Opinion | The new Supreme Court definition of merit is confusing

The apex court also seems to apply very different standards when it comes to its own case

The Supreme Court has upheld the validity of a Karnataka law that grants reservation in promotions to Scheduled Caste and Scheduled Tribe (SC/ST) government employees. The verdict will be debated among legal experts on various grounds, but what drew my interest was how the 135-page judgement defined “merit".

The judges assert that it is wrong to equate “merit" with “candidates who perform better than other candidates on seemingly ‘neutral’ criteria, e.g. standardised examinations…. This is a distorted understanding of the function ‘merit’ plays in society." They go on to say: “’Merit’…must flow from the actions a society seeks to reward, including the promotion of equality in society." And finally: “A ‘meritorious’ candidate is not merely one who is ‘talented’ or ‘successful’ but also one whose appointment fulfills the constitutional goals of uplifting members of the SCs and STs."

This, I must confess, has rather stumped me. One, are the judges saying that someone who topped the AIIMS entrance exams is not meritorious unless he serves in a lepers’ colony? Two, should we scrap standardised exams altogether, and instead award degrees—including in law—only to people who have worked with Dalits? Three, are the judges stating (see last quote above) that non-SC/ST candidates have to earn their ‘merit’ by working for the upliftment of SC/STs (winning the Fields Medal or deciphering an ancient script does not count), but being born SC/ST by itself is somewhat ‘meritorious’?

The judges quote from Amartya Sen’s essay “Merit and Justice" (2000) to bolster their argument: “Even though the typical ‘objective functions’ that are implicitly invoked in most countries to define and assess what is to count as merit tend to be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that ad hoc characterisation.…If, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen — or to generate — economic inequality."

What is, however, fascinating, is the role that “merit" and “inequalities" may have played in Sen’s own early career. He topped his school board and university, an insufficient condition for merit according to the judges and Sen in India — an unequal society. But, by any definition we’ve ever known, Sen is one of the country’s most meritorious and brilliant men. Yet, when he was appointed Head of the Economics Department at Jadavpur University at the age of 23, even before receiving his PhD from Cambridge University, and with no teaching experience, was it only for his exceptional merit, or did his extremely distinguished family background — a “more-equal" status — also count? One will never know.

Last month, at the Tata Institute of Social Sciences, Hyderabad, a student group, the Intersectional Feminist Collective, wrote a letter, “Against Merit", posted on Facebook, condemning the institute’s practice of “awarding ‘Gold Medal’, ‘Silver Medal’, ‘Best Student’, and ‘Best Dissertation Award’". It argued that “to assess a student solely based on their grades institutionalises the idea of merit while invisibilising one’s caste, class, gender, and ableist privileges that enable these achievements….These awards uphold the concept of merit and are against the ideals of justice and equality."

This Facebook post circulated in a WhatsApp group of IITians I am part of (yes, by some people's definition, a group of “ableists"; though it includes SC/STs, a fact (which strikes me as I am writing this line) that no group member of any caste has ever thought about), and a friend (a Brahmin male) wrote: “I would love to be govt registered coolie at a railway station and get same fees for full 25 kg luggage but I can only carry ladies purses, for my body is not privileged like the hard work done for generations. And of course if you call me weak, I will get you in jail for humiliating me."

And finally, there is no reservation for SCs, STs or OBCs for judges’ posts in the Supreme Court and high courts in India. Currently, there is not a single SC/ST judge in the Supreme Court. The idea of an All India Judicial Service, which would obviously have reservations, has always been strongly opposed by the higher judiciary.

In November 1998, the then-President of India, K.R. Narayanan, noted on a file seeking his assent for the appointment of four Supreme Court judges: “It would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs…are given due consideration. Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable."

The then-Chief Justice A.S. Anand responded: “I would like to assert that merit alone has been the criterion for selection of Judges… All eligible candidates, including those belonging to the Scheduled Castes and Tribes, are considered while recommending names for appointment as Supreme Court Judges." Ah, that word again, merit. But so many different meanings — sometimes to the same cohort of people.

Sandipan Deb is former editor of ‘Financial Express’ and founder-editor of ‘Open’ and ‘Swarajya’ magazines