Even two decades after the Mandal judgment of the Supreme Court, the reservation issue is still simmering, especially in the field of higher education. It would seem that students who first queue up at professional colleges for admission and fail, troop to the courts for the admission of their writ petitions.
There have been at least five major judgments in the past years trying to unscramble the quota tangle, and scores of minor ones. They are a heady mix of law, sociology, ontology and history. A few weeks ago, the Supreme Court added one more opus (165 pages, including two English poems) to the list, discussing the right of private unaided professional colleges to choose the “source” of candidates.
The main issue was whether a private unaided professional college (not run by minorities) can claim the untrammelled right to admit students of their choice and whether the state can intervene if the institution reserves all the seats for one class of people. The Delhi government had allowed the army medical college to admit exclusively wards of military personnel. This was challenged by students and the Indian Medical Association. The Delhi High Court upheld the exclusion policy. But the Supreme Court ruled that the 100 per cent reservation was unconstitutional and arbitrary and violative of the “basic principles of democratic governance”.
If the policy approved by the government is stretched further, it would bring the cursed caste-system through the back door. It would carve the entire field of higher education into “gated communities”, according to the court. Each institution will then define its source of students in whatever manner it chooses. For instance, the National Association of Software and Services Companies (Nasscom) or a group of software companies may start a software engineering college and limit admission to their ilk. The judiciary may start law colleges for judges’ ward. IAS will follow. “How will the nation take the burden of such walled and divided portals of knowledge?” the court asked and recalled the story of the camel that sought room for a foot in the tent and then occupied the whole space.
In such a situation, it is the constitutional duty of the state to intervene and take affirmative steps. It is not just the benign provisions in the chapters on fundamental rights and the directive principles of state policy that cast such obligation on the state, but it is morally imperative, said the judgment.
Earlier, the state had almost the monopoly in higher education. But its role has declined drastically due to its weak financial position. Liberalisation, globalisation and privatisation accelerated this process. But it is not mere financial burden that the state should take care of. It has the obligation to work towards an egalitarian society. The court can also ensure that the state fulfils this commitment. In this judgment, the court has done exactly that. When a rule is made against the egalitarian principles of the Constitution, the court can strike it down, as it has done in the present case.
The judgment quoted the latest statistics that reveal that 85 per cent or more of all engineering seats and 50 per cent of medical seats are in the private sector. If private institutions build walls against disadvantaged youngsters, it would lead to “a state of social emergency with the potential for conflagration that would be on an unimaginable scale,” warned the court. “Granting access to higher education solely or mostly to the privileged segments of our population would be to invite cultural genocide.”
Despite these strong assertions from the court in several judgments, the private sector has been in a stance of a permanent tug of war with the state. They put forward their fundamental right to carry on their profession without the interference of the government. They also flaunt the bogey that admission without following the merit list will affect the quality of education and their reputation. Currently, the Kerala government is waging a battle against private colleges as it has claimed 50 per cent seats in medical PG courses. The battle has already landed in the high court and it is a matter of time before it moves to the Supreme Court. Other educationally-developed states that insist on their share in the seats are likely to follow.
The heuristic experience indicates that states that had reservation for the disadvantaged sections for nearly 100 years have progressed faster educationally and economically. Therefore, the contention of the private sector that reservation will affect the quality of education has been proved wrong. The Supreme Court also discounts such fears in this judgment. In fact, it goes on to say that “it would be constitutionally impermissible, and indeed, unethical, to lay the blame for any loss of academic standards on students in reserved category.”
