"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, March 26, 2015

Castes that compete to tramp backward



Apparently it looks like, when the nation struggles to showcase an upward mobile index of progress in socio economic front, some sections in Indian society struggle to maintain rock-bottom statistics to prove backwardness. It busts the myth that nobody likes portray as socially backward. But when backwardness rewards, why not? I had to say this at the cost of being branded “right wing”, going through the Ram Singh judgment that dispossessed the Jat Community of its pre-election payoff. The dateline of grant of reservation and the continued support of the same by the incumbent government reveals nothing else but the redeeming points of reservation card in politics.

The judgment once again highlighted that ineligible claims reduce the share of the pie owe to the deserving. It has also boldly pointed out the need to conceptualise new methods to identify categories of backward class.

The issue in nutshell is what Advocate Mohan Parasaran has framed it into, the scope of judicial review. The Central Government has taken an action pursuant to its power under Constitution and a Statute, which so happened to be in disregard of the advice given by the National Commission for Backward Classes (NCBC). The advice ordinarily shall be binding upon the Central Government as per Section 9 (2) of the National Commission for Backward Classes Act, 1993.

When the legal issue is that of judicial review, courts enquiry is whether the decision taken is within the confines of legality, rationality, procedural propriety and proportionality. In this case courts squarely address whether the decision taken is within its competence as it has disregarded the advice tendered by NCBC. While doing so, the Government did not tender any cogent reasons except a vague statement that “ [NCBC] did not adequately take into account the ground realities”, which in no way is suffice to brush aside the detailed recommendations proffered by NCBC supported by documents and analysis. Court found that there lacked sufficient material or reasoning on which the Government could have based its decision to reverse the recommendation of NCBC and arrive at the impugned decision to secure reservation for the Jats.

While concluding the judgment, the judges do indicate to a very significant act that political parties continue to do, the manipulative use of caste card. The palliative measures envisioned in Arts. 16 (4) and 15 (4) are to reach out to the most deserving and the groups so deserving is not static as castes.  New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This only will enable justice in practice.

Caste as identity remains to be clinging in Indian society partially so because of the reservation based on caste however we wish away saying that caste is never the sole criteria. I am not unmindful of the arguments of historical injustice and 60 odd years being short a period to redeem the damage of centuries. Having said that, the race to become part of backward class in the central and state lists and the methodologies adopted to identify backwardness primarily through caste as a class and relative status measure in comparison to other castes only reiterates the castsness, which we try to shed to be a progressive society where all are considered equal despite the birth status.


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