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”. 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. 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.”
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.”
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. 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. 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. 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 has been put as a bulwark to defend the high caste and kith-kin
knit cocoon of judicial jeopardy.
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.
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