Beyond the Judiciary – Reservation as Reparation

Saswat Pattanayak

“The ruling ideas are nothing more than the ideal expressions of the dominant material relations, the dominant material relations grasped as ideas; hence of the relations which make the one class the ruling one, therefore, the ideas of its dominance” (Marx and Engels).

The recent Supreme Court of India decision imposing a stay on the implementation of the 27 percent reservation for the “other backward classes” (OBCs) in elite institutions is a desperate attempt to secure a few public institutions exclusively for the ‘meritorious’ few, whose merit rests on accumulated wealth, connections and opportunities. This is also an attempt to draw a limit to the concessions that a neoliberal regime can admit (for the sake of public legitimacy) against capitalism’s Malthusian values which it is supposed to protect. Already the ruling classes in India – the capitalists and their political and institutional henchmen have been troubled by the growing demand for affirmative action in the private sector. The SC decision comes as a relief for the executive and the legislature, who are formally bound to local interests and pressure. On the other hand, the judiciary is above and beyond every democratic and institutional binding, thus can be more consistent in its approach. Even if the Indian government’s attempt to solicit the opinion of a constitutional bench to overrule the two judges bench decision result in the implementation of the reservations, the present judgment comes as a clear warning – this far and no further!

Here we will address the above issues from two disparate quarters: one, from the lens of the Supreme Court itself, since it appears like the judiciary might have acted here almost independently (considering all the criticisms it has been receiving from political parties), and two, from the perspective of the class society in India, at a more micro level.

Judicial Elitism

If we agree that despite all the technological progresses that should have made life for everyone way easier in the planet, the world is still in a despicable state suffering from unjust social order where majority of the human population is at the receiving end-afflicted by poverty, unemployment, homelessness-across countries, then something somewhere has gone really wrong. And perhaps to set things correct, to offer not mere sacred guidelines but forceful means to implement them, the societies have formed relatively autonomous judicial systems, which are considered essential for establishing the much-revered rule of law. Apparently the judiciary comprises the wiser of the lots deciding over how we are all going to lead lives, when there are disputes and conflicts.

However, the reality is that the revered judiciary for most comprises either people who are close to power structure (when they are selected by the government), or people who get there through sheer academic elitism (by virtue of their access to top law schools). In either case, the judiciary then does not necessarily, and very rarely comprise people, enriched by their varied experiences of social failures in life through which they understand the complexities of living conditions. Often times they are fed through to good schools and better jobs by utilizing their family’s Old Boys Networks. Most often the judges then reflect the interests of the upper social strata of the society – becoming in themselves, the rich, creamy layer. Hence, even when they seem charitable, it is charity that is expected ‘normally’ from these strata.

The basic agenda before the judiciary is to deliberate on what is the best way of maintaining the status quo within a given legal and institutional framework. Revolution cannot be enacted by the judges – on the contrary, when a revolution or any grand change seems imminent, it rests upon the judiciary to make it jurisprudentially ‘normal’, legal and systemically palatable.

On the other hand, one of the basic elements in the conception of peoples’ movements, howsoever moderate, is their challenge to the institutionalization and alienation of rules from popular scrutiny and control, even if they are not explicitly against them. This aspect puts them in conflict with the ‘rulers’, i.e. those who oversee the implementation of these rules. Naturally, every time the activists land at the court’s door for justice, by this very act itself they fail their cause, upholding the ‘sanctity’ of the court or the jurisprudential policing. The court as the arbitrator appointed by the system to negotiate between the system and peoples can legitimately do anything. It has famously disgraced millions of people attached to their landless movements time and again. It is because of the court that displaced peoples (a la Narmada) do not receive any justice. It is because of the court that the high-rises are still allowed to exploit reservoirs worldwide. It is thanks to the court that no ruling has ever banned the police from attacking the workers when they stage a protest against the exploiting bosses. In fact, it is the court alone that has prevented the working class strikes from being legal.

If the society has made any headways in its civilizational history – if it has forced even a faint “sense” of equality among men and women, and among the races of people-it is because of the thousands of movements outside the courtroom-and, always against the prevailing social order. A court merely observes the situations outside to safeguard its own interests inside, because the court often consists of the same class of people that become the object of protests. As the agreements are reached outside, the rulings are made inside-which is why the court is always for months (or weeks) delayed in taking decisions. In the present case, let’s wait till August, the judges have cautiously remarked.

