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Prof G. Mohan Gopal on EWS reservation: ‘Caste apartheid in a democratic Constitution’

The real purpose of the EWS reservation is to destroy the ability of unrepresented, marginalized social groups to organize themselves and get their due share of power, says Prof G. Mohan Gopal

On 7 November 2022, a five-judge Constitution Bench of the Supreme Court gave a majority judgment affirming the validity of the 103rd Constitution Amendment that had paved the way for the reservation for the Economically Weaker Sections (EWS). It had been hearing a slew of petitions against the constitutional validity of the amendment and Prof G. Mohan Gopal, one of India’s top jurists and a former vice-chancellor of the National Law School of India University (Bengaluru), was among those who argued before the Bench against the amendment. On the 73rd Constitution Day, Prof Gopal explains the gravity of the damage the amendment has done to the Constitution.

Why do you think it was necessary to challenge the EWS reservation? Do you think this was an attack on the Constitution? To a layman, it probably seems harmless but as someone who has deeply studied the Constitution and understands its role in shaping society, how do you see it?

I think there is a lot of false advertising and deceptive marketing involving EWS reservation, so you are right that most people think it is harmless but perhaps a good way to understand its significance is by using an analogy and imagining hypothetically that this amendment was introduced in the United States. What would that US amendment say and do? That US amendment, to be like EWS, would set aside 10 per cent of all public employment in the United States and 10 per cent of all education, public and private, exclusively for white people – for poor white people, with a ‘creamy layer exclusion’, which means the rich Whites would not get it, but it would still be only for white people. So you would then exclude from public employment of the United States and all education, public and private, non-white people, representation of anyone else and you would entrench in public employment and education a space, which is an apartheid space – Whites only, no entry for Blacks. This is what EWS has actually done in our country. That’s the impact, forget all the rhetoric. It has created a space where there is no entry for anyone who is not part of a socially and educationally forward class and the bulk of the socially and educationally forward classes are the so-called dominant castes. Except for a few states like Kerala, the dominant castes are all upper castes. So you have set aside 10 per cent of public employment and 10 per cent of all education, public and private, exclusively for the forward classes, where there is no entry for Backward Classes, no diversity and no representation and therefore you have created a space of caste apartheid. Firstly, can this be done under the US Constitution? never! What would be the impact on the United States, its future, if they shut out diversity for 10 per cent – a huge chunk – of public employment and all of education? What would this do to the future of the United States? The same impact will be felt in our country, too. 

Now just as poor Whites have access to various programmes of assistance in the United States, if they are poor as individuals – but the Whites as a group are strong, let’s say white Anglo-Saxon Protestants are strong – if there are poor white Anglo-Saxon Protestants, there are plenty of programmes to help them, which they can access in order to address their financial inadequacies. Similarly, the socially and educationally forward classes in our country are powerful classes but if there are poor among them as individuals, there are many, many programmes that they can access to get help – so it’s the same situation in both countries. But if we have a socially and educationally forward class which is as a group, let’s take for example, a Brahmin community that does death rituals, if you have community that as a group is discriminated against, and as a group that is marginalized, unrepresented and impoverished, which is the case with some Brahmin communities that are doing socially stigmatized work, if you are in that community, you can become a member of the Other Backward Classes and you can get reservation – already. In fact, as I told the court, there are many Brahmin, Kshatriya, Vaishya and Shudra communities that as a group are discriminated against, marginalized, unrepresented, who are already members of the Backward Classes, which means that our country does not have a problem that socially and educationally forward class groups that are facing discrimination or poverty do not have reservation. They have reservations. If there is another group that does not have it, they can apply and get it. Let’s assume that since nobody has applied, there are no such groups. So you are only tackling the problem of socially and educationally forward class individuals or families that are facing financial – not economic – difficulties, for which there are plenty of other programmes. Now if there are individuals or families who belong to socially and educationally Backward classes, they don’t have access to any reservation as a family. They can only access reservation available to their whole group. And if you belong to a small backward class, you may have 1 per cent or 2 per cent of the 50 per cent reservation allocated to you, along with the 10-15 other groups, and your chances of getting it are next to zero. But if you are a family belonging to the socially and educationally forward classes and your family is in financial difficulty, you don’t have to worry whether your group is forward or backward, you are not limited by having to be part of a group. As a family you can directly access 10 per cent of reservation, when you are a very small part of the population. So, to go back to the earlier metaphor, the Whites can access affirmative action for Blacks and Latinos but the Blacks and Latinos can’t access the Whites-only space in the US. So you don’t give the option to the Backward Classes, SC and ST families to access EWS. They have to be confined only to group reservation, whether they like it or not. So you create basically a caste-apartheid space in public education and employment, which is like planting an incendiary device inside a democratic Constitution. An apartheid bomb has been put into a democratic Constitution to blow it up, because it is totally incompatible, which is why the Chief Justice of India [U.U. Lalit] and one of the most scholarly, respected jurist judges in our Supreme Court, Justice Ravindra Bhat, both came to the conclusion in their judgment that EWS violates the basic structure of the Constitution and damages the social fabric of equality. So this is obvious to anyone who understands the fact that the Constitution is essentially trying to end group oligarchy and create a representative state as the first step towards a democracy where all classes are represented. And to create a caste-apartheid space only for the upper castes, closed to everyone else, in public employment and education is taking us back to Chaturvarnya. This is why it sort of attacks the Constitution.

