NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS.

C JUDGMENT DR. DHANANJAYA Y CHANDRACHUD, J. This judgment has been divided into the following sections to facilitate analysis: D A. Factual Background....................................................3 B. Pendency of the Writ Petition Instituted by Saloni Kumari............................................................10 C. Submissions of Counsel...........................................11

E D. Analysis...................................................................18 D.1 The Merit of Reservation...............................18 D.2 The Court and the AIQ seats........................39 D.3 The Executive’s power to introduce reservation in AIQ seats...................................................59 F D.4 Changing the Rules of the Game....................61 E. Conclusion..............................................................66

G A. Factual Background

1Copy pinpoint1. These writ petitions challenge the reservation for Other Backward Classes1 and the Economically Weaker Section2 in the All-

1 “OBC” H 2 “EWS”

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India Quota 3 seats in the National Eligibility cum Entrance Test A examination4 for undergraduate5 and postgraduate6 medical courses. The Directorate General of Health Services in the Union Ministry of Health and Family Welfare7 issued a notice on 29 July 2021 providing 27 percent reservation for OBC (non-creamy layer) and 10 percent reservation for EWS in the 15 percent UG and 50 percent PG seats in AIQ from the B academic year 2021-2022. By an order dated 7 January 2022, a two- judge Bench of this Court upheld the constitutional validity of the OBC reservation in AIQ seats and posted the challenge to the validity of the EWS criteria for final hearing in the third week of March 2022. This judgement provides reasons for upholding the permissibility of reservations in the AIQ seats and constitutionality of OBC reservation in AIQ seats. C

2Copy pinpoint2. Some of the salient facts that have led to the implementation of OBC reservation in AIQ seats are being adverted for setting out the broad contours of the controversy. While we have discussed in detail the history of the AIQ and the evolution of an All-India common entrance examination in Section D.2, it is sufficient to highlight that the scheme of D AIQ seats was devised by this Court in Dr Pradeep Jain v. Union of India8 to provide domicile free seats in State run medical and dental institutions. The AIQ scheme was further developed by this Court in Dinesh Kumar (I) v. Motilal Nehru Medical College9 and Dinesh Kumar (II) v. Motilal Nehru Medical College10. Presently, under the AIQ scheme, 15 percent UG seats and 50 percent PG seats in State– E run institutions are surrendered by the states to the AIQ. The remaining seats in the State institutions are reserved for candidates domiciled in the respective States.

3Copy pinpoint3. The Constitution (Ninety-Third Amendment) Act 2005 amended Article 15 of the Constitution by inserting clause (5) to Article 15 to F empower the State to make special provisions (including reservation) for the advancement of socially and educationally backward classes (or

3 “AIQ” 4 “NEET-PG” G 5 “UG” 6 “PG” 7 “MH&FW” 8 (1984) 3 SCC 654 9 (1985) 3 SCC 22 10 (1986) 3 SCC 727 H

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A the OBCs) relating to their admission in educational institutions. Article 15 (5) reads thus: “(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally B backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” C

4Copy pinpoint4. In Abhay Nath v. University of Delhi11, this Court held that reservations for Scheduled Caste12 and Scheduled Tribe13 candidates are permissible in the AIQ seats. The Central Educational Institutions (Reservation in Admissions) Act 200614, which came into effect on 3 January 2007, was enacted to provide for reservation for students D belonging to the SCs, STs and OBCs in Central educational institutions. The Act of 2006 provided that 15 percent seats shall be reserved for SCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in Central educational institutions. However, reservation for OBCs was not extended to State contributed seats for AIQ in State-run institutions.

5Copy pinpoint5. The State of Tamil Nadu granted 50 percent reservation to OBCs in State-run medical institutions under the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 199315. Thus, the State quota seats were being F filled according to the provisions of the Act of 1993. A writ petition16 was instituted before this Court by Dravida Munnetra Kazhagam17 seeking a mandamus to provide OBC reservation in AIQ. This Court by its order dated 11 June 2020 directed that the issue be agitated before the Madras High Court. This Court observed thus:

G 11 (2009) 17 SCC 705 12 “SC” 13 “ST” 14 “Act of 2006” 15 “Act of 1993” 16 WP No 507 of 2020 17 H “DMK”