Who’s Afraid of the Class Society in India?

For, it is outside the courtroom, the realities are more apparent, as they are unmediated by the jurisprudential exactitude, which trims down the realities to fit them in the judges’ learned sense. After all, most people do not pretend to be either wise or learned. In a country like India, where fifty percent of women and 35% of all people are sheer illiterate, people have been even instructed that they are not learned. And since wisdom in the age of information warfare is constituted of how much one succeeds in reading books and rulebooks, and not in reading people and situations, the large majority of Indian population is considered to be object, not subject of knowledge, of power.

How else can the country still be managing itself to be riding a racist power ladder since six decades of its “independence” now? How else can one rationalize why the judges could have ignored what the world could not any longer – that casteism in India is racist in nature. Just one week prior to a display of the Indian Supreme Court’s learned ignorance, the United Nations had already recognized in no uncertain terms that India carried on a tradition of racism against the lower castes of people. The UN Committee on the Elimination of Racial Discrimination (CERD) voiced its feeble protests against India being a country that “systematically denies Dalit rights at home”, even as the “learned” creamy smart bunch of Indian delegates at the UN debated over the difference between caste and race, confirming that they can be moral “pundits” over race matters, but will disown their roles in caste oppressions.

The seemingly unwise, ignorant fools of India – that comprises most of us who do not appreciate the fact that getting an entry into one of the elite institutions like an Indian Institute of Technology (IIT) or Indian Institute of Management (IIM) has anything whatsoever to do with one’s ability to showcase more merit than others – are obviously adopting a regressive path somewhere. How else can one justify the almost complete and continued monopolization of upper castes in India’s power corridors, even as they constitute a tiny percentage of the population? Whose country did we wrest for when the struggle was against colonialism? A country that would have gone back to the elite bureaucrats of the Raj or a country that sought for social equality among classes of people – divided along the line of castes and religions by historical ruling elites?

A mantra of India’s Independence has been well played now – and one can say enough played now – to evoke ringtones and create a thriving industry called Bollywood. But it sure is a sense of humor we could do well without. India continues to be oppressed by a small elite which is a mirror image of their counterparts during the colonial period – a group of people who believe that only a certain segment of population can be allowed to flourish. A group that thrives on a class society that makes impossible to bridge the gap between mental and manual labor. In fact, it thrives because it maintains a relationship of slavery – in which the manual workers are the slaves. In a land predominantly agricultural, India is in fact a sorry country of its slaves-where by its own official estimates, 111,000 peasants committed suicide last decade-even as the slave masters continued to climb corporate ladders in their age of “globalization”. Definitely, this slavery is modernized today – with such a big number of slaves in reserve, you are not required to feed them continuously. The capitalist “hire and fire” machine is very convenient, indeed.

The official Republic of India is the country of slaves and untouchability – one in which discriminations used to be part of an unofficial public policy (until now – after the court decision, it is already official). That is, the Nehruvian dreams had drafted on its mammoth constitution certain sections along the line of abolishing untouchability. In doing so, the racists of India also smartly got rid of their age-old guilt trips arising out of their practice of untouchability. They created cultural images of untouchability existing only in the village lines of drawing water from the well. And silently they went on creating domestic slaves of the manual servants from the lower caste people in their high-rise buildings. They declared that in rural schools, now everyone was free to study and anyone who discriminates against others based on their caste will be penalized. Because they knew they would never enter those schools anyway-schools without blackboard, furniture and most of the times a teacher. Instead they created their own private English medium schools and created a reservation policy for students to enter into their elite technical institutes.

Who deserves reservations?

The progressive reservation policies – be it for SC/ST or OBCs; for the women, or for the people with disabilities-are of course different from the other form of reservations that exist without a debate – for the Non-Resident Rich Indians who call themselves “India Inc” and for the Indian Rich who are invited to buy the seats reserved only for those who can afford them.

The rest of the seats, they call comprises for the students with ‘merit’. No surprises to be here, considering that among other grand narratives of India’s entity (such as independence, liberalization, software giant, knowledge powerhouse, superpower for 2012 etc), this merit proposal fits rather beautifully. After all how can a country claim itself to be a “giant” without saying it has done so through merit!

