On January 7, the Supreme Court paved the way for starting the stalled Post-Graduate National Eligibility cum Entrance Test (PG-NEET) counselling process for 2021, allowing the implementation of the 27% reservation for Other Backward Classes (OBCs) and 10% for the economically weaker sections (EWS) in the All India Quota seats because of an “urgent need” to begin the admission process in view of the COVID-19 pandemic.
It was dealing with a batch of petitions challenging both these quotas.
On Wednesday, January 20, the court released a detailed order explaining its reasons to uphold the validity of the reservation for OBCs. Detailing the history of the debate – from discussions in the Constituent Assembly to previous Supreme Court judgments – between ‘merit’ and ‘reservation’, the bench of Justices D.Y. Chandrachud and A.S. Bopanna said, “Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity”.
Justice Chandrachud, who authored the judgment, added that 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,” he said.
The judge also commented on the privileges that accrue to forward classes not just through having access to quality schooling and other facilities but also through their social networks and cultural capital.
“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 judgment says.
The Wire is reproducing a part of the judgment, ‘The Merit of Reservation’, in which Justice D.Y. Chandrachud explains why reservation is not at odds with merit. It has been slightly edited for style.
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On behalf of the petitioners, it was urged that at the level of PG courses, a high degree of skill and expertise is required. Thus, such opportunities must be available to the most meritorious and providing any reservation for PG seats would be detrimental to national interest. 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). For instance, Shri Loknath Misra stated that such a provision puts, “a premium on backwardness and inefficiency” and no citizen had a fundamental right “to claim a portion of State employment, which ought to go by merit alone.” Shri Damodar Swarup Seth argued that reservation results in the “very negation of efficiency and good Government” and appointments should be “made on merit and qualification”.
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. However, the view that merit or efficiency in service is distinct from concerns of advancement of backward classes persisted for some members. Shri K.M. Munshi (a member of the Drafting Committee) observed that:
“What we want to secure by this clause [Article 10] are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State – highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people.”
However, many members also recognised 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. During the debates on draft Article 286, which pertained to the functions of Public Service Commission with regard to appointments to public posts, Dr P.S. Deshmukh argued that:
“…people’s capacities cannot be measured by mere passing of examinations or obtaining the highest possible marks. But those communities who have had the advantage of English education, because they were prepared to be more servile than the rest, think it is a preserve of theirs, and whenever anybody gets up and speaks on behalf of the millions who have had no chances of education, they consider it as a threat to their monopoly on the part of the rest of the communities and accuse the advocates as communal and communally minded. There is no communalism in this. Neither I nor anybody who speaks on their behalf want any particular community to dominate, where as those who oppose this move are interested only in particular communities. They want to preserve communalism while accusing us of communalism because they have had the advantage of education which they fear will be taken away. They think and urge that merit is or can be tested only by examinations. But so far as the masses of the country are concerned, the millions of our populations who have not had even the chance to get primary school education, they have no place so far as the public services are concerned, so long as the present system lasts.”
Shri Phool Singh emphatically provided a conception of substantive equality when he stated that merit of candidates cannot be evaluated through an open competition without regard to their social positions. He further highlighted that the meaning of merit should also take into reference the task that is to be carried out. He stated thus:
“…Much has been made of merit in this case; but equal merit pre-supposes equal opportunity, and I think it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with those city people is asking a man on bicycle to compete with another on a motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged. Mr. Tyagi interrupted Dr. Deshmukh by saying that it is a fight for the illiterates. I think, however sarcastic that remark may be, he was probably right. Self-government, means a government by the people, and if the people are illiterate, a few leaders have no right to usurp all the power to themselves. This cry, this bogey of merit and fair-play is being raised by those who are in a[n] advantageous position and who stand to suffer if others also come into the picture.”
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.
Doctors protesting in Delhi, demanding the resumption of PG-NEET counselling. Photo: PTI/Files
On its part, this 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. This 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.
In MR Balaji vs 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”. 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%. This court stated:
“32. …Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seat in all technical, medical or engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Article 15(4) can be special provision which exclude the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance to backward communities, has observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years (p. 53).”
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. However, the dominant view of this Court was challenged by Justice R. Subba Rao in his dissent in T. Devadasan vs 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. Justice Subba Rao observed thus:
“26. Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the state. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only a utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race —one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the constitution introduced clause (4) in Article 16. The expression ―nothing in this article‖ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.”
The view expressed by Justice Subba Rao was adopted by this court in State of Kerala vs NM Thomas, which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing our understanding of reservations. Chief Justice A.N. Ray writing the judgement of this court held:
“44. Our constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Tribes, who are said by this court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.”