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“The learned senior counsel for the petitioners seek permission to A withdraw these Writ Petitions with liberty to approach the High Court by filing Writ Petitions under Article 226 of the Constitution. Permission granted. The Writ Petitions are, accordingly, dismissed as withdrawn with the aforesaid liberty.” B

6Copy pinpoint6. Pursuant to the above order, DMK instituted a writ petition18 before the Madras High Court arguing that the AIQ seats available in State-run medical and dental institutions in the State of Tamil Nadu must follow the reservation policy as applicable under the Act of 1993. However, the Madras High Court after issuing notice in the petition accepted the argument of the Union Government that the hearing in the matter be deferred in view of the pendency of a writ petition19 before this Court on a similar issue. Aggrieved by the deferral of the hearing, special leave petitions were instituted before this Court. By its order dated 13 July 2020, this Court disposed of the petitions holding that the issue raised in the writ petition pending before it is different from the one raised by the DMK before the Madras High Court and directed the High Court to proceed with the hearing of the case. This Court made the following observations: “Permission to file Special Leave Petition without certified/plain copy of impugned order in Diary No. 13644/2020 is granted. E These special leave petitions are directed against the order dated 22.6.2020 by which the High Court adjourned the matters in view of the pendency of Writ Petition No.596 of 2015 in this Court. This order was passed on the basis of the stand taken by the Union of India that the points arising in the writ petitions filed in the High Court are similar to those that arose in Saloni Kumari and Anr. Versus DGHS & Ors. (Writ Petition No.596 of 2015). We have perused the writ petition filed by Saloni Kumari which is pending consideration in this Court. The issue that arises in the writ petition pertains to the implementation of 27% seats for admission to Post Graduate courses in the All India Quota. The complaint of the petitioner is that the seats in the 27% quota of OBCs should not be restricted to Central Government institutions. 18 WP No 8326 of 2020 19 Saloni Kumari v Director General Health Services WP(C) No 596/2015. H

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A Whereas, the writ petitions pending in the High Court involve a dispute pertaining to the percentage of reservation to be followed in State of Tamil Nadu in respect of the surrendered seats in the All India Quota for PG medical admissions. As the point raised in the writ petitions pending in the High Court B is not similar to that in Saloni Kumari’s case, the High Court can proceed to adjudicate the writ petitions on merits. We are informed that the writ petitions are listed before the High Court for final hearing on 17.7.2020. The High Court is requested to decide the writ petitions expeditiously. Special Leave Petitions are disposed of accordingly.” C

7Copy pinpoint7. The Madras High Court by its judgement dated 27 July 2020 disposed of the writ petition holding that there are no legal or constitutional impediments in extending reservation to OBCs in the AIQ seats in the medical colleges in the State of Tamil Nadu. The High Court directed the Union Government to constitute an Expert Committee for D implementing reservation for OBCs in the seats surrendered by the State of Tamil Nadu in AIQ. However, the High Court observed that the reservation should be implemented only from the academic year 2021- 2022 since it would disturb the selection process that had been set into motion for the academic year of 2020-2021. The State of Tamil Nadu E challenged the order of the Madras High Court dated 27 July 2020 before this Court in a special leave petition20 on the limited ground that the High Court erred in denying implementation of the OBC reservation for the academic year 2020-2021. In its order dated 26 October 2020, this Court upheld the order of the High Court regarding the implementation of the OBC reservation from the subsequent academic year 2021-2022.

8Copy pinpoint8. The MH&FW set up an Expert Committee to determine the modalities of granting reservation to OBC candidates in AIQ seats in UG and PG courses in state-run medical colleges within the State of Tamil Nadu from the academic year 2021-2022. The Committee recommended two options in its final report, i.e., either State-specific G reservation can be implemented for OBCs in AIQ seats or OBC reservation can be granted in terms of the provisions of the Act of 2006.

