Subject : CONSTITUTION

 
   Title :       Affirmative Action in Higher Education: Myths and Realities
   Author : Siddharth Malik*  
   
 

Introduction

“It is impossible for man to be endowed by nature from his very birth with either virtue or vice, just as it is impossible that he should be born skilled by nature in any particular art. It is pozssible, however, that through natural causes he may from birth be so constituted as to have a predilection for a particular virtue or vice, so that he will more readily practice it than any other”1.

A part of India is seething because of a decision, driven by politics, to reserve 27 per cent seats in India’s higher education institutions for backward classes. The government has tried to assuage the anger by announcing an increase in the overall seats.

Reservation in Indian law means when a portion of job positions or college seats are set aside or reserved for a given group to have an egalitarian society it is often mistaken for affirmative action. The difference between the two is that in Affirmative Action the amount of concessions to be made in order to increase representation in an underrepresented group is at the discretion of individual organizations, whereas the

* Winner of Fifth Prize

Fourth Year, Guru Gobind Singh Indraprastha University, University School of Law and Legal Studies, New Delhi

reservation system in India is based on statutory quota that must be met. The purpose of reservations in India is the same as that of affirmative action anywhere else.

The Indian legislature with its 93rd Constitution Amendment Act, 2005, so as to overrule the judgment given in the case of Inamdar2, has added a clause (5)3 in Article 15 which says about making reservation in education for backward classes in government aided colleges. The reservation issue also has a constitutional mandate under Directive Principles of State Policy4.

As India is facing intense group structured inequality and deprivation associated with caste system and untouchability, to correct these inequalities, the state has made explicit use of multiple remedies like reservation policy in employment, education and political and civil spheres. The three possible rationales for the reservation juggernaut are:

(1)
Political parties want to maximise their vote share;
(2)
Reservation will promote economic growth
(3)
It will promote and uphold the moral basis of the
Constitution of India.

Purpose behind Affirmative Action

Reservations in higher education, is intended to increase the social diversity in campuses by lowering the entry criteria for certain identifiable groups who are grossly under-represented due to there castes in proportion to their numbers in general population.

The majority opinion in Islamic Academy5 has by explaining Pai Foundation6, held that the State can provide for reservation in favour of financially or socially backward sections of the society.

The logic and reasons behind these measures are equal rights, legal safeguards against violation of rights, strategies for fair share and participation and developmental and empowering measures to compensate for historical exclusion.

History of the Practice

India’s is still divided into many endogamous groups or castes as a result of centuries of practice called the caste system which has lead to severe oppression and segregation of the lower castes and limited their access to various freedoms, including education.

The classification is based on four varnas7, Brahmins, Khshatriyas, Vaishyas, and Shudras (twice born, dwijas). There was another group, which was excluded from the main society, these were the people called untouchables. The O.B.C. belongs to the category of Shudras and the S.C.8 and S.T.9 to that of untouchables.

Reservation was first introduced in Kolahapur in 1902 in pre-independent India. The pioneer of such thought was Dr. B.R. Ambedkar whose efforts began in 1919 and carried through till the reservation policy was finally accepted in the present form in 1950 after the adoption of the Constitution. Some erstwhile groups as SC and ST had 15 per cent and 7.5 per cent of vacancies to government aided educational institutes and for jobs, as reserved quota respectively. This was initially applicable for a period of 10 years, but after discussions and suggestions has been extended periodically.

Immediately after the adoption of the constitution, the provision of reservation was challenged in Champakam Dorairajan10 it was held that order of fixing the proportion of students of each community that could be admitted to state educational institutions was ultra vires under Article 29(2)11 and was not saved by the provisions of Article 16. There was considerable protest in the southern states as the result of which the Constitution was amended for the first time, and Clause 15(4)12 added. It was held13 that object of 15(4) was to bring Articles 15 and 29 in line with Article 16(4).14

The two Commissions for the Backward Classes were the first under Kaka Kalelkar in 1955 and the second under B.P. Mandal in 1980. Post-independence India has witnessed many landmark cases relating to affirmative action.

