Some thoughts, some reservations

by Fali S. Nariman at http://www.indianexpress.com/story/3497.html

A case of great constitutional significance is being argued before a bench of five justices of the Supreme Court, presided over by the chief justice of India. A few years ago both houses of Parliament added sub-clauses (4A) and (4B) to Article 16 of our Constitution by a rare unanimous vote, but with hardly any discussion. The question presently engaging the court’s attention is: do these sub-clauses violate the “basic structure” of the Constitution?

I had always thought they did. But after reading a perceptive newspaper article by a sociology professor of JNU recently, I have some doubt. The professor goes for the jugular: “Dalits can ask Brahmins that if they were so meritorious, why is half of our country’s population still illiterate?” If meritorious economists and administrators manage the affairs of our country without any reservation how and why are we still so economically backward?”

In the realm of super-speciality education where (at present) there are no ‘reservations’, only three Indian institutes of higher learning figure in the top 500 of world universities — Indian Institute of Science (at No 260), and the Indian Institutes of Technology at Kharagpur and Delhi (at No 459 and 460, respectively). The IITs in Madras, Kanpur, Mumbai and Roorkee don’t figure at all, despite the fact that there are no reservations for OBCs in these centres of learning. And, the professor goes on to say, why do we have hundreds of thousands of cases pending at all levels despite our ‘meritorious’ judiciary? The professor is quite indignant and he won’t wait for answers, but what he says must be put in the ultimate reckoning — without rant or recrimination.

I believe that the truth is that we have not yet resolved the complexities that lie buried in the doctrine of equality. How long are we to atone for the oppression of the centuries? For how long should the claim based on merit and on the fundamental right of equality be ignored? How long should we go on equalising downwards? There are no easy answers. Much of the backwardness in the so-called backward classes continues because small sections of its more progressive members corner all the privileges for themselves. Our judges have characterised these sections as the “creamy layer”. But neither bureaucrats nor politicians are willing or able to remove the creamy layer.

The problem of inequality in India continues to haunt us — more now than before. There is an increasing resistance to the view that the sins of generations of our forefathers in the higher castes have to be expiated here and now — in a couple of generations. And yet the stark fact of continuous under-representation of the underprivileged in the higher echelons of public employment cannot be just wished away. Many years ago, UN Under Secretary-General Ralph Bunche explained why: “Because inalienable rights cannot be enjoyed posthumously.”

Of course, the final word in all constitutional matters is with the judges. But the courts have not been very helpful. They have interpreted the compensatory discrimination clauses (Articles 15 and 16) differently at different times. True, they have prodded and energised governments to live up to the constitutional commitment to alleviate the lot of the downtrodden, but the ground rules have kept fluctuating depending upon the background of individual justices. Not surprisingly. After all, courts are a mirror of the larger society in which we all live, and judges reflect — in their deliberations and pronouncements — the ambiguity and vacillation that shrouds the elusive concept of equality.

But one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain a fact of life, the ideal of an egalitarian society envisaged by the founding fathers in our basic document of governance will remain a bad dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can providence. It is not in our stars but in ourselves that we are thus. It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed to be achievable goals in 1950.

A former Union law minister told me some years ago about a “casteless” Parsi judge (we Parsis do have prejudices, but they are not caste-based!). He was Justice Jal Vimadalal who was compulsorily transferred during the Emergency of June 1975, as a judge of the high court of Andhra Pradesh (from Bombay); the entire bar took to him instantly, simply because he ignored the caste to which the lawyers appearing before him belonged: “When he left,” Shiv Shankar told me, “the entire bar wept.”

If the under-privileged have been oppressed for centuries, its backlash in the psychological make-up of the ‘privileged’ cannot be underestimated. I recall what the late Justice D P Madon used to say when he became chief justice of Bombay. He had sent for and looked into the records on the administrative side of the Bombay High Court about promotions of judges from the district courts and to his horror he found that judges in the subordinate judiciary of equal and at times greater merit were not promoted to the high courts simply because they did not belong to the ‘privileged’ classes!

No one could possibly fault the senior judges of the Bombay High Court — they were fine intellectuals many of whom moved on to the highest court on merit. Their predilections were unconscious, unintentional. The truth is — and this is the bottom line in the entire ‘reservation controversy’ — that although we have abolished untouchability and outlawed backwardness in our Constitution, many of us — even the most distinguished of us, alas — have not eliminated it from our hearts.

Meanwhile the debate in the Great Constitutional Case continues. I would respectfully suggest to the distinguished MPs who did not have the inclination to discuss these important questions on the floor of the two houses, when the equality clauses were being amended, to visit the court and witness the intensity and solemn sobriety with which arguments are being advanced on each side, with searching questions being put by the justices. Sometimes even Parliament can learn from the Supreme Court.

In the end, the vexed problem about ‘reservations’ will only get resolved with more meaningful opportunities for better education of all sections of our society, particularly the under-privileged.

The writer is an eminent jurist fnariman@hathway.com