Reservation Not At Odds With Merit; Individual Calibre Trascends Performance In Exams
Case: Neil Aurelio Nunes and others versus Union of India and others
Corum: Justices D. Y. Chandrachud and A. S. Bopanna
Case No: Writ Petition (C) No. 961 of 2021
Court Observation: “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”
“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”
“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 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 societ.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. 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”
“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 claim. 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 equalize 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)”.
“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”
“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 ―meritoriou 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”
“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”
“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” “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”
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