Myths that engulf Affirmative Action in Higher Education
By C. Premsai
VII Semester LLB, Bangalore Institute of Legal Studies, Bangalore
“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 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, 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 case which overruled the Unnikrishnan judgement. 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 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.
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.