'Marks not proof of proficiency'

While the Supreme Court looks like it is now going to throw open most issues relating to reservations, whether for SC/STs or OBCs, under its review of the Ninth Schedule of the Constitution, it’s important to keep in mind that the country’s courts have been as responsible for where we are today, not just the politicians, whose role in the matter has been thoroughly exposed anyway—my previous column gives some instances of the Constitution being amended each time the courts gave a judgement the government didn’t like. So, while it begins hearings today on the Ninth Schedule that allows legislators to keep certain bits of legislation such as on land acquisition and even reservations away from judicial scrutiny, the Court would do well to keep in mind the strange judgements given by fellow judges as well—anyone interested in more details than this column can possibly summarise should read Arun Shourie’s Falling Over Backwards.

In MR Balaji versus the State of Mysore, in 1963, the Supreme Court said all reservations in educational institutions should be capped at 50 per cent, but “how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case.” Over time, this 50 per cent became the norm for reservation in even existing government jobs, not just for fresh recruitments. In 1976, in NM Thomas versus the State of Kerala, the Court even justified relaxation of standards—while Justice VR Krishna Iyer said that only clerical posts were being considered anyway, Justice KK Mathew said that standards should not lead to “exclusion on grounds other than those appropriate” for the posts in question. We’re on the slippery slope already, and politicians haven’t even got into the act.

Other judges have taken this forward by saying the 50 per cent number was either not binding or was arbitrary since it was not based on any scientific data which showed higher reservation levels would hurt efficiency; others said the length of the leap (the amount of reservation) depended upon the gap that had to be covered; and some scoffed that the furore over reservations in government jobs would make one think “the civil service is a Heavenly Paradise into which … the very best may enter”. All of this, presumably, should have been put to rest in Indra Sawhney versus Union of India in 1992, given this was a nine-member bench.

Yet, in 1995, in RK Sabharwal versus State of Punjab, the question before the Court was whether those SC/STs who had got into government jobs or had been promoted on their own merit were to be counted in the quota. The Court said they were not, that is, the quota existed only for those candidates who could not make it on their own merit!

In 1994, to carry on with this tale of the role of the courts, in Ajay Kumar Singh versus the State of Bihar, the Court was asked to rule on reservations at higher levels of education, something in which the Indra Sawhney ruling clearly said was not to be allowed. So, in this case, the Court said “(in Indra Sawhney), the Court was speaking of posts in research and development organizations, in specialities and super-specialities in medicines, engineering and other such courses. The Court was not speaking of admission to specialities and super-specialities. Moreover, M.S. or M.D. are not super-specialities.”

A similar issue came up in 1997 in Post-Graduate Institute of Medical Education and Research versus KL Narasimhan. The Court was even more sophisticated in its argument this time. In Ajay Kumar Singh, it was argued that neither MS nor MD were super-specialities. In this case, the Court said that even if a reserved category candidate was applying for a super-speciality and the qualifying marks were lowered (from, let’s say, 80 per cent in the general category to 70 per cent for the reserved category), it didn’t really matter since the reserved category doctor had passed the same graduate or post-graduate exam anyway. In case the import of the judgement is not clear, here’s a quote which should clarify things: “Securing marks is not the sure proof of higher proficiency, efficiency or excellence … In that behalf, it is common knowledge that marks would be secured in diverse modes … They are awarded in internal examination on the basis of caste, creed, colour, religion, etc.” And no one’s protested at this sweeping condemnation of the county’s top educational institutions.

The three-member bench that decided on this case then went on to enunciate the larger principle of reservations. “It is the constitutional imperative of the executive to provide opportunities and facilities to the handicapped to acquire the degree in specialities, super-specialities or technical posts. Denial thereof is a total denial of rights to enjoy equality. It is well-settled legal position that fundamental rights are to be interpreted broadly to enable the citizens to enjoy the rights enshrined in Parts III and IV of the Constitution.” The move to allow reservations in specialised courses, which was proscribed in Indra Sawhney, was partially allowed in Ajay Kumar Singh and fully legalised in Post-Graduate Institute of Medical Education and Research.

So where does this leave us if the courts are as much liable to make mistakes? Ironically, back with the courts since, as former RBI Governor and Rajya Sabha MP Bimal Jalan pointed out in his third Nani Palkhiwala memorial lecture earlier this year, court judgements are always subject to review while this is not the case with legislation—when they’re tucked away under the Ninth Schedule, it gets even more difficult. Since, in all such cases, it is usually argued that Parliament represents the will of the people while the courts don’t, Jalan ended with a lovely Palkhiwala quote which asked if the Emergency that was approved by Parliament also represented the will of the people!