Kalpana Kannabiran's op-ed notes some concerns in her op-ed today:
The exemption of institutions listed in the Schedule to Act 5 of 2007, the minority institutions and, now, unaided private institutions, goes against the spirit of equality and considerably shrinks the space for entitlements of persons from vulnerable groups. It is not so much a question of the measure of equality between institutions inter se that is critical in access to education, as of the measure of equality between citizens differently placed because it is citizens who bear the brunt of discrimination and exclusion. After all, reservation is an inseparable part of the principle of equality and where equality is concerned, no institution can be outside its ambit.
'Reservation is an inseparable part of the principle of equality'. Eh? This view is a novel one. There is a view drawn from the U.S.Supreme Court decision in Bakke that claims that affirmative action is simply a facet of equality, a view first adopted by Jeevan Reddy with respect to employment in Indra Sawhney I. But in India, unlike the 14th Amendment of the US Constitution, there are separate provisions for employment and education with different wording and different histories as well. While the US Supreme Court's view has itself been challenged by the dissenters in those cases, in India, at the very least, the meaning of the equality provision as applied to education is very clear and has been held before by the Indian Supreme Court in Champakam not to include reservations. The U.S.Supreme Court majority has also made it very clear a few years ago in its Grutter/Gratz decisions that affirmative action programs must be narrowly tailored to meet the interests of diversity and cannot include quotas.
She not only claims this as a right but goes further to say that the duty to provide for it is obligatory for all institutions. So, in other words, a college admission policy is unconstitutional if it does not provide for reservations! Not only does this view have no support in history or the constitution but it has been explicitly repudiated by the text of several provisions of the constitution. She is very upset that unaided and minority institutions have been excluded from its ambit. This claim is not entirely correct. For one thing, only Justice Bhandari has ruled that unaided institutions ought to be left out with the others choosing to remain silent upon it. So it is wrong to say that this is a position adopted by the Court. Secondly, the minority exception has been an integral feature of the constitution ever since the document was adopted in 1950, a feature that guaranteed their autonomy until 1989 from which time, successive judicial opinions have steadily eroded it. The 93rd amendment was drafted to restore an important aspect of this feature, namely their right to admit students of their choice. Any such right to autonomy is meaningless if they are required to follow government quota policies and the very fact that no such thing was imposed on them for several decades after independence makes it clear that her claim is duplicitous and false.
Notwithstanding the above concerns, this judgment has an important bearing on the entire system of higher education, especially institutions of excellence, because it challenges the idea that merit exists in a vacuum – outside of social location and equality of opportunity. Opening these institutions to Dalit and Adivasi students, especially, will bring in dimensions of diversity and counter-hegemonic thinking that will enrich the quality of education imparted there and strengthen democracy.
That she associates upper castes with hegemonic thinking reveals her innate bias against this group. I am aware of no evidence that forward caste people seek hegemony any more than the backward castes. Indeed, there is good reason to believe that hegemony or brahminism as it has been unfortunately labeled, is a feature of the lower castes as much if not more than the forward ones. Witness the strong calls for including the creamy layer - these are not coming from the upper castes but from the lower ones and the driving force behind it is the pressure from caste leaders (that often includes political leaders as well) who are anxious that the benefits that have accrued to the economically powerful and prominent sections of their communities will be lost. So the allegation is that the creamy layer will break caste unity and should be avoided (that is the message being promoted across the entire caste membership to support the cause). The last time when there was some confusion about whether the SC had extended the creamy layer to the SC/STs in the M.Nagaraj case, every Dalit-dominated outfit and virtually every leader of note was in the forefront expressing his/her righteous indignation and seeking its overturning. These parties ought to know that the central aim of quotas was to increase the sie of the educated base of lower caste groupings in order to raise their social status, a goal that is significantly defeated by allowing these benefits to be monopolized by a limited few who have already been uplifted and are less deserving of the state's support. Furthermore, protecting caste unity has never been considered a compelling state interest. And yet, despite all these facts staring in the face, they have the audacity to openly seek the abrogation of this policy and revert to a less progressive, elitist and if I might add, hegemonistic position that is far less effective in advancing this legitimate objective. In light of all this, I would ask the author: what basis does she have to believe that the lower castes are less hegemonic than the upper ones? This is a questionable assertion being peddled not only to smear the upper castes but to set up a common external enemy to be conveniently targeted for political advantage.
She also claims that including Dalit and Adivasi students will enrich the quality of education. As much as this may be a fond hope, has it done so in practice? I am aware of no clear evidence either way as regards this point. Does caste diversity in the classroom promote better citizenship of young college-going people? Perhaps though I do not know if this is actually the case. More importantly, the latter would not actually count as enrichment of education but as one prominent judge noted, is more an experience of life that is not taught in the literal sense of the word. Unless further studies can show that all other factors accounted for, universities with quotas produce more successful alumni than those without them, I would at the very least be sceptical of such a claim.
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