The Quota Question:

On the Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019

Nayonika Sen,
B.A. LL.B. (Hons.) 2017
Jindal Global Law School

Introduction

The vision of Dr. Ambedkar has been subject to incredible scrutiny at every stage: its
conceptualisation, its codification in the Constitution, and even it’s implementation. Lest we
forget, the furor that the Mandal Commission invoked in 1992 when reservations for Other
Backward Classes (OBCs) were made, led to massive outrage among the upper-caste Hindus.
Somewhere in the discourse, the understanding of formal and substantive equality was lost to the
general public (Mainly the contenders of reservations). The 103rd Amendment to the Constitution
came as a sickening blow to the very purpose and vision of reservations. It introduced a 10%
reservation for Economically Weaker Sections (EWS) over and above the existing reservations.
Earlier attempts to cross the 50% reservation threshold were rendered unconstitutional. However,
with the amendment, it is very much within the scope of the Constitution.
The recent bill that was passed on the 1st of July 2019, by the Rajya Sabha and the Lok
Sabha on reservations in the appointment of teachers an off-shoot of the 103rd Amendment. This
article will look into the contentions and consequences of introducing reservations in this field.

Features of the Amendment and the Reservation Bill, and prior legislation

The 103rd amendment inserted sub-section (6) to the existing Article 15 and sub-section
(5) to Article 16. The change in Article 15 allows for the right of the parliament to make special
provisions for persons belonging to the economically weaker sections; this will only apply to those
excluded from the categories of schedule castes, schedule tribes, and other backward classes. In
furtherance of the same, Article 16 facilitates the reservation of economically weaker sections in
the appointments to the education sector.
The Bill provides for reservations in the direct recruitment of teachers in central
educational institutions. Under this bill, the reservations would apply across departments for the
same posts as a central institution will be looked at as a single unit where earlier each department
would be considered one for the purpose of reservation. Central educational institutions include
ones set up by Acts of Parliament, deemed-to-be universities, universities getting aid from the
government, and institutes of national importance. It however excludes institutions of excellence,
research institutions, institutes of national and strategic importance. It also excludes minority
educational institutions.1
This poses two important questions: firstly, this increase in the 10% reservation will result
in quotient of reservation rising from 49.5% to 59.5%; i.e., it has ceased being an exception and
has quickly turned around to become the norm. Secondly, is an economic criteria a valid criteria
for reservations? Do these new set of reservations flow with the purpose of reservations?
The most relevant case-law that deals precisely with this question is the Indra Sawhney
judgement.2 Some of the key findings in that case were the following:
First, the backward classes of persons mentioned in Article 16(4) are educationally and
economically backward on account of their social backwardness. To constitute a backward class,
the aforementioned criteria had to be proven. Second, no reservations can be made on the sole
criterion of economic status. Third, reservations should ideally not cross the 50% mark unless
exceptional circumstances can be ascertained and justified. Fourth, the classification of backward
and more backward classes can be made. However, a backward class cannot be excluded simply
because there is a class that is even more backward; the real test is whether the said backward class
is able to compete on a level playing ground with forward castes. Fifth, reservations in promotions
are unconstitutional.3

Why are reservations based on economic status problematic?

A brief look into the historical caste practises will be a clear indication as to why
reservations were based on classes of people, rather than individual cases of poverty. Reservations
were never meant to be a ‘poverty alleviation scheme’. It is a feeble attempt to try and undo some
of the historical injustices meted out to Dalit-Bahujan-Adivasis; they didn’t suffer because of
specifically ‘evil’ people, but of structural injustices that Hindus internalised as the way of life.
The purpose of reservations are mainly to increase representation of depressed classes which has
happened by virtue of their caste location. An economic reservation can never substitute caste-
based reservation. It is not a simple rich versus poor debate, one must delve into history: lower
castes as a whole were and still are poor because they have been denied access to social and
material resources. It is not by virtue of ‘merit’ or ‘demerit’. Poverty in India has its roots in caste.

