The caste/ religion of a litigant shall not appear in the memo of parties in any petition/suit/proceeding: Supreme Court

In Shama Sharma Vs. Kisan Kumar (2024), Supreme Court's bench of Justices Hima Kohli and Ahsanuddin Amanullah observed: "We see no reason for mentioning the caste/religion of any litigant either before this Court or the courts below. Such a practice is to be shunned and must be ceased forthwith. It is therefore deemed appropriate to pass a general order directing that henceforth the caste or religion of parties shall not be mentioned in the memo of parties of a petition/proceeding filed before this Court, irrespective of whether any such details have been furnished before the courts below" in its order dated January 10, 2024.

Its order reads: "A direction is also issued to all the High Courts to ensure that the caste/religion of a litigant does not appear in the memo of parties in any petition/suit/proceeding filed before the High Court or the Subordinate Courts under their respective jurisdictions. 12. The above directions shall be brought to the notice of the members of the Bar as well as the Registry for immediate compliance. A copy of this order shall be placed before the Registrar concerned for perusal and for circulation to the Registrar Generals of all the High Courts for strict compliance." This order is consistent with the preamble of the Constitution of India which aims to promote among the people of India "FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation."

On May 21, 2024, Registrar General of Patna High Court issued a Circular Order No. 05/2024 on the "Subject: Order dated 10.01.2024 passed in Transfer Petition (Civil) No. 1957 of 2023 (Shama Sharma Versus Kishan Kumar) by Hon'ble Supreme Court of India." It reads: The Hon'ble Supreme Court of India in its order dated 10.01.2024 passed in Transfer Petition (Civil)No. 1957 of 2023 (Shama Sharma Versus Kishan Kumar) has issued directions to all the High Courts to ensure that the caste/ religion of a litigant does not appear in the memo of parties in any petition/ suit/ proceeding filed before the High Court or the Subordinate Courts under their respective jurisdiction. Accordingly, this Court in exercise of its powers under Article 227 of the Constitution of India and the resolution dated 10.05.2024 of the Hon'ble Full Court after having considered the afore-mentioned order of the Hon'ble Supreme Court, hereby issues the following direction for its strict adherence: 1. The caste/ religion of a litigant shall not appear in the memo of parties in any petition/ suit/ proceeding filed before the District Judiciary." 

The reference to caste and religion is unbecoming of the dignity and stature of human beings in general and citizens in particular. It is dehumanising. An order of the full court of the Supreme Court is required to expunge all such references in all the past orders of the Courts. 

Never mention caste or religion of a litigant in cause title of judgment: Supreme Court

In State of Rajasthan vs Gautam Mohanlal 2023 INSC 903, Supreme Court's Bench of Justices Abhay S. Oka and Pankaj Mithal observed: We find from the cause title of the judgments of the Trial Court and the High Court that the respondent’s caste has been mentioned.  The same defect has been carried forward in the Special Leave Petition as the description of the respondent accused must have been copied from the cause title of the judgments of the Courts." 

In the order authored by Justice Oka, it is  asserted that "An accused has no caste or religion when the Court deals with his case.  We fail to understand why the caste of the accused has been mentioned in the cause title of the judgments of the High Court and the Trial Court. The caste or religion of a litigant should never be mentioned in the cause title of the judgment. We have already observed in our order dated 14th  March 2023 that such practice should never be followed. The cause title in this judgment has been amended accordingly. Formal amendment be carried out after pronouncement of this judgment."  

Reigniting the anti-caste debate: T. N. Gopalan

ANNIHILATION OF CASTE — The Annotated Critical Edition: B.R. Ambedkar; Annotated and edited by S. Anand, with ‘The Doctor and the Saint’ an introduction by Arundhati Roy; Navayana Publishing Pvt. Ltd. Rs. 525.

This annotated edition is a welcome reminder of the hypocrisies embedded in the system

Annihilation of Caste is a nearly 80-year-old document. Though it made for some unnerving reading when it was published and is still looked upon with reverence by Dalit acitivists, it had fallen out of mainstream discourse till Navayana chose to resurrect it through the person of Arundhati Roy. Yet again the king has been called naked and peace breached.

It is not as if any affronted outfit would start burning the new edition, but the all-pervading complacency has been punctured, and the blight of caste will be discussed animatedly for some time to come.