Supreme Court Balaji’s case held that classification of backwardness on the basis of castes would violate both Articles 15(1) and 15(4)15 and also said that reservation could not go beyond 50per cent16. Similar claims were again taken up in Chitralekha17; Court said that caste cannot be the sole or dominant test of social backwardness of a class of citizens. But the Court accepted the logic of that economic backwardness plays a part in social and educational backwardness18 and upheld caste based reservation also observed that the aim of the Constitution is to eliminate caste from the affairs of the state.19 Reservations were originally provided for the SC and ST. It was extended to the OBC at the national level in 1993(Mandal).

The implementation of the recommendations of the Mandal Commission was challenged in Indra Sawhney20, where reservations in favour of the OBCs in government sector was made to the extent of 27 per cent was upheld and the concept of creamy was evolved. Besides these there are landmark cases21, which have adversely affected the interests of the SC and ST. But the Courts have showed themselves to be increasingly responsive to demands made in the name of social justice.

International Experience

The Universal Declaration of Human Rights, 1948, says Right of Education is also one of the human rights. Article 26 says higher education shall be equally accessible to all on the basis of merit.22 The Task Force23 on Higher Education in developing countries believes that social returns to investment in higher education are substantial and exceed private returns by a wider margin than previously believed.

In the United States, Affirmative Action mostly applies at transition points times when individuals are changing their employment or enrollment. Supreme Court said that the Fourteenth Amendment24 which includes the due Process and equal protection clauses the most significant structural provision25. It was interpreted to prohibit racial segregation in public schools and other facilities in Brown v. Board of Education.26

In Gratz v. Bollinger,27 the U.S. Supreme Court said that colleges can take race as a factor for selecting their students. As caste is a factor in India. The Court has said that to forbid affirmative actions that promote a “less qualified” applicant over a “better qualified” one, but not programs that sought to achieve diversity without consideration of individual merit28.

Caste Discrimination and Affirmative Action

Social Exclusion is “the process through which individuals belonging to some groups are wholly or partially excluded from full participation in the society in which they live.”29

In India, exclusion revolves around the societal processes and institutions that exclude, discriminate, isolate, and deprive the minority group on the basis of caste identity. Equality of opportunity is the hallmark, and the Constitution has provided also for Affirmative Action to ensure that unequals are not treated equals.30 That Affirmative Action will not violate article 14 as equality is among equals.31

In Affirmative Action The Court can strike down, a rule which offends the right to equality enshrined in Articles 14 and 16(1) of the Constitution or ultra vires of the Constitution32. But at the same time in a given situation The Court33 extended parity in an affirmative action by reading the rule down without doing violence to the language or injustice.34

The Supreme Court35 has held that, benefit of reservations can not be extended to those not fulfilling minimum qualifications for the post as laid down by the Constitution of India we do not mean to say that all violations of Article 1436 or 16 would be violative of the basic structure of the Constitution of India as adumbrate in Kesvananda Bharati37.

The Court has said that that OBC are not eligible to claim Affirmative Action. The State had evolved the principle of reservation to an office of the State or post as an Affirmative Action to accord socio-economic justice guaranteed in the Preamble; the fundamental rights and the directive principles as is enjoined in Articles 14, 15, 16, 21, 38, 39, 39A, 46 and

335.38

It is necessary to take into account de facto inequalities which exist in the society and to take Affirmative Action by way of giving preference and reservation to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality39.

In order to correct the imbalance created by caste system in terms of access to capital assets, employment, education, political participation, it is necessary that we turn to practices of Affirmative Action. The remedies against discrimination – legal, Affirmative Action or compensatory in nature are required both for equity and economic growth. I will argue that we need a reservation policy in higher education in India for reasons of equity as well as economic growth.

Myth #1: Affirmative action will further discriminate as it promotes casteism.

Reality: That to do away with the caste system, Affirmative Action is needed so that backward classes get equal representation.

Education System: Public School vs. Govt. School

Right from the primary level, there is a vast dissimilarity in the type and quality of education imparted between government and public schools. The students from the two streams differ in many ways, especially in their communication skills, confidence levels, and body language. The set of opportunities open to government school students is constrained. This makes them losers in the race for ‘merit’. There is a crying need for a reform of the system. If this is done, we may find that the differences in the cut-off level marks between different caste groups might disappear altogether.

