Reservation Not at Odds with Merit; Individual Caliber Transcends in Exams: Supreme Court

Team SoOLEGAL 21 Jan 2022 4:22pm

Reservation Not at Odds with Merit; Individual Caliber Transcends in Exams: Supreme Court

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.

Tagged: Supreme Court   social justice   Justice D.Y. Chandrachud   Justice A.S. Bopanna   NEET   Justice Krishna Iyer   Justice Fazal  
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