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               DELHI                                                           firmative action, has been a conten-
             Yet another quota                                                 tious issue since the Constitution of

                                                                               India came into effect on January
                                                                               26, 1950. At that time, provisos were
                                                                               appended to Articles 15 and 16 to
                                                                               reserve 22.5 percent of seats in HEIs
                                                                               for historically oppressed and cruelly
                                                                               discriminated scheduled castes (15
                                                                               percent) and scheduled tribes (7.5
                                                                               percent) under the Hindu caste sys-
                                                                               tem. The objective of these provisos
                                                                               was to atone for historical injustices
                                                                               and legislate positive discrimina-
                                                                               tion in their favour. In 1992, after
                                                                               publication of the Mandal Commis-
                                                                               sion Report, an additional 27 percent
                                                                               of capacity in HEIs was reserved for
                                                                               traditionally neglected OBCs (other
                                                                               backward castes/classes).
                                                                                 Positive discrimination legislation
                                                                               in favour of bottom-of-the-pyramid
             Protesting students in Maharashtra: excessive affirmative action discontent  citizens aroused considerable op-
                                                                               position especially in the 1990s,
                   n the day (august 5) when the   category for the admission process   when 27 percent capacity reservation
                   United Nations confirmed   of 2020-21, delayed due to closure of   was decreed for OBCs. The coun-
             Othat the education of more      all education institutions during the   try’s newly emergent middle class is
             than 1.5 billion children in 160 coun-  pandemic.                 opposed to reserved quota in HEIs
             tries including India, has been se-  Enacted by the BJP/NDA govern-  on grounds that affirmative action
             verely disrupted and endangered by   ment at the Centre in January 2019   discriminates against hard-working
             the Covid-19 pandemic and that in   in the run up to General Election   meritorious students and lowers
             developing countries, an estimated   2019 to harvest the votes of the up-  teaching-learning standards in HEIs.
             50 million may drop out of education   per castes — the natural constituency   In 1992, in Indira Sawhney vs
             permanently, India’s pre-pandemic   of the BJP which has always resented   Union of India, a nine-judge bench
             affirmative action initiative of last   reservations for the traditionally   of the Supreme Court accepted the
             year, which reserves an additional   oppressed scheduled castes, sched-  case for positive discrimination in
             10 percent quota in higher education   uled tribes and after 1992 for OBCs   favour of traditionally oppressed
             institutions and government jobs for   (other backward castes/classes) —   sections of society, but capped res-
             economically weaker sections (EWS),   the Constitution 103rd Amendment   ervation at 49.5 percent of capacity
             came up for hearing in the Supreme   Act carves out a 10 percent reserved   in HEIs. However, citing a report of
             Court.                           quota in public higher education   the Commission for Economically
                Hearing several petitions chal-  institutions and government jobs for   Backward Classes 2010, chaired by
             lenging this new quota provided by   a new subcategory — economically   Maj. Gen. (Retd.) S.R. Sinha, the
             the Constitution (103rd Amend-   weaker sections within the general   BJP/NDA government legislated the
             ment) Act, 2019, the Supreme Court   (merit) category. The Amendment   103rd Amendment Bill (now the 124
             bench comprising Chief Justice S.A.   Act has amended Article 15 which   Constitution Amendment Act, 2019).
             Bobde, Justice R. Subhash Reddy   prohibits discrimination on the basis   There is undoubtedly some
             and Justice B.R. Gavai referred   of religion, sex, caste or place of birth   merit in the argument that exces-
             them to a five-judge constitutional   and Article 16 which guarantees   sive reservations in HEIs in favour
             bench stating that the case involves   equal opportunity in public em-  of historically oppressed castes drive
             substantial questions of law and   ployment to permit positive dis-  down teaching-learning standards.
             interpretation of constitutional   crimination for economically weaker   In the US, progressive HEIs tend to
             provisions. However, the bench   sections regardless of caste and class   limit affirmative action admissions
             declined to stay the amendment   considerations.                  (which necessitates lower cut-offs in
             Act. This means a 10 percent quota   Reservation of seats in higher   entrance exams) to 10-15 percent. If
             will be carved out from the general   education institutions (HEIs), aka af-  the Supreme Court validates the new

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