When a top Bollywood actor recently said modern Indians have rejected caste and another one opposed identification of caste in the census a few years back, some people legitimately see casteism in their thinking. Isn’t it a way of looking down upon those who have no choice but to refer to their caste in order to climb the socio-economic ladder? This phenomenon of casteism prevailing among the ‘modern’ is explained in ‘Secularism, Modernity, Nation’ by Aditya Nigam – “this modern self is not a traditional casteism in disguise…in looking beyond the narrow confines… (it) actually becomes blind to their continuing salience in a myriad new ways…” In other words the modernist, who believes that he no longer practices caste discrimination only because he abides by a constitutional scheme that outlaws it, may actually be blind to its continuing relevance both within himself and in society. An example of how this ‘blindness’ takes form can be seen from Ajanta Subramaniam’s incisive book, The Caste of Merit, on engineering education in India, which shows how casteism can survive even among the ‘casteless’ or highly modern through distinctions like the one between IITians  with “innate capability” and  those with “accumulated knowledge”.  It is in this context that the article seeks to raise an important question that has eluded the attention of most legal scholars. Is the failure to ‘annihilate caste’ from our society inspite of the constitutional approach we have chosen or as a result of it?

Writing from prison during the Quit India Movement Nehru claimed that “Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of modern life … and it seems at last this hoary and tenacious relic of past times must die.” After seven decades of these ‘conditions of modern life’ the National Crime Records Bureau in its report titled ‘Crime in India, 2018’ records an increasing crime rate against Scheduled Castes (SCs) and Scheduled Tribes (STs). Number of recent studies show income and education levels correlate very closely with caste. Untouchability continues to exist nine decades after Gandhi predicted that it “will soon be a relic of our sinful past.”

The one key feature of these ‘conditions of modern life’ that has relevance to our constitutional scheme is the theory of individual agency unencumbered by ‘localism’. As Madhav Khosla puts it, “A hallmark of modernity was the idea that one’s political universe could be constructed…by offering them a neutral mechanism for making decisions where each participant is treated equally.”

In such a scheme the centralised state, according to Khosla, is “an impersonal force that…(sees citizens) as equal agents”. It was always a struggle for such a Constitution to speak about caste as it does in the case of reservations. The issue is apparently resolved by an “effort at abstraction” or the concept of “backwardness”. So he says ”though it may appear ex facie that preferential treatment was a way to recognize a group identity, the approach to caste was, as in the case of religion, driven by a desire to unchain imposed group identities and liberate the individual.“

The Supreme Court has also tried to justify reservations on the basis of the same liberal consensus. The absolutely paramount right to equality of the ‘meritorious’ is not compromised by group rights because of, inter-alia, the way merit has been defined. Recently in B.K. Pavitra v. Union of India the court defined merit as not just talent or success but as that which “fulfills constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.” In the famous NM Thomas case, Justice Krishna Iyer put it like this – “efficiency means, in terms of good government, not marks in examinations only, but responsible and responsive service to the people”. So the problem is solved through semantics. The popular Harvard philosopher Michael Sandel demonstrates in his book ‘Liberalism and the Limits of Justice’, the hollowness of this approach by describing how a letter of acceptance to a reserved category student based on this idea of ‘merit’ will read- “Dear (Successful) Applicant…We are pleased to inform that your application for admission has been accepted. Through no doing of your own it turns out that you happen to have the traits that the society needs at the movement, so we propose to exploit your assets for society’s advantage by admitting you to the study of medicine/ law.”

It is important to take a relook at the alternative which failed against this modernist-liberal consensus. Gandhi opposed reservations in his book India of My Dreams, not because he believed in the laissez-faire or libertarian justification of merit, but because he rejected any solution that does not involve dialogue between the ‘oppressed’ and ‘oppressor’. There is nothing in Gandhi’s ideas that discounted the potential of reservations to achieve representation or other social benefits in the system of governance that we are familiar with today. His issue with them was only that they had to be offered by the State as a dole. For instance, reservations of the kind we see today in higher education would be outside Gandhi’s scheme which envisaged colleges being run by voluntary associations that were meant to be working already for the underprivileged and providing for their needs without State intervention. He opposed state patronage in whatever mould because his main concern was with ‘changing hearts’- something an ‘impersonal force’ is incapable of playing a part in. Gandhi believed that caste-discrimination was a sin of the caste Hindus and therefore only they could expiate it. For this, he appealed to their religious values. As Thomas Pentham’s quotes from Ahsis Nandy in “Thinking with Mahatma Gandhi: Beyond Liberal Democracy” – “all his life Gandhi sought to free the British rather than the Indians from the clutches of imperialism and the Brahmins rather than the ‘untouchables’ from the caste system”.

As long as one assumes the individual to be a ‘sovereign agent’ of political change, the State’ role in determining what is good is seriously limited.  Gandhi, on the other hand labeled as mere ‘license’ any liberty that forsakes the duty to do good. Political Scientist Neera Chandoke, in her piece ‘Quest for Justice: The Gandhian Perspective’ says there are two approaches to dealing with serious disagreements in a plural society- i) to “strictly define what the governing norms of justice are, prevent further debate and discussion, and thereby proclaim an end to the matter” or ii) to “institutionalize procedures for dialogue among different groups”. There is little doubt that our constitutional approach has always preferred the former, because that is the maximum a ‘neutral mechanism’ can achieve when dialogue breaks down. The latter alternative has never been explored because it requires agents with the moral fibre of Gandhi’s ‘Satyagrahi’ to overcome centuries of mutual animosity and make fruitful dialogue. Till then initiatives like Mandal commission will be met with violent protests, and when the violence dies down, with direct or indirect claims of superiority over beneficiaries of such initiatives.

The crux of the difference between both alternatives can be found in Gandhi’s view, in ‘Young India’ that social life “is not divided into water-tight compartments, called social, political and religious” and “every act has its spiritual, economic and political implications”. ‘Modernity’, or the ‘normative umbrella’ under which our constitutional framework of rights operates, requires this division. In the context of secularism, Ashis Nandy, in his article ‘An Anti-Secularist Manifesto’ says the modern ideal limits “the democratic process by truncating the political personality of the citizen”. What Nandy says of religion, applies to caste as well in two ways. Referring to upper castes in a UP village who do not utter Dalit surnames in full compliance of the law but still refuse to mingle with them, Gopal Guru notes in his chapter in Politics and Ethics of the Indian Constitution that “an upper caste person may avoid being touched on grounds that he values his atomised self more than any moral commitment to affectionately touch others…obviously the Indian Constitution is ill-equipped to generate this moral vocabulary”. Through his writings Gopal Guru has questioned the dominant current in Indian sociological studies that the aim of the Dalit movement is only to advance in socio-economic, civic and political fields- an underlying assumption in our constitutional approach also. Guru adopts even Ambedkar into this non-modern fold when he says “since relative deprivation (the dominant sociological theme in Dalit studies) has meaning only in the hierarchized socio-economic situation, it cannot explain the phenomenon of Buddhist conversion movement…”.  More importantly, through its rights regime the constitutional scheme may have positively contributed to a new form of non-violent casteism that exists only in the modern and constitution-abiding citizen. As Aditya Nigam puts it – “the very process by which the political category of ‘brahmin’ became available to the non-brahmin movement, thanks to the discourse of equality and rights, was also the process by which the brahmin power was instituted in the secular-modern realm.”