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Monday, January 24, 2022

“Merit masks ‘upper caste’ privilege….Constitutional and legal mandates not enough to protect rights of marginalised”: Judge-Activist-Reformer DY Chandrachud

Dhananjaya Y Chandrachud said that a narrow concept of merit only allows upper caste individuals to mask their obvious caste privilege while speaking at an event organized by the Indian Institute of Dalit Studies and Rosa Luxemburg Stiftung. He said that while the professional achievements of upper caste individuals are enough to wash away their caste identity, this can never be true for the lower caste individuals.

What did SC judge-activist Chandrachud say?

A Live Law report notes Chandrachud as saying:

…The Dalit community in India is by law recognized as persons and is also granted citizenship. The Constitution provides for their right to equality. In furtherance of the Constitutional mandate of substantive equality, reservations in higher education and employment are granted to the Dalit and Tribal communities. The Parliament has also enacted the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 to curb the commission of atrocities against members of the Dalit and Tribal communities. However, are constitutional and legal mandates sufficient to protect the personhood of an individual belonging to a marginalized group?…

…Marginalization embodies a principle of graded inequality. It is important to remember that humiliation is an integral part of an inherently dominant society that perpetuates marginalization. Humiliation means degradation and violation of their self-respect to bring down their image in their own eyes. It need not be direct and physical, but can also be indirect and institutionalised… 

…The residential segregation based on caste depicts the chasm between Dalits and the upper castes, where the members of the Dalit community are humiliated and denied their just entitlements…

…The Constitution was created in a social order dominated by hierarchical power structures. It tells us a story of freedom, liberty, and independence. But it also tells us a story of subordination, subservience, and lawlessness. The personhood conferred to members of the marginalized groups would be diminished unless we recognise and abolish, in spirit, the unequal power structures which facilitate humiliation…

…some members of our Constituent Assembly were indeed of the opinion that certain classes or groups of people in India did not possess the rationality to make informed decisions and choices. As I had mentioned earlier, the externalisation component of personhood requires both the law and the society to recognise a person. Thus, personhood cannot be said to have been granted to members of the marginalized communities in India when the Constitution came into effect, in spite of including the provisions such as Articles 14, 17, and 326, when a segment of India did not, and probably still does not, recognise the ability of the Marginalized sections to live as rational human beings who deserve their respect…

…When I say that the approach in the Indian Constitution is through the assertion of group identity and not assimilation, I do not restrict my views to material disbursement of resources through reservation or other policies of affirmative action. What I mean is that the only way for the members of the marginalized communities to achieve personhood is through social mobilisation as a collective against discrimination. Such mobilisation should not be considered as ‘politics of identity’ but as a necessary means for redressing historical discrimination…

…upper caste identity is such that it can be completely overwritten by modern professional identities of choice, whereas lower caste identity is so indelibly engraved that it overwrites all other identities and renders them illegible, along with the choices that they may represent.” To put it in simpler terms, while the professional achievements of upper caste individuals are enough to wash away their caste identity, this can never be true for the lower caste individuals. For them, their membership of this group will indelibly remain a part of their personhood forever…

…Hiding behind such a narrow conception of ‘merit’ only allows upper caste individuals to mask their obvious caste privilege. At the same time, it allows them to relegate the achievement of Dalits and others reserved classes as being a consequence of caste-based reservation afforded to them. The Supreme Court  through its judgment in B.K. Pavitra v. Union of India, however, has squarely rejected such a limited definition of ‘merit’. Instead, it articulated a broader definition, which takes into account the accumulated caste privilege of the upper castes and the years of oppression suffered by the reserved castes. Re-framing this definition has allowed the Courts to approach the debate of reservation from a different point of view, and it also changes the conversation surrounding reservation in the public arena. Alas, it remains to be seen whether this can positively change the mindset of every individual of this country as well…

…A similar analysis also holds true for India with respect to caste, where castelessness is a privilege that only the upper caste can afford because their caste privilege has already translated into social, political and economic capital. On the other hand, individuals who belong to the lower caste have to retain their caste identity in order to claim the benefits of measures such as reservation, which are in themselves a recognition of a historic harm. 

His speech is peppered with rhetoric that is past its sell-by date. “Constitutional and legal mandates are not sufficient to protect the rights of the marginalized group including Dalit and tribals,” Chandrachud opined while speaking at the event. Ideally, judges shouldn’t be toggling with the idea of social justice particularly when there are chances that their views might cloud their judgment.

Rosa Luxemburg Stiftung affiliated to Germany’s left party

RLS (Rosa Luxemburg Stiftung), which is one of the organizers, is affiliated with the German Left Political Party, Die Linke. Its chairperson is the Marxist intellectual and politician Dagmar Enkelmann. A Leftist organization (RLS) formed immediately after the reunification of Germany, this may have been to accommodate the various intellectual and activist elements of the erstwhile Communist Party and direct their energy outwards, that is, focus them outwards instead of causing internal dissent.

One may compare this with the strategy of a middle Eastern country exporting its most extreme ideological elements for global jihad and directing its energies outwards. Among the many causes in Asia that the RLS supposedly supports are Social Justice, Climate Justice, Food Sovereignty, and Migration. Among RLS’ sources of funds are European Union and the Federal Ministry for Economic Cooperation and Development, Germany.

In view of the numerous pending cases in courts, judges should concentrate on ruling on issues of law, and if they want to exceed that brief, wouldn’t it be better if they entered politics or became social activists? Because with such heavily biased views, they lose the perception of neutrality which is like a death knell for a judge.

For 70 years, we have obsessed over social justice, while ignoring the hard development – industry, infrastructure that generates jobs which eventually ends feudalistic agrarian societies that give rise to most social issues in the first place. This is a universal experience but in Bharat rhetoric and flowery speeches appears to be the norm.

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2 COMMENTS

  1. But the activist milord should also say as to when will social justice at the cost of merit come to an end. Also after how many generations will a particular family come out of backwardness. Also why politics continues to keep on adding to the never ending list of SC ST and backward classes.

  2. In any democratic set-up, merit should and MUST be the yardstick to judge eligibility for a post. Of course, that does not mean denial of education, health and basic human rights to under-priviledged class. Fittest man for the fittest post is the most justified logic. When there is a reservation, it means that the most eligible candidates are deprived of the posts/positions where less eligible candidates (based on merit) are inducted. And that tantamount to denial of justice to the most eligible candidates. The essential building block of democracy is justice, equality before the law and equal protection of the law. And that leaves no room for reservation: if you have the caliber, you’ll get the post. There can’t be any issues like cast, cred, religion, locality, origin coming in the way. Reservation means you are depriving the eligible one to reward the less eligible one. And that means denial of justice! Certainly! And I don’t personally believe that upper-class persons do enjoy privileges over merit during a selection process inasmuch the ‘class-factor’ has nothing to do with merit and hence influencing the eligibility criteria!
    In US, UK only eligible candidates are selected on the basis of merit get a post i.e. fittest man for the right post.

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