In your earlier interviews, you have been critical of the perception that reservation as provided for in the Constitution is caste-based. But don’t you think that’s where the problem lay because we had identified these Backward Classes, not Backward Castes, and that was kind of taken advantage of to come up with this idea of Economically Weaker Sections?

The basic argument here for some years, starting from E.M.S. Namboodiripad [a former general secretary of Communist Party of India and first chief minister of Kerala] and his Administrative Reforms Committee report in Kerala in the 1950s, is opposing the reservation in the Constitution for Backward Classes, Scheduled Castes, Scheduled Tribes with the idea that what we really need is economic reservation and not caste-based reservation. This is the way the debate has been framed since the 1950s, started by E.M.S. Namboodiripad and others. Now we must understand two things here. Let’s start with the background to Article 16 (4) – where did it come from? Then we’ll understand why there is a demand for economic reservation and we can answer the question that you posed – did we go wrong? Where did 16 (4) come from? To find its origin you have to go back to the speech Dr Ambedkar made in 1930, in the First Round Table Conference, where Dr Ambedkar told the British that if and when you go the big concern is India will be ruled by an oligarchy – a small group of people – by which he meant the Hindu upper castes. So he raised a historic demand which I don’t think has been raised, to my knowledge, in any political movement before that anywhere in the world in the way that he did because he was speaking on behalf of an extraordinarily oppressed people, oppressed in the most inhuman, barbarian fashion. Even the demand for the Blacks in the Civil War in the United States was to give them equality and equal vote. But what did Ambedkar ask for? He asked for a representative government. He asked for representation of classes of people who are unrepresented. That is why he asked for an electorate for each community, because he wanted effective representation for each community. 

The demand for representation of each community was an extraordinary demand. Because he asked for and insisted and because of the movement of the oppressed classes we have individual equality and equal protection in the law in Article 14 and non-discrimination in Article 15. But he demanded in 1930 representation for classes (groups) of people which are unrepresented – political representation through separate electorate for each community and in services. In 1930, he submitted a memorandum to the Minorities Committee, which was headed by the then British prime minister. This was in the First Round Table Conference. In that memorandum, he laid out eight conditions and safeguards that the oppressed classes must have when the British leave to protect them against the upper castes. If I remember correctly, Safeguard No 4 was on legislature and Safeguard No 5 was representation in services. That is where the history of Article 16 (4) begins. He demands that there must be representation of all classes in the public services, and of course, education is a feeder for public services. He mentions legislature and public services, although legislature hardly existed then. He says the demand from the Congress then was for a responsible government. That was the phrase they used. They did not say ‘democratic government’, they said ‘responsible’ government’, meaning it is responsible to the people or elected by the people. Ambedkar says he is there with a mandate that not only should the government be responsible, it must be representative. It’s not enough to be responsible, ‘we want a representative government’ and representation for all classes. That is where the communal electorate comes in. I prefer the term community electorate because ‘communal’ is used to denigrate it. 

