Government School Students as ‘Socially and Educationally Backward’: Towards Fair Equality of Opportunity and Adequacy in Education in India

I. Introduction

The policy of giving reservation to a backward class has been subject to judicial deliberation. On the same lines, the issue of determining the criteria backwardness has been a daunting task both for judiciary and the legislature.

Backwardness have undergone continuous metamorphosis incorporating in it factors like caste, poverty and gender to name a few. It has been a settled principle that for purposes of admission to educational institutions under Article 15(4) of the Indian Constitution, backwardness has to be both social as well as educational.² The evolution of facets of backwardness can be traced from landmark cases likes M.R. Balaji³, Jayshee⁴ to Indra Sawhney⁵. Determining educational backwardness much like social backwardness has been intertwined with several factors like poverty, literacy, gender, representation in secondary and higher education, etc. In State of U.P. and Ors. Vs. Pradip Tandon and Ors.⁶, Supreme Court remarked that ‘where people have traditional apathy for education on account of social and environmental conditions or occupational handicaps, it is an illustration of educational backwardness’. Similarly, in Kumari K.S. Jayasree v. The State of Kerala court held that ‘educational backwardness is reflected to a certain extent by the economic conditions of the group.’⁷

In recent times, the inclusion of groups as backward has been guided by the above factors but at the same time has kept evolving. An example of this is the inclusion of transgenders as ‘socially and educationally backward’ based on the deep-rooted history of discrimination against them.⁸ The Apex court has also cautioned that the decision of backwardness of a community must be separated from political motives attached to it. In Ram Singh v. Union of India⁹ the apex court while disallowing inclusion of jat community as OBCs in the national list reiterated that ‘backwardness is a manifestation caused by several independent circumstances which may be social, cultural, economic, educational or even political’. It reminded the states to be vigilant in their duties to trace backwardness and ‘to be aware of the implausibility of constant inclusion of groups in OBCs without any exclusion, despite progress of nation’. The court in the above case held that-¹⁰

It is the identification of these new and emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover ‘lost ground’ in claiming preference and benefits on the basis of historical prejudice.

One such ‘emerging group’ and ‘discovery’ has been government school students. The identification of the structural barriers that government school students face was made first by Tamil Nadu through the Tamil Nadu Admission to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on preferential basis to students of Government Schools Act, 2020 (hereinafter referred to as ‘the Act’). The Act granted 7.5% reservation to government school students in NEET exam. On the same lines, the State of Odhisha has adopted a resolution for 15% reservation to government school students in state run medical as well engineering colleges .¹¹ Puducherry has made a similar proposal of granting 10% reservation to government school students in higher education institutes, however, being a union territory, centre’s approval is still pending on the issue.¹² In this paper, an attempt has been made to study the justifiability of this inclusion in the sub-set of backwardness. This paper studies if the approach of the state governments in granting reservation to government schools falls in line with the constitutional goals of equality of opportunity. If so, is this enough to provide true capabilities and fair equality of opportunity to students in government schools?

The first part of the paper studies, the recent Madras High Court Judgment upholding the constitutionality of reservation to government school students as socially and educationally backward class. It traces if quality of education imparted by the State to government school students has been identified as a reason of their backwardness. In the second part, an attempt has been made to find an inclusive model of educational justice for government school students in India. In this part, the various theories of equality like fair equality of opportunity, Democratic equality, and adequacy are studied. In the last part, feasibility of the adopting such an ‘equal’ model in India is studied as regards to raising the level of education and social integration of government school students. This is done with special reference to offering them true capability to pursue work, vocation, secondary or higher education keeping in mind their present speculated status as a backward class.

