As Supreme Court is set to pronounce order in NEET-PG case, a recap of arguments during the hearing

THE Supreme Court, on Thursday, concluded its hearing in the National Eligibility cum Entrance Test (Postgraduate) (PG-NEET) counselling case, as the petitioners contended that the Rs. 8 lakh income limit for identifying beneficiaries of the quota meant for Economically Weaker Sections (EWS) has no factual basis. The case of Neil Aurelio Nunes vs. Union of India, was heard by a two-judge bench comprising Justices D.Y. Chandrachud and A.S. Bopanna on Wednesday and Thursday.

The judgment is to be delivered on Friday.

Petitioners’ contentions

On Thursday, senior advocate Shyam Divan, on behalf of petitioner, Madhura Kavishwar, argued that the Union Government ought not to have allowed any reservation in the 50% meritorious seats saved for the All India Quota. He argued that the notices introducing the said quota are unconstitutional in as much as they tend to exclude from the admission process, candidates applying on merit on the basis of open competition. He relied upon the decision of the Supreme Court in Dr Pradeep Jain v. Union of India (1984), in which a three-judge bench devised the 50 per cent All India Quota as a method to provide for admission in PG medical courses solely on the basis of merit. It declared wholesale reservation on the basis of domicile and institutional preference in medical admissions to be unconstitutional and void, being violative of Article 14 of the Constitution

“The implementation and reiteration of reservation of 50% seats in the All India Quota for PG medical courses on the basis of merit has created a valuable right in favour of the Petitioners/open category candidates aspiring for seats in the All India Quota. Any departure from this 50% limit will impede upon the Petitioners right to equal opportunity enshrined under Article 14 of the Constitution”, he argued. Divan added that an executive order could not nullify the decision of the Supreme Court.

Divan also argued that the rule of the game could not be changed belatedly. He said that the notice under challenge is wholly unfair to aspirants of seats in the open category who have put together resources and prepared for entrance exams to the PG medical courses on the basis of the law that existed at the beginning of the admissions process. He argued that the notice introducing the quota was published five months from the start of the admission process, changing the rules of the game long after it had begun. It has completely altered the criteria of admission by taking away 2,500 seats meant for the open category.

Besides, he argued that excessive reservation in medical colleges compromises the standards of education and available healthcare.

Appearing for the petitioners who are NEET-PG aspirants on Thursday, senior advocate Arvind Datar, assisted by Advocate-on-Record Dr Charu Mathur, attacked the very criteria laid down to determine the EWS. He argued that no study was conducted by the government for determining the class of citizens who should only be eligible for the benefit of EWS. He submitted that the annual income limit of Rs. 8 lakhs per annum for the EWS category is manifestly arbitrary and unconstitutional as the decision to include people with income limit of Rs. 8 lakhs per annum is done without any basis whatsoever.

“There is no standard or basis of what constitutes “economic weakness. The figure adopted for determining creamy layer of BC/OBC/MBC cannot be applied mechanically for determining persons who are in the EWS category”, Datar argued. He further argued that the uniform figure of Rs. 8 lakhs as the benchmark for determining EWS category on an all-India basis also violates Article 14 as it results in “treating unequals equally.”
Also read: Data suggests that EWS reservation scheme is unsubstantiated and baseless

In a nutshell, Datar submitted that the EWS reservation takes overall reservation beyond 50 per cent, which has been held by the Supreme Court as impermissible; the current scheme of EWS reservation would only benefit affluent income-tax payers of the country; the benchmark of Rs. 8 lakhs would result in the denial of social justice to the genuinely weaker sections of the forward community; in the Mandal Commission report as well, indicia were relevant for determining the economic status of a particular caste. Even if this indicia are applied, the figure of Rs. 8 lakhs would be too high. Finally, the provisions of Article 15(6) require a notification. This would require primary legislation and the rules under that will have to be framed. This was done in the case of backward classes where there was a central statute and different state statutes.

Datar also attacked the findings of the Committee constituted by the union government. He said the Committee did not consult any state government/Union Territory administrations while framing its report.

Referring to clause of the report, Datar said that the said clause mentions “a view elicited by the Commission from its visits to States/UT’s was that below poverty line (BPL) should be the basic criteria for identification of EBCs among GC”. However, the BPL category does not find any mention in the Report. Referring to another clause of the report, he argued that it mentions the view of the Sinho Commission report of 2010 that “the income limit will include the combined income of husband and wife and will exclude the income of their parents and adult children.” However, this is not followed in the definition of family income in its report, he told the bench.

In addition, it is the case of petitioners that in view of the numerous decisions of the Supreme Court, including Dr Pradeep Jain, there are serious concerns about the reservation/quota at the PG level. It is submitted that at least at the PG level, the Backward Class (BC) category should not be permitted to take the seats in the Open Category (OC)/Forward Caste (FC) category. Once the candidate is qualified as a doctor, he cannot then be treated as socially and educationally backward and at that stage, his caste becomes irrelevant

Appearing for one of the intervenors, senior advocate Anand Grover argued that the Explanation to Article 15 talks of EWS to be determined on the basis of “family income and other indicators of economic disadvantage.” Thus, it is not only family income, but other factors that have to be looked into. Besides, he argued that in the report submitted by the union government, the relevant factors were not looked into. He added that the concept of EWS has to be perceived in relation to the prevailing levels of poverty that have in fact been increasing in the past few years even before the pandemic.

