NEW DELHI: The Supreme Court ruled on Thursday that merit
should be socially contextualized and re – conceptualized as an instrument that
advances social goods such as equality that we as a society value, and that, in
this context, reservation is not in conflict with merit but rather advances the
distributive consequences of social justice.
“Merit cannot be reduced to narrow definitions of
performance in an open competitive examination which only provides formal
equality of opportunity. Open competitive examinations do not reflect the
social, economic and cultural advantage that accrues to certain classes and
contributes to their success in such examinations; High scores in an
examination are not a proxy for merit… The propriety of actions and dedication
to public service should also be seen as markers of merit, which cannot be
assessed in a competitive examination. Equally, fortitude and resilience
required to uplift oneself from conditions of deprivation is reflective of
individual caliber”, the court has
held.
It
goes on to say that, while certain individual members of an identified group
receiving reservation may not be backward, or individuals belonging to a non – identified
group may share certain characteristics of backwardness with members of an
identified group, the individual difference may be due to privilege, fortune or
circumstances, which ‘cannot be used to negate the role of reservation in
remedying the structural disadvantage that certain groups fact.’
The
bench of Justices D.Y. Chandrachud and A.S. Bopanna was issuing a detailed
order outlining the reasons for its January 7 directive to allow the start of
counseling for NEET – PG and NEET – UG admissions for 2021 – 2022 on the basis
of the existing 27 percent quota for Other Backward Classes (OBC) and 10
percent reservation for Economically Weaker Sections (EWS) in the All India
Quota.
‘After
N.M. Thomas’s case, no constitutional basis to subscribe to the binary of merit
and reservation’
The
bench noted that it was urged on behalf of the petitioners that at the level of
PG courses, a high degree of skill and expertise is required, and thus such
opportunities must be available to the most meritorious, and that providing any
reservation for PG seats would be detrimental to national interest. The bench
stated in this respect that “in effect, a dichotomy was intended to be
constructed between merit and reservation, where reservation becomes
contradictory to building meritocracy.”
“This is not a novel argument. There has been a long
standing debate over whether reservation for any class impinges on the idea of
merit. In the Constituent Assembly Debates on draft Article 10, which has been
incorporated as Article 16 of the Constitution, some members raised concerns on
the inclusion of Clause (3)to draft article 10 (now Article 16(4) of the
Constitution) which provided that the state is empowered to make reservation in
appointments or posts in favor of any backward class of citizens who, in the
opinion of the state, is not adequately represented in the services under the
state. Certain members of the Constituent Assembly argued for the deletion of
clause (3)…However, the Constituent Assembly rejected these claims and adopted
clause (3) of draft Article 10. Although there was debate on the meaning of –
backward classes, it was felt that there must be a provision that enables entry
of those communities into administration since they were deprived of such
access in the past and formal equality of opportunity would not suffice. 31
However, the view that merit or efficiency in service is distinct from concerns
of advancement of backward classes persisted for some members… However, many
members also recognized that merit cannot be separated from the function of the
existing inequalities in society. They envisaged that social justice must be
read into the promise of equality of opportunity; otherwise the latter merely
advances the interests of the privileged…While these observations were made in
the context of employment to public posts, the debate on conceptualization of
reservation as an exception to the principle of merit has relevance in regard
to admission to educational institutions as well. The debates in Constituent
Assembly were limited to reservation in public posts because reservation in
educational institutions was introduced through a subsequent constitutional
amendment”, ruled the bench.
The
order goes on to say that the Supreme Court initially subscribed to the binary
of merit and reservation; Article 14, 15(1), and 16(1) were thought to embody
the general principle of formal equality, while Articles 15(4) and 16(4) were
understood to be exceptions to this general principle, advancing the cause of
social justice; the Court sought to balance these competing imperatives. “In
such an interpretation, merit is equated to formal equality of opportunity,
which must be weighed against concerns about social justice through
reservation,” the bench writes.
