Day 2 Oral Hearings – Admissions

OBC & EWS Reservation in Postgraduate Medical Admissions (PG NEET)

On October 7th, 2021, a three-judge bench comprising Justices D.Y. ChandrachudVikram Nath and B.V. Nagarathna heard four writ petitions challenging reservations of the All India Quota (AIQ) seats in medical postgraduate courses through the National Eligibility Entrance Test (NEET) for the second day.

On July 19th 2021, the Union notified that it will reserve 27% AIQ seats for Other Backward Classes (OBC) students and 10% AIQ seats for Economically Weaker Sections (EWS) students. The petitioners in the AIQ-NEET cases are doctors and students who claim that the Union’s notification amounts to ‘reverse discrimination’ against general category applicants.

In today’s hearing, the petitioners focused on securing interim relief. Senior Advocate Arvind Datar, appearing for petitioner Neil Aurelio Nunes,  sought a stay on EWS reservations in the AIQ scheme for admissions in postgraduate medical degrees for 2021. Senior Advocate Shyam Divan, appearing for petitioner Madhura Kavishwar, sought a stay on OBC reservations. Additional Solicitor General K.M. Nataraj argued that the petitioners were not entitled to such interim relief.

What Factors Were Considered to Arrive At 8 Lakhs Income Cap for EWS?

Prompted by Mr. Datar’s submissions, Chandrachud J asked ASG Nataraj a crucial question – what factors had the Union government considered to arrive at the Rs. 8 lakh annual income figure for EWS categorization? Mr. Datar argued that if no factors other than income had been considered, the decision would be in violation of the Explanation to Article 15(5). This provision requires ‘other economic disadvantages’ to be considered alongside income when notifying EWS.

Chandrachud J asked Mr. Nataraj whether the creamy layer limit of Rs. 8 lakhs that disentitles OBC candidates from reservation has been applied blindly to EWS reservations. He stated that OBCs were granted reservation to overcome social and educational backwardness. They were not entitled to reservation once they reached Rs. 8 lakhs annual income, as they were then considered to have overcome their backwardness economically. Since EWS candidates were a socially forward community to begin with, the same logic would not justify this amount for them.

Mr. Datar also argued that uniform application of the 8 lakhs amount to all States was arbitrary, as income levels varied across the country.

The Bench asked Mr. Nataraj if any state-specific factors had been considered to arrive at the limit. Mr. Datar argued that carving out an extra 10% reservation for EWS candidates with the 8 lakhs income limit is especially harmful to the most economically disadvantaged general category students. The limit is much higher than the national average income, and has no ‘scientific criteria’.

ASG Nataraj submitted that this was a policy decision that had been deliberated and decided by the Union cabinet. The Bench was unsatisfied with this answer. Upon Mr. Datar’s insistence, it granted ASG Nataraj leave to file affidavits from the Department of Personnel and Training, and the Department of Social Justice and Empowerment on this set of questions.

Mr. Datar cited SC decisions that cautioned against reservations in postgraduate medical education as ‘public interest outweighs the social equity of providing some opportunities to the backward…’.

Moreover, he suggested that while  50% seats are for general category students, in reality, only 4-5% seats are occupied by them. Large number of meritorious OBC candidates claim general category seats diminishing access for other communities.

Is There Any Basis to Deny OBC Reservation in AIQ After Granting It To SC/STs?

Mr. Divan stated that the AIQ norm was judicially created in Pradeep Jain (1984).Before providing SC/ST reservation in AIQ, the Union correctly sought the Court’s permission. It should have similarly sought leave of the Court to provide OBC reservations.

Chandrachud J asked two questions at this point. First, since the Court had allowed SC/ST reservation in AIQ, was there any basis to deny OBC reservation? Was there a ‘qualitative’ constitutional difference between SC/STs and OBCs in relation to the AIQ? Second, he pointed out that the Union Government had provided for OBC reservation in AIQ upon orders from the Madras High Court. Was the leave of the Supreme Court still required?

Mr. Divan argued that his petition challenged the validity of the Abhay Nath judgment, which granted SC/ST reservation in AIQ. Though at the stage of interim relief, the Court will have to assume that  Abhay Nath is valid this was a situation where the constitutional guarantee of reservation had to be balanced against the societal need for ‘highly meritorious doctors’ at a postgraduate level. Since the AIQ reservations take 2,500 seats out of the ‘realm of just merit’, and adversely affect the fundamental rights of general category candidates, the Union should have brought their policy to the Court.

Should State Governments be impleaded before any interim relief is granted?

ASG Nataraj submitted two preliminary objections to the petitions. First, that all the petitioners’ prayers are subject matter of a challenge to EWS reservations pending before a larger bench; and so the petitioners can only argue the limited challenge to the 8 lakhs income limit in this case. Second, that  this case will have country wide implications. Despite this, State governments have not been impleaded. SG Tushar Mehta, for the Union government and Senior Advocates Wilson and Kapil Sibal, for the DMK government, seconded this view.

Senior Advocate Arvind Datar, for petitioner Neil Aruelio Nunes, submitted that the issues were limited to the Union government’s reservation policy, and so, there was no need to delay relief by impleading State Governments.

The Bench did not issue notice to State Governments today.


The matter will  be heard next after the Dussehra vacation, on October 21st.