Of Merit and Supreme Court: A Tale of Imagined Superiority and Artificial Thresholds

Abdullah Nasir (abdullahnasir_01@yahoo.com) is an Assistant Professor at Dr. Ram Manohar Lohiya-NLU Priya Anuragini (priyaanuragini2902@gmail.com) is an Assistant Professor at Dr. Ram Manohar Lohiya-NLU
15 March 2023

In his thought-provoking work, the Tyranny of Merit, Michael Sandel raises a fundamental question—would a perfect meritocracy be just? Sandel answers in the negative based on the following reasoning—the meritocratic ideal does not remedy inequality rather justifies it. But inequality, even of the type that results because of merit, is not justified for it “ignores the moral arbitrariness of talent and inflates the moral significance of effort.” Though Sandel has challenged the utility of merit powerfully, he is not the first one to do so. The utility of merit as an ideal in achieving an equal society has been questioned since much earlier. Interestingly however in the Indian constitutional jurisprudence on reservation, merit has been consistently invoked and treated as an inviolate ideal. The Supreme Court has rarely, if ever, questioned the idea of merit itself and its utility for the Indian society. Even the Court’s most transformative pronouncements on reservation have remained limited to either broadening the rigid understanding of merit or remedying social and institutional inequality by enhancing the scope of doctrine of equality of opportunity so that meritocratic ideal may be truly achieved. However, this approach of the Court has ensured that importance of the idea of merit remains intact. The article argues that the emphasis of the Supreme Court on merit is responsible for the situation where reservation is evaluated through a meritocratic lens leading to a dilution of the empowering nature of reservation.

The usual complaint when it comes to meritocracy, according to Sandel, is not with merit as an ideal rather the failure of the society to live up to that ideal. While a perfect meritocracy, which has not been rigged by the powerful to perpetuate their privilege, would in itself be almost impossible to achieve for myriad reasons including the institution of family, but assuming it is achieved somehow, would it lead to a just society? Sandel answers in the negative based on the following reasoning—the meritocratic ideal does not remedy inequality rather justifies it. But inequality, even of the type that results because of merit is not justified for it “ignores the moral arbitrariness of talent and inflates the moral significance of effort” (Sandel 2020: 125). 

Though Sandel has critiqued merit powerfully, he is not the first one to do so. Way back in 1958, sociologist Michael Young had coined the term “meritocracy” in the book, The Rise of Meritocracy: 1870-2033. Written from the perspective of a historian who was attempting to find causes for the populist movement that shook the British Society in 2033, Young had described a future society where the ruling class’s title to power emanated not from blood or wealth but from “IQ + Effort = Merit” and democracy was “not aristocracy of birth or plutocracy of wealth rather a true meritocracy of talent” (Young 1958: 21). However, this future society was not a utopia rather a dystopia where the gap between the classes was wider and the elites of the system “were as impressed with their own importance as to lose sympathy with the people they govern,” leading eventually to a populist backlash in 2033 (Young 1958: 107). Explaining the production of inequality in meritocracy, Young wrote

“What the anti-Pioneers did not realize was that the gradual shift from inheritance to merit as the ground of social selection was making (and has finally made) nonsense of all their loose talk of the equality of man. Men, after all, are notable not for the equality, but for the inequality, of their endowment. Once all the geniuses are amongst the elite, and all the morons amongst the workers, what meaning can equality have? What ideal can be upheld except the principle of equal status for equal intelligence? What is the purpose of abolishing inequalities in nurture except to reveal and make more pronounced the inescapable inequalities of Nature?” (Young 1958: 115).

The utility of merit, as an ideal, in achieving equality has been questioned before and is being questioned in the present. ​However, in the Indian constitutional jurisprudence on reservation, merit has been consistently invoked and been treated as an inviolate ideal (Bhaskar: 2021). This article argues that the Indian Supreme Court’s stance on merit has been consistently reverential and the utility of the ideal has, seldom if ever, been questioned. Even the Court’s most transformative pronouncements on reservation have been limited to remedying social and institutional inequality by enhancing the scope of doctrine of equality of opportunity (Bhatia 2019). This emphasis of the Supreme Court has led to a situation where reservations are assumed to be diluting merit or efficiency and therefore required to be limited. And this had led to dilution of the empowering nature of reservation in at least three separate ways according to the article.