When the moderate Hindu reformers cancelled their invitation to Dr. Ambedkar in 1936, they might not have imagined in their wildest of nightmares that the criticism they had sought to shut out would gain such wide currency that Gandhi himself had to come out mumbling some apology as to why Hinduism was still needed. “…the learned doctor has over-proved his case. Can a religion that was professed by Chaitanya, Jnyandeo ... be so utterly devoid of merit as is made out in Dr. Ambedkar’s address? A religion has to be judged not by its worst specimens, but by the best it might have produced. For that and that alone can be used as the standard to aspire to, if not to improve upon.”

Gandhi’s may have been an unconvincing apology, but he is hailed as the Father of the Nation and venerated across the world for both real and imaginary reasons. He might not have won the debate, but has comprehensively outscored his rival in terms of the impact on the psyche of the nation – not in the sense of having changed the mindset of the people, but simply that his equivocations and pious platitudes are still a comfortable fallback for the defenders of the Hindu faith.

In the circumstances one would have expected Dalit activists to greet Arundhati Roy’s stinging introduction warmly and thank her for reigniting the debate. But no, there has been harsh criticism all over and protest demonstrations, so much so Navayana says it is finding it difficult to distribute the book in some cities.

Quite a few have questioned the rationale behind having a full length essay, longer even than the book it is introducing, focusing essentially on Gandhi and not discussing Ambedkar’s disquisition much. To a casual observer it might sound a bit odd indeed to do a hatchet job on Gandhi instead of hitting out at the caste system further a la Ambedkar.

But there is a method in Arundhati Roy’s/Navayana’s madness, if one can call it that. Dr Ambedkar’s clarion call went unheeded, and today violation of not just caste injunctions but even of gothra norms can invite murder and worse. Taking off from Ambedkar, who insists that scriptures sanctifying the caste hierarchy be repudiated first in order to fight caste-related iniquities, Arundhati Roy tries to shame the society to its senses by systematically demolishing the mystique of the Mahatma under whom apologists seek to take refuge when faced with criticism on the essential injustice of the caste system.

If ‘Periyar’ EVR was willing to ignore the atrocities and humiliations meted out to the Scheduled Castes since he wouldn’t like anything to come in the way of his struggle for anti-Brahmin hegemony, so too Gandhi sought to sweep under the carpet serious Dalit issues and sit on it himself, as it were, so that everyone could pretend that the problem had been solved.

Referring to Mahatma Gandhi’s various statements and letters on the 1932 Communal Award, an admirer gushes: “A reading of these documents puts the reader in touch with the Mind of Mahatma Gandhi and thus can be likened to a pilgrimage through those magical times when untouchability was abolished and Hinduism was purged of this great curse which had defied the reformers for decades.”

After the Poona pact Gandhi solemnly proclaimed, “It would be only out of the ashes of untouchability that Hinduism can revive, and thus be purified and become a vital and vitalising force in the world.” But even the temple entry programme, he gave up midway, as more ‘serious’ issues engaged his attention; with the result that, we are now saddled with a situation wherein the Dalits are still groaning under innumerable disabilities almost everywhere in the country.

To think that W.C. Bannerjee, the founder president of the Indian National Congress, had thundered at an AICC session, “I for one have no patience with those who saw we shall not be fit for political reform until we reform our social system. I fail to see any connection between the two ... Are we not fit (for political reform) because our widows remain unmarried and our girls are given in marriage earlier than in other countries? Because our wives and daughters do not drive about with us visiting our friends? Because we do not send our daughters to Oxford and Cambridge?”

Ambedkar strongly disputed the sense behind according primacy to political reforms, and perhaps he has been borne out by history too, but few are willing to concede as much for a variety of reasons. In any case Ambedkar himself failed in his mission possibly because he was not an astute politician like Gandhi himself, as Ms. Roy rightly points out. Though he could feel in his bones the miseries of the Dalits, he unfortunately failed to understand a minority had to patch up alliances with the more sympathetic among the majority, and that was his undoing.

For instance, the Lahore conference presidential address he refused to deliver because some among the organisers wanted some changes, say sotto voce certain things. He would have none of it. One can only speculate he might have gained some leverage if he had agreed.

Well, the Poona pact was a humiliation for him but also an acknowledgement of the unquestioned sway of the Mahatma, but still it didn’t deliver much, it may be argued perhaps. Heads they win, tails he loses. And his reneging on Hinduism too failed to have much of an impact.

So where does it leave us? “The intellectual classes to whom the masses look for guidance are either too dishonest or too indifferent to educate them in the right direction. We are indeed witnesses to a great tragedy. In the face of this tragedy all one can do is to lament and say — such be thy Leaders, O! Hindus,” bewailed the doctor, almost menacingly. But the wily saint seems to have had the last laugh, the Hindu society plodding on with incremental changes, at an agonisingly tortuous pace at that.

