individual. The basic foundation of an individual for a successful career is deeply rooted in the primary education he receives. It is this education that will help him achieve higher levels of learning. Therefore to become a sky scraper one has to start from the bottom.

    The focus should therefore be on maximizing the educational infrastructure, more fund allocation and that of reforming the entire teaching and learning process and revamping the obsolete administrative apparatus that hinders more than it serves.

    II) A person must be given the basic necessities of life-nutrition, clothing, shelter, medical facilities. These must be provided at nominal rates through fair price shops catering specifically to the economically backward of this country.

    III) Benefits if provided should be restricted per family to a maximum of two children irrespective of the number of children in a family. This will help in regulating the population of OBCs which will eventually result in decrease in their representation, giving way to the principle of equality. This could also be achieved where reservation can be extended to one generation only. A family that has availed it once should not be allowed to avail it in the next generation too. This would make it possible to do way with reservations in a phased manner.

    IV) Give effect to the Hon'ble Supreme Court's observation in Indra Sawhney v. Union of India [12] on the exclusion of creamy layer from the benefits of reservation.

    V) Once an OBC is self sufficient then relegate him from that category and include him in the general category. Thereon, his coming generations will be termed as general category. This will result in reduction of the OBCs.

    VI) Setup a review committee under a governmental authority which submits an annual report at the end of the year reviewing the implementation of allocation of funds at the primary and secondary education level.

    VII) The root of the problem lies not in the demarcation of the categories but in the ever increasing rural and urban divide. In a rural village of India a general category individual is suffering same as the OBC. So the solution lies in bridging the gap between rural and urban India which can be done in concentrating on the rural setup and providing them all the basic facilities. This way we can reduce the concentration of power in few hands and provide sustenance to the weaker section i.e. the rural society.

    VIII) Set a deadline for eliminating all kinds of reservations benefits provided to SC/ST & OBCs. Government must ascertain a final date (maybe within 10 to 15 years) when the whole setup is brought down. This will not only encourage reserved category people to stand on their own but also go a long way in increasing its acceptability by all sections of the society.

    IX) However if it is deemed necessary that 27% reservation is to be implemented then it should be done on the basis of satisfying the minimum criteria of marks which every student, irrespective of caste or class has to secure. It should only be after careful consideration of the caliber of the backward class candidates combined with his qualifying marks and reasonable intelligence that he should be given admission. In other words if qualifying marks for a general category is, say 90 %, then the qualifying marks for the OBC candidate should be approx. 80 %. This will prevent dilution of academic standards. Also, in case the quota seats are not filled then after a lapse of particular period of time, the remaining seats should be made open to the general category. This will prevent wastage of seats.

    1. Arun Shourie, Falling over Backwards, an essay against reservations and against judicial populism, ASA Publications, 2006, P.86.
    2. Ramaiah, Identifying Other Backward Classes (PDF), Economic and Political Weekly, (6 June, 1992), pp. 1203-1207.
    3. Population. Registrar General & Census Commissioner, India. Retrieved on 2006-05-27.
    4. Surjit Bhalla and Sunil Jain, 36% population is OBC, not 52%. South Asian Free Media Association (8 May, 2006).
    5. 2005 (6) SCC 537.
    6. 2002 (8) SCC 481.
    7. 2003 (6) SCC 697.
    11. NJ Demerath III and Dipankar Gupta, Maintaining Excellence, Times of India, Editorial Opinion, 12th June, 2006.
    12. 1992 (3) SCC Supp 217

    The author can be reached at: [email protected] / Print This Article

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