Delhi HC Tells SC Petitioner to Prove Her Caste Disadvantage

A petition was recently filed in the Delhi High Court by a woman seeking caste certificates for her children. She belongs to a Scheduled Caste and ever since she separated from her husband (who is not from a Scheduled Caste) her children have lived with her.

The judge deciding the case did not doubt that children could be issued a certificate based on their mother’s caste, if they had always lived with her. Nevertheless he dismissed the petition.

Through Justice Vibhu Bakhru the court observed that the petitioner, Rumy Chowdhury, was a senior officer of the Indian Air Force, and that “there is very little scope for any caste discrimination in such an environment, as persons from the Indian Armed Forces live in a secluded and protected environment (the cantonment area)”.

Moreover, the court held that the petitioner was unable to produce any material on record to establish that her two sons had suffered any of the disadvantages of persons belonging to the Scheduled Castes.

The decision is untenable and unfounded in law. By dismissing the petition on the grounds that Chowdhury could not prove any sufferings caused to her or her sons owing to their caste, the High Court has undertaken a legislative act. It has added a criterion to the list of eligibility for obtaining a caste certificate.

This means that each time a person applies for such a certificate, they will not only have to show that they belong to a community deemed by Presidential Order or by Parliament to be a Scheduled Caste, but will also have to produce evidence to prove that they suffered discrimination by virtue of belonging to that community.

This additional criterion is illegal and unconstitutional.

Article 341 of the Constitution clearly gives the President, in consultation with the Governor of a state, the power to specify which castes are considered Scheduled Castes in that particular state. This schedule can be further amended by Parliament.

Including a caste in this list guarantees a Scheduled Caste certificate to any person belonging to any of the specified castes. Any person who holds such a certificate is automatically entitled to all the benefits provided under the Constitution.

No further steps or additional requirements that a person needs to fulfil are mentioned anywhere in the Constitution or any other Act, in order to obtain a certificate or the benefits that arise from it.

For the Delhi High Court to impose this additional prerequisite, requiring Scheduled Caste persons to prove discrimination before a certificate can be issued to them, is ultra vires (beyond its legal power or authority). It rebuts and dilutes the presumption of untouchability and thus, inequality and discrimination against persons belonging to the Scheduled Castes as provided under Article 17.

The decision also floats miles above the social realities of our country, and is based on false, groundless and unreasonable presumptions contrary to those recognised in law.

To say that there are certain sectors which are absolutely untouched by the inequities of the caste hierarchy is ignorant and premature.

A society where texts like the Manusmriti or Laws of Manu - which contains a detailed taxonomy of human beings on the basis of caste - provides the code of conduct for many people, can only be a society of oppression, humiliation and division.

Over the years such a text has been instituted into the state, society and body politic, and has become so intrinsically embedded in our personalities that it governs our thinking and conduct, unconsciously or otherwise.

Today as ever, if someone is asked whether they have read the Manusmriti the answer will be an emphatic ‘No’ - and most would assert that this bygone book has no power or relevance in today’s world.

But people are often found to be interested in knowing each other’s castes. They want to know the “caste” or at least the “varna” of whomever they’re dealing with, as though once that much is clear, everything else falls into place in their mind. They know what level of respect, recognition and importance the other person deserves, depending upon their position in the caste hierarchy as asserted and perceived.

This is driven by the caste-ridden culture they imbibe from their family and society.

Absent caste culture, a judge of the Kerala High Court, who has sworn an oath to uphold the Constitution, would not have publicly glorified “brahmins” as inherently superior human beings, nor asked for them to always be present at the helm of affairs. (Justice V.Chitambaresh in his address to a Tamil Brahmins’ Global Meet.)

And there wouldn’t have been countless incidents of suicide abetted by caste humiliation and dispossession at renowned universities and medical institutions across our country.

Caste slurs are part of common parlance in our country and rarely as eyebrows raised against these racist and derogatory remarks.

It would seem that whatever position a person from the Scheduled Castes acquires, or indeed the “lower castes” in any of the subcontinent’s religions, his or her caste stigma always follows like a shadow, leaving him or her exposed to violence by the dominant castes who still preponderate in institutions of wealth and power.

In such a scenario it is absurd to say that by living in Delhi, or by studying in a “good” school one can avoid the disabilities and indignity perpetrated by the higher caste upon the lower. To deny such manifold violence is nothing but a negation of the social realities of our lives.

In the light of our social history and the near omnipresence of such institutionalised systems of subjugation, to negate structurally produced inequalities and divisive forces, by adding further hurdles to how disprivileged groups can realise even their basic rights is certainly unjust. It renders the constitutional imperatives meaningless.