“If the priority is to enhance inclusiveness, as it is and should be, the solution therefore has to focus primarily on the poorest of the poor, rather than on a creamy layer, which the Government criteria of cut off of Rs. 8 lacs does, particularly when it is claimed that government revenues are limited. Scarce resources should only available for the benefit of the majority of the poor”, Grover submitted.
In addition, he argued that when daily minimum wage is officially defined as merely Rs. 176 per day or Rs. 64,240 per annum, which is not even half of that recommended by the Parliamentary Committee, and which almost 76 percent of India’s workers do not receive, the cut off of Rs. 8 lakhs is nothing but a creamy layer. He added that according to the Income/Wealth Tax, anything above Rs.2.5 lakh is defined as creamy layer.
According the Grover, the Income/Wealth Test prescribes that the sons and daughters of persons having gross annual income of or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years would be treated to fall in creamy layer. Most of the candidates in the past 40 per cent are less than Rs. 2.5 lacs and 50 per cent are less than Rs. 5 lacs.
Grover thus argued that considering that the cut off Rs. 2.5 lakhs was fixed in 2004, the said amount of less than Rs 2.5 lakhs may be increased by 10-12 percent keeping mind the inflation rate but certainly cannot be Rs. 8 lakhs. An EWS of Rs 8 lakhs is therefore totally arbitrary, he asserted.
Grover added that the cut off of Rs. 8 lakhs an attempt to restrict benefits to the already relatively upper sections, and is also an attempt to restrain those who really need the support to remain where they are, that is, maintain the status quo, and increase the already increasing levels of economic and social inequality. It must be remembered, he said, that India now has one of the highest levels of inequality in the world.
Senior Advocate P Wilson, for the Dravida Munnetra Kazhagam(DMK), argued in support of the OBC reservation and its implementation from the current year. Marks can not, Wilson argued, always be an indicator of merit”.

Advocate Shirang Choudhary, appearing for one of the petitioners, submitted that the central List for the OBCs has not been revised as per the mandate under Section 11 of the National Commission for Backward Classes (NCBC) Act, 1993. This revision has never happened, and is pending since 1993. He referred to the Justice G. Rohini Commission, which is working on the sub-categorization to ensure equitable separate reservation of deprived classes.

Advocate Archana Pathak Dave made a submission on behalf of the Federation of Indian Doctors (FORDA). FORDA has been protesting against the delay in NEET-PG counseling. Its plea emphasised that the revision of the OBC and EWS reservation criteria at the fag-end of the process shall certainly lead to further delay in the commencement of the NEET PG counselling and the final selection thereafter.

Also read: Centre’s justification for Rs 8 lakh income limit for EWS reservation erases distinction between ‘general’ and ‘OBC’ categories, based on misleading claims

Union Government’s arguments

Solicitor General (SG) Tushar Mehta argued that rules of the games were not changed midway. He argued that the notice under challenge was issued on July 29, 2021, that is, much prior to the date on which exams were conducted and/or the commencement of the counseling process. He, thus, submitted that the allegation of the petitioners that the union government had changed the rules of the game midway is misconceived and is liable to be rejected. He added that so far as the first date, that is, February 23, 2021 is concerned, on that date only an information bulletin was issued for the purpose of conducting the NEET examination. He referred to the NEET-PG 2021 bulletin, which stated under the heading ‘Counselling and Reservation’ that “Reservation of PG seats shall be as per norms of the Government of India and respective State Governments as may be applicable”.

The SG pleaded that the due reservation, both, to the backward category as well as the EWS category, is on the broader considerations of equality of opportunities and the equality mandate viewed in the perspective of social justice. It is for this reason, the union government, SG Mehta argued, decided to provide for 27 per cent reservation for OBC and 10 per cent reservation for EWS in the AIQ scheme.

The OBC students from across the country will now be able to take benefit of this reservation in AIQ scheme to compete for seats in any State. The reservation in AIQ being a central scheme, the Central List of OBC shall be used for this reservation. Around 1500 OBC students in MBBS and 2500 in Post Graduate courses will be benefitted through this reservation”, Mehta submitted.

He added that in order to provide benefit to students belonging to EWS category in admission to higher educational institutions, a Constitutional Amendment (The Constitution (One Hundred and Third Amendment) Act, 2019) had been made in the year 2019, which enabled the provision of 10 per cent reservation for EWS category. Accordingly, seats in medical/dental colleges were increased over two years in 2019-20 and 2020-21 to accommodate this additional 10 per cent EWS reservation so that the total number of seats available for the unreserved category do not get reduced.

He argued that to lay down the criteria for reservations for the admissions in the AIQ seats of the medical/dental courses is within the powers of the union government, and this essentially is a question of policy. In addition, he argued that the extension of reservations in AIQ seats to the extent of 27 per cent for OBC and 10 per cent for the EWS is in consonance with the provisions of the Constitution of India and the existing scheme of reservation.

“It is pertinent to submit that the reservations for OBC to the extent of 27% in the Central Educational Institutions, whether aided or maintained by the Central Government, is already in the place. The same is now being extended to the AIQ seats for UG/PG admission in the Medical and Dental Courses. It is pertinent to submit that the reservations for EWS was introduced in the year 2019. The same was implemented in Central Institutes/Universities in the NEET-UG counselling from the year 2019 onwards and in NEET-PG counselling from 2020 onwards. It is, therefore, respectfully submitted that the EWS reservation is already in place and the same is now being extended to the AIQ seats for UG/PG admission in the Medical and Dental Courses. It is further submitted that the reservations for EWS is in line with The Constitution (One Hundred and Third Amendment) Act, 2019, and on the prescribed parameters of eligibility criteria (viz. gross annual income etc.). Therefore, no new scheme of reservation has been created by the Impugned Notice”, the written submissions filed by the Centre read.