Updated: January 21, 2022 3:40:28 am
Underlining that “reservation is not at odds with merit but furthers its distributive consequences”, the Supreme Court said Thursday that “merit cannot be reduced to narrow definitions of performance in an open competitive examination” and “high scores in an examination are not a proxy for merit” . It said merit “should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value”.
This was stated by the bench of Justices D Y Chandrachud and A S Bopanna in a detailed order providing reasons for its January 7 ruling which upheld the Constitutional validity of reservation for Other Backward Classes (OBCs) in the All India Quota for National Eligibility cum Entrance Test (NEET) for undergraduate and postgraduate medical admissions.
The bench said while “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”, they “do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations”.
Explaining how the jurisprudence of reservation had come to recognise substantive equality and not just formal equality, the bench said “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)”.
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Article 15 (4) of the Constitution enables the State to make reservation for SCs and STs while Article 15 (5) empowers it to make reservation in educational institutions. Article 15 (1) says the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
The bench pointed out that “Articles 15 (4) and 15 (5) employ group identification as a method through which substantive equality can be achieved” and said “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,” it said.
Delving into the concept of merit versus quota, Justice Chandrachud, writing for the bench, said “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 bench referred to what it called “privileges” available to the forward classes and said these “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,” it said.
It referred to the decision of the court in the case ‘B K Pavithra v. Union of India’, where a two-judge bench which included Justice Chandrachud, “had observed how apparently neutral systems of examination perpetuate social inequalities”.
The court clarified 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 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,” the bench said.
“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,” it said.
“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 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,” it said.
Pointing out that reservation ensures “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”, it said “this is the only manner in which 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”.
“How we assess merit should also encapsulate if it mitigates or entrenches inequalities,” it said.
In its January 7 order on petitions challenging the 27 per cent OBC quota and 10 per cent quota for Economically Weaker Sections (EWS), the court allowed the Rs 8-lakh annual income limit for EWS eligibility to continue for the current year so that the admission process is not disturbed. The court will hear detailed arguments on the EWS question in March.
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