Reservation: Social parity, not charity

In calling for a deeper understanding of merit, a recent Supreme Court judgement reiterates the social justice aims of affirmative action

The Supreme Court of India

The Supreme Court’s recent judgement in Neil Aurelio Nunes vs Union of India is an important contribution to restoring the social justice underpinnings of reservation. The judgement upholds the validity of reservations for Other Backward Classes in the All India Quota of medical college seats allotted under the National Eligibility cum Entrance Test. Nuanced and deeply researched, it is an important step forward in understanding the constitutional conception of equality.

Legal battles over reservations in medical colleges are not new in India. The very first case adjudicated by the Supreme Court concerning the constitutional validity of reservations was in the context of reservations in medical colleges in then Madras Province (Champakam Dorairajan v State of Tamil Nadu), all the way back in 1951.

However, comparing the two cases, one notices a sea change in the way the Supreme Court has approached the issue.

Also Read | Quota vs merit: A dichotomy demolished

In Champakam Dorairajan, the court’s analysis was fairly simplistic — those with higher marks should be given admission over other candidates in colleges maintained out of public funds, with the implication that reservations are somehow “anti-merit”.

In Neil Aurelio Nunes, the Supreme Court acknowledges that higher marks alone are not an indicator of “merit” and that the concept of merit must be understood in the wider context of “structural disadvantage” that groups suffer as a result of caste, gender etc.

Therefore, reservations of seats, in the Supreme Court’s view, further equality and are based on a deeper understanding of “merit” that goes beyond the marks obtained in an examination.

Also Read | The interplay of quota and politics

This change in jurisprudence has not been sudden but has taken place over the course of decades.

Under the Constitution, Article 15(4) and Article 16(4) provide for reservations in educational institutions and jobs respectively. In its initial judgements, the Supreme Court saw these provisions as “exceptions” to the fundamental right of equality. However, beginning in the 1970s, specifically in the judgement of N M Thomas v Union of India (1975), the judicial understanding of both equality and the purpose of reservations evolved.

Equality in the Constitution was not just about formal equality — that is simply the requirement that the law treat everyone equally. It was also understood to mean that the constitutional mandate of the government was to remove existing inequalities in society. A legal measure such as reservations meant to reduce structural inequalities in society is not a discriminatory law because it is intended to acknowledge the social and economic differences between groups in societies.

Likewise, “merit” cannot be reduced to the marks obtained in an entrance examination. While an entrance examination might provide everyone a fair chance to participate in the selection process, it can magnify the existing inequalities as well.

Perpetuating inequality

An entrance examination does not take place in a complete vacuum — it requires months and years of preparation, mostly at expensive coaching centres which are not easily accessible to all. To expect that those with resources to spend years preparing for it compete on an “equal footing” with those who have none of these resources is only perpetuating inequality, not fighting it.

Likewise, the judgement acknowledges the impact of generational privilege and its advantage against first or second generation learners.

This rich and nuanced conception of “equality” and “merit” is explored in depth in Justice D Y Chandrachud’s judgement in Neil Aurelio Nunes. The judgement draws from more than just legal texts, citing from a range of sources including Amartya Sen, Ashwini Deshpande, Michael Sandel, Satish Deshpande among others.

Given that Justice Chandrachud’s doctoral thesis in Harvard University is related to reservations in India, this is perhaps not a surprise. Similarly, his judgement in B K Pavitra v Union of India which preserved the consequent seniority of those promoted on the basis of reservation also proceeds from this deep understanding but in the context of government employment.

In arriving at this understanding of “merit” and “equality”, the judiciary was not articulating something new but only catching up with the progressive underpinnings of reservations which the political class had already articulated. Whether it be in the pre-Independence measures of the Madras Presidency and the Mysore Princely State or the debates in the Constituent Assembly, the political system was keenly aware of the emancipatory potential of reservations for Adivasi and Dalit groups who had hitherto been excluded from education and government positions.

Crucial time

The Neil Aurelion Nunes judgement comes at a time when the social justice basis for reservations is being attacked from two different directions.

On the one hand, privileged sections have successfully campaigned for and gotten themselves reservations as “economically weaker sections” over and above the existing reservations for SC/ST/OBC categories. On the other hand, relatively less privileged but politically powerful groups are seeking a greater share of the reservation pie for themselves while pushing out underprivileged and marginalised groups.

Nationally, the latter phenomenon is seen in the agitation by Marathas, Jats, Patidars and others for inclusion in the category of OBCs even though there’s no evidence that they are socially or educationally backward in any respect.

In Karnataka we see a variation of this as the Panchamsali Lingayat community seeks re-classification from being “relatively backward” (3B) to “relatively more backward”(2B) so that they can compete for 15% of seats instead of 5%.

The enormous political clout wielded by such groups has meant that their demands have often received favourable attention from state and union governments. Economically weaker sections reservations are currently enshrined in the Constitution (though under challenge in the Supreme Court) and states have granted reservations to politically powerful groups ahead of elections. However, such hastily granted reservations (such as the Maratha reservations) have almost inevitably been struck down in courts.

Though not articulated as such, what both these groups insist is that reservations be seen as charity and not as a measure to ensure parity in society. Privileged groups do not want to do away with reservations entirely — rather they would want to strip it of its social justice and emancipatory content, and reduce it to state sanctioned charity handed out to unfortunate individuals without redressing structural inequalities in society.

This is why the Neil Aurelio Nunes judgement is so important. In re-affirming the need to address structural inequalities and questioning the narrow idea of “merit”, Justice Chandrachud’s judgement highlights the social justice element of reservations. In assessing the validity of any scheme of reservations, what the court should concern itself with is whether such a mechanism is looking to break down structural inequalities in society or perpetuate them further.

(Alok Prasanna Kumar is Co-Founder and Lead, The Vidhi Centre for Legal Policy)

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