Reservation is not at odds with merit, but furthers proper distribution of opportunities, the Supreme Court said Thursday in a detailed judgment that revealed the reasons for its 7 January interim order upholding 27 per cent quota for Other Backward Classes (OBC) in the All India Quota (AIQ) for undergraduate and postgraduate medical admissions.
Merit, a bench of justices D.Y. Chandrachud and A.S. Bopanna held, should be “socially contextualised and reconceptualised as an instrument” to advance “social goods like equality” and not just be “reduced to narrow definitions of performance in an open competitive examination”.
“High scores in an examination are not a proxy for merit,” the bench said.
“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,” the court said. They “do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations”.
With its order on 7 January, the bench had given a green signal to counselling for medical courses that got delayed on account of the hearing in SC challenging OBC quota and reservation for the Economically Weaker Sections (EWS) in AIQ for medical admissions.
While it had declared OBC reservation as valid, it did not pronounce any opinion on the EWS quota. The court had doubts over the eligibility criterion, fixed at Rs 8 lakh annual income limit, to determine an EWS candidate. The top court is expected to hear detailed arguments on the EWS issue in March this year. However, as an interim arrangement, it had allowed EWS admissions on the basis of the existing threshold.
‘No prohibition for OBC reservation in PG courses’
Thursday’s judgment — authored by Justice Chandrachud — specifically ruled that there was no prohibition on introducing reservation for OBCs in postgraduate courses, negating the argument that the impact of backwardness simply disappears because a candidate has a graduate qualification.
A graduate qualification, in the court’s opinion, may provide certain social and economic mobility, but that by itself does not create parity between forward and backward classes.
The court declined to accept the argument that undeserving candidates benefitted from reservation. It pointed out that OBC candidates who fall in the creamy layer are excluded from taking this benefit.
Reservations ensure distribution of opportunity in such a way that backward classes are equally able to benefit from them, since opportunities “evade them because of structural barriers”, the court said. This is the only way merit can be a “democratising force that equalises inherited disadvantages and privileges”.
“Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements,” added the court.
Interpreting Articles 15(4), 15(5)
The bench interpreted Articles 15 (4) and 15 (5) of the Constitution to hold that the two are not exceptions to Article 15 (1). Rather, they become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1).
Article 15 (1) prohibits discrimination on grounds of religion, sex, or place of birth, Article 15 (4) capacitates the state to create special arrangements for promoting the interest and welfare of socially and educationally backward classes, and Article 15 (5) provides for reservation for socially and educationally backward classes in educational institutions.
The court held that Article 15 (5) does not make any distinction between UG and PG medical courses. It said although it has been held that there should be no reservation in super-speciality courses, it was never ruled that reservations in medical PG courses are impermissible.
Articles 15 (4) and 15 (5) employ group identification methods to achieve substantive equality. The court admitted that this could lead to an incongruity where individual members of an identified group receiving the benefit of reservation may not be backward, or individuals of a 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,” the order added.
In the judges’ opinion, open competitive exams can be termed an equal opportunity if there is equality in the availability and access to educational facilities. Inequalities in this segment have deprived certain classes of people from participating effectively in competitions.
Therefore, according to the court, “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”.
‘Privileges of social network, cultural capital’
The judge spoke at length about the “privileges” available to the forward classes, not just in terms of schooling and coaching centres, but also social networks and cultural capital (communication skills, accent or academic accomplishments), most of which is inherited.
Cultural capital ensures the child is trained unconsciously by the familial environment and gives an edge to such children over individuals who do not have the benefit of such facilities.
“They (OBC) have to put in surplus effort to compete with their peers from the forward communities,” the verdict said.
But for the forward classes, 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 ruling said.
Taking reference from an earlier judgment in the case of B.K. Pavithra versus the Union of India, which said apparent neutral systems of examination perpetuate social inequalities, the court observed “it is necessary to understand that merit is not solely of one’s own making”.
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”, the court said, advocating a deeper scrutiny of the “idea of merit based on scores in an exam”.
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, 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,” the court said, adding that the meaning of merit must be reconceptualised.