II. Government School Students as a class and Equality of opportunity

Representation of government school students in secondary and higher education as well as in the workforce is limited. Tamil Nadu was one of the first states to identify this by enacting the Tamil Nadu Admission to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on preferential basis to students of Government Schools Act, 2020. The Statement of objects and reasons of the 2020 act states that-

AND WHEREAS the students who studied in Government schools have secured very negligible number of seats in the admission to M.B.B.S. course because of lower marks in the qualifying examination;

AND WHEREAS a Commission comprising of senior officials under the Chairmanship of Justice P.Kalaiyarasan (Retired High Court Judge) was constituted to assess and analyse the reasons for the lower number of Government school students getting admission to M.B.B.S. course and to suggest remedial measures to the Government; AND WHEREAS in view of the cognitive gap created by socio economic factors such as caste, parental occupation, parental education, parental income, gender, etc., the said Commission concluded that the Government school students form a separate class and are in a disadvantageous position as compared to private school students and therefore recommended that ten per cent of seats in the admission to M.B.B.S. course can be set apart on Preferential basis to students who studied from Sixth Standard to Higher Secondary Course in State Government schools and qualified in the National Eligibility-cum-Entrance Test;

This highlights the object of the State government while bringing the Act in force. The object appears novel but at the same time challenges meritocracy by preferential treatment to government school students despite their low performance. Their low performance has been attributed by the Act to factors beyond their control making it a case of ‘undeserved’ disabilities they face and therefore requiring positive discrimination. The Act while defining ‘students studied in government schools’ harmonises it with ‘weaker and disadvantages children’ given reservation in private unaided schools in elementary education under Section 12(1)(c) the Right of Children to Free and Compulsory Education Act, 2009¹³ (hereinafter referred to as the ‘RTE Act’) with ‘backwardness’ in higher education. It states that-

“Students studied in Government schools” means children who have studied from Sixth Standard to Higher Secondary Course in a Government school and qualified in the National Eligibility-cum-Entrance Test.

Explanation.— For the purpose of this definition, children belonging to weaker section and disadvantaged group who have studied upto eighth standard in a specified category school or an unaided school, as per clause (c) of sub-section (1) of section 12 of the Right of Children to Free and Compulsory Education Act, 2009 and studied all remaining standards up to Higher Secondary Course in a Government school and qualified in the National Eligibility-cum-Entrance Test, shall be deemed to be ‘Students studied in Government schools’;

The net effect is that a child who has been given reservation in elementary education in private school but thereafter continued his or her secondary and upper secondary education in government school would also be eligible for reservation in higher education. The above definition is probably the first integration of reserved category of children under RTE Act with secondary and higher education. Section 3 of the Act states that 7.5% of state government seats shall be set apart for students who have studied in government schools. Section 5 makes it clear that such reservation would be horizontal and not vertical.¹⁴

In light of the objects sought to be achieved and the remedy of horizontal reservation offered by the state legislation, the reasoning given by the Madras High Court in Preethika C. (Minor) v. State of Tamil nadu and others¹⁵ while upholding the constitutionality of the Act is studied. The court has affirmed that the Government school students form a separate category as they are found to be in a disadvantageous position compared to the Private school students. What is more important than the upholding of the constitutionality of the Act is the identification of reasons for government school students forming a socially and educationally backward class. The reasons on which government school students were considered a disadvantaged class were the psychological barrier created by not being able to afford coaching as well as the economic constraints faced by them. The average annual income of the parents of a Government school student, as suggested by the P.Kalaiyarasan commission, was Rs. 46,686/- in contrast to Rs.4,69,413/- of the CBSE student and Rs.4,77,263/- of the ICSE student. The court also appreciated the fact that 83% of the fathers and 65% of the mothers of government school children are daily wage labourers. The court also highlighted their social backwardness by noting that of all children in government schools 3% belong to Scheduled Tribe, 32% belong to Scheduled Castes, 37% belong to Most Backward class and de-notified communities, 27% Backward class and 1% belong the general category¹⁶. On the basis on the above reasoning, the court has held that -¹⁷

The Government School students as a class who fit well within the meaning given to the phrase 'Socially and Educationally Backward class” right from M.R. Balaji or Indra Sawhney upto Neil Aurelio. Rather than providing reservation based on a sole criteria we find that the instant provision is a step towards determining the social and economical backwardness on a wholesome basis by taking into account multiple factors including caste, wealth, parental education, parental income, parental occupation, gender, living standard, psychological factor, medium of instruction, location of the school, non-availability of private coaching, affordability for repeat appearance in the exam etc.

