Myths that engulf Affirmative Action in Higher Education
By C. Premsai
VII Semester LLB, Bangalore Institute of Legal Studies, Bangalore
1.
Introduction
“Democracy depends for its very life on a high standard of general, vocational and professional education”
-
Dr. S. Radhakrishnan
Education has always been a great liberating force
that has helped individuals elevate themselves both intellectually and
spiritually. It is considered to be an equaliser that bridges the ever widening
gap between the rich and the poor. Education is believed to imbibe in
individuals the desire to respect fellow beings and indoctrinate the ability to
live and work together in the most peaceful manner. The central objective of
Education is knowledge and liberation. 'Knowledge is power' and
the source of knowledge can be traced back to Education which would inter alia
include Primary Education, Secondary and Higher Education. Education cannot be
construed to be merely the instruction received at school, or college but would
include the whole course of training- moral, intellectual and physical. Thus
Higher Education in particular plays an extremely important role in inculcating
values.
2.
The Importance of Higher
Education
Over the years, India has built up a very large
system of education. The National Policy
on Education reaffirms that "Education is a unique investment in the
present and the future. This cardinal principle is the key to the National
Policy on Education.” The major cause for concern is that access to higher
education remains a privilege of only a few. The Commission on University Education, set up under the
Chairmanship of Dr. S. Radhakrishnan declared: ‘Education is a universal right,
not a class privilege.’ The increase in the middle class in India can be mainly
attributed to the investment made by the State in Higher Education.
3.
The need for Affirmative
Action in Higher Education
Andre Beteille in ‘The pursuit of Equality
and the Indian University’ has observed that “Our contemporary life is
permeated by the contradiction between the principle of equality and the
practise of inequality. This contradiction is particularly marked in India
where a Constitution with a strong emphasis on equality confronts the most
bewildering variety of inequalities in almost every sphere of life”. The
backward classes have been discriminated against for centuries. Hopes and
expectations for these citizens are practically non-existent.
The Government of India has been striving
relentlessly towards the upliftment of the socially and educationally backward
classes. The Constitution of India
categorically lays down that it is the duty of the State to ensure the welfare
of the backward classes. Article 46
of the Constitution promotes the educational and economic interests of the
Scheduled Castes, Scheduled Tribes and the other weaker sections. The Hon’ble Supreme Court in Saurabh Chaudri v. Union of India[1]
has held that “the ideal situation, although might have been to see that
only meritorious students irrespective of caste, creed, sex, place of birth,
domicile/residence are treated equally but history is replete with situations
to show that India is not ready therefor. Sociological conditions prevailing in
India compelled the makers of the Constitution to bring in Articles 15 and 16
in the Constitution… Preference to a class of persons whether based on caste,
creed, religion, place of birth, domicile or residence is embedded in our
constitutional scheme.”
Higher Education, in recent times, has become the
most obvious means to attain material wealth and social privilege. This is
possibly one of the most important reasons as to why access to higher education
has been monopolized by a few privileged sections and hence the necessity to
provide the weaker sections with an opportunity to access Higher
Education.
Women have been dominated by the stronger sex and
have been deprived of education and equal opportunities in political and public
life, which they rightly deserve. According to The Convention on the Elimination of All forms of Discrimination
against Women, discrimination against women would include any distinction,
exclusion or restriction made on the basis of sex. Discrimination on the basis
of sex has been prohibited by the Constitution of India but in reality, it
still continues.
The Hon’ble
Supreme Court in the Unnikrishnan
judgement[2],
framed schemes and guidelines and prescribed government quota seats for
admissions in unaided professional colleges. This question was referred to an
11 judge bench in the T.M.A. Pai
Foundation[3]
case which overruled the Unnikrishnan
judgement[4].
Many state governments insisted on enforcing state quotas in minority and
non-minority unaided professional colleges. The ruling of the Hon’ble Supreme Court in the P.A.Inamdar case[5]
disapproving government quota or reservation in favour of the weaker sections
was criticised by many. In order to ensure admission to private colleges for
the poorer sections of society, the 104th
Constitution Amendment Bill was passed. It inserted a new Clause (5) to Article 15 which enables the Parliament as well as the State
Legislatures to make appropriate laws for the advancement of any socially and
educationally backward classes or for the Scheduled Castes or the Scheduled
Tribes.