9Copy pinpoint9. A Contempt petition21 was instituted by DMK before the Madras High Court against the Union of India for non-implementation of OBC 20 SLP (C) No 9286 of 2020 H 21 Contempt Petition No 181 of 2021

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reservation in AIQ seats. In the meanwhile, a notice dated 29 July 2021 A was issued by the Directorate General of Health Services, MoHFW to implement 27 percent OBC reservation (non-creamy Layer) and 10 percent EWS reservation in the 15 percent UG and 50 percent PG AIQ seats in the current academic session of 2021-22. The notice stated thus: B “NOTICE Urgent Attention Candidates of NEET-UG and NEET-PG: It has been decided by the Government of India to implement 27% OBC reservation (Non-creamy later) and 10% EWS reservation in the 15% AIQ UG seats and the 50% All India Quota C seats (MBBS/BDS and MD/MS/MDS) (contributed by the State/ UTs). This reservation will take effect from the current Academic session 2021-22. Consequently, the overall reservation in 15% UG and 50% PG All India Quota seats would be as follows: D SC-15% ST-7.5% OBC (Non-creamy layer) as per the Central OBC list-27% EWS- as per the Central Government Norms-10% E

PwD-5% Horizontal Reservation as per NMC Norms”

10Copy pinpoint10. By its order dated 25 August 2021, the Madras High Court dismissed the contempt petition since the Union Government had complied with the order dated 27 July 2020 of the Madras High Court by constituting a committee. The High Court observed thus: “Since the committee required to be constituted by the order dated July 27, 2020 was instituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof, albeit not exactly in terms of the recommendations, no case of willfull or deliberate violation of the said order can be said to have been made out.” Nonetheless, the High Court proceeded to scrutinize the validity of the notification dated 29 July 2021 providing reservation for OBC and EWS candidates in AIQ seats in medical and dental institutions. With H

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A respect to the reservation granted to EWS under the notification dated 29 July 2021, the High Court observed that such reservation can be permitted only with the approval of this Court. Special leave petitions were instituted before this Court challenging the order of the Madras High Court. This Court by its order dated 24 September 2021 disposed of the petitions observing that the Madras High Court in its contempt B jurisdiction could not have entered into a discussion on the validity of the EWS reservation provided by the notice dated 29 July 2021 and set aside the direction that the approval of this Court should be received before implementing reservation for the EWS category in AIQ seats.

11Copy pinpoint11. We have traced the trajectory of the introduction of OBC C reservation in NEET AIQ seats, which is challenged before this Court in the present batch of writ petitions. By its order dated 7 January 2022, this Court upheld the constitutional validity of the OBC reservation in AIQ medical and dental UG and PG seats. The constitutionality of the criteria used for the identification of the EWS category is yet to be D decided. However, in the interim, this Court directed that the counselling in NEET-PG 2021 and NEET-UG 2021 be conducted by giving effect to the reservation provided by the notice dated 29 July 2021, including the 27 percent OBC reservation and 10 percent EWS reservation. The challenge to the validity of the OBC reservation in AIQ seats is dealt with in this judgement. E B. Pendency of the Writ Petition instituted by Saloni Kumari

12Copy pinpoint12. We are aware that a writ petition was filed by Saloni Kumari seeking 27 percent OBC reservation in AIQ seats in State-run medical institutions on the ground that such reservation should not be restricted to Central education institutions in terms of the Act of 2006. The claim raised in that petition was of parity. The issue that has been raised before us is of the validity of the notification dated 29 July 2021 that provides for 27 percent OBC reservation in the AIQ seats in UG and PG seats from the academic year 2021-2022. On account of the difference in the nature of the issues raised before this Court, we will proceed to rule on the validity of the notification dated 29 July 2021. C. Submissions of Counsel

13Copy pinpoint13. Mr Shyam Divan, learned Senior Counsel appearing for the petitioners argued that there must be no reservation for the OBC community in the AIQ quota. In pursuance of this argument, he made the following submissions:

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(i) In Pradeep Jain v. Union of India22, this Court raised serious concerns about the reservation in PG seats. Once a person is qualified as a doctor, he cannot be treated as belonging to a backward class anymore. Therefore, admission in PG seats must be purely based on merit, without any reservation; B (ii) At the level of PG and super-speciality23, doctors are required to possess high degree of skill and expert knowledge in specialised areas. This skill cannot be acquired by everyone. It would be detrimental to national interest to have reservations at this stage. Opportunities that are available for such training are minimal and therefore, it should only be available to the most meritorious; (iii) This Court in Pradeep Jain (supra) created a right against reservation in the AIQ seats. The judgment of this Court in Abhay Nath v. University of Delhi24 allowing reservations for SC and ST categories in the AIQ is per incuriam in light of the judgments in Pradeep Jain (supra), Union of India v. R. Rajeshwaran 25 and Union of India v. Jayakumar26; (iv) The AIQ scheme was conceived by this Court in Pradeep Jain (supra) and developed in Dinesh Kumar (I) (supra) E and Dinesh Kumar (II) (supra). Therefore, only this Court can alter the reservation scheme in the AIQ seats. The Union Government ought to have made an application to this Court apprising it of its intention to provide reservation for OBC and EWS categories in AIQ, and this Court could F decide to allow or deny permission; (v) It has been held by this Court in Dr Preeti Srivastava v. State of Madhya Pradesh27 and various other cases that reservation in PG courses must be minimum; G 22 (1984) 3 SCC 654 23 “SS” 24 (2009) 17 SCC 705 25 (2003) 9 SCC 294 26 (2008) 17 SCC 478 27 (1999) 7 SCC 120 H