If you wish to predict the trajectory of an economy, the leading indicator you pay attention to is its education system. The Indian education system is moribund leading to a serious shortage of qualified college graduates. It is severely capacity constrained. Getting admission into a good school or college has become a Herculean task as there is a dearth of seats in higher education.40

The most urgently required reform is to get the government out of it lock, stock, and barrel as in China where anybody and everybody can come and start education due the free and liberal attitude of the government. Education system can improve by funding of universal education up to high school level secondly, by providing an independent regulatory authority, for the higher education and thirdly, by providing educational loan guarantees to banks.

There is a need to create two quality schools in every district headquarters. This will create a meritorious society only slowly. It is strongly argued for devoting 6 per cent of the GNP to education41 but it remains more a political intention than a realised commitment.

In higher education most of the students are from economically and socially better-off families whose ability to pay is higher than what they are actually charged. Improving the efficiency of educational institutions needs a change at the institutional level.42 The internal management of institutions needs to be strengthened.

Finally, the system of higher education in India covers only a small percentage of the age-group population. Given the efforts to universalise elementary education, one may expect the pressure on higher education to increase in the years to come. The situation is that the country needs to invest more resources both at the primary and tertiary levels of education.

Myth #2: Affirmative action is unfair in higher

education.
Reality: Affirmative action is required as the backward
classes do not have access to quality school level
education.

Merit and Social justice

In 190243 the matriculation examination of 1901, 19.2 per cent students in Madras, 32.6 per cent in Bombay, 35 per cent in Allahabad had passed. If we look carefully at merit it becomes clear that at that time only upper castes studied in universities because dalit and OBC had no access to education. But the British Govt. continued to give them patronage and the situation today is that they are in the seat of power.

When qualifications are often lowered for those who come in through the reserved quota, the impression created is that merit is being set aside. Reservation of seats per se does not require lowering of standards. All it suggests is that a person in the identified category must receive preference. There is no reason to assume that the communities now being included are without merit and talent as there is need to address the issue of existing inequalities and continuing injustice.

If one looks at this issue in the light of the spirit of the ratios laid down in this cases44 on the issue whether there can be Article 15(4) reservation in superspeciality courses, The Court was categorical when it declared that there could not be any reservation at the level of super-specialisation because any dilution of merit at the level would adversely affect the national interest.

In Indira Shawney45 “It may well happen, that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”

While determining the number of posts reserved for SCs and STs, the candidates belonging to the reserved category but selected on the rule of merit shall not be counted as reserved category candidates46. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as reserved category candidate.”47

The interesting question arises: who is perpetuating reservation? If people from the SCs, STs, and OBCs get representation according to their population, the scheme of reservation will come to an end. But who is depriving the meritorious from getting jobs as general category candidates?

The argument against reservation is that if reservation was given a large scale migration of talent will take place from these elite institutions. The study48 tells us that during 1956-1980, there was a continuous brain drain of students. So who were those young minds leaving the country? Was it in the interest of the nation or were they moving out of personal interest.

The so called upper castes claim that their preponderance is due solely to their superior merit, and that there is nothing to be done about this situation since merit should indeed be the sole criterion in determining access to higher education and change in the status quo can only result in “the murder of merit”. Whereas an upper caste monopoly over higher education still remains effective despite the apparent abolition of caste.

Myth #3 That Affirmative Action would finish the

concept of merit. Reality: Merit is created and it is not present in particular strata of society but at the same time the higher the level of education lesser should be the reservation.

Quota Vs. Non Quota Students

It is said that with reservation it will become even harder for non-quota students to gain admission and the quota students will also be unable to compete in the course of study. The solution is to prepare the quota students so that they can gain admission on their own merits. This means that they should be helped at the school level, because it is there they are disadvantaged. The objective should be to level the playing field for them at the earlier stages of the game, and if that is done, there will be no need to engage in the futile exercise of reservation.