“In M.R. Balaji V. State of Mysore, a Constitution
Bench of this Court observed that Article 15 (4) is an exception to Article
15(1), which was introduced – because the interests of the society at large
would be served by promoting advancements of the weaker elements in the
society. 35 However, since Article 15(4) (or reservation) was considered at
odds with the notion of formal equality under Article 15(1), which is broadly
understood as complying with the principle of merit, this Court observed that
there should be cap on reservations, which it specified generally should be 50
percent… This view was followed by this court in subsequent judgments where a
special provision made for the benefit of a class was seen as a deviation from
the principle of formal equality. 37 however, the dominant view of this court
was challeneged by the Justice R Subba Rao in his dissent in T. Devadasan V.
Union of India, where the learned judge stated that Article 16(4) is not an
exception but rather a facet of Article 16(1), which seeks to redress the
historical disadvantage suffered by certain communities… the view (so)
expressed was adopted by this court in state of Kerala V. NM Thomas, which
transformed the equality; thus, also changing our understanding of
reservations”, canvassed the bench.
Continuing
to discuss the N.M. Thomas case, the bench noted, “The majority of the judges accepted that special provisions (including
reservation) made for the benefit of any class are not an exception to the
general principle of equality. Special provisions are a method to ameliorate
the structural inequalities that exist in the society, without which, true or
factual equality will remain illusory. Justice KK Mathew in his concurring
opinion observed that while equality under Article 16(1) is individual –
centric 39 (which was the view of the majority – Justice Mathew and Justice
Beg’s majority opinions and Justice Khanna and Justice Gupta’s dissents), the
manner in which it is to be achieved is through the identification of groups
that do not enjoy equal access to certain rights and entitlements. Thus, the
learned judge envisaged that equality of individuals is to be achieved by
addressing the structural barriers faced by certain classes of citizens, which
he called the – conditions and circumstances (that) stand in the way of their
equal access to the enjoyment of basic rights or claims. Justice Krishna Iyer
and Justice Fazal Ali in their concurring opinions went a step further to argue
that the content of Article 16(1) is not individual – centric rather it aims to
provide equality of opportunity to sections that face structural barriers to
their advancement. Justice Krishna Iyer invoked Article 46 of the constitution,
which although unenforceable, was employed for giving effect to article 16(1).
In his opinion both articles 16(1) and 16(4) function to equalize group
inequalities albeit in different contexts. Justice Fazal Ali in his concurring
opinion noted that equality of opportunity under Article 16(1) entails the
removal of barriers faced by certain classes of Society. They cannot be denied
the right to equality and relegated to suffer backwardness only because they do
not meet certain artificial standards set up by institutions. Even if the
judges differed on whether Article 16(1) in individual – centric or group –
centric, they nonetheless accepted that Article 16(4) is crucial to achieve
substantive equality that is envisaged under Article 16(1).”
Finally,
the order notes that a nine-judge Bench in Indira Sawhney v. Union of India
reaffirmed the view that special provisions made for a backward class are not
an exception to the principle of equality, and that in Dr Jaishri Laxmanrao
Patil v. Chief Minister, this Court observed that the principles applied for
interpreting Article 16 are also to be used for interpreting Article 15. "Thus,
Articles 15 (4) and 15 (5) are nothing more than a restatement of the guarantee
of the right to equality included in Article 15 (1)," the bench of
Justices Chandrachud and Bopanna remarked.
The
bench also believes that it is important to clarify that, following the
decision in NM Thomas, there is no constitutional basis to subscribe to the
binary of merit and reservation; that if open examinations provide candidates
with equal opportunity to compete, reservations ensure that opportunities are
distributed in such a way that backward classes are equally able to benefit
from such opportunities, which typically evade them due to structural barriers;
and that merit can only be a democratizing force that equalizes inherited
disadvantages and privilege in this way; otherwise, assertions of individual
merit are nothing more than instruments for concealing the inheritances that
underpin successes.