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A (vi) Even if reservation for the OBC category in the AIQ seats is constitutionally valid, it ought not to have been introduced for the academic year of 2021-22 since the notice on reservation for the OBC category was introduced after the registration window was closed. It is a settled principle that the rules of the game cannot be changed after the game has begun; (vii) The candidates had registered for the exam against a certain seat matrix, having knowledge of the total number of seats for which they could compete. The impugned notification alters the seat matrix, changing the rules of the game after the game had begun; (viii) The phrase ‘as may be applicable’ in clause 11.1 of the information bulletin must be read to mean the reservation applicable as on the date of registration. The rules of the game were set when the registration closed; and D (ix) In specific branches of specialisation such as MD Radiology, MD Dermatology, MD Gynaecology, MS Psychiatry, MD (Chest), MD Preventive and Social Medicine, MD Forensic Medicine, MS Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS Orthopedics, and MS ENT, E no SS course is offered in India. Therefore, such courses are the end of the branch and there must be no reservation in such courses since they are equivalent to SS courses (Dr. Preeti Srivastava (supra)).

14Copy pinpoint14. The Union of India addressed the following arguments contending that the 27 percent reservation for the OBC category in AIQ seats is constitutionally valid. Mr Tushar Mehta, Solicitor General and Mr KM Nataraj, Additional Solicitor General made the following submissions: (i) The rules of the game were not changed after the process had begun since the reservation through the impugned notice issued on 29 July 2021 was introduced much prior to the date on which the exams were conducted and before the commencement of the counselling process. The NEET PG examination schedule is as follows: H

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(a) Release of Information Brochure: 23 February 2021 A (b) Commencement of Registration Process: 23 February 2021 (c) Last date of Registration: 15 March 2021 (d) Scheduled examination date: 18 April 2021 B (e) Postponement for four months on: 03 May 2021 (f) New date of examinations announced on: 13 July 2021 (g) New date for examination: 11 September 2021 C Clause 11.1 of the information bulletin issued on 23 February 2021 states that reservation of PG seats shall be as per the norms of the Central Government and the respective State Governments. Clause 11.2 states that a separate handbook providing information on the counselling process and applicable reservation shall be released by the designated counselling authority for NEET-PG 2021. Therefore, the process begins only with the commencement of the counselling process and not when the registration closes; (ii) Reservation in AIQ seats according to the impugned notice has been implemented for MDS admissions in the current academic year of 2021-22; (iii) The AIQ scheme was introduced in 1986 to provide domicile free admission to students from across the country. Till 2007, there was no reservation in the AIQ. In 2007, this Court in the case of Abhay Nath (supra) permitted 15 percent reservation for the SCs and 7.5 percent reservation for the STs in the AIQ seats. The Act of 2006 providing 27 percent reservation to OBCs which came into force in 2007 was implemented in all Central educational institutions, including medical colleges run by the Central Government; G (iv) The AIQ scheme is a Central scheme. Therefore, the Central List of OBCs shall be used for implementing the reservation. Around 1500 OBC students in UG and 2500 in PG will be benefitted through reservation for OBC category in AIQ seats; H

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A (v) In the last six years, MBBS seats in the country have been increased by 56 percent from 54,348 in 2014 to 84,649 seats in 2020. The number of PG medical seats has been increased by 80 percent from 30,191 seats in 2014 to 54,275 seats in 2020; B (vi) Providing reservation for the AIQ seats in medical/dental courses is a matter of policy; (vii) Though observations have been made by this Court on the desirability or otherwise of reservation in PG courses, it has never been held to be unconstitutional; and C (viii) This Court in Pradeep Jain (supra) only held that there would be no domicile-based reservation in the AIQ seats. It was not held that no reservation otherwise would be impermissible in the AIQ seats. Subsequent decisions of this Court (Saurabh Chaudri v. Union of India 28; Gulshan Prakash v. State of Haryana29) have clarified that this Court in Pradeep Jain (supra) had only observed that the AIQ seats shall be free from domicile reservation.

