On the day (August 5) when the United Nations confirmed that the education of more than 1.5 billion children in 160 countries including India, has been severely disrupted and endangered by the Covid-19 pandemic and that in developing countries, an estimated 50 million may drop out of education permanently, India’s pre-pandemic affirmative action initiative of last year, which reserves an additional 10 percent quota in higher education institutions and government jobs for economically weaker sections (EWS), came up for hearing in the Supreme Court.

Hearing several petitions challenging this new quota provided by the Constitution (103rd Amendment) Act, 2019, the Supreme Court bench comprising Chief Justice S.A. Bobde, Justice R. Subhash Reddy and Justice B.R. Gavai referred them to a five-judge constitutional bench stating that the case involves substantial questions of law and interpretation of constitutional provisions. However, the bench declined to stay the Amendment Act. This means a 10 percent quota will be carved out from the general category for the admission process of 2020-21, delayed due to closure of all education institutions during the pandemic.

Enacted by the BJP/NDA government at the Centre in January 2019 in the run up to General Election 2019 to harvest the votes of the upper castes — the natural constituency of the BJP which has always resented reservations for the traditionally oppressed scheduled castes, scheduled tribes and after 1992 for OBCs (other backward castes/classes) — the Constitution 103rd Amendment Act carves out a 10 percent reserved quota in public higher education institutions and government jobs for a new subcategory — economically weaker sections within the general (merit) category. The Amendment Act has amended Article 15 which prohibits discrimination on the basis of religion, sex, caste or place of birth and Article 16 which guarantees equal opportunity in public employment to permit positive discrimination for economically weaker sections regardless of caste and class considerations.

Reservation of seats in higher education institutions (HEIs), aka affirmative action, has been a contentious issue since the Constitution of India came into effect on January 26, 1950. At that time, provisos were appended to Articles 15 and 16 to reserve 22.5 percent of seats in HEIs for historically oppressed and cruelly discriminated scheduled castes (15 percent) and scheduled tribes (7.5 percent) under the Hindu caste system. The objective of these provisos was to atone for historical injustices and legislate positive discrimination in their favour. In 1992, after publication of the Mandal Commission Report, an additional 27 percent of capacity in HEIs was reserved for traditionally neglected OBCs (other backward castes/classes).

Positive discrimination legislation in favour of bottom-of-the-pyramid citizens aroused considerable opposition especially in the 1990s, when 27 percent capacity reservation was decreed for OBCs. The country’s newly emergent middle class is opposed to reserved quota in HEIs on grounds that affirmative action discriminates against hard-working meritorious students and lowers teaching-learning standards in HEIs.

In 1992, in Indira Sawhney vs Union of India, a nine-judge bench of the Supreme Court accepted the case for positive discrimination in favour of traditionally oppressed sections of society, but capped reservation at 49.5 percent of capacity in HEIs. However, citing a report of the Commission for Economically Backward Classes 2010, chaired by Maj. Gen. (Retd.) S.R. Sinha, the BJP/NDA government legislated the 103rd Amendment Bill (now the 124 Constitution Amendment Act, 2019).

There is undoubtedly some merit in the argument that excessive reservations in HEIs in favour of historically oppressed castes drive down teaching-learning standards. In the US, progressive HEIs tend to limit affirmative action admissions (which necessitates lower cut-offs in entrance exams) to 10-15 percent. If the Supreme Court validates the new additional quota for EWS, the ceiling for the preferential/concessional admissions will be raised to 59.5 percent, closing the door on a majority of general merit category students who top public entrance exams.

As and when the new Constitution bench of the apex court deliberates whether the 49.5 percent affirmative action ceiling prescribed in Indira Sawhney’s Case needs to be breached in the interests of equity and social justice, perhaps they should bear in mind that none of India’s 993 universities — some of them of over 150 years vintage — are ranked in the World University Rankings (WURs) of the authoritative London-based HEIs rating agencies QS and Times Higher Education.

Autar Nehru (Delhi)

Also read: Delhi: NIRF Rankings 2020