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Monday, June 25, 2018

Broken Promise

Representation, affirmative action are being diluted by UGC. Government must act.

Written by Faizan Mustafa | Updated: May 25, 2018 2:04:43 pm
Why politicians eat with Dalits The UGC directive of March 5 to universities on taking “department” rather than “university” as a unit for reservation is the latest onslaught on Dalit rights. (Illustration: CR Sasikumar)

The Constitution of a country signifies the sacred compact between different classes and groups of people. Any dilution of principles on which these groups had come together to constitute the nation amounts to the breach of social contract. Dalits after the Poona pact were given assurances about the abolition of untouchability and fair representation through affirmative action. Untouchability is still widespread at least in rural India and the law that was enacted to deal with the atrocities against them has now been diluted by the Supreme Court.

The UGC directive of March 5,2018 to universities on taking ‘departments’ rather than ‘university’ as a unit for reservation is the latest onslaught on Dalit rights. This regressive decision will adversely affect the diversity at our universities. Under the new formula in its latest advertisement, Indira National Tribal University in Madhya Pradesh has recently reserved just one post out of 52 . Under earlier formula as many as 20 posts would have been reserved.

As per government policy we should have 15 per cent reservation for the SCs and 7.5 per cent for the STs in public universities. But today only seven of 100 teachers in colleges and universities are from the underprivileged sections. Only 102,000 — or 7.22 per cent — of the 1.4 million teachers in 716 universities and 38,056 colleges in India were Dalits in 2016. The ST faculty was just 30,000 or meagre 2.12 per cent.

Modi government boasts of giving unprecedented honours to BR Ambedkar. But it has not taken any concrete step in reversing this ill-conceived policy of UGC. The UGC decision is in fact based on the April 4, 2017 judgment of Allahabad High Court in Vivekanand Tiwari v. Union of India. The appeal against this highly controversial judgment was dismissed in one line by the bench of Justice Adrash Goel and Justice UU Lalit in Dr Lal Chand Prasad (2017).The review application was recently rejected on March 20 — the same day on which controversial SC/ST judgment was given by the same bench.

In fact, the courts have not shown much enthusiasm towards affirmative action policies and have denied reservation in promotions or in speciality or super speciality courses or to a solitary post.

As per official data, there are 17,106 teaching positions at 41 UGC-funded central universities, of which 5,997 or 35 per cent were vacant as of April 1, 2017. The poorest record is of the Banaras Hindu University, where out of 155 SC Astt. Professor posts and 74 ST posts, only 86 and 24 have been filled. In the Vivekanand Tiwari case, an advertisement of Banaras Hindu University for teaching positions was challenged. BHU was following UGC policy of treating ‘university’ as unit for the purposes of reservation.

In the beginning of judgment itself, Justice Nath while summing up discussion on State’s power to provide for reservation under Articles 14 and 16 made an interesting observation when he observed that “It is not a mandate but liberty given to the state. It is an enabling provision.” Thus according to him the state may not provide for reservation. Technically speaking, he is right. But the real import of this exemption is that when state provides for reservation, no one can say it is a violation of right to equality. But then reservation is not only mandate but an integral part of the constitutional pact that must be honoured. So long we have unequals in our society, we cannot in the name of “merit” treat them at par with equals as under right to equality. Likes are to be treated alike, not unlikes alike. Equality in law and equality in fact may be entirely different. In fact ‘substantive equality’ really demands that we should discriminate in favour of underprivileged sections.

The courts have used the differences between “cadre”, “service” and “post” to arrive at the conclusion that the “department” should be the unit of reservation. Thus although lecturers, readers and professors in a university have the same scale and allowances in their respective cadres, they cannot be clubbed together. Since there is no scope of interchangeability of posts in different disciplines, each post in a particular discipline is to be counted as a separate post.

This logic shows that judges are not fully conversant with the working of our universities. It seems the judges were anxious that some departments will have only reserved posts and whereas some others will have none in the same category. But this rarely happens, unless a department is very small. If the new formula is not reversed, there will be no SC/ST cadre positions at the level of professor since most departments generally have just one post of professor. Hence, the chances of Dalits becoming head/dean will also become remote. Thus clubbing together of all the posts of professors in a university as a whole is the only logical thing to do.

It seems the disastrous effects of taking “department” as the unit for reservation have not be properly argued in these cases. Since the review has been rejected, the Modi government is well within its rights to promulgate an ordinance to restore “university” as the unit of reservation. Every university spends a lot of time in deciding its reservation quota and tries to balance the interests and needs of various departments. We should trust our universities and give them at least the autonomy to decide which post of which department is to be reserved.

The writer is a constitutional law expert and is presently vice-chancellor of NALSAR University of Law, Hyderabad. The views expressed are personal

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