But the basic principle which needs to be kept in the forefront is this: that society can and must ensure equality of opportunity for individuals, irrespective of the random draw of their birth, but it cannot ensure equality of outcome, and indeed attempting to ensure equality of outcome is perverse and harmful.

Reservation though can be a costly for all concerned, but it is necessary for a society like ours so that the students from backward classes can compete with others, the concept of social justice49 should prevail for an egalitarian society.50

Myth #4: Affirmative programs are really quotas. Reality: Affirmative Action provides minorities with full educational and workplace opportunities.

Effect on Higher Education

It is important to provide adequate educational opportunities for all since it is education which ultimately shapes life. A university level education upto graduation enables the individual concerned to secure better employment. In India, higher education has received considerable state patronage. The first IIT was established at Kharagpur in 1950.51 Sarcar Report propounded two basic principles: one that education should be of international standard recognising that costs would be at international levels; two, that the costs should be shared equally between the government, the student and the institution.

Article 1652 of the Constitution, referring to equality of opportunity in matters of public employment, made a provision for reservation of posts for ‘backward class of citizens’.

The most basic requirement then is to ensure that reservations do not erode or negate the principle of equal opportunity. In an unavailing effort to placate critics, the government has said that it will increase the total number of places in colleges, to ensure that no qualified student is worse off. Arithmetic dictates a 54 per cent increase. If colleges are forced to go private and self supporting, the rich will benefit and the poor will be left out. There will be shortage of necessary teachers, buildings and support services.

Standards of education in an institution or college depend on various factors. Some of these are:53 teaching staff, proper syllabus, student-teacher ratio; caliber of the students admitted to the institution, equipment and facilities, accommodation and the standard of examinations.

In Dr. Jagdish Saran54 court observed that the higher the level of education the lesser should be the reservation. That in certain positions at the highest level merit alone counts. In specialities and super-specialities merit alone must prevail and there should not be any reservation of posts.55 At the level of super-specialities the rule of “equal chance for equal marks” dominates.56

It is permissible and necessary at this level to have reasonable reservations for the backward so that they may also be able to avail of these opportunities for betterment through education, to which they may not have access if the college admissions are entirely by merit as judged by the marks obtained in the qualifying examination.

So Higher education is necessary for backward classes as college education enables a student to get better paid jobs, more prestigious jobs and more secure jobs too. So, as a remedy for centuries of inequity, the government has decided that higher education should be largely reserved for backward caste students.

Myth #5: Affirmative action has gone too far.
Reality: Although affirmative action is working, there
is still much to be done. As the statistics show,
discrimination is still prevalent in our society but should
be enforced efficiently with certain minimum standard
at higher education level.

Diversity: Affirmative Action

Substantial parts of southern and western regions in India are now witnessing rapid improvement in the same direction health equity and availability of health care services. A recent study57 brought out the emerging evidences of the efficient of reservation policy as very important factor for achieving health equity and efficient health system in Tamil Nadu.

One observation for instance, is that the ‘social distance’ between doctors and patients are almost nil in Tamil Nadu. This is helped by the fact, that a large proportion of doctors are SC/ST, OBCs and women (about 45-50 per cent) of medical officers are women in Tamil Nadu. In addition, social reforms movements, the policies of affirmative action (69 per cent of reservation) have substantially eroded the privileged access of upper castes to the medical profession. Considering that, in northern parts of India where the so-called meritorious and efficient doctors present, the social distance i.e. relationship between doctors and patients, the manner in which the doctors behave, the language and overall values and attitudes contributes substantially to the poor and inefficient functions of health care system and widening social inequality in access to health care in northern India.

Thus, the current protest against reservation stating that erode merit and lead to inefficient seems to be lack of intelligibility and evidences.

Similarly the State of Kerala enjoys a unique reputation in India and the world as a ‘development miracle’ in the areas of healthcare, education, food distribution and land reform which is now known as ‘Kerala Model”.58 Part of what constitutes this reputation is the state’s success at spreading education at all levels to a wide spectrum of the population.

Myth #6: Affirmative Action is reverse discrimination.

