Injustice undone

Jawaharlal Nehru University's faulty admission procedure leads to the historic correction by the Supreme Court.

USHAM ROJIO from Imphal, Manipur, is a contented man today. After three long years of struggle, he has secured admission to one of the premier universities of India, Jawaharlal Nehru University (JNU) in New Delhi.

Sitting in his hostel room on the university campus, the student from a humble background recalls how he succeeded in his struggle to pursue a research degree in JNU. When, in 2008, the Union government announced its policy of 27 per cent reservation for Other Backward Classes (OBC), he had just passed out from Jamia Millia Islamia in Delhi with a postgraduation in English. OBC reservation in Central educational institutions came as a welcome surprise. I wanted to study more, though I had to finance myself through scholarships. Only JNU, known for its student-friendly policies, could have given me, with my limited resources, a good academic experience. I decided to apply for its M.Phil programme in English in 2008, thinking that the new reservation policy would help me secure admission, Rojio recalls. That year, his name was not on the list of selected candidates. He joined a publishing house to sustain himself in Delhi.

Since higher studies was his primary goal, he applied in JNU again in 2009 this time for M.Phil in Theatre and Performance Studies. As in the previous year, he had qualified in the written examination but the viva-voce robbed him of a place on the final list. In 2010, he applied again for the same course, qualified in the written examination again, and waited for the results to come out after his viva-voce, which according to him, had gone well. But yet again, he did not make it to the final list.

Around the same time, the JNU Students' Union (JNUSU), led by the All India Students' Association (AISA), was leading a struggle against what it thought was an utterly faulty implementation of the OBC reservation policy by the university administration. The students' unions found that this prevented many OBC students from securing admission in JNU. Since 2008, the AISA-led JNUSU had collected useful data, through the Right to Information Act, which suggested that the OBC reservation model followed in JNU had become an indirect way of denying OBC candidates admission and filling the seats meant for them with general candidates.

It was in 2010 that the JNUSU got in touch with Rojio to tell him that he had scored 61 per cent in his 2009 entrance test (50 out of 70 in the written examination and 11 out of 30 in the viva-voce) and yet had been denied admission. Rojio, along with another such victim, Apurva Yadav, filed a suit in the Delhi High Court against the JNU administration. On September 7, 2010, the High Court gave a judgment in favour of Rojio and Apurva, which the Supreme Court upheld on August 18, 2011.

Faulty admission

So, what was the faulty model that JNU was implementing with regard to OBC reservation? When the 27 per cent reservation for OBCs in Central educational institutions was announced, it came with two riders. First, that the reservation would be implemented over a period of three years so as to achieve the total of 27 per cent. Thus, in 2008, only 12 per cent of the seats would be reserved for OBC candidates. In 2009, it would be 18 per cent; and in 2010 27 per cent. The second rider was that as seats would be reserved for OBCs, there would be simultaneous, proportional increases in the number of general seats. So, in 2008, there was approximately an 18 per cent increase in the general category seats; in 2009, it was 36 per cent. From 2010 onwards, there was to be a 54 per cent increase in the total number of seats. All Central educational institutions had been given, since 2008, large funds to improve the infrastructural assets in order to meet the requirements of an increased student strength in each classroom.

Following agitations and petitions before courts by anti-reservation activists, a Constitution Bench of the Supreme Court tried to resolve the confusion over the issue of cut-off marks or eligibility conditions for OBC candidates. The Bench suggested that the cut-off marks for OBCs could be 10 per cent below the cut-off marks for general-category applicants.

JNU, however, took advantage of the usage of the word cut-off in the Supreme Court order and interpreted the clause in its own way. JNU fixes the minimum eligibility marks between 40 and 50 per cent for different courses when the admission programme is announced. After the judgment, JNU started to apply the eligibility marks criterion only for general-category candidates. It did not say what the minimum eligibility marks for OBC candidates were but decided the cut-off marks for OBC candidates only after all the general-category seats were filled. It fixed a band of marks up to 10 per cent below the marks secured by the last candidate admitted under the general category. As a result, if an OBC candidate secured marks within that band, he would be given admission. Otherwise, even if he secured 70 per cent, as against the minimum of 40 per cent eligibility marks announced in the prospectus, he would not get a seat, if the band of marks was higher or the last general-category student had scored 81 per cent (an 81 per cent for the last general candidate would mean that no OBC candidate scoring below 71 per cent would get a seat).

Consequently, the admission of OBC candidates became dependent on the performance of general-category students every year and remained a variable component. The Aditya Mukherjee Committee in charge of implementing the OBC reservation in JNU was of the view that OBC reservation done on the basis of minimum eligibility and not by cut-off marks as interpreted by JNU would result in compromising merit. It also said that it would be impossible to handle students from such a varied bandwidth in a single classroom.