The Congress did not attend the First Round Table Conference, they did attend the second and the third editions. The response from Gandhi ji was very significant. He said, ‘I represent everyone, the depressed classes, oppressed classes, the Harijans, the Muslims of Mr Jinnah. You can’t represent the Muslims, Mr Ambedkar, you can’t represent the oppressed classes. I, Gandhi, represent the whole of India.’ What he was saying was that the Hindu dominant classes are the only people who can represent India; no one else and no community can demand representation. Now what does representation require? Representation requires organization as a community. Organization as a community requires identity as a community, so you start with identity and move to organization and mobilization and then you have representation – you decide who your representative is. So they are denying you all these things, saying you will not have an identity, you will not organize, you will not represent. We will represent you. ‘For us, you are all a bunch of individuals. If you as an individual have economic distress, we will give you economic assistance. We will even give you reservations, we will give you jobs as a means of economic upliftment. We will give you admission to colleges as a means of economic upliftment, as individuals. But the political demand of representation – not the poverty alleviation demand – of the large multitudes of distinct social groups in the country, whatever their religion, whatever their caste, is something we will not accept.’ 

Somehow the attention fell only on Safeguard No 4, namely about community electorates. Fortunately, not much attention was paid to the demand for representation in public services at the time and Gandhi did not fast separately against that. So while Ambedkar was forced tactically to give up the demand for separate electorates to the legislature to ensure the physical safety of the oppressed classes from the possible death of Gandhi ji as a result of the fast. But Ambedkar brought Safeguard 5 from the Round Table Conference as Article 16 (4) of the Constitution and he wrote into the Constitution a principle, and to my knowledge it doesn’t exist in any other Constitution in the world, and that is the principle of adequate representation of all classes. He put that into the chapter of Fundamental rights and created a fundamental right to adequate representation in public employment, namely in judiciary and executive, for every single class of people that is unrepresented. 

‘Backward’ means unrepresented. This was his way of ensuring that India would not be ruled by an oligarchy, because an oligarchy means public employment in the state executive and judiciary is controlled by a small number of classes or communities. If you have everyone represented in it, that instantly dissolves the oligarchy. So to counter the democratization of India through a representative State representing all the diverse communities of India, the dominant castes brought up the idea of economic reservation to individuals, not to groups, not to poor groups but to poor families. Why is it that they are not saying they will give representation to poor groups but only to poor families? Because they don’t want the poor to organize themselves as social groups. If you organize as social groups, you will overthrow the hegemony of the oligarchy because the oligarchy consists of a handful of social groups and they won’t allow anyone else to mobilize their social groups, and without a strong social group individuals will never be able to fight the dominant social groups and bring about social change. 

So the demand for economic reservation is a ruse to prevent social equality among social groups, which is also written into the Constitution – equality not only among individuals but also among groups is in the Directive Principles of State Policy, but to destroy that they brought in a ruse saying that they will give reservation to individuals who are poor. Fine, do that, no problem! But they said they would use that to destroy the provision of reservation for unrepresented groups, which is a political demand, not a poverty demand. So you have a political programme of a democratic representative state through representation of all social groups being destroyed by a poverty-alleviation scheme of giving employment to people with financial distress and they are called the Economically Weaker Sections (EWS). So the real purpose of the EWS reservation is to destroy the ability of unrepresented, marginalized social groups to organize themselves and get their due share of power in this country. That’s the real purpose of EWS reservation and they will try to spread it and gradually destroy these groups. 