'Combination
of family habitus, community linkages and inherited skills work to the
advantage of individuals belonging to certain classes, which is then classified
as "merit", reproducing and reaffirming social hierarchies'
According
to the bench of Justices Chandrachud and Bopanna, Articles 16 (4), 15 (4), and
15 (5) use group identification as a method of achieving substantive equality,
but this may result in an incongruity where individual members of an identified
group are not backward or individuals belonging to a non-identified group share
certain characteristics of backwardness with members of an identified group.
However,
the court observed that this does not affect the core purpose of the
reservation policy, which tries to address the structural hurdles to
advancement that disadvantaged groups confront in society. The Court went on to
say that reservation is one of the tools used to break down these barriers;
that individual differences may be the result of privilege, fortune, or
circumstance, but they cannot be used to dismiss the role of reservation in
addressing structural disadvantages that certain groups face.
The
court concludes that the dichotomy of merit and reservation is no longer
necessary given that the Supreme Court has acknowledged the idea of substantive
equality as a mandate of Article 14 and a feature of Articles 15 (1) and 16(1)
–
"An open competitive exam may ensure
formal equality where everyone has an equal opportunity to participate.
However, widespread inequalities in the availability of and access to
educational facilities will result in the deprivation of certain classes of
people who would be unable to effectively compete in such a system. Special
provisions (like reservation) enable such disadvantaged classes to overcome the
barriers they face in effectively competing with forward classes and thus
ensuring substantive equality. The privileges that accrue to forward classes
are not limited to having access to quality schooling and access to tutorials
and coaching centers to prepare for a competitive examination but also include
their social networks and cultural capital (communication skills, accent, books
or academic accomplishments) that they inherit from their family"
"The cultural capital ensures that a child is
trained unconsciously by the familial environment to take up higher education
or high posts commensurate with their family are standing. This works to the
disadvantage of individuals who are first-generation learners and come from
communities whose traditional occupations do not result in the transmission of
necessary skills required to perform well in open examination. They have to put
in surplus effort to compete with their peers from the forward communities. On
the other hand, social networks (based on community linkages) become useful
when individuals seek guidance and advise on how to prepare for examination and
advance in their career even if their immediate family does not have the
necessary exposure. Thus, a combination of family habitués, community linkages
and inherited skills work to the advantage of individuals belonging to certain
classes, which is then classified as ―merit‖ reproducing and reaffirming social
hierarchies", the bench elaborates.
'How
we assess merit should also encapsulate if it mitigates or entrenches
inequalities- fortitude, resilience to uplift oneself from conditions of
deprivation is reflective of individual caliber'
While
the bench clarifies that performance in competitive examinations or admission
to higher educational institutions requires a great deal of hard work and
dedication, it adds that it is important to understand that merit is not solely
of one's own making; that the rhetoric surrounding merit obscures the way in
which family, schooling, fortune, and a gift of talents that the society
currently values aids in one's advancement. According to the bench, the
exclusionary criterion of merit denigrates the dignity of people who suffer
hurdles to success that are not of their own choosing. It recognizes that the
concept of merit based on exam results deserves more analysis, that while exams
are an essential and convenient technique of distributing educational opportunities,
marks may not always be the best indication of individual merit.
"Even then marks are often used as a proxy for
merit. Individual caliber transcends performance in an examination.
Standardized measures such as examination results are not the most accurate
assessment of the qualitative difference between candidates. At the best, an
examination can only reflect the current competence of an individual but not
the gamut of their potential, capabilities or excellence, 48 which are also
shaped by lived experiences, subsequent training and individual character. The
meaning of ―merit‖ itself cannot be reduced to marks even if it is a convenient
way of distributing educational resources. When examinations claim to be more
than systems of resource allocation, they produce a warped system of
ascertaining the worth of individuals as students or professionals.
