EWS Quota under Article 15(6)(b): A Mirage, Mistake, or Milestone?

Saumya Ranjan Dixit *

Introduction

The decision of the Supreme Court in Janhit Abhiyan v. UOI, upholding the 103rd amendment and granting reservations to economically weaker sections under Articles 15(6) and 16(6), is in controversy. But what has missed the spotlight is the unanimous verdict affirming the extension of the EWS reservation to non-minority private aided or unaided educational institutions under Article 15(6)(b). This article focuses on two aspects of this reservation. Firstly, it is argued that the reservation is a mirage due to the faint possibility of proper implementation in the near future. This is proved by highlighting the current status of similar reservation policies and making an analogous comparison with them. Secondly, even if the reservation gets implemented, it will still be a mistake as it will fail to achieve its own foundational objectives and affect the autonomy of private institutions. Lastly, an alternative is suggested to achieve the noble aims of this reservation while considering the prevailing scenario in educational institutions.

A Mirage: The Illusion of Inclusivity

The judgment in Janhit Abhiyan case regarding constitutionality of Article 15(6) recognized the transformative role of private institutions in augmenting State’s interests of securing fraternity and ensuring equal opportunity of education to poor sections of society. Nevertheless, while the decision is hailed by many private educational institutions, it requires stringent actions by the bureaucracy to implement it. This may be inferred by looking at the progress of its counterparts in India. Article 15(5) was inserted in the Constitution through the 93rd amendment, 2005, followed by the Central Educational Institutions (Reservation in Admission) Act, 2006, which was enacted granting 27%, 15% and 7.5% reservations to OBCs, SCs, and STs, respectively. But this Act failed to include private institutions in its scope and even excluded certain “institutions of national and strategic importance” under S.4, thus, leaving Article 15(5) largely infructuous. Thereafter, in 2014, Article 15(5) was held constitutional in the Pramati Educational and Cultural Trust case, however, no other Act has yet to be introduced in order to fully give effect to the provisions, even after 17 years of its inception and 8 years of its constitutionality. This hints at the nugatory future of the EWS reservation having a similar provision in such a political scenario.

Moreover, the Right of Children to Free and Compulsory Education Act (RTE Act) was introduced in 2009, granting 25% reservation to children from weaker and disadvantaged groups in schools under Article 21-A, but there are numerous drawbacks in its implementation. Firstly, under S. 12(2) of the Act, the government shall incur the expenditure of recognized private unaided schools based on per-child expenditure. Similarly, it is logical to think that the government shall grant reimbursements under the EWS reservation: as otherwise there will be no utility for such a quota. However, under the RTE Act, failure to incur such expenditure has resulted in many students being denied admission. Following the reports of Indus Action in 2018-19, only 8 states out of 13 reimbursed merely 40% of the total value to private schools, while the remaining amount was not even approved. Even the reimbursement value is inadequate to meet the school fees, which raises apprehensions about the possibility of increased fees by schools, which will put middle-class parents in trouble. This shows the unwillingness and inability of the State to implement existing policies, and burdening it with another could either be a distant goal or a displaced goal not benefitting the actual beneficiaries.

Secondly, under the RTE Act, reimbursement is to be provided only to recognized private schools. Hence, it is also a rational thought that the government cannot include every private institution under Article 15(6)(b) considering its capability to regulate and monitor them. However, under RTE, neither recognized nor unrecognized private schools are covered by the DISE (District Information System for Education), resulting in serious distortion of fee reimbursement and admissions of children. So, considering these relevant data, the EWS reservation can be seen as accentuating the miseries of its beneficiaries and the State, instead of curing them. This is driven by the logic that if existing reservation policies, along the same lines as this one, are not able to function satisfactorily and produce negative results, there is scarcely any probability of successful implementation of the newer one.