The court held that the provisions of the Act give opportunity to a government school students in overcoming the disadvantages they face in using their ‘natural endowments of physique, character and intelligence’. Therefore, the High Court held that Act has ‘a sound rational and is in tune with the objects sought to be achieved’¹⁸ so, it was not violative of Article 14 of the Constitution of India.

The judgment has gone a long way in recognising that children from government schools have been suffering structural barriers¹⁹ in pursuing secondary and higher education. While the judgment is laudable in identifying the disabilities that government school students suffer, it raises few pertinent questions on educational justice. The first amongst these questions it that- Has the government identified poor ‘standard of education’ in government schools? If so, has it not brushed aside its duty to impart quality secondary and higher education to children under Article 41 of the constitution²⁰ by merely providing reservation as a compensatory aid.

The approach of the court falls into the pigeonhole of many philosophies to equality, but what it misses to identify is that equality in matters of education is not only a question of resources and quotas but also a question of capabilities and sufficiency. Reservation alone cannot fill the ‘educational debt’ (Schouten, 2012) owed to the child who have been systematically left with no other option but to study in government schools despite being aware of the poor quality offered. The court did give the state government instruction to review the reservation policy in five years and during the intervening period asked the government to take steps ‘to improve the standard of education imparted in the Government Schools, so that the reservation may not further be extended beyond a period of five years.’²¹ While this prerogative on part of the judiciary is sufficient, the question of how the standard of education in government schools will improve surely remains. Another point to be kept in mind is that ‘we not dealing solely with the distribution of money and property but with the question of differences in individual abilities’ (Wietz, 1993) and this requires broader human considerations. While dissecting the reasons assigned by the Kalaiyarasan commission recommending reservation for government school students, the socio-economic factors like caste, parental income, gender, etc. have already been covered by virtue of systematic reservation policies for SC, STs, OBCs and economically weaker section under Article 15. If only one percent of the students studying in government schools are from the general category as stated by the commission and affirmed in the judgment, the fact that all other categories like SCs, STs and OBCs have already been identified for the purposes of reservation, leaves little scope for further representation²². The remaining factors like parental education, parental occupation and the cognitive gap created by lack of coaching, etc. all relate to identifying educational needs of the child. One must question- Do private school children enter medical profession in more representation only due to coaching facilities and economic factors? It is also because of the quality of education offered to them? They are taught what is needed for their participation in workforce. While government school children are taught the same without giving extra attention to their special education needs. The quality of education thereby is an important disability they suffer and this needs to be recognised. Both the Act and the Madras High Court while declaring them to a backward class have failed to identify this factor.

It is true that parent’s educational background can be a structural barrier. So, can be their income. But is the difference in cognitive levels such that cannot be reduced by special training and identifying the pedagogical needs of the child. If education is an art to be practiced, then government school students need the best. The question is not of equality of access to educational institutions, it is about equity too. The Madras High court has emphasised on equality of opportunity keeping in mind socio-economic background by stating that-²³

Even if provided with the same set of coaching facilities or standard of education, on account of socio-educational economical background, the cognitive gap will still be significantly there, which requires a positive discrimination by the State and in the instance case what is provided, is only horizontal reservation.

The problem in this approach is that while it is true that barriers exist for government school students, but the state need not provide them the ‘same set of coaching or standard of education’. Education must be provided keeping in mind the needs of the child. This is not to deny that government school students do not need support, but to say that, we can iron the ripples created by poor quality of teaching by reservation for only so long. For the children who wish to pursue vocations or work straight after their secondary education, the ‘structural barriers’ for them still exist in the form of their parent’s poverty, educational background, amongst other things. It is time therefore that we travel beyond the idea of ensuring equality of opportunity in terms of access to education. We must identify factors beyond access. This has been done through a doctrinal analysis in the next part.

