SC Dismisses Challenge To 27% OBC Reservation In AIQ Seats In Medical & Dental Courses
A two-judge Bench of the Supreme Court comprising Justice Dr. Justice Dhananjaya Y Chandrachud and Justice A S Bopanna has held that the privileges that accrue to forward classes are not limited to having access to quality schooling but also includes their social networks.
This cultural capital, according to the Court, ensures that a child is trained to take up higher education and this works to the disadvantage of individuals who are first-generation learners. The Court noted that the binary of merit and reservations was superfluous as our Constitution recognized the principle of substantive equality and not formal equality.
Mr. Shyam Divan, Senior Advocate appeared on behalf of the petitioners while Mr. Tushar Mehta, Solicitor General, and Mr. KM Nataraj, Additional Solicitor General made submissions on behalf of the Union of India.
The writ petitions before the Apex Court challenged the reservation for OBC and EWS in the All India Quota (AIQ) in the National Eligibility Cum Entrance Test Examination (NEET) for UG and PG medical courses.
The Directorate General of Health Services (DGHS) had issued a notice providing 27% OBC (non-creamy layer) and 10% EWS reservation in 15% UG and 50% PG seats in AIQ from the academic year (AY) 2021-2022.
By an order dated 07.01.2022, the Court had upheld the constitutional validity of the OBC reservation in AIQ seats while the EWS challenge was posted in March 2022. The instant judgment dated 20.01.2022 provided reasons for upholding the constitutionality of OBC reservation in AIQ seats.
The scheme of AIQ seats was devised by the Court in Dr. Pradeep Jain v. Union of India, 1984) 3 SCC 654 to provide domicile free seats in State run medical and dental institutions which was further developed by other judgments.
The Court noted that Constitution (93rd Amendment) Act 2005 amended Article 15 of the Constitution and Clause 5 was inserted empowering the State to make special provisions for the advancement of socially and educationally backward classes relating to their admission in educational institutions.
The Court noted that in Abhay Nath vs. University of Delhi, (2009) 17 SCC 705 it was held that reservations for SC and ST candidates are permissible in the AIQ seats. The reservation for OBCs was not extended to State contributed seats for AIQ in State-run-institutions.
In a writ before the Madras High Court, the High Court held that there were no legal or constitutional impediments in extending reservation to OBCs in the AIQ seats in the medical colleges in Tamil Nadu.
The High Court directed the Union Government to constitute an Expert Committee for 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 2020-2021. An expert committee was constituted which inter alia recommended that State-specific reservations can be implemented for OBCs in AIQ seats.
Analysis of the Court
The Court noted that in the arguments advanced by the petitioners, a binary was sought to be created between merit and reservation where reservation becomes antithetical to establishing meritocracy. The Court noted that this was not a novel argument.
After analyzing the Constituent Assembly Debates, the Court noted that the debate on the conceptualization of reservation as an exception to the principle of merit has relevance in regard to admission to educational institutions.
The Court noted various judicial authorities that transformed the equality jurisprudence in India from that of formal equality to substantive equality thus, changing the understanding of reservations.
The Court noted that the view that special provisions made for a backward class are not an exception to the principle of equality was re-affirmed by a nine-Judge Bench in Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217. The Court made the following crucial observations:
"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."
The Court noted that apparently neutral systems of examination perpetuate social inequalities. It was noted that Article 15(5) did not make a distinction between UG and PG courses and hence the issue of whether reservation can be permitted in PG courses would not arise.
The Court carved out the following questions for its consideration:
(i) Whether this Court in Pradeep Jain (supra) held that the AIQ seats that were to be filled by an open all- India examination should be free of reservation for the socially and educationally backward classes, and SC and ST as enabled by Article 15(4); and (ii) whether reservation in the AIQ can be provided only pursuant to a direction of this Court.
The Court noted that the observation of this Court that AIQ seats must be filled purely on the basis of merit, cannot be interpreted to mean that there shall be no reservations in the AIQ seats.
The Court then proceeded to analyze the issue concerning the power of the executive to introduce reservations in AIQ seats. It was contended on behalf of the petitioners that an application should have been filed by the Government before the Apex Court before notifying reservations in AIQ since the AIQ scheme is a creation of this Court.
The Court noted that UOI has the power to provide reservations for OBCs in the AIQ seats in view of Article 15(5). The Court noted that "it is not tenable for the States to provide reservation in the AIQ seats since these seats have been 'surrendered' to the Centre.
The Court noted that the impugned notice providing reservation for the OBC and EWS categories in the AIQ seats was issued after the registration had closed but before the exam was conducted, and thus, it would not amount to altering the rules of the game.
The Court, accordingly, held that reservation for OBC candidates in AIQ seats for UG and PG medical and dental courses is constitutionally valid.
WRIT PETITIONS CHALLENGING RESERVATION FOR OBC AND EWS IN AIQ IN NEET (PG) EXAMINATION
The Court dealt with these writ petitions separately. Mr. Arvind Datar, Senior Advocate appeared for the petitioners while Mr. Anand Grover, Senior Advocate appeared for the intervenors. Mr. Tushar Mehta, SG, and Mr. KM Natraj, ASG appeared for the UOI.
The Court, on the issue concerning OBC reservation, relied on the judgment discussed above.
On the issue concerning EWS reservation, the Court made the following observations:
"The argument of the petitioners on the validity of EWS reservation was not limited to the permissibility of reservation in the AIQ seats. Rather, the petitioners challenged the very criteria for the determination of the EWS, which would not only require us to hear the matter at length but would also entail us to hear all interested parties. However, in view of the delay in the counselling process due to the pendency of this petition, we deem it necessary to allow the counselling session to begin with the existing criteria for the identification of the EWS category. Judicial propriety would not permit us to pass an interim order staying the criteria for determination of the EWS category. It is a settled principle of law that in matters involving challenge to the constitutionality of a legislation or a rule, the Court must be wary to pass an interim order, unless the Court is convinced that the rules are prima facie arbitrary."
The Court noted that it would not be possible for it to make a prima facie view at this stage and any judicial intervention would have delayed the admission process. The Court proceeded to list the EWS matters for final hearing in the third week of March 2022.