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Reservation Not At Odds With Merit; Individual Calibre Trascends Performance In Exams : Supreme Court
Mehal Jain
21 Jan 2022 10:34 AM IST
The Supreme Court on Thursday ruled that merit should be socially contextualised and reconceptualised as an instrument that advances social goods like equality that we as a society value, and that in this context, reservation is not at odds with merit but furthers the distributive consequences of social justice."Merit cannot be reduced to narrow definitions of performance in an open...
The Supreme Court on Thursday ruled that merit should be socially contextualised and reconceptualised as an instrument that advances social goods like equality that we as a society value, and that in this context, reservation is not at odds with merit but furthers 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 calibre", the Court has held.
It goes on to assert that while certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group, the individual difference may be a result of privilege, fortune, or circumstances which "cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer"
The bench of Justices D. Y. Chandrachud and A. S. Bopanna was pronouncing the detailed order giving reasons for its January 7 direction to allow the commencement of counselling process for NEET-PG and NEET-UG for 2021-22 admissions on the basis of the existing 27% quota for Other Backward Classes (OBC) and 10% 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 on behalf of the petitioners, it was urged 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 providing any reservation for PG seats would be detrimental to national interest. In this regard, the bench commented that "in effect, a binary was sought to be created between merit and reservation, where reservation becomes antithetical to establishing meritocracy".
"This is not a novel argument. There has been a longstanding 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 favour 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 conceptualisation 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 further discusses that on its part, the Supreme Court initially subscribed to the binary of merit and reservation; Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality, 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 understanding, merit is equated to formal equality of opportunity which has to be balanced against the concerns of social justice through reservation", notes the bench.
"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 a cap on reservations, which it specified generally should be 50 percent...This view was followed by this Court in subsequent judgements 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 challenged 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 jurisprudence in India from that of formal equality to substantive 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-centric39(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 equalise 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) is 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 the view that special provisions made for a backward class are not an exception to the principle of equality was re-affirmed by a nine-Judge Bench in Indira Sawhney v. Union of India, and that in Dr Jaishri Laxmanrao Patil v. Chief Minister, this Court has observed that the principles applied for interpreting Article 16 are also to be used for the interpretation of Article 15. "Thus, Articles 15 (4) and Article 15 (5) are nothing but a restatement of the guarantee of the right to equality stipulated in Article 15 (1)", observed the bench of Justices Chandrachud and Bopanna.
The bench further finds that it is important to clarify that after the decision in NM Thomas, there is no constitutional basis to subscribe to the binary of merit and reservation; that If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers; and that This is the only manner in which merit can be a democratizing force that equalises inherited disadvantages and privilege, otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.
'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'
The bench of Justices Chandrachud and Bopanna expressed the view that Articles 16 (4), 15 (4), and 15 (5) employ group identification as a method through which substantive equality can be achieved, but This may lead to an incongruity where individual members of an identified group may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The bench acknowledged that However, this does not change the underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. The Court went on to state that reservation is one of the measures that is employed to overcome these barriers; that The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer.
The bench proceeds to sum up that the binary of merit and reservation has now become superfluous once the Supreme Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet 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 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 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 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", 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 calibre'
While the bench clarifies that this is not to say that performance in competitive examination or admission in higher educational institutions does not require a great degree of hard work and dedication, it adds that it is necessary 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. The bench explains that thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. It appreciates that the idea of merit based on ―scores in an exam‖ requires a deeper scrutiny, that While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit.
"Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardised 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 ascriptive 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 reconceptualize 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 calibre", says the bench.
The bench remarks that if merit is a social good that must be protected, we must first critically examine the content of merit; that even if for the sake of argument, it is assumed that scores do reflect excellence, it is not the only value that is considered as a social good, and that we must look at the distributive consequences of merit; that how we assess merit should also encapsulate if 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, decontextualised individual achievement). We believe such a definition hinders the realisation of substantive equality", asserts the bench.
Whether reservation can be permitted in PG courses
Coming to the issue of whether reservation can be permitted in PG courses, the bench notes that it is evident Article 15 (5) does not make a distinction between UG and PG courses; that The Constitution enables 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 urged on behalf of the petitioners that for many individuals PG is the end of the road and therefore, the 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 time and again permitted reservation in PG courses. The bench holds that This argument merely seeks to create an artificial distinction between the courses offered at the PG level. Further, it observes that only certain medical fields do not have SS courses and on the basis of that we cannot deem that reservation is impermissible in PG as a whole. Crucially, the bench records that the issue here is whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness.
"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.
Case Title : Neil Aurelio Nunes and others versus Union of India and others
Citaiton : 2022 LiveLaw (SC) 73
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