With Ms Arundhati Roy’s fiery denunciation of the Father of the Nation forming a spectacular backdrop, Navayana’s extensively annotated edition is indeed a welcome reminder of the hypocrisies embedded in the system — more so at a time when Hindu supremacism threatens to overrun the country. 

http://www.thehindu.com/books/books-reviews/reigniting-the-anticaste-debate/article6002135.ece

Keeping alive the caste goose that lay golden eggs for the ruling classes: Anand Teltumbde

During the colonial days, the first expression of the resentment of the Untouchables was against their exclusion from social processes. Barring Jotiba Phule, who conceived their cause beyond untouchability and included them within his ‘shudra-atishudra’ as a class that was exploited by ‘shetjis and bhatjis’, all other social reformers just focused on this visible symptom of untouchability and not the disease of caste per se.

Post-Lucknow Pact, the Congress acutely felt the need to keep the Untouchables within its fold as Hindus lest they lost their political share to Muslims. They, therefore, began working on the issue of untouchability. With the persistent efforts of Babasaheb Ambedkar, particularly his forceful arguments in the Round Table Conferences in 1931-32, the separate and special status of the Untouchables was recognized in the Government of India Act 1935 as ‘Scheduled Castes’.

A massive exercise was carried all over India to identify castes on the basis of a criterion of untouchability for preparing this schedule before 1937 elections in order to implement the provisions contained in the Act. The provisions were in the political form, originally as reservation with separate electorates and thereafter, as modified in the Poona Pact, reservations in joint electorates. There were preferment provisions also in the Act which mandated the state to take care of their interests. Accordingly, capable people from among the Scheduled Castes were given jobs in the government sector. When Dr Ambedkar became the member of the viceroy’s executive council in 1942 as labour member, this preferment policy was converted into quota system by an executive order.

The important point to note here is that the evolution of the reservation system up to this point was conceptually correct. The reservation as an exception to the general rule was extended to the exceptional people (nobody could have any dispute over the Untouchables being a very exceptional lot in the world). But after the transfer of power, during the writing of the Constitution, this exceptional provision was proliferated so as to preserve the prevailing communal and caste divisions in the society, lest they disappear under the force of ensuing changes in political economy.

First, the same set of provisions as were created for the Untouchables were extended to the Tribals by creating a separate schedule for them. There was an alternative to combine the schedules or extend the existing schedule for the Untouchables to include the Tribes. By doing so, the caste factor could have been diffused because although Tribals were backward, they did not suffer the social stigma of untouchability as the Untouchables did. If the purpose of these schedules were exactly same, there separation did not make sense except for keeping the untouchable castes as a distinct category alive. Merging the Untouchables and the Tribes would have at the minimum diluted the caste stigma. This separation maintained the identity of the Untouchables as separate people. The utility of this separation is illustrated by many communities demanding their inclusion in Scheduled Tribes but not in the Scheduled castes. That would fetch them all the benefits without the social stigma of being inferior. None would like to be Scheduled Castes, however!

There was another problem with the schedule for Tribes, which was the fluid criterion used for scheduling the communities as tribals. Unlike the Untouchables, who were categorized into the schedule on a concrete criterion of untouchability, there could not be such criterion for Tribals or for that matter, any other people. The problem has manifested into inclusion of certain wrong communities into the schedule which appear to have monopolized most benefits planned for the Tribes. Every state will demonstrate that just one or two communities which otherwise are as advanced as even the upper castes, monopolizing the benefits just by an accident of being included in the schedule for tribes.

The bigger mischief was played under Article 340 of the Indian Constitution, which made it obligatory for the government to promote the welfare of the OBCs. 

The Article said:

“The president may by order appoint a commission, consisting of such persons as he thinks, fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the union or any state to remove such difficulties and as to improve ‘their condition and as to the grants that should be made, and the order appointing such commission shall define the procedure to be followed by the commission. ... A commission so appointed shall investigate the matters referred to them and present to the president a report setting out the facts as found by them and making such recommendations as they think proper.”

To defend the Constitution, one may argue that the phrase used in the Article is “socially and educationally backward classes” and not ‘castes’. As a matter of fact, except in reference to the Untouchables, the Constitution does not use ‘caste’ anywhere. But everybody knew what was meant by the ‘class’ in the Article. It would only be mapped by the castes. This article would constitute arsenal of the ruling classes, which could be opened at the opportune time. There were far more pressing mandates of the Constitution to the ruling classes. One such mandate and only one in that demanding its fulfillment within a specified time period of a decade, was regarding provision of the free and compulsory education to all children up to the age of fourteen years. They ignored it but almost immediately followed the Article 340 to institute a Kalelkar Commission on 29 January 1953 to identify the ‘backward classes’. Naturally, in reference to their social backwardness, the castes would come into picture. They did come and such castes were identified by the commission which were ‘educationally’ backward and were underrepresented in the government service as well as in the field of trade, commerce and industry.