III. Fair equality of opportunity and the sufficient rain model to Educational Justice

Reservation or class identification is clutches needed while the wounds inflicted by societal discourse heal which need to be left at the gateway of equality. Article 14, 15 and 16 of the constitution have been the battlefield of the emerging theories of educational justice, and as we have studied the winner has always been providing true representation to the deprived or disadvantaged class. The aim has always been equality of outcome has been the goal to be achieved through equality of opportunity. The way in which equality of outcome is to be achieved can vary as per legal policies. In this regard, if we study the above policy of reservation to government school students in light of equality of opportunity in the Rawlsian sense of fair equality of opportunity and the sufficientarian sense of adequate education, a more holistic approach to equality would emerge. When such an interpretation is given to educational justice. The principles of redress and the principle of fair background would always be studied parallel to the difference principle and therefore government school students would be more empowered and equal.

Compensatory aid to the worst off is demanded by the difference principle²⁴ which India has included through reservation. It is the difference principle gives way to the norm of Priority to the Worse Off. Richard J. Arneson while advocating that difference principle must be read in light with norm of priority writes that-

Institutions should be regulated in a way that gives greater weight in policy formation to a possible benefit to a person whose condition is worse off than that of others than to an otherwise identical benefit that would go to a person who already is more advantaged than others. (Arneson, 1993)

The norm of priority requires policy to be made for ‘possible benefit’ to the worst off. Moreover, the difference principle has to be read along with the principle of redress. Principle of redress requires that greater educational resources should be allocated to individuals with lesser capacities. John Rawls writes that-

This is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for. Thus the principle holds that in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into the less favorable social positions. The idea is to redress the bias of contingencies in the direction of equality. In pursuit of this principle greater resources might be spent on the education of the less rather than the more intelligent, at least over a certain time of life, say the earlier years of school. (Rawls, 1971)

Richard Arneson advocates for education as the most apt area in the study of justice for the application of principle of redress. He further writes that-

If the principle of redress is an ethical principle and the difference principle is a principle of utility, can one ever justify overriding an ethical principle, especially if it is the categorical imperative of your program, for the purposes of utility? (Arneson, 1993)

This principle as applied in India seems restricted to State government policies in providing educational resources in government schools. Several states have policy of distribution of bicycle to girls or laptops to children in higher education and in some cases free secondary education for them. But we must question is that true application of the principle of redress? True reflection of principle of redress would be through higher budgetary allocations in education,²⁵ qualified teachers in secondary education, better infrastructure, more decentralisation in framing curriculum as per needs of the child, and age flexible provision for special training for disabilities both physical and learning as needed. When Tammy Harel Ben-Shahar talks of ‘all the way equality’ this is what she implies. She writes-

The outcome aimed at is that government schools students enter higher education and professions and the means adopted to do so is by giving them preferential treatment in access to institutions of higher education. But that again is not complete or ‘fair equality of opportunity’ while applying the Rawlsian principle of difference treatment by allocating more resources to them, we must also apply the principle of fair background ameloriate the effects of their social backgrounds by special training and curriculum design. (Shahar, 2016)

Fair background principle²⁶ requires that the ‘undeserved’ differences in background of the child must be tackled in order to have fair equality of opportunity. When this is applied to educational policy making this implies that children from different background and suffering different disabilities are tackled by policymakers and educationalists accordingly. This would bring each child to the sufficientarian principle of equality as adequacy. Adequacy in education demands bringing each child to a certain threshold. Elizabeth Anderson writes that effective access to education does not necessarily result in equal education. She writes while talking of democratic equality that education must be such that it gives true educational freedom in pursuing college.-

"a sufficientarian or adequacy standard" that obtains when "every student with the potential and interest... receive[s] a K-12 education sufficient to enable him or her to succeed at a college that prepares its students for postgraduate education." Specifically, "primary and middle schools" must prepare every student "to successfully complete a college pre paratory high school curriculum," and high schools must offer such a curriculum. (Anderson, 2014)

The adequacy model to equality demands that education of each child be brought to a certain threshold irrespective of the question of resource allocation. It identifies why mere resource allocation on a differential basis is not enough. Joshua E. Weishar writes that ‘Children are owed an education that is adequately equal and equally adequate.’(Weishar, 2014) The latter part highlights the important role which State has to play in providing education in government schools. Government schools have the duty²⁷ to impart quality elementary education and children have the corresponding right under Section 3 of the Right of Children to Free and Compulsory Education Act, 2009 to ‘free and compulsory education’. Other levels of education like secondary and higher education have no allied central legislation. The only respesentation of rights of children in secondary schools is in Article 41 of the constitution which gives the directive that Right to education be provided as per the ‘economic capacities and development’ of the state. Article 46 similarly demands that the state shall take care of the educational interests of the weaker section. This constitutional prerogrative however has still not become a legal right through legistation.

