Indian Judiciary And Social Ostracism
By Dr. Narendra Kumar Arya
14 October, 2013
Countercurrents.org
Justice is the first virtue of social institutions as truth is of system of thought - Rawls, John.
The Reactionary ‘Justice’
In a recent verdict the apex court of India while considering the plea of Faculty Association of AIIMS opined that reservation need not be implemented in medical institutions’ super specialty divisions like AIIMS, referring to the famous Indra Sawhney's case which dealt with the Mandal commission recommendation for backward caste reservation in public institutions, quoting it as binding , dispensed by nine judges’ bench. It called reservation creates “mediocrity”[i]. It toed the guideline propounded by same case wherein it was held that “it may not be advisable to provide for reservations. For example, technical posts in research and development organizations/ departments/ institutions, in specialties and super specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defense services and in the establishments connected therewith.” this clearly is indicative of the perceptual perversions that certain communities do not hold ability to produce certain acumen or intellectual faculties, as referred in Indra Sawhney's case. It was in this very case of "Indra Sawhney vs. Union of India", AIR 1993 SUPREME COURT 477 that the Apex Court formulated concept of 'creamy layer differentiating among people from same communities on the basis of their economic deprivation and empowerment. 'Further, Loksabha took it as an assault on its supremacy and a decision against the 80% of the country’s population.[ii] Earlier the “The Supreme Court on Monday, while deciding to examine the constitutional validity of the Tamil Nadu law providing for 69 per cent quota in employment and educational institutions, directed the State government to create additional seats in the first year MBBS for meritorious students affected by the quota law. A Bench of Justices comprising K. S. Radhakrishnan and A. K. Sikri gave this direction on a petition filed by R. Harshini, who could not secure admission in MBBS despite securing 911th rank.”[iii]
Kamandalizations of High Judiciary
We might revisit the symbolism ‘Mandal’ and ‘Kamandal’of bygone era but without risk of being obsolete, even a fraction of it, as that mentality and physicality still holds lots of relevance. ‘Mandal’ has been symbolically reduced to synonymousioty of ‘mediocrity’; and ‘merit’, genetic material of ‘Kamandal’ castes. It has two assumptions that there are not equally good and meritorious persons from reserved categories. Second, the implementation of reservation downgrades the qualitative quotient of an institution. Both are typical prejudiced-handicaps of high caste publicized truisms and our judiciary is a proud product and vicious victim of the same social realism. Reservation is not always the means to induct a person with comparatively lower ‘merit’ than a competitive one, but always the instrument to neutralize the invisible hand of caste conscious malaises to let these play freely, even in reality many of better and equally good candidates from socio-economically weak categories are found to be rejected just because of their disadvantageous position, thrashing the notion of ‘fair opportunity to all’, one of the cardinal value of meritocracy. The higher bureaucracy and most of the premier institutions of our county are thronged with upper caste fellows due to an unofficial reservation legacy that acts as positively charged psychopathological process against the deselection and devaluation of candidates from backward caste groups. In fact, this is a very complex phenomenon working in background and frontal socio-psychological acts and ideas that an Indian is subject to socialization and further reinforcements negative or positive as may occur. It is without no sound reason why philosopher Michel Walzer believed that social dominance poses threat to the cause of social justice. It is unjust for a individuals to disproportionately receive benefits or burdens simply because of some other (arbitrary and irrelevant) characteristic that they possesses, such as belonging to a dominant or subordinated group. This is because, among other things, it violates the basic notions of deservingness, including the merit (contribution) principle as well as “logic of formal justice” (Mansbridge, 2005), the prescription to treat everyone equal unless you could give relevant reasons for unequal treatment.”[iv]
Judicial system in India is safeguarded by constitution to be an institution of independent stature, many a time it has displayed its neutral character. One of the advantages that judiciary in India enjoys is that is free from popular responsibilities and pressures, in contrast to political institutions. It need not be impacted upon by the decisive influence of popular politics but this makes it to remain primitively anchored in an era of non-transformative legacies and mental retardations. It makes it an easy prey to the socially degenerative tendencies of stereotypes, biases and prejudices based on the caste and class consciousness. The upper crust of Indian judicial system is conscripted from well-entrenched bourgeoisie evolved over hegemony of decades. Sometimes despite being tethered to one of the most dynamic constitutions it selectively invokes only the most reactionary postulates to justify its caste-arrogant elite orientation.
