Lessons in equity

THE Supreme Court, in a recent case, examined the question of equity in higher education in India and laid out certain principles that could be relevant in every field of education. The case, Indian Medical Association vs Union of India, related to the Army College of Medical Sciences (ACMS), Delhi Cantonment, devising in 2008 its own admission procedure for the first year MBBS course from a predefined source carved out by itself and its parent society, the Army Welfare Education Society (AWES). The college sought to admit only students who are wards or children of current and former Army personnel and widows of Army personnel.

Students who otherwise would have been eligible for admission challenged the policy in a slew of writ petitions. The Indian Medical Association (IMA) also challenged it. The ACMS is recognised as a private, unaided, non-minority professional institution. According to a judgment of the Supreme Court's Constitution Bench in TMA Pai Foundation vs State of Karnataka, which was further explained in P.A. Inamdar vs State of Maharashtra, all admissions to private, unaided, non-minority professional institutions should be based only on merit, which is to be taken as inter-se ranking of all students who have taken a common entrance test.

The ACMS' admission policy was based on the belief that the wards of Army personnel suffer educational disadvantages compared with the civilian population and that this affects the morale of Army personnel. And it reserved 100 per cent of the seats for the wards of Army personnel. The Delhi government erroneously approved this policy. The Delhi High Court, where the petitioners first challenged the policy, too found nothing wrong with it.

The Supreme Court Bench comprising Justices B. Sudershan Reddy and Surinder Singh Nijjar, however, found that the ACMS' admission policy set at naught the legislative intent in the Delhi Act 80 of 2007 to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The Delhi government's permission to the ACMS to admit students who may have scored lower marks than others, both within the general category and in the reserved categories, resulted in the defeat of this legislative intent, the court reasoned in its order of May 12.

The Bench held that neither the AWES nor the ACMS was protected by any constitutional provision that allowed it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constituted a “Socially and Educationally Backward Class”, then under Clause (5) of Article 15, it was for the state to determine the same and provide for reservation to wards of Army personnel, the Bench suggested.

In the case of minority educational institutions, the state can relax its concern for merit on account of Clause (1) of Article 30, provided minority educational institutions maintain their minority status by admitting mostly minority students except for a sprinkling of non-minorities. With respect to non-minority educational institutions, the state can relax such concern for merit only with respect to reservation of seats for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBCs) as enabled by Article 15(5). Consequently, the Bench held that the choice of students by non-minority educational institutions could only be from the general pool with respect to non-reserved seats. They could not make further distinctions of their own accord, it said.

In the Mandal II case (2008), the Supreme Court left open the question whether the newly inserted Article 15(5) of the Constitution applied to private unaided non-minority educational institutions. This provision, inserted in 2006 by the United Progressive Alliance-I government, enables the state to make any special provision, by law, for the advancement of the SEBCs or the S.Cs or the S.Ts in the matter of admission to educational institutions, including private educational institutions, whether aided or unaided, other than minority educational institutions. The court left this issue open because none of the private, unaided, non-minority institutions had challenged the validity of this provision.

Justice Dalveer Bhandari, however, dissented from the other four judges of the Bench, holding that the imposition of reservation on non-minority unaided educational institutions was an unreasonable restriction on the freedom granted by Article 19(1)(g) to practise any profession or to carry on any occupation, trade or business.

In the IMA case, however, the court had an opportunity to examine this issue because counsel for the ACMS challenged the validity of Article 15(5). The Reddy-Nijjar Bench differed with Justice Bhandari and considered the inclusion of Clause 5 of Article 15 by the 93rd constitutional amendment as of great significance. “It clearly situates itself within the broad egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed to truncating an essential and indeed a primordial feature of the equality code,” the Bench explained