‘Reservation is not at odds with merit but furthers the distributive impact of social justice’, the Court said.
The Supreme Court on 20th January 2020 pronounced 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.
The Court has passed a detailed judgment to uphold the constitutionality of 27% OBC quota and has passed another order giving reasons for not staying the existing EWS crtiria for the ongoing admissions.
To approve 27% OBC reservation in All India Quota, a bench comprising Justice DY Chandrachud and Justice AS Bopanna provided the following reasons :
(i) Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);
(ii) Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, 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;
(iii) High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;
(iv) Articles 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 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 but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer;
(v) The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. The observations in Pradeep Jain(judgment) that the AIQ seats must be filled by merit, must be read limited to merit vis-à-vis residence reservation. This Court in Pradeep Jain (supra) did not hold that reservation in AIQ seats is impermissible;
(vi) The Union of India filed an application before this Court in Abhay Nath (judgment) placing the policy decision of the Government to provide reservation for the SC and ST categories in the AIQ seats since until then in view of the confusion on demarcation of seat matrix, there was no clarity on whether reservations could be provided in the AIQ seats. The Union Government was not required to seek the permission of this Court before providing reservation in AIQ seats. Therefore, providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;
(vii) It was clarified in Dinesh Kumar (II) (judgment) that the total seats demarcated for AIQ shall be determined without excluding reservation as was earlier directed by Pradeep Jain (supra) and clarified in Dinesh Kumar (I). However, this Court in Buddhi Prakash Sharma (judgment) had erroneously construed the clarification in Dinesh Kumar (II) to mean that there should be no reservation in AIQ seats. Therefore, the order in Abhay Nath (supra) was only clarificatory in view of the observations in Buddhi Prakash Sharma (supra); and
(viii) Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.
After the judgment was pronounced today morning, Senior Advocate P Wilson, who represented Dravida Munnetra Kazhagam (DMK) party which had opposed the petitions, told Justice Chandrachud “it is a landmark verdict for social justice”.
Relevant observations from the judgment on merit are given below
“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 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”.
Idea of merit based on exam scores requires deeper scrutiny
“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. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates”.
Exams may reflect current competence of individual but not the gamut of their potential
“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 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”
The content of merit cannot be devoid of what we value in society.
“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.
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”
EWS criteria
As regards criteria to determine EWS(Rupees 8 lakhs gross annual income cut-off), the Court allowed the existing criteria to operate for the current admission year so as to not delay the admission process further. However, future application of EWS criteria, which has been stipulated in the Office Memorandum of July 2019, will be subject to final outcome of the petitions.
Courtesy : ‘LiveLaw.in’