Merit and Supreme Court

The Indian Supreme Court’s invocation of merit began in the very first judgement that it pronounced on reservation. In State of Madras v Champakam Dorairajan (1951), the Supreme Court was concerned that the petitioner was denied admission despite securing high marks.  In many of the judgements after that, the court equated merit or efficiency with marks secured in an entrance or selection test. And the state was mandated to always consider risk involved in sacrificing efficiency of administration when making reservation (para 29, The General Manager, Southern Railway v Rangachari,1962). This understanding of merit was expanded in K.C. Vasanth Kumar and Others v State of Karnataka (1985), when the Supreme Court acknowledged that “the mere securing of high marks at an examination may not necessarily mark out a good administrator” (para 36). Even the sanctity of the system that relied on such narrow understanding of merit was questioned:

“The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated And, what is merit? There is no merit in a system which brings about such consequences.” (para 35)

However, merit as an ideal was not held directly responsible rather it was recognised that the stark inequality in opportunities necessitated a certain degree of flexibility in determining merit in case of reserved category. Thus, the court observed:

“Is not a child of the Scheduled Castes, Scheduled Tribes or other backward classes…who has no books and magazines to read at home, no radio to listen, no T.V. to watch,…whose parents are either illiterate…has not this child got merit if he, with all his disadvantages is able to secure the qualifying 40% or 50% of the marks at a competitive examination where the children of the upper-classes who have all the advantages,…may secure 70, 80 or even 90% of the marks? Surely, a child who has been able to jump so many hurdles may be expected to do better and better as he progresses in life. If spring flower he cannot be, autumn flower he may be. Why than, should he be stopped at the threshold on an alleged meritarian principle”? (para 35)

However, the flexibility was limited, for eventually the court observed:

“We do not, therefore, mean to say that efficiency is to be altogether discounted. All that we mean to say is that it cannot be permitted to be used as a camouflage to let that upper classes take advantage of the backward classes in its name and to monopolise the services, particularly the higher posts and the professional institutions.” (para 36)

Similarly in State of Kerala v N M Thomas (1976), it was stated that “if members of Scheduled Castes and Tribes…can maintain minimum necessary requirement of administrative efficiency not only reservation but preference may be given to them to enforce equality.”

This judgment has been appreciated for putting forth a transformative vision of equality that required the state to adopt proportional equality that would recognise the differing conditions and circumstances of a class of citizens whenever those circumstances stood in the way of their equal access to the enjoyment of basic rights (para 98). However, while the judgment recognises the limitation of formal reading of equality of opportunity, the remedy provided is broadening the understanding of equality of opportunity so that it is effective material equality. Accordingly, it laid down that reservations for ensuring representations can be regarded as a way of achieving equality of opportunity (para 103). However, the underlying question remained—to what extent reservation can be provided to ensure effective equality of opportunity. As the court does not question merit or efficiency, its answer is “that state’s measure should not dispense with the minimum basic qualification necessary for the efficiency of administration” (para 104).

In recent times, the judgement in B K Pavithra v Union of India (2019) has been celebrated “for destroying the merit argument” (Bhaskar 2019). The judgement does question equating merit with performance in standardised exams (para 122). It also questions the assumption that reservations necessarily impair administrative efficiency and mandates an inclusive definition of efficiency “where diverse segments of society find representation” (para 119). However, the judgement does not question merit per se but rather seeks a meritocracy “that rewards actions that result in the outcomes that we as a society value” (para 124). The problem with this approach is that while society may be said to value inclusive government, representation of Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes 9OBCs) in government employment in one case, in the another it may be said to value exclusion of certain institutions from the ambit of reservation so that “standards of excellence are not affected” (Ashok Kumar Thakur v Union of India 2008). Further, the judgement implicitly assumes that a perfect meritocracy, that is, meritocracy where there are no barriers in accessing economic, social, and cultural resources, would be just and not perpetuate inequality (para 127). However, as Sandel has explained, even a perfect meritocracy resulting only due to difference in intrinsic ability and hard work also perpetuates inequality

Reinforcing Merit

The Supreme Court’s reverence towards merit finds expression in three of the major principles that it has constantly reiterated in regards to reservations.

First is the establishment of an equivalence between the Articles 15(4) and 16(4) on the question of merit. Reservation under Article 16(4) is confined to services under the state and as per the Supreme Court limited by Article 335’s mandate of “maintenance of efficiency of administration” (Singh 2017: 1003). However, while the court’s reading of efficiency as a limitation on the power of the states to provide reservation to SCs, STs, and OBCs (though OBCs are not mentioned in Article 335, the limitation is also applied to them) is justified by resorting to the constitutional basis, there is no such constitutional basis for reading the limitation of merit in Article 15(4) of the Constitution. Added after the Supreme Court judgements in Champakam Dorairajan and Venkataraman, the inclusion of Article 15(4) was made by the provisional parliament (the body that succeeded and had broadly the same composition as the constituent assembly). During the debates on the article, B R Ambedkar had termed the judgements of the Supreme Court as “utterly unsatisfactory” and “not in consonance with the articles of the Constitution.”[1] However, there is no reference to merit within those debates as a limiting factor on the grant of reservations rather the importance of the amendment was emphasized for “achieving social and economic equality without which legal equality would be useless.”[2]

Unlike Articles 15(5) and 16(4), which are confined to reservation in educational institutions and public services, respectively, reservation under Article 15(4) can be extended to any matter. And only reservation pertaining to public services made under Article 15(4) comes within the scope of Article 335. However, merit is invoked by the Supreme Court not only in the case of public services but also in matters of admissions to educational institutions.