15Copy pinpoint15. Mr P Wilson, learned Senior Counsel appearing for the DMK, submitted that the 27 percent reservation for the OBC seats in the AIQ is constitutionally valid. The Senior Counsel made the following submissions: (i) Parliament by the Constitution (Ninety-Third Amendment) Act 2005 introduced Clause (5) in Article 15 providing reservation for the SCs, STs and socially and educationally backward classes (or the OBCs) in admission to educational institutions, including private educational institutions, aided or unaided by the State and other minority educational institutions. Pursuant to the amendment, the Union Government enacted the Act of 2006 providing 27 percent reservation for the OBC category in Central educational institutions. The Supreme Court upheld the constitutional validity of the Ninety-Third Constitutional Amendment and the Act of 2006 in Ashoka Kumar Thakur v. Union of India30. The Tamil Nadu State legislature enacted the Tamil 28 (2003) 11 SCC 146 29 (2010) 1 SCC 477 H 30 (2007) 4 SCC 361

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Nadu Backward Classes, Scheduled Castes and Scheduled A Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act 1993 providing 69 percent reservation. The enactment permits 50 percent reservation for backward classes and the most backward classes. Therefore, both the State B legislature and the Parliament allow reservation for the OBC category; (ii) Regulation 9(IV) of the PG Medical Education Regulations 2000 and Regulation 5(5) of the UG Medical Education Regulations stipulate reservation for the categories based on the applicable laws prevailing in the States/Union C Territories. Therefore, reservation must be applicable to all seats including the State contributed seats of AIQ; (iii) Merit cannot be measured solely in terms of marks. Merit must be construed in terms of the social value of a member in the medical profession (Pradeep Jain (supra); D

(iv) In UG courses, the States contribute 15 percent seats to the AIQ. Of the 6060 seats in the AIQ contributed by the States, 1636 seats (that is 27 percent) seats ought to have been reserved for the OBC category on the enactment of the Act of 2006. Similarly, 2569 of the 9515 seats contributed by the States to the AIQ in PG courses ought to have been reserved for the OBC category; (v) The Madras High Court in a judgment dated 27 July 2020 (in WP No. 8626 of 2020) had observed that there was no legal or constitutional impediment in extending the benefit of reservation to the OBC category in the AIQ in PG courses. The petitioners have not challenged the judgment of the Madras High Court; (vi) Clause 11 of the information bulletin for the NEET-PG examination states that reservation would be ‘as per the norms of GOI and State prevailing at the time of counselling’. Therefore, the argument of the petitioners that the rules of the game should not be changed in the middle of the game would be applicable only if the reservation was introduced after the counselling had begun; H

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A (vii) The submission of the petitioners that no reservation was provided at the level of SS in view of the judgment of this Court in Dr.Preeti Srivastava (supra) is erroneous since the Act of 2006 only exempts reservations in institutions of excellence, research institutions, and institutions of national and strategic importance specified in the schedule of the B Act, and Minority Educational Institutions as referred to under section 4 of the Act of 2006. Reservation is provided in SS courses in Central educational institutions such as AIIMS and JIPMER; (viii) Central medical institutions such as AIIMS and PGI hold their own examination twice a year for PG courses. There is no demarcation of State Quota and AIQ in these Central institutions. Therefore, the AIQ PG seats are different from PG seats of Central institutions; and (ix) Reservation can be provided either through a legislation or by an executive order such as a notification, order, and memorandum.

