Insights into Editorial: Interrogating the false merit-reservation binary

 Introduction:

The Supreme Court of India’s recent ruling on an all India quota deserves closer attention for a reason other than its impact on post graduate medical admissions.

In a detailed order providing reasons for its 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.

Underlining that “reservation is not at odds with merit but furthers its distributive consequences”, 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 judgment has the potential to settle a long, fractious and futile debate in our country: merit versus reservations.

The order of the two-judge Bench, lays to rest a popular misconception of merit while advancing an interpretation that is consistent with our constitutional ideals of equality and social justice.

The judgment should have far-reaching consequences for judicial orders, public policy, and, hopefully, public discourse.

About Formal and Substantive Equality:

1. The principle of equality is a fundamental assumption of a democratic society. It is well-recognised that a corollary exists between equality and non-discrimination.
2. To understand that we should first examine what we mean by equality and explore the characteristics that make it a progressive universal moral and legal principle.
3. Equality has been described as a “treacherously simple concept”, yet a diverse spectrum of opinions exists as to what is equality and what should a society do to incorporate and promote this value.
4. The traditional approach of national legal systems was to employ the concept of equality as a system of formal rules.
5. More recent constitutional reforms, informed by increasing academic debate, have sought to develop a more sophisticated concept of equality and have taken into consideration the richness and variety of modern human relations and the subtle characteristics which can lead to discrimination and disadvantage.
6. A range of different opinions exist as to what model of equality should be employed within modern democratic states.
7. Accepting that the broad range of different views and theories regarding the nature of equality and non-discrimination can only be grasped within their own historical and cultural context, the focus of this article is nevertheless on what has informed various international and national legal standards.

Constitutional validity of reservation for Other Backward Classes (OBCs) in the All India Quota:

1. AIQ refers to a judicially created category where 15% of undergraduate seats and 50% of post graduate seats are filled on a domicile-free, all-India basis.
2. The Government had recently decided to extend the existing Scheduled Caste and Scheduled Tribe reservations within this category to provide for OBC reservations as well.
3. Writ petitions had challenged this order on the grounds that the implementation of OBC reservation would affect professional merit and cause reverse discrimination against general category candidates.
4. Another set of writ petitions had challenged the notification of EWS reservation even as the hearings on the 103rd Constitutional Amendment Act were pending.
5. Another set of writ petitions had challenged the tenability of ₹8 lakh as the income limit for EWS reservation.
6. The Court, in view of the public health implications of the delay in medical admissions, upheld the admissions notice, and listed for March the hearing on the validity of the Rs.8 lakh limit.

Issue of merit versus reservations:

1. The Court took this opportunity to directly address the issue of merit versus reservations at some length.
2. For the longest time, critics of affirmative action have argued that reservations violate merit.
3. The defenders of reservation too often concede this but argue that affirmative actions serve other goals such as social representation.
4. It builds on a long tradition of progressive jurisprudence on this issue, but takes it in a new direction.
5. The judgment begins by recalling and reaffirming the principle of substantive equality, rather than formal equality, that underlies our constitutional promise of equality of opportunity.
6. Relying on the debates in the Constituent Assembly, the Court reminds us that the intent of the framers was to remedy real structural barriers that prevented the realisation of equality of opportunity.
7. The Court builds on landmark cases such as State of Kerala vs N.M. Thomas, K.C. Vasanth Kumar (1985), and Indra Sawhney vs Union of India (1992) to reiterate sharply that the provision of reservations in Article 16(4) of the Constitution is not an exception to but an extension of the principle of equality enunciated in Article 16(1).
8. Reservations are crucial to achieving the aspirational goal of genuine equality of opportunity and status amongst all citizens.
9. Reservation is one of the measures that is employed to overcome these barriers.
10. 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.
11. Second, the judgment contributes to the specification of the mechanisms through which social privileges work.
    1. Justice Chinnappa Reddy in C. Vasanth Kumar vs State of Karnataka (1985) had critiqued the purely economic understanding of claims for reservation by emphasising the embedded and rigid nature of the socio-cultural institution of caste.
    2. Taking this understanding forward, it draws upon the work of K.V. Shyamprasad to recognise, perhaps for the first time, the role of cultural capital.
    3. The order holds: ‘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.
    4. In addition to ‘reaffirming social hierarchies’, this obsession with scores in an examination ‘serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making’.

Need to rectify Stereotypes and skills:

Third, it exposes social prejudices that masquerade as concerns about ‘efficiency of administration’ and the anxieties about the dilution of merit.

1. It recognises that there is a need to rectify prejudicial stereotypes about the skills of persons belonging to weaker sections.
2. It relies on the 2019 decision in B.K. Pavitra vs State of Karnataka, also authored by Justice Chandrchud, which held, The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.
3. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.

Conclusion:

The recognition of social privileges that hide behind merit also buttresses the demand for caste census that can document the dynamics of privilege accumulation and caution against oligarchic and conservative policy demands for Savarna Aayogs (or Commission for Unreserved Classes) and Brahmin Schemes that are mushrooming across our political landscape.