Why the Supreme Court now thinks it was wrong to claim that reservations undermine the idea of merit

On Thursday, a two-judge bench of the Supreme Court released an order explaining why it had upheld the 27% quota for Other Backward Classes in the All India Quota of the National Entrance cum Eligibility Test, the entrance exam for Indian medical colleges.

The All India Quota consists of 15% of the seats in undergraduate courses and 50% of the seats in postgraduate courses that are open to students across India (the rest are only for state domiciles).

Reservations do not contravene the idea of individual merit or the idea of equality, the court said. In fact, they are a way to realise the Constitutional goal of equality. The case also takes an expanded idea of merit, saying that instead of just high marks, it should include values that benefit society such as equality.

The judgment is significant given that ever since caste-based reservations have been in place, critics – including the Supreme Court itself at times – have argued that it undermines the idea of merit.

Approving OBC quotas

The court was considering challenges to a notification on July 29 extending reservations of the All India Quota seats for NEET to Other Backward Classes and economically weaker sections of the General Category. Until then, reservations were only being awarded to Scheduled Castes and Scheduled Tribes.

In this judgment, the Supreme Court upheld OBC reservations for All-Indian Quota undergraduate and postgraduate seats for medical and dental courses. As for economically weaker sections, it has allowed the reservation for this year but will determine some questions related to the eligibility criteria in March.

Can graduates face caste backwardness?

There were several contentions in the challenges to OBC reservations. The first was that the All India Quota seats should not have reservations at all – even for Scheduled Castes and Scheduled Tribes. Secondly, the petitioners said that reservations in post-graduate medical courses should not exist since OBC, SC and ST students do not suffer from backwardness after they have graduated. They also said that post-graduate and super-speciality courses “should only be available to the most meritorious” since they require a high degree of skill and knowledge.

In addition, the petitioners had contentions about the procedure and timing of the reservations. They said the approval of the court was mandatory for this reservation and that reservations should not be implemented this year because they were announced after the deadline for exam registration had passed.

The other side argued that putting in place quotas was a policy decision that the government had undertaken and there was no prohibition on reservations in the All India Quota. It also argued that merit cannot be viewed solely through a candidate’s marks but should also be viewed in terms of the social value a doctor from a particular community could bring.

View merit broadly

The court upheld the validity of the reservations. It said held that the idea of merit had to be viewed broadly, and that reservation was not meant to be an exception to the right to equality under the law.

While holding this, the court said that although many want to draw a binary between merit and reservation to say that “reservation is antithetical to establishing meritocracy”, merit “cannot be separated” from existing inequalities in society. The court said that even the drafters of the Constitution recognised this and wanted the idea of social justice to be taken into account while promising equality of opportunity.

Courts have now moved from a “formal” version of equality, which says that equal treatment should be meted to everyone, to a “substantive” version of equality, which says that special provisions can be made for the benefit of groups of disadvantaged people.

Marks are not merit

The court noted that the notion that high-scoring students are meritorious leads to “reproducing and reaffirming social hierarchies”. This is because there are widespread inequalities that affect how candidates perform in competitive exams. The privileged classes have a lot of advantages, which are often invisible, while backward classes have structural barriers to overcome.

The privileges that forward-class candidates have are not limited to schooling and after-school tuitions, the court observed, but include “social networks and cultural capital” such as “communication skills, accent, books” that they inherit from the family. This ensures that “a child is trained unconsciously by the familial environment to take up higher education”.

Even when seeking guidance on preparing for the exam, privileged people have social networks from which to obtain advice, even if their family does not have the necessary exposure to the field.

The court acknowledged that individual hard work is required to do well in exams. But the current “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”.

It added that even though exams are a “necessary and convenient method of distributing educational opportunities”, they may not always be the best indicator of a person’s merit or excellence. There is always a “degree of separation between what an examination claims to measure and what they actually measure”.

Even if exams do measure excellence, the court said, securing high marks is not the only value that is useful in society. There also needs to be an idea of social good added to the idea of academic merit. For instance, if “a high-scoring candidate does not use their talent to perform good actions, it would be difficult to call them ‘meritorious’ merely because they scored high marks”.

Therefore, “propriety of actions” and “dedication to public service” should also be seen as markers of merit. The court also held that “resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre”.

Finally, it said that backwardness does not disappear merely because a candidate has graduated. While graduation may provide certain “social and economic mobility”, that does not create “parity between forward classes and backward classes”.

Changing ideas of ‘merit’ in the court

This judgment delivered by the Supreme Court concretises a broader idea of merit. This judgment develops on a 2019 judgment authored by Chandrachud himself. In that case, a two-judge bench of the court was deciding on promotions for Scheduled Caste and Scheduled Tribe candidates.

The court, in the 2019 judgment, said that there is a notion that candidates securing marks above a certain cut-off are considered meritorious, while those who do not are considered non-meritorious . However, that is a diluted understanding of merit, it said. Securing high marks in an exam would not be the sole criteria for a meritorious candidate, but rather one who also helps in uplifting members of backward communities.

This 2019 judgment relied on a ruling from 1985, where a judge wrote that there is no merit in a system that keeps out the disadvantaged groups in the society. This was one of the first instances of an expanded idea of merit finding its way into the higher judiciary.

How SC has viewed merit in the past

The Supreme Court had initially “subscribed to the binary of merit and reservation” as noted by the court in the current judgment. In 1963, the court said that reservations were an exception to the right to equality and that considerations of merit would be excluded by a “whole-sale reservation” of seats. In a 1973 judgment, a five-judge bench of the court said, “It is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious.”

However, later in the Indra Sawhney case from 1992, the court held that “reservations were not anti-meritarian”. However, it also said that in certain jobs efficiency of administration had to be maintained. Thus, in services that require the “highest levels of intelligence, skill and excellence”, reservations may not be advisable, it said. The court gave examples of technical posts in research and specialities and super-specialities in medicine and engineering.

Conflicting reactions

Lawyers have different analysis on this judgment as well.

P Wilson, a senior advocate and member of parliament, who represented Dravida Munnetra Kazhagam in this case, welcomed this decision. “The judges must be appreciated for this judgment,” he said. “It is path-breaking in how it deals with merit.”

However, some lawyers are critical of this decision. Rajeev Dhawan, senior advocate and constitutional law expert, said that the court has taken too extreme a position. “After the famous decisions of NK Thomas [upheld reservations in promotions] and Indra Sawhney [upheld OBC reservations] on reservations, merit was not to be discounted, but a balance had to be maintained between merit and reservation, he told Scroll.in. “Justice Chandrachud seems to have lost his balance as far as this is concerned.”

According to him, this goes against the grain of earlier Supreme Court judgments, which struck a balance between merit and reservations.