16Copy pinpoint16. The arguments of the petitioners are three-fold: (i) Admissions to PG courses must solely be based on open competition; (ii) this Court in Pradeep Jain (supra) and subsequent cases has held that there shall be no reservation in the AIQ seats and that admission to the AIQ seats shall be strictly by open competition; and (iii) as this Court evolved the concept of AIQ seats, any reservation to be introduced in the AIQ seats must only be pursuant to the direction of this Court. D. Analysis F D. 1 The Merit of Reservation

17Copy pinpoint17. On behalf of the petitioners, it was urged that at the level of PG courses, a high degree of skill and expertise is required. Thus, such opportunities must be available to the most meritorious and providing any reservation for PG seats would be detrimental to national interest. G 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 H

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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. Shri KM Munshi (a member of the Drafting Committee) observed that: “What we want to secure by this clause [Article 10] are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State—highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people.” G However, many members also recognized that merit cannot be separated from the function of the existing inequalities in society. They 31 Volume 7, Constituent Assembly of India Debates, 30 November 1948, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948- 11-30 H

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A envisaged that social justice must be read into the promise of equality of opportunity; otherwise the latter merely advances the interests of the privileged. During the debates on draft Article 286, which pertained to the functions of Public Service Commission with regard to appointments to public posts, Dr PS Deshmukh argued that: B “…people’s capacities cannot be measured by mere passing of examinations or obtaining the highest possible marks. But those communities who have had the advantage of English education, because they were prepared to be more servile than the rest, think it is a preserve of theirs, and whenever anybody gets up and speaks on behalf of the millions who have had no chances of education, they consider it as a threat to their monopoly on the part of the rest of the communities and accuse the advocates as communal and communally minded. There is no communalism in this. Neither I nor anybody who speaks on their behalf want any particular community to dominate, where as those who oppose this move are interested only in particular communities. They want to preserve communalism while accusing us of communalism because they have had the advantage of education which they fear will be taken away. They think and urge that merit is or can be tested only by examinations. But so far as the masses of the country are concerned, the millions of our populations who have not had even the chance to get primary school education, they have no place so far as the public services are concerned, so long as the present system lasts.”32 Shri Phool Singh emphatically provided a conception of substantive equality when he stated that merit of candidates cannot be evaluated through an open competition without regard to their social positions. He further highlighted that the meaning of merit should also take into reference the task that is to be carried out. He stated thus: “…Much has been made of merit in this case; but equal merit pre-supposes equal opportunity, and I think it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people

32 Volume 9, Constituent Assembly of India Debates, 23 August 1949, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949- H 08-23

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from the villages to compete with those city people is asking a A man on bicycle to compete with another on a motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged. Mr.Tyagi interrupted Dr. Deshmukh by saying that it is a fight for the illiterates. I think, however sarcastic that remark may be, he was probably right. B Self-Government, means a government by the people, and if the people are illiterate, a few leaders have no right to usurp all the power to themselves. This cry, this bogey of merit and fair-play is being raised by those who are in a[n] advantageous position and who stand to suffer if others also come into the picture.”33 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.

18Copy pinpoint18. On its part, this Court initially subscribed to the binary of merit and reservation. Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality. Articles 15 (4) and 16 (4) were understood to be exceptions to this general principle, advancing the cause of social justice. This Court sought to balance these competing imperatives. 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 MR Balaji v. State of Mysore34, 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 society”.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.36 This Court stated:

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A “32. …Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seat in all technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Article 15(4) can be special provision which exclude the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance to backward communities, has observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years (p. 53).”

19Copy pinpoint19. 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 E deviation from the principle of formal equality.37 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 F certain communities. Justice Subba Rao observed thus: “26. Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the G State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a

37 T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of India H (1968) 1 SCR 721

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practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race —one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution C at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.”

20Copy pinpoint20. The view expressed by Justice Subba Rao was adopted by this Court in State of Kerala v. NM Thomas38, which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing our understanding of reservations. Chief Justice AN Ray writing the judgement of this Court held: “44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum 38 (1976) 2 SCC 310 H

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A necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.” 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. The learned judge made the following observations: “73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes

H 39 Ibid, paragraph 52.

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account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.

74. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and scheduled tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so-called forward communities complain of a compensatory measure made by the Government to ensure the members of Scheduled Castes and scheduled tribes their due share of representation in public services?

75. It is said that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes which according to the decision of this Court would include the power of the State to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give any adventitious aids by legislation or otherwise to the Backward Classes which would derogate from strict numerical equality. If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and scheduled tribes equality of opportunity in the matter of employment, I see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity.” 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 H

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A claims”. 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 B Articles 16 (1) and 16 (4) function to equalise group inequalities albeit in different contexts. The learned judge observed thus: “137. “reservation” based on classification of backward and forward classes, without detriment to administrative standards (as this Court has underscored) is but an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This Court has viewed Article 16(4) as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335 as I have explained, the twin considerations of terrible backwardness of the type harijans endure and maintenance of administrative efficiency must be satisfied.”

