SC's NEET Judgment Has Five Messages For Anti-Reservationists In India

We analyse the five messages based on the closer reading of the judgment in the context of philosophical debate on reservation which is also known as the policy of affirmative action worldwide.

Marks Is Not Merit

The anti-reservationists in India create a binary between merit and reservation and argue that the reservation policy is antithetical for establishing meritocracy or a meritocratic society. They rhetorically use marks as a proxy for merit. However, the court has made the observation that the examinations are a necessary and convenient method of distributing educational opportunities, but marks obtained in the examination cannot always be the best gauge of individual merit, because individual calibre transcends performance in an examination. The standardised examination results are not the most accurate assessment of the qualitative difference between candidates. In fact, due to these reasons, nowadays Western Universities are moving towards adopting multiple modes of examinations such as objective type questions, written examination, viva, personality test, group discussion, individual presentation etc. for evaluation of the same group of students. The underlying assumption behind the increase of evaluation methods is that students performing poorly in one mode of examination might perform better in another more of examination. So, if only one method has been adopted for the evaluation of students, such selected candidates cannot be called meritorious.

Marks Can Be An Outcome Of Privilege, Fortune, And Circumstances

The anti-reservationists argue that the general (open) category students score higher marks in the competitive examination due to their hard work, but they get denied admission because reservation allows admission of low marks scorers. Therefore, they are punished for their hard work. The court has refuted this claim based on the argument that 'the individual difference may be a result of privilege, fortune, or circumstances.' The marks scored in the examination cannot be just a product of hard work, but the outcome of one's privilege, fortune, and circumstances. This proposition is derived from Political Philosopher Ronald Dworkin's Idea of Equality (also known as Luck Egalitarianism) and Sociologist Pierre Bourdieu's distinction between the three forms of capital- economic capital, cultural capital, and social capital. The Court has observed, having referred to K.V Syamprasad's scholarly work titled 'Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in Kerala, India':

The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes 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's 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 advice on how to prepare for examinations and advance in their career even if their immediate family does not have the necessary exposure. Thus, a 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. (pp. 29-30)

Reservation Cannot Be Opposed For Protecting Privilege But Efficiency

This judgment, a Bench of Justices D.Y. Chandrachud and A.S. Bopanna, reiterates the idea of the Constituent Assembly that the policy of reservation cannot be opposed for the protection of privilege. On the pretext of efficiency, anti-reservationists in India wish to preserve their privileges. The Constituent Assembly members had meticulously examined the claim whether opposition to reservation is for preserving efficiency, or efficiency is used as an instrument to shield both the historical and present privileges. The efficiency of any institution and service, including a 'private' one, can and should be defined by diversity, inclusiveness, and representation, and by the responsiveness and value addition to the society.

Neutrality Perpetuates Structural & Social Inequalities

Dr. Chandrachud, J., on behalf of the Court, records that the doctrine of neutrality cannot be used to make argument against reservation because the neutral systems of examination perpetuate social inequalities- 'it is well settled that existing inequalities in society can lead to a seemingly "neutral" system discriminating in favour of privileged candidates.' Citing Marc Galanter's Competing Equalities, the judgment records that 'three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of "merit". These are: (a) economic resources (for prior education, training, materials, freedom from work, etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and (c) intrinsic ability and hard work.' Moreover, the advantage of English education cannot be ignored. As the judgment notes, 'the first two criteria are evidently not the products of a candidate's own efforts but rather the structural conditions into which they are borne', it is safe to argue that the marginalised and historically oppressed communities in India suffer from deprivation of these resources.

The said observation of the Court has further two meanings- the Indian state has to proactively participate in elimination of existing structural inequalities. It cannot remain silent in the name of maintaining neutrality with caste and communities. Second, the state cannot run away from its welfarist role since that is a pre-requisite to eliminating structural inequalities.

Reservation Is An Instrument For Substantive Equality

The reading of the judgment reveals that the reservation policy is not an end per se, but it has been envisaged as an essential instrument for ensuring substantive equality. The virtue of equality as envisaged in the Preamble of the Indian Constitution cannot be sufficiently realised through the doctrines of formal equality- equal protection/equal treatment, non-discrimination, and equality of opportunity as enshrined in the article 14, article 15(1), and article16 (1) of the Constitution respectively. The true realisation of equality would require substantive equality. The provision of reservation and the special protection for women, children, and other vulnerable communities are indispensable doctrines of substantive equality. Therefore, it can be argued that unless a just and equal society is achieved, the doctrines of substantive equality such as special protection provisions and policy of affirmative action shall remain alive.

Arvind Kumar is a PhD Scholar, Department of Politics & IRs, Royal Holloway, University of London and Shailesh Kumar is PhD Scholar & Associate Tutor, School of Law, Birkbeck College, University of London. Views are personal.