Watered down

HUMAN RESOURCE DEVELOPMENT Minister Arjun Singh before tabling the reservation Bill in Parliament. - R. V. MOORTHY

The Bill meant to provide legal support to reservation gives rise to misgivings that the elite sections have snatched several concessions.

PARLIAMENT displayed rare unanimity in the enactment of the 93rd Constitution Amendment in January to provide legal support to the policy of reservation in admission to educational institutions. Such legal support was considered necessary to ensure the advancement of socially and educationally backward classes of citizens (known as the Other Backward Classes) and the Scheduled Castes and the Scheduled Tribes, as students belonging to these sections felt insecure following the Supreme Court's judgment in the P.A. Inamdar & Ors. vs State of Maharashtra & Ors. in 2005, that reservation in private, unaided educational institutions was unconstitutional. The amendment included in its ambit government and private institutions, whether aided or unaided.

As the Union government proceeded to give effect to Parliament's will to encourage a more inclusive regime in educational institutions, resistance from vested interests forced policymakers to dither and to announce some concessions to pamper uninformed critics. The Central Educational Institutions (Reservation in Admission) Bill, 2006, introduced in Parliament on August 25, the last day of the monsoon session, to provide for reservation in admission to certain Central educational institutions, reflects many of these concessions.

The Bill follows the constitution by the Prime Minister's Office (PMO) of an Oversight Committee headed by the Chairman of the Administrative Reforms Commission, M. Veerappa Moily, to monitor the implementation of the government's decision to provide 27 per cent reservation for OBCs in higher educational institutions, and to assess 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".

In a sense, this mandate to the committee itself was a contradiction in terms. The government is under no constitutional obligation to protect exclusively the educational interests of students belonging to the "general category", a term used by it to classify those not belonging to the "reserved" categories. This classification has no constitutional status and has no rationale whatsoever. For a classification to be valid, it must rest upon some real and substantial distinction bearing reasonable and just relation to the needs in respect of which it is made.

Any student of law knows that in order to pass the test for permissible classification two conditions must be fulfilled - one, the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and two, the differentia must have a rational relation to the object sought to be achieved by the statute in question.

The Bill, therefore, suffers from a serious legal infirmity insofar as it is based on this dubious mandate to the committee. The students of the "general category" cannot form a class of their own, unlike the S.Cs, S.Ts and the OBCs. The government has not spelt out (nor it probably can) any intelligible differentia of the "general" class. Even if there is one, to suggest that such differentia would have any rational relation to the Bill's object of reservation would be unconvincing.

The government's effort to introduce the Bill in Parliament was bound to give rise to serious misgivings as it was based on such a flawed approach. The Oversight Committee is expected to submit its final report in September.

In its interim report, the committee had recommended that reservation in educational institutions should commence from the academic year 2007-08 in such a manner that the existing level of intake of general category students is not curtailed. To achieve this, the prescribed increase in intake in all Central government institutions, it said, would be 54 per cent.

There can be no serious grievance with the committee's proposal to expand the intake as any such expansion is in the interest of widening educational opportunities. But the intention of the government in going for the expansion as spelt out in the constitution of the Oversight Committee smacks of misplaced priorities.

By juxtaposing expansion, inclusion and excellence as the moving spirit behind the reservation policy, as articulated in the interim report, the Oversight Committee has invited legitimate criticism whether "expansion" and "excellence" - both debatable issues by themselves - would be allowed to override the factor of inclusion.

The committee has suggested that institutions of higher learning such as the Indian Institutes of Technology, the Indian Institutes of Management and the Indian Institute of Science can maintain their global reputation only if the highest quality in terms of both faculty and students is ensured.

Therefore, it recommended that the threshold for admission should be determined by the respective institution, as was the case now, commensurate with the level of its excellence.

This clearly shows that the committee is not in favour of any relaxation of cut-off marks for the reserved categories at the threshold level for admission in such elite institutions. Reservation without relaxation in cut-off marks, in effect, would mean unfilled seats and, unlike in public services, where unfilled posts could be carried over to the next year, in educational institutions unfilled seats would invariably be filled by the "unreserved" category in the same academic year.

The purpose of reservation, therefore, is in danger of being defeated by a rigid posture on cut-off marks, born out of an irrational concern for excellence. Statistics on admission of students under reserved categories in many institutions show that the difference in qualifying marks between the students from the reserved categories and the unreserved ones is too close to draw any valid inference to support the perceived difference in their merit.

The committee has recommended that as regards cut-off marks in institutions other than the elite ones, these may be placed somewhere midway between those for the S.Cs/S.Ts and the unreserved category, "carefully calibrated so that the principles of both equity and excellence can be maintained". Would this not amount to taking away by one hand what the government intended to offer these weaker sections with the other?

Through the Bill, the government intends to offer a major concession to the elite institutions to stagger the implementation of the reservation policy over a period of three years, in view of the demands on additional infrastructure.

The Moily Committee has estimated that this would involve an expenditure of Rs.16,563.34 crores spread over five years, based on the aggregation of reports received from the five groups representing different disciplines under it.

Critics, however, have questioned the rationale of staggering, rather than implementing the policy at one go. Communist Party of India (CPI) national secretary D. Raja has deplored the staggering, pointing out that it may lead to loss of opportunities to these weaker sections during the initial years.

