(Note: This article was originally published in Firstpost.com, and is republished here with the permission of the author)
On 13 July, my article titled “The Supreme Court must note that reservation is a fundamental right” appeared in The Wire. On the very next day, I found that Justice (Retd) Markandey Katju has written a piece responding to my article. At the outset, I thank him for initiating a debate on this issue.
At the beginning of his reply, he gracefully admits that caste-based discrimination exists, but he notes that he is against caste-based reservation. Notably, discrimination was the only ground that justified the incorporation of the provision of reservation in state services. In the Constituent Assembly, Harijan representatives such as RM Nalavade, P Kakkan and HJ Khandekar explained that Harijan candidates and those from other Scheduled Castes apply for government jobs but they are not selected because the people who select the candidates do not belong to that community.
A similar caste bias continues even today with respect to those posts for which either names of candidates are recommended for selection, or interviews are conducted for promotion, or for fresh recruitment. As a result, there have been very few judges (in the high courts and the Supreme Court), vice-chancellors, professors, bureaucrats, attorney generals, advocate generals, solicitor generals, etc belonging to the Dalit community. If reservation is not the solution to this problem, then, within the existing mechanisms, what else can ensure the entry of Dalits in state services?
In society in general, discrimination continues in the form of honour killings, and other caste-based crimes like untouchability, etc. Discrimination is a part of the lived experience of Dalits; others can be sympathetic to their cause, but cannot feel what they feel. The law, and legal institutions, have not attempted to address this issue.
Justice (Retd) Katju further argues, without empirical proof, that only 1 percent of Scheduled Castes can benefit from reservation, while creating an illusion that the entire Scheduled Caste population of 22 crores is benefited. However, this contention cannot be a ground for discarding reservation. Even if only 1 percent have got the advantage of reservation, the number should be compared with the total number of government jobs, not the entire population of Scheduled Castes. This is because the figure of 22 crore includes all persons, irrespective of their age, occupation, educational qualification, etc. Moreover, if one were to go by the argument made by Justice (Retd) Katju, welfare policies such as reservations in jobs and admissions, scholarships, etc put in place for women, widows, persons with disabilities, etc become meaningless.
Justice (Retd) Katju further says, perhaps relying on conjecture, that because of reservations, Dalit students don’t study hard. It must be pointed out that Tina Dabi (IAS topper), Kalpit Veerwal (IIT mains topper), Riya Singh (TISS entrance exam topper) and several other toppers on state level belong to the Dalit community. Second, reservation doesn’t mean that the requirements of qualifications and selection procedures are done away with. A relaxation of few percentage points cannot be taken to mean exemption from minimum educational qualifications, short-listing standards, screening tests and interviews. Article 335 of the Constitution safeguards efficiency of administration while providing reservation.
Justice (Retd) Katju says that Scheduled Castes must say “in a manly way that they will work hard and show by competing with upper castes on merits that they are not intellectually inferior to upper castes.” This statement is not just a reflection of upper caste masculinity, but also reinforces the ‘superior caste’-oriented mindset. First, let me point out that Scheduled Castes are hard-working classes and, thus, are not reluctant to put in effort. Second, upper caste standards cannot be considered as a benchmark of professional quality and intellect. At the same time, several candidates from the Scheduled Castes have performed better than upper caste candidates under far more hostile circumstances.
The retired judge further advises Scheduled Castes to “join hands with the enlightened section of the upper castes, and fight along with them”. But he ignores the fact that whenever Dalits try to associate with the so-called upper castes, they are killed in the name of honour killings and harassed by colleagues and seniors, at times even leading to suicides. They are systematically discriminated against in their ordinary social lives. The increasing crime rate against SCs and STs offers sound proof (see , 2018, Annex 7). Therefore, this invitation of ‘joining hands’ cannot find favour from the Scheduled Castes. In trying to emancipate themselves, Scheduled Castes and Scheduled Tribes need to preserve their ‘femininity’ rather than internalise brahminical ‘masculinity’.
Justice (Retd) Katju summarily rejects my submission that reservation is a fundamental right, by saying that there is no direct provision for it in the Constitution. But many rules and principles have become part of the Constitution by interpretation or through judicial decisions. Instances of these are various interpretations of Article 21 and the collegium system. I had explained this point in my earlier article as well.
While opposing reservation, the retired judge overlooks many aspects integral to reservation. He puts the entire burden of eliminating reservation on Scheduled Castes by tendering several pieces of advice to them. But he makes no mention of steps that need to be taken by other castes in renouncing discriminatory practices. He expresses his discontentment towards the present scheme of reservation, but doesn’t oppose the age-old undeclared reservation in temples for the post of a priest. Nor does he question the sanctity of the 10 percent reservation for economically weaker sections. He is sympathetic to students of the general category who do not get a job, or admission in a college, despite more marks. However, he does not utter a single word about the torture, harassment and dehumanisation suffered by Dalits for centuries at the hands of the so called upper castes in the name of untouchability, devdasi system, social boycotts, slavery, bonded labour, breast tax, manual scavenging, etc.
Therefore, instead of Scheduled Castes being asked to give up reservations and work hard, other castes must be educated on how they must refrain from continuing discriminatory and torturous practices against Dalits. Only this can help do away with the need for reservation.