The Kalelkar commission submitted its report on 30 March 1955, identifying 2,399 backward castes or communities as backward and of them 837 as the ‘most backward’. It inter alia recommended undertaking caste-wise enumeration of population in the census of 1961 and reservation of 70 per cent seats in all technical and professional institutions for qualified students of backward classes. Perhaps, the opportune time had not yet come and therefore the report was rejected by the Central government on the ground that it had not applied any objective tests for identifying the Backward Class.

By the next decade, the changes in political economy induced by the calibrated land reforms and Green revolution, which would create a class of rich farmers out of the populous Shudra castes, wielding the baton of Brahmanism from the upper castes in vast rural India. These changes catalyzed regional parties and made electoral politics (based on the first-past-the-post type elections, where a small group of votes also make or unmake the outcome) increasingly competitive. The rise of the backward castes and their regional parties slowly spread through local self governments to states, culminating into defeat of the Congress party in 1977 by the Janata party, which was motley mixture of all these elements. Janata party government established the second backward classes commission on on 1 January 1979, which came to be known as the Mandal Commission with a mandate to “identify the socially or educationally backward.”

The commission identified “other backward class”, on eleven criteria, but necessarily in terms of castes or religious communities comprising 54% of the total population (excluding SCs and STs), belonging to 3,743 different castes and communities. The report of the commission was submitted in December 1980 making several recommendations. A decade after the commission gave its report, V.P. Singh, the Prime Minister at the time decided to open up this can of castes in 1989 in his political game plan. It immediately resulted in the nationwide inferno against ‘reservations’, which until then were confined to the SCs and STs and were reluctantly but largely reconciled. The inferno created comic waves. Although the reservations were meant for the BCs, on the ground they came to beat the SCs, who foolishly rushed to defend ‘reservations’. Ultimately, reservations for OBCs were implemented in government services in 1993 and in higher educational institutes in 2008. Reservations came in their true prowess as weapons in the hands of the political parties who began using them with impunity in their political calculus.

Any sane person can easily see that in a backward country like India, where arguably more than 80% population (by government reckoning 22.5% SCs and STs +54% BCs, which makes 76.5%. Add to it another 5 % of the poor of the excluded castes, all of them not being the upper castes, the tally goes up to 80.5%) can be summarily termed backward, the criterion of backwardness cannot be used for the exceptional measures such as reservation. It is not to say that there are no people other than the Untouchables who are not poorer or backward than them. They indeed are.

And the state bears definite responsibility towards them. It has policy instruments to do such things and not reservations alone that are two edged swords that need to be cautiously used. For example, such a policy measure was indicated in the Constitution itself. It was about providing free, compulsory, and quality education to all children through neighourhood schools up to the age of some mature age. (The Constitution had prescribed free and compulsory education up to the age of 14 years and did not elaborate in so many terms). I feel, if the government had taken up this single issue in proper spirit and implemented this provision; there would not have been even the need of reservations.

If the government is really concerned with the backwardness of the people, it would have internalized the need to ensure that every child that comes out on earth does not inherit the disability of their parents. Any woman that conceives a child would be provided quality health care and proper diet by the state. She would deliver the child in a healthy atmosphere and the child after the birth would be provided with proper diet and provisions for its healthy growth, followed by quality education. All children if they got the same education only through the neighourhood schools, would have healthy socialization and similar opportunity to realize their potential. Instead of indulging in a plethora of so called welfare schemes the government should have prioritized this programme. But it summarily ignored it.

Instead, when the circumstances compelled it to do something in this regard, it changed the original mandate of the Constitution itself and enacted the ‘Right to Education’ Act, which has only legitimized the multilayered education system that evolved in the country under benign gaze of the government. It admits the quality of education as per the socio-economic standing of the parents, something akin to what Manu prescribed. Here also it has mischievously unleashed the weapon of reservation to fool the lower castes and classes.

One should clearly see the underneath orientation of the ruling classes in this brief history that they would never let the goose of caste die! It is the testimony to the bankruptcy of the Dalit politics on the other hand that such issues do not even remotely concern it. Rather, paradoxically, with the spread of education and ‘Ambedkarism’ among them, increasingly fewer among them believe that castes could really be annihilated.