4.
What is Affirmative Action?
The Concise
Law Dictionary by P.Ramanatha Aiyar defines the term ‘Affirmative Action’
as “the positive steps designed for the elimination of existing and continuing
discrimination”. Affirmative Action
involves a set of public policies and initiatives designed to eliminate
discrimination based on caste, religion, sex or place of birth. Article 14 of the Constitution of India
provides that the State shall not deny to any person, equality before the law.
Affirmative Action aims at compensating the victims of past discrimination and
redistribute opportunities from the well off to the under-privileged sections
of society.
Reservation often tends to be synonymously used with
Affirmative Action but there is a subtle difference between the two terms.
According to A.K. Shiva Kumar, adviser to the UNICEF in India, reservation is a subset of Affirmative Action.
As far as Affirmative Action is concerned, the amount of representation to be
given to underrepresented groups is the discretion of the individual
organisations whereas in case of the reservation system, the quota or the
amount of representation to be given to each group is fixed generally by the
Government and has to be abided by.
Reservation is based on the premise that equipping
individuals belonging to the socially and educationally backward sections of
society would ultimately lead to their social upliftment.
5.
Myths that engulf
Affirmative Action in Higher Education
5.01 Myth: Affirmative Action would
result in certain groups being given special rights while the others are left
out.
Reality: Affirmative Action tries to eliminate the
exiting and continuing discrimination and provides a level playing field for
all sections of society. Although Affirmative Action and Reservations are two
ends of the spectrum and are not one and the same, the consequences of
implementing the two would remain uplifting the backward sections of society.
The Government has been trying to reserve seats in institutions of Higher
learning for the Other Backward Castes and this move, if implemented in letter
and spirit would certainly go a long way in providing the OBC’s with access to
Higher Education.
Let us
think of a situation wherein a young man of about 25 years and a man of about
90 were to race against each other. It would not be in the interest of justice
to let them start from the same point and would only be reasonable to ask the
elderly person to start from a point which is slightly ahead of starting point
demarcated for the young man. Thus socially and educationally backward classes
could be compared to the elderly person and the rest of the population to the
young man. The policy of Affirmative Action tries to place backward sections of
society, like in the above illustration, in a position which is slightly ahead
of the rest of the population. This does not imply that certain groups are
being given special rights while the others are left out; it only tries to
instil a spirit of healthy competition.
5.02 Myth: Affirmative Action is not
necessary in countries like India where reservations have been implemented for
years.
Reality: Although the implementation of Reservations in countries like India in
principle is supposed to be of immense benefit to the backward sections, they
continue to be deprived of the opportunity to access Higher Education.
Affirmative Action would be a necessity until women and the weaker sections get
equal pay and have access to education.
5.03 Myth: Affirmative Action should
be based only on economic backwardness rather than on gender or race.
Reality: Affirmative Action is necessary in order to
provide members belonging to every economic class with the opportunity to
access Higher Education. The recommendations of the Second Backward Classes Commission (Mandal Commission) were based
on several criteria which inter alia included the economic criterion. The
Government in the year 1991 announced that within the 27% of the jobs in the
Union Government, reserved for socially and educationally backward classes,
preference would be given to the poorer sections of such classes. The
Government also declared 10% reservation for the other economically backward
sections of the society who had not been covered by any of the other existing
schemes of reservation. The implementation of the Mandal Commission Report was taken to the Hon’ble Supreme Court which upheld 27% reservation as was
recommended but struck down the Government’s decision to reserve 10% jobs for
the other economically backward sections. Some of the important aspects of the
judgement are:
Ø Caste has been accepted as a
basis for identifying the beneficiaries of reservations.
Ø The ‘Creamy Layer’ has to be
excluded from reservations.
Ø The Union Government shall
specify the socio-economic criteria to exclude socially advanced persons among
the backward classes.
It is
not easy to isolate the ‘creamy layer’ from the poor and the needy in a country
as diversified as India. Caste based reservations still continue to be in vogue
as far as education and jobs are concerned.
5.04 Myth: Affirmative Action would
lead to lowering of the standard of Higher Education.