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 K.K. Mathew in his concurring opinion observed that while equality under Article 16 (1) is individual-centric (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. The learned judge made the following observations:
“73. There is no reason why this court should not also require the state to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.
74. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and Scheduled Tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so-called forward communities complain of a compensatory measure made by the government to ensure the members of Scheduled Castes and Scheduled Tribes their due share of representation in public services?
75. It is said that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes which according to the decision of this court would include the power of the state to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give any adventitious aids by legislation or otherwise to the Backward Classes which would derogate from strict numerical equality. If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and Scheduled Tribes equality of opportunity in the matter of employment, I see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity.”
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. The learned judge observed thus:
“137. ‘reservation’ based on classification of backward and forward classes, without detriment to administrative standards (as this court has underscored) is but an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This court has viewed Article 16(4) as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335 as I have explained, the twin considerations of terrible backwardness of the type Harijans endure and maintenance of administrative efficiency must be satisfied.”
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. Justice Fazal Ali made the following observations:
“158. It is no doubt true that Article 16(1) provides for equality of opportunity for all citizens in the services under the state. It is, however, well-settled that the doctrine contained in Article 16 is a hard and reeling reality, a concrete and constructive concept and not a rigid rule or an empty formula. It is also equally well-settled by several authorities of this court that Article 16 is merely an incident of Article 14, Article 14 being the genus is of universal application whereas Article 16 is the species and seeks to obtain equality of opportunity in the services under the state. The theory of reasonable classification is implicit and inherent in the concept of equality for there can hardly be any country where all the citizens would be equal in all respects.
Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same. It has never been disputed in judicial pronouncements by this court as also of the various high courts that Article 14 permits reasonable classification. But what Article 14 or Article 16 forbid is hostile discrimination and not reasonable classification. In other words, the idea of classification is implicit in the concept of equality because equality means equality to all and not merely to the advanced and educated sections of society. It follows, therefore, that in order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved.
Could we, while conferring benefits on the stronger and the more/advanced sections of the society, ignore the more backward classes merely because they cannot come up to the fixed standards? Such a course, in my opinion, would lead to denial of opportunity to the backward classes resulting in complete annihilation of the concept of equality contained in Articles 14 and 16. The only manner in which the objective of equality as contemplated by the founding fathers of our constitution and as enshrined in Articles 14 and 16 can be achieved is to boost up the backward classes by giving them concessions, relaxations, facilities, removing handicaps, and making suitable reservations so that the weaker sections of the people may compete with the more advanced and in due course of time all may become equals and backwardness is banished forever. This can happen only when we achieve complete economic and social freedom.
In our vast country where we have diverse races and classes of people, some of whom are drowned in the sea of ignorance and illiteracy, the concept of equality assumes very important proportions. There are a number of areas in some states like Kashmir, Sikkim, hilly areas of UP, Bihar and the South, where due to lack of communications or transport, absence of proper educational facilities or because of old customs and conventions and other environmental reasons, the people are both socially and educationally backward. Could we say that the citizens hailing from these areas should continue to remain backward merely because they fall short of certain artificial standards fixed by various institutions? The answer must be in the negative.
The directive principles enshrined in our constitution contain a clear mandate to achieve equality and social justice. Without going into the vexed question as to whether or not the directive principles contained in Part IV override the fundamental rights in Part III there appears to be a complete unanimity of judicial opinion of this court that the directive principles and the fundamental rights should be construed in harmony with each other and every attempt should be made by the court, to resolve any apparent inconsistency. The directive principles contained in Part IV constitute the stairs to climb the high edifice of a socialistic state and the fundamental rights are the means through which one can reach the top of the edifice. I am fortified in my view by several decisions of this Court to which I will refer briefly.”
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). Articles 16 (4), 15 (4), and 15 (5) employ group identification as a method through which substantive equality can be achieved. 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. 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. Reservation is one of the measures that is employed to overcome these barriers. 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 Supreme Court of India. Photo: Pinakpani/Wikimedia Commons, CC BY-SA 4.0
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 vs Union of India. These observations were made in the context of Articles 16 (1) and 16(4). In Dr Jaishri Laxmanrao Patil vs 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).
The crux of the above discussion is that the binary of merit and reservation has now become superfluous once this 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 advice 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.
In BK Pavithra vs Union of India, a two-judge bench of this court, of which one of us was a part (Justice D.Y. Chandrachud) had observed how apparently neutral systems of examination perpetuate social inequalities. This court observed:
“134. It is well settled that existing inequalities in society can lead to a seemingly ―neutral‖ system discriminating in favour of privileged candidates. As Marc Galanter notes, 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…’ [ Galanter M., Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S., Inclusion versus excellence : Caste and the framing of fair access in Indian higher education, 40 : 1 South African Review of Sociology 127-147.]