Reality: Affirmative Action does not impose admittance or hiring of unqualified persons. Those programs are designed to overcome casteism, not directed at high caste, by promoting justice and equality for everyone.

Economic Growth

The caste system’s fundamental characteristic is compulsory occupations, concomitantly fixed with economic rights for each caste, implies ‘exclusion’ of one caste from undertaking the occupation of another caste. All standard theories of economic discrimination predict adverse consequences of market discrimination on economic growth through their detrimental consequences on profits, wages and efficiency in the allocation of labour.

Ambedkar said that efficiency and productivity of labour is adversely affected by customary rules of castes. The social and individual efficiency requires us to develop the capacity of an individual to the point of competency to choose and make one’s own career. This is missing in the overall scheme of the caste system.

As an economic organisation caste is therefore a harmful institution, in as much as it involves the subordination of man’s natural powers and inclination to the exigencies of social rules.

The caste and untouchability based economic discrimination have serious consequences on economic development, income distribution, right to individual development and equal right to employment, all of which cumulatively have poverty-inducing consequences, particularly for the low caste untouchable.

Conclusions regarding the consequences of market discrimination on economic growth and income distribution are derived from mainstream economic theory. The same theory also predicts that in highly competitive markets, discrimination will prove to be a transitory phenomenon as there are costs associated with discrimination to the employer which result in lowering profits. Employers who discriminate, face the ultimate sanction imposed by the markets. This theoretical perspective thus, posits the resultant erosion of profits as a self-correcting dimension of discrimination.

Myth #7: Affirmative Action will hamper economic

growth.
Reality: Affirmative Action on the other hand will
increase the overall economic growth of the country as
more and more people will access education.

Alternatives for an Efficient Reservation Policy

The Veerappa Moily Oversight Committee on implementation of reservations in higher education can ensure that the reservation for the OBCs is targeted more efficiently by:

  1. That the “creamy layer” within the OBCs be made the last claimant on the benefits of the new reservation.

  2. That the 27 per cent quota be subdivided among “upper” and “lower” backward classes.

  3. Once a person has taken advantage of the quota system then should not be given job or promotion by reservation he or she should thereafter compete on merit.

  1. If a person gets a job from the quotas it should not be extended to his or her children.

  2. That backward class women have adequate opportunity to access this quota.

  3. A minimum threshold of eligibility candidates seeking admission into “super speciality” professional courses.

  4. The government must ensure the generation of reliable data on caste and other sources of disadvantage by an independent organization.

  5. Emphasis should be given to proper primary (and secondary) education so that people from so called lower strata of the society become natural competitors and there should be an increase the number of higher education institutes.

  6. The government should setup a diversity and disadvantage commission as a permanent statutory body to regularly monitor the diversity profile of public institutions and to advise the government on improving it.

Conclusion

There is a lot of emotion being spent on the issue of reservation. While that may be unavoidable to some extent, the national-level leaders and parties need to make a rational choice.

Backward class child is one59 “who has no books and magazines to read at home, no radio to listen, no TV to watch, no one to help him with his homework, whose parents are either illiterate or so ignorant and ill informed that he cannot even hope to seek their advice on any matter of importance.

The government’s move to introduce OBC reservations in elite institutions of higher and professional education is likely to improve OBC access to higher education and middle class jobs. The available evidence on educational inequalities in contemporary India shows that the backward classes as a whole are certainly disadvantaged compared to the upper castes as a whole.

There should be an open and accountable fashion that Affirmative Action is not about the “appeasement” of particular castes or communities but about abolishing continuing sources of tangible disadvantage in our unequal and unjust society.

In the end reservation is not only a means to find jobs but the first step towards power-sharing for the deprived. These classes have been denied their rights for years and hence they deserve it, otherwise there will be chaos. When talking of reservation in educational institutions, I believe we have to create a situation where no deserving student is denied an opportunity to get educated. Unfortunately we are nowhere close to this ideal situation. In fact what we have is a situation where the demand far exceeds the supply in almost all fields of study, be it medicine, engineering, management or law. Our goal should be to have so many vacancies that reservations become irrelevant.

