Thursday, May 15, 2008

Double standards in social justice

The bill seeking to amend the Constitution to provide for 33% reservation for women in Parliament and the State legislatures is again before Parliament. Passage of this bill is one of the items on the common minimum programme adopted by the ruling United Progressive Alliance and the Left parties supporting it from outside. The bill was introduced in the Rajya Sabha last week, under pressure from the Left, to make it appear that an effort was made to implement the promise. Lalu Prasad Yadav's Rashtreeya Janata Dal, an important constituent of the UPA, has made it clear that it will not allow passage of the bill in its present form. In the circumstances, its introduction can be viewed as play acting.

This bill was introduced earlier too. It was introduced first in 1996 at the time of the coalition government headed by H. D. Deva Gowda. On earlier occasion, the bill was brought before the Lok Sabha. All bills pending in that house lapse when its term ends. Since the Rajya Sabha is never dissolved, the bill will not lapse. What consolation can one find in this?

The RJD and Mulayam Singh Yadav’s Samajwadi Party which endorse the women’s reservation bill in principle oppose its passage. Saying it will adversely affect backward class representation. Since the forward castes dominate all major parties, including those of the Left, a large majority of their candidates for the reserved seats are certain to be members of that group. To that extent, the Yadavs’ fear is not misplaced. To overcome this problem they have proposed that there must be backward class reservation within women’s reservation. This proposal will only help to delay women’s reservation. The parties may not worry about this. After all, male domination prevails in all parties, regardless of caste composition.

The stand of Lalu and Mulayam reflects an approach which attaches more importance to disability based on caste than to disability based on gender. The other day, during a discussion on women’s reservation in an English-language channel, the moderator asked sought the views of two young women, who, by their very looks, could be identified as city-dwellers. They said there should be more women legislators, but they did not favour reservation for women. If we support reservation for women how could we oppose reservation in institutions of higher learning, they asked.

As social disabilities, caste-related disability and gender-related disability must be viewed the same way. The Yadav leaders and the urban youth cannot view them that way because they are interested more in perpetuating their privileges than in ending injustice. The Yadavs want to protect the privileges that male domination gives them. The young women want to protect their privileges as city=dwellers and members of a ‘high caste’. A constitutional provision is needed to check this tendency to protect narrow interests.

Our Constitution was drafted after studying the constitutions of all major countries, incorporating all their good elements. The principles of Liberty, Equality and Fraternity mentioned in its Preamble were borrowed from Western political traditions. These principles are totally alien to the Indian mainstream religious traditions. Yet the judiciary, which has been charged with the task of interpreting the constitutional provisions, frequently looks back to these traditions. A computer study shows that the Supreme Court has relied on the Code of Manu in more than 300 judgments. The judges’ reliance on that ancient text, which gives scant regard to the principles of liberty, equality and fraternity, can be viewed only with anxiety.

From the lines written above the three principles taken from the Western traditions, we can gather that the primary objective of the Constitution is to ensure justice -- social, economic and political. That is the testing stone by which everything must be judged. Manu cannot survive there. The Supreme Court must survive there.

If the report that backward class representation in Central Government departments has come down after the creamy layer principle was introduced is correct, it means the principle invented by the Supreme Court is obstructing social justice instead of ensuring it. A creamy layer, comprising individuals who get the benefit of favourable circumstances, emerges quite naturally in all social groups, not just the backward classes. This leads to loss of opportunity to other members of the groups concerned. How this situation can be remedied is a matter that certainly merits consideration. The court erred in evolving a solution applicable only to the backward classes, viewing the problem as one that affects them alone.

This mistake arose as the arrangement made to render justice to a class of people who were suffering social disabilities was seen as one that dispenses favours to individuals belonging to that class. If it is right to separate the individuals in this manner from the class, must it not apply to the Scheduled Castes and Scheduled Tribes as well? The court itself has made it clear that the creamy layer principle will not apply to them. However, if the creamy layer principle remains in the case of the backward classes, in course of time it is certain to be extended to the Scheduled Castes and Scheduled Tribes. If the court does not correct the mistake on its own, the government has the responsibility to do it through legislative action.

Based on column “Nerkkazhcha” appearing in Kerala Kaumudi dated May15, 2008

No comments: