On Tuesday, the Supreme Court dismissed a Special Leave Petition from the Union government seeking review of a 2016 Allahabad High Court ruling that reservation for teaching jobs in universities should be applied by department. The government argued that it should instead be applied by treating the entire university as one unit.

The top court’s decision has sparked fears of a substantial reduction in the number of reserved teaching posts.

How did this controversy start?

In 2016, Vivekanand Tiwari petitioned the Allahabad High Court that the prevailing caste-based reservation system harmed his chances of being appointed an assistant lecturer at the Banaras Hindu University in Uttar Pradesh.

He was especially aggrieved by a technical aspect of how the reservation for Dalits, Adivasis and Other Backward Classes was being implemented: following directions from the higher education regulator University Grants Commission in 2006, the Banaras Hindu University would reserve posts out of the entire pool of teaching positions. This was unfair, Tiwari argued: each department should be taken as a separate unit for calculating reserved positions.

Does it matter if university or department is the unit?

What seems an inconsequential detail acquires great import when the quantum of reservation is actually calculated.

In India, Dalits have 15% reservation, Adivasis 7.5% and the Other Backward Classes 27%. If the unit under consideration is small, there will be no scope for ensuring reservation.

In the past, India’s courts have held that if the unit under consideration has a solitary position – as is common for many college departments – reservation will not apply at all. They reason is that it would “create a monopoly” that would “render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory”.

If the unit has up to six positions, reservation for Dalits would not apply. This is because reserving even one Dalit seat would mean a quota of 16.66%, breaching the 15% legal limit. Similarly, no positions can be reserved for Adivasis in a unit with 13 or fewer posts since setting aside even one position for them would cross the 7.5% ceiling. For the Other Backward Classes quota to apply, a unit must have at least four positions.

Creating smaller units for calculating quotas, in fact, not only drastically reduces the quantum of reservation, it limits it to junior positions. This is for the simple reason that there are fewer senior faculty positions. So, while there will be several assistant professors in a department, there might be only one professor. In the earlier system, all positions of professor across the university were taken as a unit, allowing for caste reservation to be implemented. If there is, say, only one post of professor in a department now, it will always be slotted under the “general category”.

Clearly, changing the “unit” from university to department makes it much harder to implement caste quotas on the ground.

The government has provided data on how treating the department as the unit will drastically reduce reserved seats. At the Banaras Hindu University, for example, the total number of reserved seats will be halved. Adivasis will be hit the hardest with positions reserved for them falling by 80%, while posts for Dalits will go down by 59%. The impact will be even more drastic on senior positions. Reserved posts of professor at the Banaras Hindu University, for instance, will go down by 95%.

Why then did the Allahabad High Court alter the system?

The High Court did not consider the quantitative effects of changing the unit from university to department. Instead, it held that clubbing people across departments would be “violative of Article 14 [equality before the law] and Article 16 [equality of opportunity in matters of public employment] of the Constitution” since teachers in different departments “are neither transferable nor they are in competition with each other”.

It further reasoned that taking university as the unit could “result in some departments/subjects having all reserved candidates and some having only unreserved candidates”.

The court eventually ruled in favour of Tiwari, directing that the existing system be scrapped and each department be treated as the unit for the purpose of determining reservation.

The court also made observations about the very applicability of reservation in higher education teaching jobs. It listed what it considered “core issues”, asking the Union government if it had conducted any study on “whether reservation is a must in teaching posts of higher education, learning and research” or “whether any exercise has been undertaken to review/revise the impact and effect of reservation having continued for decades together?”

What impact did the High Court’s judgement have?

The Union government chose not to appeal this judgement. In March 2018, the University Grants Commission directed higher education institutions to take the department as the unit for recruitment.

There was a furore when central universities began recruiting teachers under the new system as it became clear that caste-based reservation would be severely cut. Since the March 2018 order, only 2.5% of vacancies in central universities have been reserved for Dalits and none for Adivasis. This even as the implementation of caste reservation in higher education teaching jobs was already very poor. As per a 2016 study, there were only 7% Dalit teachers in higher education against the quota of 15%. The proportion of Adivasi teachers was 2% against the quota of 7.5%.

Responding to the outcry, the government put recruitment on hold and filed a Special Leave Petition in the top court contesting the Allahabad High Court’s judgement.

On Tuesday, however, the Supreme Court upheld the High Court’s ruling.

What happens next?

In its judgement, the High Court pointed out that the University Grants Commission’s 2006 directive to take university as the unit for calculating quotas was not backed by a law.

In September 2018, the Narendra Modi government prepared an ordinance to reverse the High Court’s order. However, fearing an upper caste backlash, it preferred the less drastic option of waiting for the Supreme Court to decide on the Special Leave Petition. The ordinance has since been converted into a Bill and sent to the Cabinet, which is yet to consider it.

The government is expected to pass a new order asking universities to start hiring teachers using department as the unit as per the the High Court’s judgement.

The slow pace of clearing the Bill to reverse the Allahabad High Court judgement stands in sharp contrast to how quickly the Modi government pushed a law through Parliament early this month to provide reservation to the economically weaker sections among the upper castes.

This is the first time an economic criterion rather than caste backwardness is being used for affirmative action in India. The law also essentially did away with the 50% ceiling on reservation imposed by the Supreme Court in 1992.

Also in the works is a plan to split up the Other Backward Classes quota, ostensibly to prevent more influential backward castes such as the Yadavs from monopolising it. This even as Opposition parties are demanding an increase in the Other Backward Classes quota to better match the community’s population.