1 From, “The wisdom of Israel”, Lewis Brown ed. 1948, quoted in Kenneth Harrow et.al eds. (2001).

2 P A Inamdar Vs. State of Maharashtra, MANU/SC/0482/2005: AIR 2005 SC 3226. In which the Court said that the state could not impose reservation policy on minority and non-minority unaided private colleges including professional colleges but a limited reservation of seats not exceeding 15per cent may be made available to NRIs depending on discretion of the management.

3 “(5) Nothing in this Article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special. provisions relate to their admission to educational institutions including private educational institutions, whether aided

50

or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”.

4 Article 46 State shall promote, with special care, the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation.

5 Islamic Academy of Education Vs. State of Karnataka MANU/SC/ 0580/2003: AIR 2003 SC 3724 6 T.M.A. Pai Foundation v. State of Karnataka MANU/SC/0905/2002: (2002) 8 SCC 481a 7 Manusmriti and other dharma-shastras

8 Article 366(24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution.

9 Article 366(25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.

10 State of Madras v. Champakam Dorairajan MANU/SC/0007/1951: [1951] S.C.R. 525 in which a Brahmin girl who had failed to secure a place in a medical college in Madras on account of caste quotas pleaded before the court that her fundamental right under Article 15 which prohibited discrimination on the ground of caste had been violated.

11 which states that no citizen shall be denied admission into any educational institution maintained by or receiving aid from the state on grounds only of religion, race, caste, or language.

12 Article 15(4): nothing in this article or in Clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes of reservation orders.

13 State of Uttar Pradesh v. Pradip Tandon AIR 1975 SC 563 the court in this case overruled the cases Subash Chandra v. State of Uttar Pradesh AIR 1973 All 295; Dilip Kumar v. State of Uttar Pradesh AIR 1973 All 592.

14 Article 16(4) states that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.

15 State of A.P. v. P. Sagar MANU/SC/0028/1968
16 M. R. Balaji. v. State of Mysore MANU/SC/0080/1962: [1963] Supp.

1 S.C.R. 439

17 Chitralekha v. State of Mysore MANU/SC/0030/1964: AIR 1964 SC 1823

18 Jayasree v. State of Kerala MANU/SC/0068/1976: [1977] 1 S.C.R. 194

19 State of Kerala v. N.M. Thomas MANU/SC/0479/1975: [1976] 1 S.C.R.

906

20 [1992] Supp. 3 SCC 217

21 Rangachari v. General Manager [1962] 2 SCR 586 Devadasan v. Union of India MANU/SC/0270/1963: [1964] 4 SCR 680 Hira Lal PGIMS Chandigarh v. Faculty Association [1998] 2 SCR 845case MANU/SC/ 0066/1970 Ajit Singh Janjua case MANU/SC/0766/1999: (2000) 1 SCC 430

22 “(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

23 World Bank (along with UNESCO)

24 That no State shall deny any person the “equal protection of the laws.”

25 McCreary County v. ALSU of Kentucky 545 U.S. 2005

26 347 U.S. 483 (1954) in which the NAACP filed on behalf of a black student, Linda Brown, who was transported out of her white neighborhood to attend a black school in Topeka, Kansas. The Supreme Court ruled that separate educational facilities were “inherently unequal” and violated the Fourteenth Amendment. The next year the Court ordered segregated districts to integrate with “all deliberate speed.”

27 539 U.S. 306 (2003) In the court’s ruling, Justice O’Connor’s majority opinion held that the United States Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

28 Parents Involved In Community Schools v. Seattle School District No. 1, 149 Wn.2d 660, 72 P.3d 151 (2003)

29 Arjan De Hann 1999

30 Madhu Kishwar v. State of Bihar MANU/SC/0468/1996 Secretary, State of Karnataka v. Umadevi AIR 2006 SC 180 E.V. Chinnaiah v. State of A.P.