Now the upper castes and upper classes are not against reservation. They love reservations – I wrote about it recently. Chaturvarnya is nothing more than a massive system of reservations. The Savarnas invented reservations. They said this job is reserved for X, that job is reserved for Y, as groups not individuals. And after Independence, they created reservations for children of central government employees in Kendriya Vidyalayas, domiciliary reservation, sportsmen’s reservation – so many types of reservations. Where there is no problem of lack of representation or marginalization or social discrimination, you are simply saying, ‘Look, we want to set aside for ourselves, because we are used to that, we are not used to competing, we are not used to having to deal with other people, we keep them out, they don’t belong here, they are not good enough, so we want to take the privileged opportunities and keep these for ourselves. That is Chaturvarnya and we basically want to go back to that. We want to go back to a system where the best opportunities are kept for ourselves, others don’t deserve it. We want a pure space, a space of purity, untouchability in public employment and public education and that is EWS.’ 

The full form for EWS for me is Exclusively and Wholly for Savarnas. We are not against anyone. We want all social groups, including the so-called upper castes and upper classes. All of them have a right to preserve, as Article 29 says, their distinct script, language or culture to organize as organic social groups, self-formed, constantly changing, mutating, not fixed by any law or force or by the State. We want all of them to organize, to mutate, to change, to demand and to get representation in the State, so that we can be a representative and democratic state, representing all groups of people, including those who don’t want to be part of any group. They are also free to enter Parliament and enter the executive and the judiciary and represent that view – that is what democracy is all about. Democracy is not about saying, ‘Look, these few groups are fine, all the other groups are dangerous and anti-national, and we won’t allow any group except these groups to exist or to dominate or rule.’ They don’t want any group to dominate but even to exist – that is not on, that is not democracy. This is basically what is going on, as I see it.

Prof G. Mohan Gopal

So if it had been spelt out in the Constitution as Other Backward ‘Castes’ and not ‘Classes’, would that have prevented this from happening? 

No, for two reasons. Because castes are only Savarnas, which means a group that is pure, separated from the impure. Caste means ‘cut off’ actually, so it is a group formed by notions of purity excluding the impure. So they use the word caste very deliberately to describe Chaturvarnya, which is a system to separate the pure from the impure. If you take the ‘pure’ people, we use the terms varna and jati. Sociologist G.S. Ghurye has written in his book ‘Caste and Race in India’ that jatis are basically subdivisions of varna. The rest were called outcastes through all these centuries. Outcastes means ‘out of caste’, so except Savarnas no one has caste. We are all just communities, social groups. We are not groups. Savarna have varnas and jatis, so there are no backward castes, so you could not have called them backward castes, because castes are only the Savarnas. So we are backward groups. Backward means unrepresented. The word Backward originally came not in Article 15 (4) but in Article 16 (4) and it came from the history of non-Brahmin or anti-Brahmin movement in Travancore, Madras Province, Mysore and Maharashtra, where the demand was for representation of non-Brahmins in government and public employment. They referred to those who were not represented as Backward. That usage was taken into Article 16 (4), which says backward classes, which are not represented, which do not have adequate representation – so clearly backward means not having adequate representation. It does not mean culturally, intellectually, genetically backward, which is a caste prejudice giving that interpretation. 