The social whirlwinds that are blowing the old structures of socially static elements of India does not seem to flounce archaic fundamentals of Indian judiciary, given special constitutional safeguard, monopolies in recruitment policies and lack of strong agitation on part of citizen to make it more people-friendly and community–conscious. The social change that has occurred in our socio-political domains due to selective implementation of democratic politics has not been able to infiltrate the puritan confines of high judiciary.[v] This feature becomes most radiant when it has to dispense verdicts and opinions on issues of ongoing social restructuring of our society. While our representative institutions have willingly or unwillingly have submitted to populist politics, vote-catch mechanisms, mobilization tactics, socially-responsive measures to some extent, by engaging in issues that concern masses, an institution ridden with elitist and caste/class privileges frequently reverts to reactionary instances as if it can halt the big forces of social churning keen to produce new patters of change and social relations, just by dispensing some anti-majority decisions and impressions.
On caste sensitive issues , often it has demonstrated its deep-rooted characterization when the soaring aspirations and claims of large sections of the Indian society are thrust aside and nullified, reasoning out on the grounds of false universals. The high judiciary tries to convince revolutionizing masses that they don’t have to fight just caste-constraints, brahminical values and physicals but also the universalized liberal democratic values of merit, equality, efficiency and non-discrimination, enshrined in our constitution, frequently addressed but never related and ‘read’ in the spirit and vision of a society seems-- egalitarian, fraternal and respecting freedom of every individual notwithstanding just groups or communities alone. Our judiciary apparently careful of the rights of the ‘meritorious’ and ‘worthy’ but it has no notional or actual idea how it can interpret constitution in such a way that it becomes an institution with society-wide legitimate receptiveness and an instrument of change with respect for socially insightful deliberations. It a minority-minded institution unremitting to protect the rightful claims of upright stratum at the expenses of the just claims of gradually awakening social elements treading steady on a journey of creating their drives for rightful site. This acts as an intellectual deception device to hide the sordid realism of a system wedged up in multifarious discriminations and exclusionary practices. Justice is not what is delivered, as per the volumes of the laws only; if it is so, it is dead as the books themselves; to enliven it has to animatedly match the dynamicism of a social entity, and face it under the best of the spirit of the times and the constitutional beacons.
Collegium of Judges: Fundamental Flaw
Despite being an institution of democratic machinery the high judiciary of India is exception to its democratic requisites. The selection process is immensely a confine of feudalistic inheritance and an environment of preferential elite desirabilities. The constitution is almost silent on the proceeds of selection of judges except a ruling by Supreme Court itself, to explain it to some length, by referring to a collegium without any deliberations on the qualifications and source of the members of the collegiums.[vi] The most bizarre part of it is that it has no representation or say of public opinion or institutional influence as far as determination of the candidature of the members of the collegiums or the judges itself is considered. Here one of the greatest liberal philosopher Rawls seems to intently look in the matter and remark, “Justice is the first virtue of social institutions” and the very first step towards path of justice, an institution of utmost effect to dispense and observe justice itself becomes a prey to pluck of injustice assuming negative-value at the outset; and what follows is just the multiplicatory distortion of the spirit and operate to defy the justice. There is complete lack of transparency and a set procedure based on specified principles and rules to be guided with but with the poor class-wisdom and discretionary-prejudices at the best. As of the latest, the collegium system is soon likely to be replaced by a commission and presidential approval as a requisite for selection of judges, to curtail the monopoly of judges alone to decide upon the candidature for high judiciary. The constitution amendment bill to this effect is already under consideration of parliament.
The governments also have not paid adequate attention to the issue of ‘socialization’ of the judiciary. At the maximum whenever there is a conflict of views between the legislature and judiciary it just adopts a provisional policy and settles the issue; Instead of bringing wholesome reforms through constitution amendment of some prolific and detailed nature in light of the basics of the constitutional wisdom and vibrant social realism. Not alone selection but the procedure there after also works in such a manner that it has implicit caste-discriminatory tendencies as has been indicated by people concerned about the system. The dalit judges experience the most damaging effect of injustice practiced in an institution slated to be looking after the course of justice and concerned but only about justice in its highest spirit; and it is a victim to the ills its seeks to eradicate. Renowned constitutional expert Fali Nariman in one of his interviews expressed that he has learnt that out of two judges if one is dalit she is discriminated even in the swearing precedence so that she is reduced in seniority and future possibilities against a judge from dominant castes.[vii] The issue of familial conclave is well known phenomenon but it is rarely discussed, criticized widely and takes a form of drive to eliminate; also because the mainstream media also has sibling relations with our upper judiciary. The mythical merit since the times of Nehru[viii] has been put as a bulwark to defend the high caste and kith-kin knit cocoon of judicial jeopardy.[ix]
High judiciary in India is also a citadel of patriarchal values and it has left no complicated traces to establish when dealing with the gender-sensitive issue. It has got a great sense of patriarchal torpor which keeps it unmoved to see and interpret the constitutional words in the gender-neutral context. Caste is one of the fundamental institutions for socialization and ‘ideal-breeding’ of system forming the backbone of paternalistic patriarchal values and universalism. Caste persists and perpetuates because it is bounded by the legacy of patriarchal dominance.