What constitutes adequate in india as per our legal system is still mere elementary education. Moreover, even in elementary education these principles seem to be not working in practice. Sadhna Saxena writes in ‘Is Equality an Outdated Concern in Education?’ –

The doctrine of equal educational opportunity and compensatory measures for marginalised communities has been replaced by a multilayered, in-egalitarian school system, and increase in resource-starved government schools in addition to special schemes that are based on the principle of exclusion of most children. A clear subversion of the constitutional commitment to equality and justice is evident here. (Saxena, 2012)

It is clear therefore, that in the adequacy model of educational justice India is failing. Not only has the recent reservation policies highlighted the poor socio-economic status of government school children and how they form a class but it has clearly brought to light the inadequacy in the education they receive and that it is not sufficient to prepare them for higher education. This inadequacy is not only a result of their social and economic background but also the structural or psychological barriers which is a result of poor quality of education they are imparted. Equality in education demands education suited to the needs of the child. Access and redistribution to the disadvantaged are necessary but the aim for such redistribution in educational justice.

IV. Conclusion

Thirty years ago in Indira Sawhney case Supreme Court observed that merit for privileged and underprivileged cannot be same, by stating that-²⁸

The inequalities in Indian societies are borne in homes and sustained by every medium of social advancement. Inhuman habitations, limiting and crippling social intercourse, low-grade educational institution and degrading occupations perpetuate the inequalities in myriad ways.

This remark was made around the same time when right to education was recognised as a fundamental right in India in Mohini Jain v. Union of India²⁹. Post this development education was declared a fundamental right for children below 14 years in J.P.Unnikrishnan and others v. State of Andhra Pradesh³⁰ and thereafter right to education was made a fundamental right for elementary stage for ages 6-14 years. These developments when read with Article 41, 45 and 46, emphasise on the constitutional obligation towards education at all levels. It is time that we must make sure that ‘low grade educational institutions’ should no longer be a factor in the expanding inequalities.

Such an interpretation to equality has recently been given by the Hon’ble Supreme Court in Jaishri Laxmanrao Patil v. State of Maharashtra³¹ by a constitutional bench. The court while striking down reservation in public posts in favour of maratha community held that there are wider possibilities of affirmative action other than reserving educational seats. The court also remarked that real and meaningful equality of opportunity should imply that the necessary elements to create those conditions would be provided including scholarships and educational aid to backward classes. The court held that the ‘transformative potential of Article 21A read with Article 15(5) remains underutilised’. The findings in the case though laid down for vertical reservation should equally apply to horizontal reservation- ³²

Even if reservations are provided in education, sufficient numbers of the targeted students may not be able to achieve the goal of admission, because of the nature of entrance critieria. Equality of opportunity then, to be real and meaningful, should imply that the necessary elements to create those conditions, should also be provided.

The goal of the constitution framers was to bring a casteless society. The directive principles of state policy cast onerous duty on the states to promote welfare of the people by securing and protecting as effectively as it may social order in which social justice, economic and political shall inform all institutions of the national life. Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The states ought to bring other measures including providing educational facilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates of the backward class to be self-reliant.

If this read in line with the Madras High Court reasoning for giving reservation the faultline appears. The High Court attributes lack of coaching facilities which are not available in rural areas to students whose parents are economically constrained, as one of the reasons for their poor representation in the NEET exam. But the fact remains, that even reservation would not cure this, as educational facilities would still be out of reach for many. Formal equality of opportunity has been identified in our education system by ensuring access to schools in elementary education through free and compulsory education by virtue of Article 21A and RTE Act, fair equality of opportunity however demands of the state much more. It demands of the state to put to practice the principles of fair background, redress and the norm of priority along with implementing the adequacy notion of equality in education.