The other point is castes will only be Hindus. We have a lot of non-Hindu unrepresented groups among Christians, like Latin Christians in Kerala, all the Muslims in Kerala. After Partition, all Muslims in India are basically unrepresented and marginalized because the elite went off and comfortably created a country for themselves, as Maulana Azad said, leaving a vast majority of Muslims behind in a situation where they were a smaller minority than before. So when we say Backward Classes, we mean all these groups which are not castes, which may belong to other religions. Please remember that the Supreme Court decided that the transgenders would be a part of the Backward Classes. Now which caste or religion are transgenders? But are the transgenders stigmatized? Yes. Are they marginalized? Yes. Are they discriminated against? Yes. Are they represented? No. Therefore do they deserve to be a Backward Class and get reservation? Yes, they do. The National Commission for Backward Classes some years ago, I’m told, decided that orphans should be a Backward Class. Now orphans as a group, with a creamy-layer exclusion, are they unrepresented, powerless, marginalized, voiceless, impoverished? Yes they are. Impoverishment is a consequence of other factors – a lack of political voice, representation. So the Backward Class is a powerful category of people irrespective of caste, creed or nature of the social group who basically are voiceless and without political power. It is a fantastically powerful category that has united the voiceless across the country. Today if you are a Backward Class from Kerala and go to Kashmir and introduce yourself as such, you have instant solidarity with the voiceless and marginalized wherever you go – in Kashmir or Assam or Gujarat. So you have created a powerful framework for uniting the powerless and the voiceless, without representation across the country, across regions, religions, castes, languages. Today, these are not the Backward Classes but the Backbone Classes of India.

So this definition of a Class is much broader than the Marxist idea of a class? If so, have the Left in India played a part in the present state of affairs – from not opposing the creamy layer in 1993 to EWS today?

There is more than one view in the Left. Famously, in Kerala, a very respected leader of the Communist Party, who came from a very privileged social group, a so-called upper caste, Mr N.E. Balaram – who was a very senior leader of the undivided Communist Party and later of the CPI – was strongly critical of EMS Namboodiripad’s position that reservation should be on economic grounds and not on social grounds. He was very supportive of the Mandal Commission’s recommendations. So he understood that the Backward Class was an economic class, and not a financial class based on the narrow criteria of income and real-estate assets, ignoring other wealth, social capital and so on and so forth. There is a difference between economic and financial. Economic weakness is multidimensional. There are multiple definitions of the word economic but there are four leading approaches to understanding ‘economic’. 

One of them is based on a welfare approach, which says that ‘economic’ has to do with access to the prerequisites of wellbeing, whatever they may be. So for example, the National Commission for Backward Classes (NCBC) has established 15-20 criteria for a Backward Class, which fall under four heads – social, economic, political and educational. Political means representation in the panchayats, legislatures and so on and so forth. It is after looking at these multidimensional criteria across four domains that you decide whether a group is economically weak. If you take poverty which applies to individuals and families, it is again multidimensional. If you take the Muiti-Dimensional Poverty Index (MDPI) that has been developed by the Oxford Poverty Institute and the UNDP, which is accepted by the NITI Aayog with some reservations, this again looks at multiple dimensions of poverty including social aspects. The difference is that ‘Backward Classes’ looks at the economic poverty/weakness of groups and MDPI looks at poverty of individuals and families but they are all multidimensional. The issue is that we should look at poverty and not at very limited financial criteria. 

Now I don’t think there is any inconsistency at all between the Marxist approach and the approach of Backwardness, which you can say is another word to describe economic poverty or multidimensional deprivation, and the approach of Backwardness is a multidimensional approach to the prerequisites for wellbeing. But where is the conflict between Marxism and the approach of Backward Classes? The Backward Classes approach is an eclectic approach. You can be from the working class and be from a Backward Class. Theoretically, the entire working class – although I haven’t thought through the practical aspects – will be a Backward Class because the government could say that the working class that complies with these criteria of social, economic, political and educational deprivation and lack of representation is a Backward Class. The fact that they don’t belong to a caste is not going to disqualify them any more than a Brahmin caste that does death rituals is disqualified from being a member of the Backward Classes or a Transgender is disqualified from being a member of the Backward Classes. They are not disqualified, so there is no reason why the working class as a whole cannot be a Backward Class. But the difficulty comes with what the Backward Class permits, which a Marxist analysis can be interpreted as permitting but many of the dominant leaders of our Communist parties, except people like late Mr N.E. Balaram, do not accept the recognition of a social group as a class. So E.M.S. Namboodiripad said in his Administrative Reforms Committee report that basically changing production relations and ending poverty would end social discrimination. That is the debatable issue. 