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. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society.”
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 but it is necessary to understand that “merit” is not solely of one’s own making. 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. 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.
But the idea of merit based on “scores in an exam” requires a deeper scrutiny. 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. Ashwini Deshpande highlights that there is always a degree of separation between what examinations claim to measure and what they actually measure. He states:
“…most examinations and tests have an inevitably indexical character – they claim to measure something more than (or other than) what is established by the actual tasks they set. Thus, for example, a candidate aspiring to join civil service may take an entrance exam where she appears in papers in, say geology, philosophy and general knowledge. On the basis of her performance in these papers, the entrance exam claims to predict her potential ability to be a good civil servant. There is at best a rather indirect link between good at writing exam answers in geology, philosophy and general knowledge and being a good civil servant. This is the sense in which the exam and the candidate‘s performance in it serves as an index – an indicator – of something else namely her potential to be a good civil servant. All examinations are more of less indexical, even those that have a lot of ‘practical’ components involving activities that appear to be very close to what successful candidates will eventually be doing professionally. All other things being equal, indexicality tends to weaken diagnostic claims of the examination. Because of this, the higher the stakes, the greater the ideological energy that is spent on building up the prestige and popular deference accorded to the exam. That is why exams guarding the gateway to a prized profession or status are steeped in hyperbole and are socially required (so to speak) to be traumatic bloodbaths. Anything less would not only undermine the status of the status that they are guarding, it would also endanger the main social function that such exams perform, which is to persuade the vast majority of aspirants to consent to their exclusion.”
At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, 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 reconceptualise 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.
Such a formulation of merit was emphasised by this court in Pradeep Jain (supra), where it observed:
“12. But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. We agree with Krishna Iyer, J., when he says in Jagdish Saran case [(1980) 2 SCC 768: AIR 1980 SC 820: (1980) 2 SCR 831]: (SCC p. 778, para 21)
‘If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit — and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears — then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.’
Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.”
However, after contextualising the meaning of merit, in the next paragraph, this court reverted to equating the selection process adopted for admission to merit. However, irrespective of the true purport of merit, this court notes that the selection process for admission must satisfy the test of equality. This court observed thus:
“13. We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality-oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. Now the concept of equality under the constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely, ‘One law for the Lion and the Ox is oppression’. Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or, inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. We may in this connection usefully quote what Mathew, J., said in Ahmedabad St. Xavier’s College Society v. State of Gujarat [(1974) 1 SCC 717, 799 : AIR 1974 SC 1389 : (1975) 1 SCR 173] : (SCC p. 799, para 132)
‘… it is obvious that “equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations” [ The Advisory opinion on Minority Schools in Albania, April 6, 1935 publications of the Court, series A/B No 64, p 19] .’
We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must ultimately find its raison d’etre in de facto equality. The state must, therefore, resort to compensatory state action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. The state must, to use again the words of Krishna Iyer, J., in Jagdish Saran case [(1980) 2 SCC 768: AIR 1980 SC 820: (1980) 2 SCR 831] (SCC p. 782, para 29) ‘weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. . . . equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit’. The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals.”
It is important to clarify here that after the decision in NM Thomas (supra) there is no constitutional basis to subscribe to the binary of merit and reservation. 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. This is the only manner in which merit can be a democratizing force that equalises inherited disadvantages and privileges. Otherwise, claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.
If merit is a social good that must be protected, we must first critically examine the content of merit. As noted above, scores in an exam are not the sole determinant of excellence or capability. 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. We must look at the distributive consequences of merit. Accordingly, how we assess merit should also encapsulate if it mitigates or entrenches inequalities. As Amartya Sen argues:
“If, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen—or generate—economic inequality. In this case, the rewarding of merit cannot be done independent of its distributive consequences.
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In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (often implicitly) towards the interests of more fortunate groups (favouring the outcomes that are more preferred by ‘talented’ and ‘successful’ sections of the population. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some weight to lower inequality levels.”
A similar understanding of merit was advanced by this court in BK Pavithra (supra), where this court held:
“131. Once we understand ‘merit’ as instrumental in achieving goods that we as a society value, we see that the equation of ‘merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.”
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.
Coming to the issue of whether reservation can be permitted in PG courses, it is evident Article 15 (5) does not make a distinction between UG and PG courses. Article 15 (5) reads thus:
“(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of Article 30.”
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 of 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 vs AIIMS, 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 vs 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.
[Shyam] Divan had 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. We find it difficult to accept this argument when this court has time and again permitted reservation in PG courses. This argument merely seeks to create an artificial distinction between the courses offered at the PG level. Further, 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 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 reservations for socially and educationally backward classes (or the OBCs) in PG courses.