India is indeed a giant-only one that has surged forward through perishing under its wheels of fortune, the millions of hungry and homeless it always chooses to ignore. After all, giants emerge only in this vicious manner – by gulping down anything that comes on their way. India has almost perfected that art by now, in refusing its people the land they deserve, by refusing its students the access they require, by eliminating its dissenters from its public and private press discourses.

The current discourse around reservations is quite interesting. Indeed no political party seems to be agreeing with the judiciary. So, suddenly have all the political parties gone progressive in India? What is at stake here?

In a simplistic fashion, possibly it is true that the political protests are in part to their apparently temporary loss of power. After all, even with legislative approvals, how could the court nullify the government decision? These protestors still have not got over the shock over this tacit powerlessness, far from realizing that it is they that hold the court to be a sacrosanct institution where they could run to every time they had a conflict over state water policies. Every time the government utilized the court to replace peoples’ protests into policy matters. So whenever in India (or elsewhere in the world likewise) people took up a movement to destabilize the government system, the ruling party and the opposition together rushed to the court in the pretext of granting people justice, whereas all they do is to convert the revolutionary spirits into a “wait-n-watch” policy matter. They took away the issue from the people and gave it to the court. And here we have to realize that this “powerlessness” is actually as much a gimmick as any other power rationales are.

Remember how the Kings used to rule over their states in the bygone days. They would address their resenting masses that the Brahmins will decide the issue, and get absolved of the responsibilities thereon. The Brahmins of course were always in the King’s favor. It would be quite unnatural otherwise-except in cases where the Brahmins themselves resolved to be the kings.

The high priests of those days have now occupied the IITs, IIMs, and National Law School at Bangalore. These are the ones now advising the Kings – the political parties. That is their assigned role (being part of the “three pillars”) because they want the desired positions of security, money and power. It’s true that we know what the priests want. The question, is what do the Kings want?

The political parties of Indian parliament are not in difference with each other. After all, with all the chair-flinging incidents they still are together under the same roof. This is because what brings them together is of a greater value than that, which could force them separate. What values does their unity bring? Why the political parties – despite their most fundamental differences in their agenda sheets-stay together along with their pillar partners – judiciary and the press – is because they can form their so-called “democracy” system only when they stick together. If the “executive”, “legislature”, “judiciary” and “the press” do not stay together who will each run to when they face peoples’ wrath? Who will play the Brahmin when the time comes?

Officially, a prime minister of president or Supreme Court judge or mainstream media editor or any of their corporate investors are claimed to be different “check and balance” corridors of power. In fact at this mass deception too, they play out the acts very well. They have a question hour (get paid for asking questions on behalf of people), they have public interest litigation (what has public interest got to do with the court, anyway?), they have a letter to the editor (views that are of no consequences whatsoever), and they have corporate social responsibility (what’s that?). These are conscious and deliberate efforts to normalize their operations in the interest of the ruling system of which they are a part. No matter if they change political parties or newspapers or corporate houses or departmental bureaucratic divisions – they are the cohorts of the same batch of rulers that must “swim together or sink together”.

Of course they would prefer to swim together. And in this larger context of reservations, especially so.

What is important is not why the judges came up with such a decision (which is a natural class-alliance issue), but the more pressing question is how did they get away with making this decision? Were they not afraid of the people outside – that majority of people in whose favor a contrary decision was supposed to be taken? Were they not taking a chance with the Parliament-that sacred body of legislators who had already taken a decision? The answer is neither.

And in fact, quite the contrary. Judiciary has been once again used by the government to do what it always wanted to: to provide an illusion of equality while maintaining the status of inequality. The parliamentary decision last December had come with pressure to answer back to the constituencies of OBCs. Once the pressure was off, the government rushed to the judiciary with ill-filled papers of 1931 (as an excuse) to reverse the legislation. And the two-bench committee did exactly as per the governmental wish. Like the Brahmins of the royal era, the judicial priests knew that they were the last resort of blinded wisdom.

Such macabre dramas play out in our life everyday. One needs no reading of Arthashastra or of The Prince to learn the art of governance. We are acutely aware of the true faces of power accumulating politicians, corrupt judges, greedy business houses and the corporate press – and we are well aware how despite the façade of apparent disagreements, they all gel so well as to unite together against the majority of people by creating an elite commonsense.