Clash of Opinions Legislatures vs. Judiciary
Frequently there are situations of opinion clashes between the legislatures and judiciary. Legislatures given their popular and appeasing character do engage in politics of short term gains but despite that legislature are well-equipped to decide upon the issues of social nature given their wide social background and pluralistic interactions. These function as bodies representative of living social temperature compared to the adamantly recruited brain of high judiciary with a miniscule base and largely irresponsible and unrepresentative of the opinions and influence of the Bahujan. The stark class character and responsiveness create ideal conditions for attitudinal conflicts. The legislature finds it biggest organic bully in its own fabric of government to halt its policies. While the perceptions and predicaments of judiciary are usually expressive of their cultural mooting, legislatures find it hard to combat its feudalistic impulses. The government having accountability to ensure that state machinery and its resources are not personal reserves of a few people or communities has to operate in such a way that its legitimate right as the trustee of the interests and well-being of all the citizens and classes of people is justified. It is not always desirable that judiciary has to work in tandem with the notional similarities of the legislatures and executives but while it is important to maintain its independent status, it also has to be people-centric and not an egoist institution at liberty to guard the principles it cynically believes are only in the best interests of the state. Being of limited nature and broadness, it possesses few resources to have adequate information about the millions of issues a big and plural society like India grapples with ,even the government given a vast army of administrative personnel finds it difficult to ‘understand’ the crux of the issues and problems and arrive at quick solution but our high judiciary in a moment of ‘pitch’ issues a dictate of absolute attributes without having the minutest of the notion of the factual underpinnings of complicated cases and castes-related social sophistications are one such categories of issues.
Thus many verdicts given by the high judiciary in India are clearly indicative of its compositional caste- related biases and dictatorial perceptions. There is strong need for democratic representation in high judiciary. It also needs to be brought under the purview of reservation, affirmative action and reflect social diversity in its composition and thinking. An institution endowed with the utmost job of guarding the constitution and republic may not be antithetical and detrimental to what it has to save primarily by killing the basic spirit of the same and act in vehemently unconstitutional manner.
Dr.Narendra K. Arya was born and raised in Varanasi, India, educated at Banaras Hindu University and Patna University with Masters in Political Scientist and Business Management and Doctorate on issues of Globalization and Sovereignty of States. Worked as College teacher..Several poems,articles and published in reputed Hindi and English magazaines and Journals.
References:
i. No Quota For Faculty Posts In Super Specialty Medical Courses: Supreme Court,
www .ndtv.com/article/india/no-quota-for-faculty -posts-in-super-speciality-medical-courses-supreme-court-393972 2/2c u l t y - p o s t s - i n - s u p e r - s p e c i a l i t y - m e d i c a l - c o u r s e s - s u p re m e - c o u r t - 3 9 3 9 7 2
iii. . h t t p : / / w w w .t h e h i n d u . c o m / n e w s / n a t i o n a l / t a m i l - n a d u /s c - t o - t h e - r e s c u e - o f - m e r i t o r i o u s - s t u d e n t s - a f f e c t e d - b y - 6 9 - q u o t a / a r t i c l e 4 9 6 7 4 6 0 . e c e ? r e f = r e l a t e d N e w s # c o m me nt
iv. Quoted in John Jost & Aaron C key,. Social justice :History, Theory and research in handbook of social psychology-volume two edit. Susan t Fiske Daniel T, Gilbert, Gardener Lindzey, John Wiley & Sons,2010. page no. 1148
v. Raj Sekhar Basu, Economics of caste, Frontline, h t t p : / / w w w . f r o n t l i n e . i n / s t a t i c / h t m l / f l 2 8 2 4 / s t o r i e s / 2 0 1 1 1 2 0 2 2 8 2 4 0 7 8 0 0 . h t m
vi.Rakesh Shukla, Completing the insult, ,(2012) http://www.himalmag.com/component/content/article/133-completing-the-insult.html
vii .Nehru was principally against the policy of reservation based on constitutional provisions, believing it to create a nation of second grade people but had a bully blind eye for caste-connived perpetuation of dominant caste ‘reservation’
viii .Nilmadhab Mohanty, In India, It's Pedigree Over Merit, Sunday, 24 March 2013,the Pioneer,
Comments are moderated