Additionally, since success in examinations results in the ascription of high
social status as a ―meritorious individual‖, they often perpetuate and reinforce
the existing inscriptive identities of certain communities as ―intellectual‖
and competent‖ by rendering invisible the social, cultural and economic
advantages that increase the probabilities of success. Thus, we need to re –
conceptualize the meaning of ―merit‖. For instance, if a high-scoring candidate
does not use their talents to perform good actions, it would be difficult to
call them ―meritorious‖ merely because they scored high marks. The propriety of
actions and dedication to public service should also be seen as markers of
merit, which cannot be assessed in a competitive examination. Equally,
fortitude and resilience required to uplift oneself from conditions of
deprivation is reflective of individual caliber", says the bench.
The
bench observes that if merit is a social good that must be protected, we must
first critically examine its content; that even assuming for the sake of
argument that scores do reflect excellence, it is not the only value that is
considered as a social good, and that we must consider the distributive
consequences of merit; and that how we assess merit should also include whether
it mitigates or entrenches inequalities.
"An oppositional paradigm of merit and
reservation serves to entrench inequalities by relegating reserved candidates
to the sphere of incompetence, and diminishing their capabilities. We have
already stated that while examinations are a necessary and convenient method to
allocate educational resources, they are not effective markers of merit. The
way we understand merit should not be limited to individual agency or ability
(which in any event is not solely of our own doing) but it should be envisioned
as a social good that advances equality because that is the value that our
Constitution espouses. It is important to note that equality here does not
merely have a redistributive dimension but also includes recognizing the worth
and dignity of every individual. The content of merit cannot be devoid of what
we value in society. Based on the above discussion, we find it difficult to
accept the narrow definition of merit (that is, de – contextualized individual
achievement). We believe such a definition hinders the realization of
substantive equality", asserts the
bench.
Whether
reservation can be permitted in PG courses
Concerning
whether reservation can be permitted in PG courses, the bench observes that
Article 15 (5) clearly does not distinguish between UG and PG courses; and that
the Constitution empowers the State to make special provisions for the advancement
of socially and educationally backward classes for admission to educational
institutions at both the UG and PG levels.
"While on certain occasions, this Court has remarked that there cannot be any reservation in SS courses, this Court has never held that reservations in medical PG courses are impermissible. In Pradeep Jain (supra), this Court did not hold that reservation in PG courses is altogether impermissible. In Dr Preeti Srivastava (supra), this Court was not concerned with the issue of reservation in PG courses; rather it was concerned with the question whether it is permissible to prescribe a lower minimum percentage of qualifying marks for reserved category candidates in comparison to the general category candidates. In AIIMS Student Union v. AIIMS50, this Court was concerned with the question of reservation based on institutional preference in PG courses and held that limited preference to students of the same institution can be given at the PG level. In Saurabh Chaudhri v. Union of India, a Constitution Bench of this Court observed that reservation in PG courses to a reasonable extent did not violate the equality clause", appreciates the bench.
Noting
that it was argued on behalf of the petitioners that PG is the end of the road
for many people and thus PG courses should be equated with SS courses and no
reservation should be allowed in PG, the bench states that it finds it
difficult to accept this argument when this Court has previously permitted
reservation in PG courses. According to the court, this reasoning just aims to
construct an artificial distinction between the courses given at the
postgraduate level.
"In
our opinion, it cannot be said that the impact of backwardness simply
disappears because a candidate has a graduate qualification. Indeed, a graduate
qualification may provide certain social and economic mobility, but that by
itself does not create parity between forward classes and backward classes. In
any event, there cannot be an assertion of over-inclusion where undeserving candidates
are said to be benefitting from reservation because OBC candidates who fall in
the creamy layer are excluded from taking the benefit of reservation. Thus, we
find that there is no prohibition in introducing reservation for socially and
educationally backward classes (or the OBCs) in PG courses", concludes the bench.
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