A Mistake: The Obstacles Placed by Increased Coverage

The chief reasons for upholding Article 15(6)(b) are its potential to foster social justice and instill inclusiveness among the students. But it falls flat considering the current scenario of among the poor quintile, which is majorly concentrated in government schools due to considerable implementation gaps in RTE policy. Children enrolling under RTE are facing among high, low and middle-income families which seems like they are going to different kinds of schools. Moreover, there prevails discrimination by the private players, who advocate quality education for poor families by providing minimalistic schooling, but a different qualitative educational package is offered to the middle and elite classes. This gap is further widened by the fact that the percentage of students completing higher education is increasing with an increase in income quintiles while decreasing among the bottom quintiles. Even the introduction of National Education Policy 2020 (NEP) has been criticized by scholars for promoting privatization of education, which could eventually lead to exclusion of marginalized sections.

In such a scenario of exclusivity and considering the nature of the commercialization of education and the ills of privatization mere admissions through the EWS quota sans effort to provide quality education would only aggravate exclusion. Moreover, under the current policy, the selection of EWS candidates is to be made by private institutions only. So, there are ample chances only those students who are meritorious enough while belonging to the highest level of income criteria, which is 8 lakhs under this quota, shall be chosen. This shall hamper the entire idea of inclusion and fraternity which was sought to be achieved through such reservation policy.

Delving Deeper into the Diluting Private Sphere

Apart from the practical and procedural obstacles, there are certain standing legal issues as well. It is well established that private institutions cannot be made amenable to state action as they are not considered as “State” under Article 12. However, there has been a growing incidence of State interference in private educational institutions which is evident in the case of Dr. Janet Jeyapaul vs Srm University And Anr. In this case, the institution was declared a “Deemed University” and was held to be a part of the state, inter alia, on the grounds that it imparted education to a large number of students and was discharging a public function by imparting education. This view is contrary to the test of the existence of deep and pervasive State control- for an entity to fall under Article 12. This shows that there has been a serious dilution of standards for considering an entity as State, which can get be further diluted by the imposition of such reservation in private unaided educational institutions. Further, there has been an evolving jurisprudence to bring private institutions to the mainstream,as seen in the case of Indian Medical Association v. Union of India, where the Court interpreted the word “shop” appearing in Article 15(2) to bring private institutions under its ambit. It may seem welcoming from an individuals’ rights perspective, but is equally menacing for the private entities, which can be dragged by the State under different regulations hampering their autonomy. Such interpretations of laws allow the State to infringe upon the autonomy of non-minority private educational institutions by taking plea of promoting national interests.

Furthermore, there has been an increasing number of State regulations severely affecting the financial autonomy of such private institutions. This is marred by the fact that non-resonance between state legislation and other norms like the RTE, has resulted in the closure of many private schools. It is evident from a conundrum in Haryana due to the application of Rule 134A of the Haryana School Education Rules which provided 10% reservation to EWS children, and the RTE Act granting 25% quota. As a result, the former provision was struck down by the State government. In the current politico-legal circumstances, along with State’s depleting resources, embarking on reservations based on EWS can menacingly ruin the autonomy of private institutions and open floodgates for litigation.

Recommendations

This quota displays sheer, faulty legislative intent driven at escaping accountability by shifting liability from the public sector to the private. Presently, as per the reports of the NSS 75th round, the percentage of students in government institutions (rural) in primary, upper primary, and graduate levels are 73.7, 76.1 and 49.1% respectively. It highlights the importance of a policy shift from displacing students out of government institutions to developing those institutes. Resources need to be allocated to deliver quality education in public institutions, and efforts need to be made to bring the stature of government institutes at par with their private counterparts. In this way, a level playing field can be constructed, which will yield better results in enhancing social ties and realizing the core values of distributive and social justice. Thus, it can be concluded that in principle, EWS reservation is an innovative idea, but in practice, it is symptomatic of becoming a mirage or mistake instead of a milestone in near future.

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* Saumya Ranjan Dixit is a 2nd-year student at the National Law University, Odisha.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.