Abolition of caste-based reservation untenable as long as Dalits suffer atrocities, prejudice; a rebuttal to Justice Katju

Editor’s note: This article was originally published on 19 July. It is being updated and republished to include Justice Markandey Katju’s response, which appears at the end of the article. 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 which 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  NCRB  Report, 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. Kailash Jeenger teaches at Faculty of Law, University of Delhi. He can be reached at kailash333bj@yahoo.co.in_. The author expresses his gratitude to his colleague Haris Jamil for his help._

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Justice Markandey Katju responds: I read Kailash Jeengar’s article in response to my article published in The Week and have a few observations to offer. Jeengar says that Dalits today are still oppressed and discriminated against. But I never denied that. The question is how does one destroy the caste system, which is one of the biggest social evils in India today. I submit that caste-based reservations further entrench the caste system, instead of helping to abolish it. I have expressed my views on the caste system in two articles ‘ The caste system in India’ published on my blog Satyam Bruyat and ‘ It is a myth that Dalits were always disrespected in India’ published in The Week. Since I have expressed my views in detail there, I shall refrain from repeating them here. In my opinion, the caste system can only be destroyed if India is transformed into a highly-industrialised country. Even in India, the hold of caste is much weaker in a state like West Bengal, which was partially industrialised by our British rulers, as compared to states like Uttar Pradesh and Bihar that remained largely feudal. But how does one industrialise? I submit that this is possible only after a revolution led by patriotic modern-minded leaders — and it cannot be achieved within the present system. This is because the present constitutional system provides for parliamentary democracy, which in India runs largely on the basis of caste and communal vote banks. Casteism and communalism are feudal forces that have to be destroyed if India is to progress, but parliamentary democracy further entrenches them. So how can India progress with it? Our present political leaders — of all parties — are not really interested in rapidly industrialising the country, but only in winning the next elections, and for that their principal tool is casteism and communalism. I submit that a political and social order under which India rapidly industrialises can only be created after a mighty, historical united people’s struggle led by patriotic modern-minded persons determined to rapidly industrialise the country and sweep away the filth of feudal ideas, customs and practices. This will automatically destroy the caste system ( See my articles ‘ India's moment of turbulent revolution is here ’ and ‘ India edges closer to its own French Revolution’). But such a major struggle to transform India and bringing it into the ranks of the developed, highly-industrialised countries can only be successful if we are united, and I submit that caste-based reservations divide us. Far from benefiting the Dalits and OBCs they really benefit our crooked and crafty politicians, who polarise society and spread caste and communal hatred to get votes. So reservations are just a ploy to get votes and far from helping destroy caste, they have further entrenched it and further divided the Indian people.