31 Ahutosh Gupta v. State of Rajasthan MANU/SC/0209/2002: (2002) 4 SCC 34

32 I.A.S. Association, U.P. v. UOI MANU/SC/0643/1993: 1993 Supp (1) SCC 730

33 D.S. Nakara v. UOI MANU/SC/0237/1982

34 B. Prabhakar Rao v. State of A.P [1985] 2 Suppl, SCR 379

35 R.S. Garg v. State of U.P. Civil Appeal No. 2903 of 2001

36 Article 14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

37 Kesvananda Bharati v. State of Kerala MANU/SC/0445/1973 Waman Rao v. Union of India MANU/SC/0091/1980. Maharao Saheb Shri Bhim Singhji. etc. v. Union of India and Ors. MANU/SC/0509/1980and Minerva Mills Ltd. and Ors. v. Union of India and Ors. MANU/SC/ 0075/1980

38 Chattar Singh v. State of Rajasthan MANU/SC/0083/1997: (1996) 11 SCC 742

39 Marri Chandra Sekhar Rao v. Dean, Seth G.S. Medical College MANU/ SC/0457/1990

40 A total of 4,000 seats in all our IITs, around 1,500 IIMs, a mere 50 MBBS seats per year in AIIMS, a ridiculous total of 235 for graduate diploma and post-graduates put together at the National Institute for Design, only 480 students at National Law School.

41 Education Commission (1964-66).

42 (Sanyal, 1995)

43 Report of Indian Universities Commission, 1902

44 Saurabh Chaudri v. Union of India MANU/SC/0260/1997: AIR 2004 SC 2212, Pradeep Jain v. Union of India, MANU/SC/0047/1984 Dr. Preeti Srivastava v. State of M.P. MANU/SC/1021/1999, Dr. Jagdish Saran v. Union of India MANU/SC/0047/1984, Dr. Sadhna Devi Vs. State of U.P. AIR 1997 SC 1120 Mohan Bir Singh Chawla v. Punjab University, MANU/SC/0970/1997 Chandigarh, AIIMS Students Union

v. A.I.I.M.S., MANU/SC/0480/2001 45 Indira Shawney v. Union of India MANU/SC/0664/1992: 1992 Supp.

(3) SCC 217 46 Union of India v. Virpal Singh Chauhan MANU/SC/0113/1996:(1995)

6 SCC 684

47 Rithesh. R. Shah’s case MANU/SC/0363/1996:(1996) 3 SCC 253

48 B. Khadria “Migration of Knowledge Workers: Second Generations

Effects of India,s Brain Drain”, from AIIMS, Delhi and in 1980 it had reached upto 85 per cent. The same is true for IIT’s. By 2001 at least 25,000 IITians were in the USA alone. Overall there presence reaches upto 34per cent.

49 E.V. Chinnaiah v. State of Andhra Pradesh and Ors. (2005) 1 SCC 394 50 Janata Dal v. H.S. Chowdhary and Ors. MANU/SC/0532/1992:[1992]

Supp 1 SCR

51 Sarcar Committee Report.

52 Article 16. Equality of opportunity in matters of public employment.—

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 53 Dr. Preeti Srivastava & Anr. v. The State of Madhya Pradesh & Ors. MANU/SC/1021/1999: AIR 1999 SC 2894 a 54 Dr. Jagdish Saran v. Union of India MANU/SC/0067/1980: AIR 1980 SC 820

55 Dr. Fazal Ghafoor v. Union of India [1988] Supp. SCC 794 Mohan Bir Singh Chawla v. Punjab University, Chandigarh MANU/SC/0970/ 1997

56 State of Punjab vs. Dayanand Medical College and Hospital MANU/ SC/0635/2001: AIR 2001 SC 3006

57 Nobel prize-winning economist Amartya Sen, with Jean Dreze (2002) in their recent study “India Development and Participation”.

58 Originally, the State had decided that 50 per cent of the seats were to be granted to an open merit quota, 10 per cent for SC/ST with some scholarships available for those who could not pay, and 40 per cent for NRIs and dependents. This was revised, under protest, to 75 per cent merit quota, 10 per cent SC/ST, and 15 per cent NRI. The High Court decision stipulated that only 5 per cent could be set aside for an NRI quota. It is clear, from this and other similar cases, that the attempt by some NRIs to lay claim to the educational institutions of the state has been a contested one.

59 Kumar v. Karnataka 1985 SCR 394

   

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