True educational justice requires that the state makes the government school students truly capable by taking steps towards ‘free’ or ‘partly’ state-funded secondary and upper secondary education. The dropout rates in secondary education are alarmingly high in comparison to elementary education.³³ This is one of the reasons that government school students never reach the doorstep of higher education along with the economic constraints they face. Secondary and upper secondary education has objectives every different from elementary education. It plays a tremendous role in the student’s life in preparing them for further social endeavours. National Policy calls for harmonising the educational policies at all levels of education by stating that-³⁴

The standard-setting/regulatory framework and the facilitating systems for school regulation, accreditation, and governance shall be reviewed to enable improvements on the basis of the learnings and experiences gained in the last decade. This review will aim to ensure that all students, particularly students from underprivileged and disadvantaged sections, shall have universal, free and compulsory access to high-quality and equitable schooling from early childhood care and education (age 3 onwards) through higher secondary education (i.e., until Grade 12)…. This will further improve India's progress towards achieving Sustainable Development Goal 4 (SDG4) of ensuring free, equitable, and quality primary and secondary education for all children.

The Indian education system, at present lacks such avenues for the child who before beginning of elementary education and after completion of elementary education is subject to the discretion of the State government law or central regulatory bodies or sponsored schemes³⁵ as regards education being available and being made 'free or compulsory' beyond elementary education. Even the state laws on pre-primary or secondary education barely speak of the child, rather are a regulation on the appointment of boards and committees in these areas. Examples of the above are few states like Rajasthan, Kerala, Uttar Pradesh and Karnataka. The Rajasthan Secondary Education Act, 1957 establishes the board of secondary education, discusses its composition and functions but does not discuss at any place of the rights of the child. Kerala Education Act, 1958 and The U.P. Secondary Education Services Selection Board Act, 1982 also perform the same purpose. Karnataka Education Act, 1983 does the same but only in Section 7 while stating the aims for prescribing curriculum states that-

The main objective of education at the secondary level shall be to impart such general education as may be prescribed so as to make the pupil fit either for higher academic studies or for job-oriented vocational courses.

RTE Act was intended to speak only of elementary education in line with Article 21A.³⁶ This leaves scope for legislation in other levels of education to the centre as well as the states under Entry 25, List III, but remains unutilised. It is time to reconsider the absence of legislation in the above areas with a view not only to regulate but also to empower the child and establish their rights. Recently, Finand which is known for its highest performance in learning levels has made education compulsory in secondary and upper secondary levels subject to the maximum age limit of 20 years³⁷. In India, the compulsory schooling age is still 14 years. Scholarships, reservations and schemes should continue along with the guarantee of a free or state-funded compulsory secondary and upper secondary education which empowers them to either vocation, work or higher education as they choose. This would be true human development and offer of true capabilities to them. Moreover, as already suggested this would require India to frame a central law on secondary and upper secondary education. Noting in it the rights and duties of the students, teachers and State. Such a legislation should be backed by the curriculum suited to the type of school student studies in and type of streams the child chooses to focus on be it work or skill or higher education. This would give more voice to the government school student beyond elementary education and ensure their true representation in all spheres of societal interaction.

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V. References

1. Gina Schouten, ‘Educational Justice: Closing Gaps or Paying Debts?’, 29(3), Journal of Applied Philosophy, 231-242 (August 2012), pp. 231-242

2. Betty A. Wietz, ‘Equality and Justice in Education: Dewey and Rawls’, 16(4), Human Studies, 421-434 (1993)

3. Richard J. Arneson , ‘Against Rawlsian Equality of Opportunity’, 93(1), Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition , 84 (Jan., 1999)

4. John Rawls, A Theory of Justice, 86 (Harvard University Press, 1971)

5. Tammy Harel Ben-Shahar, ‘Equality in Education – Why We Must Go All the Way’, 19(1), Ethical Theory and Moral Practice, 83-100 (February 2016).