21Copy pinpoint21. 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. Justice Fazal Ali made the following observations: “158. It is no doubt true that Article 16(1) provides for equality of opportunity for all citizens in the services under the State. It is, however, well-settled that the doctrine contained in Article 16 is a hard and reeling reality, a concrete and constructive concept and not a rigid rule or an empty formula. It is also equally well-settled by several authorities of this Court that Article 16 is merely an incident of Article 14, Article 14 being the genus is of universal

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application whereas Article 16 is the species and seeks to obtain equality of opportunity in the services under the State. The theory of reasonable classification is implicit and inherent in the concept of equality for there can hardly be any country where all the citizens would be equal in all respects. Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same. It has never been disputed in judicial pronouncements by this Court as also of the various High Courts that Article 14 permits reasonable classification. But what Article 14 or Article 16 forbid is hostile discrimination and not reasonable classification. In other words, the idea of classification is implicit in the concept of equality because equality means equality to all and not merely to the advanced and educated sections of the society. It follows, therefore, that in order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved. Could we, while conferring benefits on the stronger and the more/advanced sections of the society, ignore the more backward classes merely because they cannot come up to the fixed standards? Such a course, in my opinion, would lead to denial of opportunity to the backward classes resulting in complete annihilation of the concept of equality contained in Articles 14 and 16. The only manner in which the objective of equality as contemplated by the founding fathers of our Constitution and as enshrined in Articles 14 and 16 can be achieved is to boost up the backward classes by giving them concessions, relaxations, facilities, removing handicaps, and making suitable reservations so that the weaker sections of the people may compete with the more advanced and in due course of time all may become equals and backwardness is banished for ever. This can happen only when we achieve complete economic and social freedom. In our vast country where we have diverse races and classes of people, some of whom are drowned in the sea of ignorance and illiteracy, the concept of equality assumes very important proportions. There H

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A are a number of areas in some States like Kashmir, Sikkim, hilly areas of U.P., Bihar and the South, where due to lack of communications or transport, absence of proper educational facilities or because of old customs and conventions and other environmental reasons, the people are both socially and educationally backward. Could we say that the citizens hailing from these areas should continue to remain backward merely because they fall short of certain artificial standards fixed by various institutions? The answer must be in the negative. The directive principles enshrined in our Constitution contain a clear mandate to achieve equality and social justice. Without going into the vexed question as to whether or not the directive principles contained in Part IV override the fundamental rights in Part III there appears to be a complete unanimity of judicial opinion of this Court that the directive principles and the fundamental rights should be construed in harmony with each other and every attempt should be made by the Court, to resolve any apparent inconsistency. D The directive principles contained in Part IV constitute the stairs to climb the high edifice of a socialistic State and the fundamental rights are the means through which one can reach the top of the edifice. I am fortified in my view by several decisions of this Court to which I will refer briefly.”

22Copy pinpoint22. 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). Articles 16 (4), 15 (4), and 15 (5) employ group identification as a method through which substantive equality can be F achieved. This may lead to an incongruity where individual members of an identified group may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. However, this does not change the underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. G Reservation is one of the measures that is employed to overcome these barriers. 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.

23Copy pinpoint23. The view that special provisions made for a backward class H are not an exception to the principle of equality was re-affirmed by a

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nine-Judge Bench in Indira Sawhney v. Union of India40. These A observations were made in the context of Articles 16 (1) and 16(4). In Dr Jaishri Laxmanrao Patil v. Chief Minister 41, this Court has observed that the principles applied for interpreting Article 16 are also to be used for the interpretation of Article 15. Thus, Articles 15 (4) and Article 15 (5) are nothing but a restatement of the guarantee of the right to equality stipulated in Article 15 (1).

24Copy pinpoint24. The crux of the above discussion is that the binary of merit and reservation has now become superfluous once this Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1) and 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. 42 The E 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 F skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities.43 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 G 40 1992 Supp (3) SCC 217 41 (2021) 8 SCC 1 42 K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in Kerala, India, Journal for Critical Education Policy Studies, Vol 17, p.50-81 (2019). 43 Ibid H

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