Second, the preservation of merit has also been used to justify the limitation on the quantum of reservations. Thus, in M R Balaji and Others v State of Mysore (1963), known for laying down the 50 percent limit on the quantum of reservation, the Supreme Court couched its reasoning in the following words:

“But it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society…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 seats in all Technical, Medical or Engineering colleges or institutions of that kind.”

Thus, from Indra Sawhney v Union of India (1993) to the recently delivered judgement in the Maratha Quota case (Dr Jaishri Laxmanrao Patil v The Chief Minister 2021), the Supreme Court has constantly reiterated that “normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%.”

Third, the Supreme Court has constantly upheld keeping what are referred to as “institutions of excellence” outside the ambit of reservation. Thus, in the Indra Sawhney case, the apex court stated,

“We are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organizations/departments/institutions, in specialties and super specialties in medicine, Engineering and other such courses in physical sciences and mathematics in defense services and in the establishment connected therewith. Similarly, in the case of posts at the higher echelons example Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in Nuclear and Space application, provision for reservation would not be advisable.” (para 838)

In Ashok Kumar Thakur v Union of India (2008), the Central Educational Institutions (Reservation in Admissions) Act, 2006—that extended reservation to admissions for students belonging to the SC, ST, and OBC communities, to certain Central Educational Institutions established, maintained, or aided by the Central Government, was challenged.  The act excluded the “institutions of excellence, research institutions, institutions of national and strategic importance” specified in its schedule from its purview. The apex court not only agreed with the exclusion but also added that “more such institutions can be added in the schedule” (para 334).

Further, the Court emphasised that the philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation are part of the constitutional creed. It is therefore the best and most meritorious students that must be selected for admission to technical institutions and medical colleges (para 355).

Casteist Nature of Merit

In the book The Caste of Merit: Engineering Education in India, Ajantha Subramanian explains the role of Indian Institutes of Technology in transforming caste privilege into merit. She writes that “though in first glance, the terms caste and merit appear antithetical, the institutional spaces most identified as meritocratic continue to be overwhelmingly upper caste in composition” (Subramanian 2019: 2). This remains true of the Supreme Court itself, which does not permit reservation, and a typical Supreme Court judge had once been described as “…the product of a socially prestigious and economically advantaged family, was a Hindu (most often a Brahmin), and was educated at one of the better Indian Universities or in England” (Gadbois 1968: 317-36).

Subramanian explains in the book that the Supreme Court’s stance on merit also displays its “assumption about the innate meritousness of the nonreserved” (Subramanian 2019: 217). Thus, the general category candidates are often referred to as merit candidates and lowering of merit or efficiency is assumed in the case of reservation, and accordingly, in every major Supreme Court pronouncement on reservation, the impact on merit is an issue. Subramanian aptly points out,

“For the judiciary, the upper caste subject remained an ideal citizen defined more by merit than by caste history…It was only the reserved who came to be marked by history and identity, while the nonreserved stood in simply for casteless, ahistorical excellence.” (Subramanian 2019: 217)

For instance, in Champakam Dorairajan, petitioner was seen only as an individual with merit reflected by high marks who was denied admission due to reservation and not a Brahmin with accumulated privilege. Thus, while the eligibility of “lower caste for reservation is defined in terms of collective history of disadvantage,” “the upper castes are seen as casteless moderns who are classified as individual citizen defined by merit alone” (Subramanian 2019: 20).

The idea of merit is casteist and completely unnecessary as it has no utility in creating a more equal world and enhancing the greater common good. It is time that the Apex Court recognised the political and moral objections to merit as an ideal and stopped using it as a limiting principle in the reservation debate. After all, “the hope for meritocracy as the transcendence of identity is a profoundly ahistorical aspiration that works against the redressal of inequality” (Subramanian 2019: 5).

 
Abdullah Nasir (abdullahnasir_01@yahoo.com) is an Assistant Professor at Dr. Ram Manohar Lohiya-NLU Priya Anuragini (priyaanuragini2902@gmail.com) is an Assistant Professor at Dr. Ram Manohar Lohiya-NLU
15 March 2023