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Indian judiciary didn’t suddenly decline in the Modi regime – it was always broken

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The 103rd Constitutional Amendment, which allows a 10 per cent quota for Economically Weaker Sections (EWS) among upper castes in government positions and universities throughout India, was recently affirmed by the Supreme Court. Any rational thinker who is free from confirmation bias can state unequivocally that the constitutional bench’s ruling in favour of EWS violates our constitutions’s fundamental principles. It is evident how the law has been abused to support certain groups and ideologies if we examine the pattern of our Supreme Court judgements.

Is reservation a programme to eliminate poverty? The answer is unambiguously–No. Reservation is a system of affirmative action designed to ensure fair representation of underrepresented populations, many of whom have endured decades of oppression and denial of rights at the hands of dominant caste groups. The purpose of reservation is to offer individuals who have been compelled to live on the periphery of society for millennia a voice. Despite their poverty, the upper castes wield far more power than the Dalit Bahujan Adivasi (DBA) population. Being born within their caste did not make them poor.

Being poor is a class which changes over time depending on your economic status. However, being born in a caste never erases your caste identity, which is carried throughout your life. As a result, despite your economic advantage, you face discrimination, are denied opportunities, and are not treated equally. When you are born into an upper caste, you are entitled to certain benefits that you can use throughout your whole life, whether directly or indirectly.

There are numerous government programmes and policies aimed at alleviating poverty, but there is still much work to be done. The government could come up with more inclusive policies to help the poor, but how can a reservation be a solution for that? It is a slap on the face of the DBA community, Indian constitution and Babasaheb. It makes the struggle and discrimination of oppressed communities look like a joke. Do only the upper caste people poor in this country hold the majority of the country’s resources? There can be hundreds of questions that will never be answered in a rational way by those who are in power.

Also read: EWS is upon us because politicians now offer reservation in elections just like freebies

So the important thing here is to see who is in the power position and who are the lawmakers. Media, bureaucracy, legislation, and judiciary are all dominated by the upper caste. Given that, how can we expect all five upper-caste judges to give fair judgment on EWS? 

That’s why within the modern democratic debate, the issue of political representation has become increasingly prominent and significant. Iris Yang, in her book Inclusion and Democracy, writes, “People often claim that the social groups they find themselves in or with which they claim affinity are not properly represented in influential discussions and decision-making bodies, including legislatures, commissions, boards, task forces, media coverage of issues, and so on”.

In a diverse society like India, fair and inclusive political representation and participation at all levels of governmental & non-governmental institutions have become critical for progressive development. Women, dalits, and bahujans have been underrepresented in every field in India, even after 75 years of independence. Because of the plurality of voices, democracy thrives in the country. All of the country’s institutions, including the judiciary, must reflect this. Without the participation of all segments of society in policy-making, policies cannot be inclusive and progressive for all.

In terms of judicial inclusivity, public perception has repeatedly held that the judicial system in our multi-ethnic, class, caste, and religious nation has become an institution of outright upper-caste monopoly, and this naked lopsidedness of justice is not even a covert convention. Rather, the way the laws have been tweaked, changed, and manipulated to deliver iniquitous verdicts on a regular interval to satisfy the country’s haut monde serves as a stern warning of the country’s dilapidated democratic foundation and corrupt moral fabric.

Further, farcical justice in abetting the tyrannical whims of the judges has clearly jeopardised the citizens’ trust in the legal system itself. This ludicrosity reached its peak when the former Chief Justice of India, Ranjan Gogoi, himself became a member of the bench that was looking over his sexual harassment case. However, the perception that the judiciary suddenly had a steep fall in Modi’s regime has no truth to it whatsoever. The Indian judiciary didn’t suddenly decline in the Modi years – it was always broken.

The narrative of decline stems from the fact that arbitrary use of judicial power was previously largely coded as a good thing. The BJP has taken advantage of that. Hence, loopholes in our court system did not emerge all of a sudden in BJP’s rule; rather, they have been prevailing since time immemorial. Ambedkar rightfully wrote, “As experience proves, rights are protected not by law but by the social and moral conscience of society. If social conscience is such that it is prepared to recognise the rights that the law chooses to enact, rights will be safe and secure. But if the fundamental rights are opposed by the community, no Law, no Parliament, no Judiciary can guarantee them in the real sense of the word.”

As the nation is nearing its diamond jubilee years of independence, we must look back and ask ourselves, has the Ambedkar, Gandhi, or Nehru dream of a comprehensive socio-economic and political amelioration been achieved? Does the fancy term of equality that adorns our Constitution have any pragmatic effect, given the socio-legal context of our country? Or the illusion of equality and fraternity is so strong that we, instead of introspecting, still fancy living in our self-created rose-tinted glass house?  

The a author is a Global Leaders Alliance Fellow at Alliance University, Bengaluru.

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