Judgments cited on changing ‘rules of game midway’ referred to changes in selection criteria or procedure for selection. Those cases are distinguishable from case before us.
An examination can only reflect current competence of an individual but not gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character.
We need to reconceptualize meaning of – ‘merit’. As noted, scores in an exam are not sole determinant of excellence or capability. High scores in an examination are not a proxy for merit. We must look at distributive consequences of merit. Accordingly, how we assess merit should also encapsulate if it mitigates or entrenches inequalities. In such a context, reservation is not at odds with merit but furthers its distributive consequences.
Chief Justice A.N. Ray, writing State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, held,
Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to constitutionally permissible object. Preferential representation for Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognized by our Constitution. Therefore, differential treatment in standards of selection are within concept of equality.
Majority of Judges accepted, special provisions (including reservation) made for benefit of any class are not an exception to general principle of equality. Special provisions are a method to ameliorate structural inequalities, without which, true or factual equality will remain illusory.
It is important to clarify, after N.M. Thomas there is no constitutional basis to subscribe to binary of merit and reservation. If open examinations present equality of opportunity to candidates to compete, reservations ensure opportunities are distributed in such a way, Backward Classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is only manner in which merit can be a democratizing force equalising inherited disadvantages and privileges.
– Hon’ble Justice Dr. D.Y. Chandrachud, Neil Aurelio Nunes v. Union of India, [Writ Petition (Civil) No. 961 of 2021].