Post-Thakur Analysis: A Discovery

Apart from the articles which Arun cited, there are two more worth reading. One by Abhishek Singhvi, and another by Praful Bidwai. Both have commented on the Bench’s opinion expressed in a particular paragraph. Singhvi’s piece appeared in his column in Hindustan Times today while the latest Frontline carries Bidwai’s column, Beyond the Obvious.
Singhvi says the interim order suffers from a certain degree of gratuitous dicta when it opines, and that too in an interim order, that “nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere…is there competition to assert backwardness and…to claim that we are more backward than you.” Singhvi says: one is certainly entitled to that opinion but when converted to judicial dicta, it treads directly on policy prescriptions sanctified by constitutional text. Since this could not have been the basis of the interim order, it was superfluous and unnecessary.
Commenting on the same paragraph, Praful Bidwai says: “People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.
As the interim order which carries this paragraph sourced it to Indra Sawhney judgment approvingly, I was curious to know the context in which the nine-Judge Bench made the observation. To my surprise, I discovered that it was not the Nine-Judge Bench in that case which made this observation. Indra Sawhney probably does not even refer to this, if I am not wrong. It was in fact made by Justice O.Chinnappa Reddy in K.C.Vasanth Kumar v.State of Karnataka (1985) [Supp. SCC 714.]The interim order says in paragraph 21:

“The 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. This truth was recognized as unhappy and disturbing situation and such situation was noted by this Court as a stark reality in Indra Sawhney’s case (supra).
Justice O.Chinnappa Reddy’s judgment in K.C.Vasanth Kumar begins as follows: (Paragraph 32)
“Over three decades have passed since we promised ourselves “justice, social, aconomic and political” and “equality of status and opportunity”. Yet, even today, we find members of castes, communities, classes or by whatever name you may describe them, jockeying for position, trying to elbow each other out, and, viewing with one another to be named and recognised as ‘socially and educationally backward dashes’, to quality for the ‘privilege’ of the special provision for advancement and the provision for reservation that may be made under Article 15(4) & 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward status. Nowhere else in the world is there competition to assert backwardness and to claim ‘we are more backward than you’. This is an unhappy and disquieting situation, but it is stark reality. Whatever gloss one may like to put upon it, it is clear from the rival claims in these appeals and writ petitions that the real contest here is between certain members of two premier (population-wise) caste community classes of Karnataka, the Lingayats and the Vokkaligas, each claiming that the other is not a socially and educationally backward class and each keen to be included in the list of socially and educationally backward classes. To them, to be dubbed a member of the socially and educationally backward classes is a passport for entry into professional colleges and State services ; so they jostle with each other and in the bargain, some time they keep out and some times they usher in some of those entitled to legitimate entry, by competition or by reservation. Commissions have been appointed in the past to identify the backward classes, Governments have considered the reports of the commissions, and Courts have scrutinised the decisions of Governments; Cases have reached the Court too, then and now again. Once more we are told that the State of Karnataka is ready to appoint another commission and they have asked us will you kindly lay down some guidelines?”
Note that the interim order cites the words, “but it is stark reality”, but infers something else not intended by the original author of this passage. The words are significant, because it is these words which explain why Justice Chinnappa Reddy treats caste as the primary index of social backwardness in that judgment, and opines that there is an over-powering mutuality between poverty and caste on the Indian scene – a proposition with which the interim order is probably at odds.

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  • bidwai’s comment on the usage of the Grutter case in India is something to take note of. The reliance of the Court on ‘per incuriam’ US judgments is actually ironic.

    also the recent debate reminds me of something what Clarence Darrow said in ‘Henry Sweet’,
    “The law seeks to treat everyone an equal, but the society treats them otherwise”.

    The Court now in Thakur is doing the opposite.

  • If one goes through various judgments of the Supreme Court
    one can come across passages
    that one than quote to take a
    pro or anti reservation stand.
    In fact some judges while giving
    pro reservation judgments also
    write eloquently expressing the
    other view.Arun Shourie’s book
    Bending Backwards has an interesting analysis of some
    such judgments.Even the Mandal
    case judgment (Indra Sawhney I)
    has many paragraphs which can
    be used for or against reservation.
    I think one of the judges in Mandal Commission case cite
    the judgment (cited in the blog post)given by Justice Chinappa Reddy. The divergence in judicial
    opinions on caste and class and
    other important issues like quantum of reservation should be
    obvious to anyone who has read many judgments.