We are not in favour of compartmentalizing or dividing society into social groups for the sake of social groups. I don’t think Marxist ideology should have any difficulty in attacking Chaturvarnya, purity and impurity and cross-birth inheritance of good deeds and bad deeds, that poverty arises from your bad deeds in a previous birth and things like that. That kind of superstition is what we are fighting against. I think it is nothing but the casteism of some of the leaders of the Left as individuals. We know that S.A. Dange was casteist – finally action was taken against him. E.M.S. Namboodiripad was casteist by all evidence, N.E. Balaram was not. There is no evidence that A.K. Gopalan was a casteist, so some Marxist party leaders and some CPI leaders were casteists. There are casteist leaders everywhere, the Congress party is full of casteist leaders. That is different from the analytical rigour with which we have to look at the concept of Backward Class as a category that permits mobilization of victims of any kind of marginalization and lack of representation and voice regardless of the nature of the group or the nature of discrimination. It is a very powerful progressive category and in Article 16 (4) there is only Backward Class, which includes Scheduled Castes and Scheduled Tribes. I use the category in that sense. By the time Article 15 (4) came, it was separated into socially and educationally backward classes, SC and ST. It is the category of Backward Class, in the sense of Article 16(4) that is being attacked by the oligarchy castes regardless of the flag they fly politically or the ideology they profess.

Now everyone believes that the 50 per cent cap for reservations has been lifted and we have state governments increasing reservations and going beyond the cap, like in Jharkhand, Chhattisgarh and probably Bihar next year. Where do you see these decisions going?

Now, we should be clear in our minds that the only issue before this Constitution Bench was whether this Constitution amendment was valid and as you know the only basis on which an amendment can be struck down as invalid is that it violates the basic structure of the Constitution, because we are not testing the constitutional validity of a statute, we are testing the constitutional validity of a part of the Constitution. My argument, which I made earlier, is that it fundamentally destroys the core of the idea of a representative state, basic structure and equality by bringing in a pure caste-apartheid, Chaturvarnya concept and space inside the Constitution. There was, to my recollection, only the fundamentalist anti-reservationist group Youth for Equality whose lawyer argued in the Supreme Court quite strongly that the 50 per cent cap must be held to be part of the basic structure. Others I don’t think pressed that argument. I don’t know if anyone made it. Certainly no one pressed it vehemently. This argument was clearly rejected by all the five judges. The 50 per cent limit is not part of the basic structure. Therefore, whether the 50 per cent limit would be breached was not an issue before the court. The only issue was whether it was a part of the basic structure and if it was, the provision of EWS in Articles 15 (6) and 16 (6) would be in addition to the existing reservation and make it violative of the basic structure – that was the argument. Since it was not part of the basic structure, the question whether 50 per cent cap was breached need not have been considered by the Bench at all and was not considered.

Now, where do we stand? The Indra Sawhney case did not set a rigid limit of 50 per cent as we all know. It gave a strong warning quoting Ambedkar that exceeding 50 per cent would damage the right to equality in Article 16 (1). But the nine-judge bench in the Indra Sawhney case said that in exceptional circumstances, for example to give access to remote groups, you can go beyond 50 per cent and that is why we have gone beyond 50 per cent in many states and that continues, that hasn’t changed. Now whether the EWS reservation should mandatorily come from the open 50 per cent category, under Article 15 (6), that is an issue that needs to be litigated and I am intending to litigate that. I certainly do not want the caste-apartheid, Savarna-only space to come out of this 50 per cent [reservation for SC, ST and OBC], nor do I want it to come out of the other 50 per cent because it is the struggle of the Backward Classes that has put the right to equality generally and right to equality in matters of education, in matters of public employment in the Constitution and it is very precious to us and we want to preserve it. So ideally, we should not have that 50 per cent reduced nor the anti-oligarchy, pro-representation 50 per cent – neither of this should be reduced by EWS, which is anti-equality reservation. Unfortunately, the Supreme Court has upheld EWS, so it has to come out of one or the other. Ideally it should not be there at all. I hope some day Parliament will amend and remove this anti-democratic cancer in the Constitution but as long as it is there, in my view, it should come from the open category and not from the pro-representation part. That is something that will have to be litigated. 