As a result, many OBC seats remained vacant in the last three years. A Right to Information (RTI) application by AISA reveals that in 2008, when there was 12 per cent OBC reservation, 53 OBC seats remained vacant in JNU. In 2009, when there was 18 per cent reservation, 86 seats remained vacant and in 2010 when there was 27 per cent reservation, 277 seats remained vacant. As the Supreme Court had said in its judgment that the vacant seats in the OBC category could be given to the general-category students, vacant OBC seats were duly given to general-category students. This was apart from the proportional seat increase for general-category students.

Said Sucheta De, general secretary of AISA: In a way, the JNU authorities charted a road map to fill in a larger number of general-category students and deny the OBCs their rightful admission. The meaning of cut-off marks stood changed after the OBC reservation was announced. Such a procedure was arbitrary and discriminatory, apart from being unknown with regard to admissions in educational institutions. The minimum eligibility marks for admission to a course of study is always declared before the commencement of the admission programme for an academic year. And such a procedure completely went against the very idea of reservation that is, to assist students from deprived backgrounds. Since then, we have been demanding that it should be mentioned in the prospectus that cut-offs and eligibility marks are one and the same. OBC cut-offs cannot be a variable component dependent on the performance of general-category students. Since the eligibility marks for general candidates is 45 per cent for most courses, it should be 35 per cent for OBC candidates as per the original reservation judgment.

Many other universities, including Delhi University (DU), Allahabad University, and the Indian Institutes of Technology (IITs), followed the JNU model. Among Central universities, only Hyderabad Central University and the All India Institute for Medical Sciences (AIIMS) have followed the correct model since 2008. There were protests in DU to which the university authorities said that they were gradually lowering the cut-off marks for OBC candidates. But as in the case of JNU, the DU authorities never admitted that cut-off marks and eligibility marks were one and the same. The university authorities said that the seats fell vacant every year because there were not enough applications from OBC candidates.

Initially, the JNUSU did not intend to take the legal route. It was successful in gathering support among students and concerned citizens such as the late human rights activist K. Balagopal and the pro-reservation activist and former Indian Administrative Service officer P.S. Krishnan. The academic council (AC) of JNU relented following campaigns and passed a resolution to implement the correct model in March 2010. But after a legal notice by an anti-reservation group called Youth for Equality (YFE), JNU's then Vice-Chancellor B.B. Bhattacharya stayed the AC resolution. Many OBC candidates were denied admission again.

It was then that AISA mobilised a few victims of the system to file a suit in the Delhi High Court. On September 7, 2010, the High Court upheld the JNUSU's position. The cheque of reservation of 27 per cent issued by the legislature to the OBCs in accordance with the Constitution of the country cannot be made to bounce. The policy adopted by UOI [Union of India] and JNU amounts to the executive taking away what the legislature has given to the OBCs. The same cannot be permitted to happen. Procedure followed by JNU and the stand of the UOI regarding reservation for OBCs is thus declared to be bad, the High Court verdict said. The Union of India found mention in the judgment because it maintained a strategic silence on the faulty admission policy.

Rojio and Apurva Yadav were given late admissions when they appealed to the JNU management after the judgment, but the injustice meted out to other OBC candidates who had lost out because of the faulty procedure remains undone. On September 13, 2010, the YFE and former IIT Madras Director P.V. Indiresan filed a special leave petition (SLP) in the Supreme Court challenging the High Court verdict. On August 18, 2011, the apex court, in its historic judgment, vindicated the JNUSU's stand and dismissed Indiresan's appeal. The judgment firmly upheld that cut-off and minimum eligibility were one. The court ordered that in universities where admissions are still under way, OBC seats must be filled by OBC candidates alone; only in the absence of OBC candidates who fulfil the qualifying/eligibility marks can those seats be converted to general-category ones.

Therefore, the percentage of OBC candidates in all Central universities has gone up significantly this year. According to an RTI application filed by AISA, in courses where admission is made partly through viva-voce, the number of OBC candidates selected is smaller despite the performance of OBC candidates in the written test being on a par with the general candidates. Data show that most students who get low marks are students from the OBC, Scheduled Caste and Scheduled Tribe categories. Doubts linger that the faculty members could be biased against the reserved category students as viva-voce, unlike the written examination, gives the faculty members a chance to meet the candidate and know his category. We have been demanding that the weightage of viva-voce in admissions should not be more than 15 per cent as against 30 per cent in JNU at present, said Radhika Krishnan, a research scholar in JNU and an AISA activist.

The struggle of progressive groups to ensure equitable platforms for deprived students continues. There are constant demands from progressive student groups for adequate student representation in the decision-making bodies of Central universities to prevent such mishandling and misinterpretation of policies by the university authorities.