Reality: The implementation of Affirmative Action
does not mean providing access to higher education to unqualified people
belonging to the weaker sections. It would only allow competent and qualified
members to compete in areas in which they have been under-represented as a
group. If merit were to be sole criterion for providing opportunities to the
citizens, the country should have by now progressed to a great extent under the
leadership of the so called ‘meritorious members’ of the society.
5.05 Myth: Affirmative Action in Higher Education would no longer be
necessary for women.
Reality: Women in India were allowed access to Higher
Education only as late as 1882. According to the 2001 Census, the literacy rate among women was found to be only
64%. Women constitute only a small percentage of students in institutions of
Higher learning. The 73rd
Constitutional Amendment Act stipulates that one-third of the seats are to
be reserved for women along with the Scheduled Castes and the Scheduled Tribes.
This would indeed go a long way in uplifting women. Promoting education among
women is the only way of empowering them.
5.06 Myth: Affirmative action would almost always result in Reverse
Discrimination.
Reality: Reverse Discrimination is the effect that
Affirmative Action would have on the majority of the population. For example,
in the U.S., the minorities are eager to obtain equality of educational
opportunities and the majority although being sympathetic to the problems faced
by the minorities in the past, do not want to lose the opportunity to access
education. Between 1990 and 1994, there were about 3000 cases filed in the Hon’ble Federal Court pertaining to
discrimination, out of which about 100 cases involved claims of Reverse
Discrimination. Only 6 cases out of the 100 were found to be valid.
Only a
small proportion of the members belonging to the socially and educationally
backward sections of the society have been given an opportunity through the
means of reservations when compared to their population in India. A vast
majority of the seats in institutions of higher learning are still open to the
general merit category.
5.07
Myth: Affirmative Action has not
succeeded in the uplifting the weaker sections.
Reality: A number of studies have indicated that
Affirmative Action has gone a long way in bringing about racial and gender
equality in the U.S. It has worked in the U.S. and chances are that it might
work elsewhere too. In countries like India, a vast majority belonging to the
backward classes have been uplifted due to the policy of reservations. It has
created a level playing field for the deprived sections to compete with the
forward castes.
5.08
Myth: The implementation of Affirmative
Action would mean preferential selection procedures which would go against
merit.
Reality: Affirmative Action does not mean that merit would not be taken into
consideration. The Association of
American Universities has observed that ‘Merit’ would include not only
stringent academic grades but also unquantifiable human qualities and
capacities. Even among seats that are reserved for the backward classes, only
those students who are competent and are meritorious are admitted. Affirmative
Action does not mean preferential selection procedures which go against
merit.
6.
Conclusion
The only means by which the socially and
educationally backward sections of society can be uplifted is by equipping them
with quality education. Higher Education has been monopolised by a privileged
few and it is the duty of the State to ensure that the backward classes are
adequately represented. This calls for a clear cut policy by the Government
with respect to implementation of Affirmative Action. The myths that engulf the
implementation of Affirmative Action must be busted and it is imperative that
there is a level playing field for the backward classes to compete against the
privileged few.
Ø Black's Legal Dictionary.
Ø P.Ramanatha Iyer: Concise
Law Dictionary, 3rd Edition, 2006.
Ø Acharya Dr.Durga Das Basu:
Shorter Constitution of India, 12th Edition.
Ø Andre Beteille: The Idea of
Natural Inequality
Ø Richard H. Sander: A
systematic Analysis of Affirmative Action in American Law Schools, 57 Stanford
Law Review 367 (2004).
Ø Andre Beteille: The pursuit
of Equality and the Indian University.
Ø Affirmative Action in Higher
Education in India and the US: A study in contrasts by Asha Gupta, Centre for
Studies in Higher Education, University of California, Berkeley.
Ø Thomas E. Weisskopf:
Affirmative Action in the United States and India.
Ø J.B.S. Haldane: The
Inequality of Man and other Essays, Chatto and Windus, 1932
Ø Action Points for
Development of Scheduled Castes & Scheduled Tribes by Chandrapal, Advisor,
Planning Commission, Government of India.
Ø Surendra Malik: Supreme
Court Educational Institutions Cases, 3rd Edition, 2005.
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