So we are not on the issue of whether the 50 per cent limit can be made rigid. For that you will need an 11-judge Bench to say that it is a rigid category, so we are not talking of reviewing that. We are happy to leave the 50 per cent with flexibility – I am speaking for myself. I am happy to leave it alone. The only question is where the anti-representation 10 per cent reservation should come from – should it come from the open category or the pro-representation category? 

Two last questions that I want to club together. Is it an irony that superficially at least the Parliament today is more representative than the Constituent Assembly that ratified the Constitution and yet it has made an amendment of this sort? And do the two dissents from the Bench, including from the former Chief Justice, offer a glimmer of hope about the judiciary’s ability to protect the Constitution in the future?

I think we can’t compare the two as being representative or not representative. I haven’t done the numbers but the present Parliament quite likely has less representation of minorities, especially Muslims, than the Constituent Assembly. The present Parliament is controlled by Chaturvarnya forces. The Constituent Assembly was led by a very diverse group of people who believed in a plural India. In the immediate aftermath of the Partition they did not want an India that is going to be a Hindu theocracy, so it was a Constituent Assembly that was strongly against a theocracy. Today we have a Union government that is seeking to establish a theocracy envisaged by Savarkar and Golwalkar where there will be only one Chaturvarnya society and all people will have to accept that ideology as the national ideology. The reason they are attacking the very important safeguards for pluralism and diversity, such as the representation of all diverse groups that are unrepresented in the executive and the judiciary, is to destroy diversity and representation and establish a homogenized Chaturvarnya society. I think we have today a Parliament that is far more regressive, that wants to cut off English, cut off contacts with other countries, wants to destroy any religious competition, wants to convert India into an autarky, like Burma is, cut off from everything, wants to go back to a Vedic society based on Vedic rituals and ideals – a Manuvadi society where women and lower castes are happily doing their work in harmony not questioning anything – and wants to reinterpret democracy as Vedic democracy. On November 26, I am told that the Union government has proposed a theme that India is the Janani, the birthplace of democracy. That is what someone from a university who called me and wanted me to speak there told me. This means that democracy is now to be understood as a Chaturvarnya, a ‘manuocracy’. So we are dealing with not a representative Parliament, but a socially regressive Parliament that is trying to take India back. There is a huge representation of a small set of ruling castes in Parliament. There is hardly anyone from Backward Classes, Scheduled Castes, Scheduled Tribes, minorities in key positions of power. All the control is in the hands of a small class of people. That is why they want to attack representation of any other group, except their own group.

And I think for now the dissent from the Bench represents an intellectual and professional integrity and honesty and high standards of reasoning, because I saw the two judges being open, engaging with the argument, questioning, expressing their views openly, one way or the other, wrestling with the arguments in their minds and allowing their minds to form their own opinions very independently. Two of the other three judges, to my knowledge and in my presence, did not speak at all, not that they have to speak, and the third judge spoke very briefly. I am sure they had their own way of reaching their own independent conclusions but these two judges were very transparent in the way their minds worked. What they understood, what they agreed with, disagreed with, it was totally transparent. I think this kind of transparent, highly professional and educated judging – very knowledgeable about the subtleties of constitutional law particularly on representation, democracy, basic structure, equality – integrity, independence I’m afraid is a type of judging that is rapidly becoming extinct. So I think we should do our best to protect this kind of judging. As long as there is this kind of judging, whether one agrees or disagrees with their decision, one has huge respect. After all we all come to our conclusions in similar ways and we may not agree with each other but we respect the openness and fairness by which we come to our own conclusion. As long as we have judges who do that, that is all we ask for. So it is too early to write off this quality of judging but it may be too optimistic to say that there is a glimmer of hope.

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About The Author

Anil Varghese

Anil Varghese is Editor-in-Chief, Forward Press

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