The opposition to reservations in India is part of the elite commonsense. The judges got away with such decisions because they knew they would be protected only if they do so. The larger Indian media have been harping on the need to abolish reservations, so also the top administrators and corporate kingpins. From the editors, to bureaucrats to industrial leaders-majority of them do not just incidentally happen to be belonging to the higher castes, in fact they are there only because of their trampling over the hopes and aspirations of the lower caste peoples.

Just as economic classes developed the race paradigm, they also created the caste structures. Historical alliance between class and caste is no mystery today. What needs exploration is beyond the academic understanding of the alliance, and more of a social revolutionary movement towards destabilizing that alliance.

At this stage, the commonplace dominant narrative insists that the SC/STs were granted reservations by the well-meaning leaders of India. This is entirely false. The “backward” castes of India were not granted anything. They fought along the lines of demands and protests to earn the reservations-and by the sheer proportions of their success in relation to their historical dispossession-they proved worthy of every bit of that. It’s entirely wrong to imagine that a government or its judiciary wing will donate anything in charity. Such a misplaced imagination can only lead one to the corridors of a court.

The fight to go on has to transcend its own limited imaginations. Knocking the door of judiciary is appealing to the hearts of the Brahmins. It is not the Brahmins who need to be blamed after all, considering that they have a share of power. What is important is to revitalize the movement taking place outside to make it entirely impossible for a regressive policy to be crafted either in the Parliament or in the Courts. And that is just the beginning. It’s not a question of reservation issue. It’s a question of revolution issue. The majority of people do not want nominal reservations. They deserve the entire institutes. They do not wish to work for the structures. They want the structures to work for them.

Ultimately reservation is not just a demand, but historical reparation obligation. And at its heart lies not the questions regarding the efficacy of reservations. At its heart lies the question of social order maintenance that thrives on discrimination. The sick medical students and arrogant doctors that went to strike last year are the questions to be solved. The reactionary right wing NGOs like Youth for Equality (who forever fail to understand that they are the root cause of inequality) are the questions to be solved. The judicial system that has no business with social justice is the question to be solved. The question to be solved is the question of our times: how long will people silently suffer at the hands of a political system that uses unofficial policies to maintain authority – pimping press, and a free market. The question to be solved is how to snatch the power from these sugar-coated, superpower-dreaming elites of one-nation Indians and replace the feel-good plutocracy with a truly working democracy driven by the will of the real majority, where the difference between the manual labor and mental labor would have subsided enough to make the issue of IITs/IIMs and their reservation policies quite irrelevant. And any wishful thinking, any pleading politics is not going to ensure that the striking doctors will accept the wage of their domestic servants – no matter if the servant cooks wonderfully to serve the rich master and the doctor lets hundreds of slaves die because he has to stick to the Apollo and the thriving corporate hospital industry.

To snatch the reactionary power of the ruling elites, the task is not to appeal to the rulers. In fact, quite the contrary. Let me end the passage that started this reflection, by quoting Marx and Engels again: “The existence of revolutionary ideas in a particular period presupposes the existence of a revolutionary class.”

That’s the only task that needs to be done: to build the class that snatches its reparations by revolutionary means, not through appeals to courts and parliaments that ride on the waves of social injustice.


[The above article relates to the following decision by apex court of India:
(Case No: Writ Petition Civill No. 265 of 2006 (With WP Civil No. 269 & 598 of 2006, 35 & 29 of 2007))
Ashoka Kumar Thakur Petitioner versus Union of India and Ors Respondents
Date of Decision(mm/dd/yy): 3/29/2007.

The Subject Index reads:
OBC reservation policy — prayer for grant of interim protection in the writ petition — the policy of 27% reservation for the Other Backward Classes (in short the ‘OBCs’) contained in the Central Educational Institutions (Reservation in Admission) Act, 2006 is the subject matter of challenge. The primary ground of challenge is that the Union of India has failed in performing the constitutional and legal duties toward the citizenry and its resultant effect. Consequentially the Act shall have the effect and wide ramifications and ultimately it shall have the result in dividing the country on caste basis. It would lead to chaos, confusion, and anarchy which would have destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect social and communal harmony — concept of creamy layer cannot prima facie be considered to be irrelevant. It has also to be noted that nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you — the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of constitutional scheme. Therefore these cases have to be examined in detail as to whether the stand of Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation — court not staying operation of the Statute, particularly, Section 6 so far as the Scheduled Castes and Scheduled Tribes candidates are concerned.]

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