1
PRS India, 'Chapter At A Glance' (PRS India, 2019) <https://www.prsindia.org/node/842236/chapters-at-a-glance>
accessed 8 December 2019.
2
AIR 1993 SCC 477
3
The question is: if there are large disparities of economic status within the group and no history of social prejudice
or discrimination against the group, is it credible to claim that the group as a whole should be entitled to reservation?
Even if the so-called “creamy layer” within the caste were to be excluded, as happens now with the Central regulations
on OBC reservation, what would justify such individual forward castes to claim reservation quotas for the group as a
whole?
Partha Chatterjee, 'The 10% Reservation Is A Cynical Fraud On The Constitution' (The Wire, 2019)
<https://thewire.in/government/the-10-reservation-is-a-cynical-fraud-on-the-constitution> accessed 8 December
2019.
 The economic status of individuals are subject to change. In caste-ridden India, it is a mere
formality for persons of upper-castes to forge a certification of income from corrupt authorities or
officials.4 “The economic criterion simply allows upper caste groups to monopolise state power,
which is something that the reservation scheme was meant to counter.”5 This is indicative of the
purpose of reservation. It has to do with the historical denial of accessibility to resources that have
rendered them powerless and poor. It is by virtue of active actions of systemic injustice and not
just capitalist market structures. Indra Sawhney clearly stated why economic reservations would
be antithetical to the purpose of affirmative action.

“...A caste monopoly that has arisen out of a heritage of thousands of years of caste reservation
in India in which Shudras and ati-Shudras were forbidden access to power, wealth and status.
Destroying or lessening this caste-monopoly helps to create a middle class section among castes
that are largely poor - a fact that is sometimes used as a charge against caste reservations, but
in fact it is inevitable and progressive to the extent that it breaks up the correlation of 'caste and
class'.”6

Many people complain that reservations are making India ‘inefficient’, but we must remember that
to achieve economic efficiency, certain freedoms, like the choice of occupation, work and
educational opportunities are necessary preconditions.7

The Reservation for Teachers Bill (Controversy and Critique)

As established earlier, it draws from the 103rd Amendment, which is already problematic
to begin with. Educational institutions are meant to be havens of learning, and of unlearning caste.
If the faculty that undertakes the imparting of education are themselves availing a reservation that
is so deeply flawed in its conceptualisation, are they not perpetrators of the recurring idea that
caste and class are exclusive and have no correlation? A study conducted by the World Inequality
Database has shown that caste in India is responsible for the drastic income inequality. 8 To then
allow the supposed custodians of education to increasingly be caste-Hindus will only feed into the
current Bharatiya Janata Party’s vision of creating a wholly saffron India with upper-caste Hindus
at the apotheosis of power and influence; to maintain socio-economic and political hegemony.
Given the upper-caste dominance in the field of education, it would be imperative to have adequate

4
Who, at the higher levels are upper-caste Hindus anyway.
5
vivashwan singh, 'The Problem With Reservation For Economically Backward Upper Castes' (The Citizen, 2019)
<https://www.thecitizen.in/index.php/en/NewsDetail/index/4/16030/The-Problem-with-Reservation-for-
Economically-Backward-Upper-Castes> accessed 8 December 2019.
6
Gail Omvedt, 'Twice-Born' Riot Against Democracy' (1990) 25 Economic and Political Weekly.
7
Ibid. (n 5)
8
World Inequality Database, 'Wealth Inequality, Class And Caste In India, 1961-2012' (Paris School of Economics
2018).
representation of alternative narratives permeating classrooms. However, while the intention is
noble, the subsequent efforts would be nullified with the ten-percent reservation.

Conclusion

The reservation bill for teachers is contentious not by virtue of its conceptualisation, but by virtue
of the quantum of reservations that will alter the very purpose of imposing it in the field of
appointments. Hence, a critical evaluation of the bill is impossible without a close scrutiny of the
103rd Constitutional Amendment. A critique of the bill will extend to a critique of the Teachers’
Reservation. It sets a dangerous precedent. It will institutionalise caste in more ways than mere
outward discrimination. As observed through various news reports across the country, Dalit-
Bahujan-Adivasi students are already discriminated against with ‘educated’ upper-caste teachers.9
With the ten-percent reservation that will eventually lead to the increase in the percentage of
upper-caste Hindus as teachers, it will dilute the Dalit-Bahujan-Adivasi narrative from the
classrooms. Caste will be rendered to a ‘chapter’ in a history text-book, and the realities of caste
will be lost to upper-caste students who do not live the caste-atrocities. It will also relegate lower
caste students to the back again. This bill, along with the 103rd amendment will tear the secular
and egalitarian fabric of our Constitution, and in effect, our country. Our Constitution puts ‘Justice’
before it puts unbridled freedom; justice as equity. Justice as compensatory discrimination.10

9
Priyanka Pandey and Sandeep Pandey, 'Survey At An IIT Campus Shows How Caste Affects Students'
Perceptions' (2018) 53 Economic and Political Weekly.
10
Mithi Mukherjee, 'India In The Shadows Of Empire: A Legal And Political History (1774–1950)'
<https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198062509.001.0001/acprof-9780198062509-
chapter-6> accessed 8 December 2019.