Besides, linking the implementation of reservation with the proposed expansion of seats appears unjust, as it has never happened before, whether in the case of reservation for the S.Cs and S.Ts, or in the case of reservation for OBCs in higher educational institutions being implemented in various States. How are the Central institutions any different from them is a legitimate question that needs an answer.

In an article in Economic and Political Weekly (July 8-15, 2006), a senior faculty member of IIM, Ahmedabad, Ramesh Gupta, has argued that quality is a matter of perception and depends on the parameters one uses to measure it. Parameters could be those that are acceptable to or valued by Wall Street recruiters or the ones that would be acceptable for managing the best Indian companies, he says. Increasingly, he says, training at the IIMs is at variance with what is required by domestic companies except for a few.

Making a micro-analysis of the requirements of IIM, Ahmedabad, he says it can increase the intake for its Post-Graduate Programme in Management substantially by better utilisation of its physical infrastructure, better faculty time management by restructuring programmes and active faculty recruitment in deficit areas, and by defining its priorities more sharply.

National Professor in Management and founder-director of IIM, Bangalore, N.S. Ramaswamy, has in a note to the Oversight Committee, maintained that the faculty in all the IIMs contribute just about half the number of hours of work they are supposed to put in as per a decision taken by the faculty four decades ago. He has suggested that the work of evaluation and preparation of course material be delegated to teaching assistants and research assistants, thus making more time available to the faculty for teaching.

Clearly, there is an inescapable feeling that the elite institutions see the government's move to introduce reservation as an opportunity to grab more funds, pretend that they are for affirmative action, keep the reserved seats unfilled by insisting on irrational cut-off marks, and pass on these seats to `general' category students.

The government has also delinked the issue of reservations in aided institutions from that of unaided ones, hinting that it would bring forward a separate Bill on this, although the 93rd Constitution Amendment was meant for both.

The unexplained reason for this is that including unaided institutions in this Bill would invite stronger resistance from the agitating students, and attract unfavourable judicial intervention. These are certainly extraneous issues which ought not to have guided the drafting of a law.

The Bill excludes from its purview eight institutions of excellence, without defining an "institution of excellence". These are the Homi Bhabha National Institute, Mumbai and its constituent units, the Tata Institute of Fundamental Research, Mumbai, the North-Eastern Indira Gandhi Regional Institute of Health and Medical Science, Shillong, the National Brain Research Centre, Manesar, Gurgaon, the Jawaharlal Nehru Centre for Advanced Scientific Research, Bangalore, the Physical Research Laboratory, Ahmedabad, the Space Physics Laboratory, Thiruvananthapuram, and the Indian Institute of Remote Sensing, Dehra Dun.

Besides, a course or programme at high levels of specialisation, including at the post-doctoral level, within any branch of study or faculty, which the Central government may, in consultation with the appropriate authority, specify, also stands excluded from the purview of the Bill.

The exclusion of these institutions from the scope of the Bill suggests either that the government believes that the policy of inclusion is irrelevant in these institutions or that it fears the reserved category students, despite fulfilling the eligibility criteria and securing the cut-off marks, are still a threat to merit and excellence in these institutions. An inherent inexplicable bias?

The Bill does not apply to Minority Educational Institutions (MEI). It defines an MEI as one established and administered by the minorities under Clause (1) of Article 30 of the Constitution and so declared by an Act of Parliament or by the Central government or declared as an MEI under the National Commission for Minority Educational Institutions Act, 2004.

Article 15(5) exempts minorities, whether based on religion or language, from its purview as they enjoy a special right under Article 30(1) to establish and administer educational institutions of their choice. The rationale of such exemption is that it will be unreasonable to impose reservation on these institutions as it would tend to weaken Article 30(1), considered sacrosanct in guaranteeing secular and federal principles.

However, it appears that the government has not taken sufficient care to safeguard the interests of S.C. and S.T. students, who already enjoy reservation in certain MEIs. There is an apprehension that such MEIs could use the Bill, when enacted, as an excuse to withdraw the existing reservations for S.Cs and S.Ts.

Critics of the Bill have pointed out that it is silent on the exclusion of the creamy layer and that the government has no intention to exclude the socially advanced sections of the students belonging to the OBCs from enjoying the benefits of the proposed reservation in educational institutions. The creamy layer category was excluded in the reservation for OBCs in public services following the Supreme Court's directive.

This category, evolved by the Government of India, in general covers children of high constitutional dignitaries such as the President, the Vice-President, Judges of the Supreme Court and the High Courts, or Class I officers, or children of persons not qualifying the income or wealth test as specified to identify the non-creamy layer among the OBCs.

The Communist Party of India (Marxist) has announced that it will seek the exclusion of the creamy layer from the Bill when it is taken up for detailed scrutiny by the Standing Committee of Parliament.

Parliament may have to allay fears that if the creamy layer is excluded from the purview of reservation, many of the seats meant for the OBCs would remain unfilled.

It is pointed out that it is those belonging to the creamy layer, with their capacity to train and equip themselves with proper coaching, who could secure the cut-off marks at the threshold level. With the Oversight Committee recommending non-relaxation of cut-off marks for admissions in elite institutions for the "reserved" category students, the exclusion of the creamy layer, if agreed to, could result in defeating the Bill's objective of inclusion.