6. Joshua E. Weishart ,’Transcending Equality Versus Adequacy’, 66(3), Stanford Law Review, 477-544. (March 2014).

7. Sadhna Saxena, ‘Is Equality an Outdated Concern in Education?’, 47(49), Economic and Political Weekly, (December 8, 2012)

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Footnotes

1. Author is a Research Scholar at Faculty of Law, University of Lucknow, India.

2. Held in Kumari K.S. Jayasree v. The State of Kerala (1976) 3 SCC 730 the Supreme court applied the ‘means cum caste/community test’ and held that both poverty and caste are dominant factors in determining social backwardness. ↩

3. In M.R.Balaji and Ors. Vs. State of Mysore and Ors. 1992 Supp (1) SCR 439, occupation and place of habitation were held to be factors affecting backwardness. ↩

4. Supra note 2 ↩

5. In Indira Sawhney v. Union of India 1992 Suppl. (3) SCC 217, the court reiterated that backwardness in a complex idea and incorporates various elements of social life. ↩

6. (1975) 1 SCC 267 ↩

7. Supra note 2 at Para 23. ↩

8. In National Legal Service Authority v. Union of India, (2014) 4 SCC 438 a two judge bench of the Supreme Court recognised transgenders as having been systematically denied their right to equality and therefore were held entitled to reservation in educational institutions and in public employment. ↩

9. (2015) 4 SCC 697 ↩

10. Ibid Para 54. ↩

11. Resolution to the effect has been passed in March, 2021 under the Odisha Professional Educational Institutions (regulation of admission and fixation of fee) Act, 2007. The resolution was passed as an effect of the finding of Justice A.K.Mishra committee report. ↩

12. Harish Murali, ‘Centre not in favour of reservation for government school students in medical admissions’, The New Indian Express, 21^st January, 2021) ↩

13. Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2020 mandates the private schools to 25% children for weaker and disadvantaged group. ↩

14. Section 5 of the Act states that preferential seats to government students shall be allocated as per ‘the reservation as per the law in force.’ ↩

15. Writ Petition No. 20083 of 2020 ↩

16. Figures taken from excerpts of the commission report in the judgement. ↩

17. Ibid Para 10.8 ↩

18. Ibid Para 9.3 ↩

19. The court approved the stance of the state and held that ‘this structural barrier is on account of the various factors such as caste, wealth, parental occupation and parental education, gender, access to coaching centers, which places them in a socially and educationally backward position, make them as a class to be qualified to be provided reservation under Article 15(4) of the Constitution of India.’ ↩

20. While elementary education is a fundamental right, quality of secondary and higher education would be governed by Article 41. ↩

21. Supra note 15 at Para 10.14 ↩

22. Section 6 of the Act provides that if sufficient number of government school students are not available, the remaining seats would be assigned to private school students. ↩

23. Supra note 15 at Para 9.9 ↩

24. The difference principle states that some individuals may have more of something if and only if their having more will work to the benefit of "the least advantaged" ↩

25. India spends 3.45% of its GDP on education lesser than many countries. Data available at: https://data.worldbank.org/indicator/SE.XPD.TOTL.GD.ZS?locations=IN&most_recent_value_desc=false (Visited on 12/04/2022) ↩

26. Fair Background requires that in competitions for positions of advantage ameliorative measures should be taken to eliminate the disability created by social background.. ↩

27. Section 12(1)(a) of the Right to Education Act, 2009 read with Article 21A of the Constitution. ↩

28. Supra note 5 at Para 405-406. ↩

29. 3 SCC 666 ↩

30. (1993) 1 SCC 645 ↩

31. (2021) 8 SCC 1 ↩

32. Ibid Para 38 and Para 405 ↩

33. It is pertinent to note that the drop out rate is secondary education is 16.07% as compared to 1.25% for primary education. Similarly, while the enrolment in primary schools is 97.78% in secondary schools it is 77.97%. (UIDSE 2018-19 Report). ↩

34. National Education Policy, 2020, Para 8.8 ↩

35. There are education policies on secondary education in the form of centrally sponsored schemes like Rashtriya Madhyamik Shiksha Abhiyan, but no equivalent central legislation. ↩

36. The Preamble reads ‘an act to provide for free and compulsory education to all children of the age six to fourteen years’. ↩

37. Finland Compulsory Education Act, 2020 ↩