Part 2 of 3 Caste and castelessness in the Indian Republic – Towards a biography of the ‘general category’

Prof.Satish Deshpande received the Malcolm Adiseshiah Award (2012) for his contributions to development studies. The following is the Malcolm Adiseshiah Memorial Lecture delivered by Prof.Satish Deshpande at Asian College of Journalism, Chennai on 22nd November. The following is Part 2 of 3.

This is the link for Part 1 of 3 (http://tnlabour.in/?p=673)

This is the link for Part 3of 3 (http://tnlabour.in/?p=729)

 PART II – Caste, Constitution and Citizenship in the New Republic

It is to be expected that the birth certificate of the nation reborn as a republic – the Constitution of India – will bear the marks of the contradictions that have shaped it. Among the most significant contributions are those that concern the vexed institution of caste. The central tension is between, on the one hand, the need to ‘abolish’ – or at least to delegitimise – caste as an institution that affects all citizens; and, on the other hand, the commitment to redress the disabilities of caste imposed on one section of the citizens namely the lower caste. These conflicting demands – requiring in the first case – that caste be de-recognized, and in the second case that it be recognized – have to be accommodated within the overall framework of a ‘passive revolution’, that is, a revolution from above whose fundamental clemency is to minimise the impact of change on already entrenched enclaves of power and privilege. As the manifesto of the passive revolution, the new constitution must be faithful to both terms. Being in some sense a revolutionary constitution, it is full of radical good intentions. But it is also a passive or an orphan constitution in this sense that “there is no class backing the constitution with its iron will”, as Madhava Prasad (2011; 45) has written, so that it lacks ‘the will to change’ and offers only ‘the letter of the law… without the spirit’. The legal career of caste in the passive revolution is thus shaped through the disparate effects of constitutional intention, judicial interpretation and the policy initiatives of the new republic.

 

In colonial and pre-colonial India caste identities were compulsory for all – only those who renounced the world could be caste-less (Burghart 1983). Nationalist efforts to exorcise the embarrassment of caste succeeded to some extent in valorizing a worldly ideal of castelessness, but they are unable, and also largely unwilling, to mount an all out assault on caste. This ambivalence is translated into the constitution through the inclusion of, on the one hand, the rights to equality and non-discrimination, and, on the other hand, the charge on the state to show special consideration to the Scheduled Tribes (STs) and Scheduled Castes (SCs), to ‘socially and educationally backward classes’ (SEBCs), and more generally, to the ‘weaker sections’ of society. The two kinds of entitlements are neither equal nor symmetrical. Being a fundamental right, the right to equality and non-discrimination takes precedence and is preemptive – the state’s duties towards the lower castes ad weaker sections may be discharged only as ‘permissible abridgements’ of this always already established right.

Thus, the Constitution promises to redress the injustices suffered by the SCs and STs, and also to ameliorate the disabilities and disadvantages suffered by the SEBCs, but these promises are contained in the Directive Principles of State Policy that are not justiciable. The relative weight to be attached to these Principles in comparison with the Fundamental Rights may be a matter of judicial interpretation, but the preeminence of the latter is never in any doubt. Moreover, to keep its promises to the SCs and STs (and the SEBCs, who are a different category in principle but similar in practice) the state must first recognise them as castes, and this in itself in sufficient to confine such initiatives within the bounds of a benevolent exception to the prior and stronger commitment of the state to not discriminate among its citizens on the basis of caste.

By contrast, the biggest boon that the state grants to the upper castes is a guarantee of anonymity in caste terms. This effectively means that, regardless of the extent of their past or present privileges, their caste identity can never be used directly to prohibit or limit access to any public resources. In other words, the upper castes cannot be prevented from cornering a disproportionate share – or even all – of a public resource because they belong to caste A or B; their share can be limited only by setting aside portions exclusively marked for castes X and Y. But as we have seen, such an exclusive setting aside – or reservations – are already designated as exceptions to the norm of non-discrimination and equality. From the perspective of the upper castes, therefore, the constitutional guarantees of equality and non-discrimination amount to a license to capture unequal shares of public resources. This license is limited only by two things, first the rules of the market or open competition, and second, the exceptional device of reservations. The most significant aspect of this license is that it can be worked without having to name one’s own caste.

Although the commitment to redress caste injustices was integral to the social contract upon which the nation was founded, the new constitution constrained the victims of caste to demand justice as a caste-marked exception, which its beneficiaries were empowered to demand the perpetuation of their advantages as a casteless norm. Neither route leads towards the annihilation or even the diminishing of caste; but in dominant common sense, one route is presented as having already passed the destination, while the other is accused of leading us away from it. In our time, it is the unbridgeable internal certainties – that make the ‘annihilation of caste’ seem more like a disabling dream than an empowering utopia.

Barely six months after the Constitution of the Republic of India was formally adopted, the Madras High Court upheld in July 1950 the plea of two Brahmin petitioners, Champakam Dorairajan and R. Srinivasan, claiming that their fundamental right to equality and non-discrimination guaranteed by the Constitution were being violated by caste and community quotas then in force. Although the specific order being challenged – known as the Communal G.O. – predated constitutional reservations, these petitions also impacted the new legislation. The unanimous verdict of the Full Bench of three judges striking down the Communal G.O. sent shock waves through Parliament, which saw its much publicised social justice initiative nipped in the bud when the Supreme Court concurred with the High Court in April 1951. The Law Ministry (then headed by B.R. Ambedkar) and the government (headed by Jawaharlal Nehru) responded swiftly with the First Amendment to the Constitution protecting reservations in higher education with the same special proviso already included for job reservations. The First Amendment was passed in June 1951, less than two months after the Supreme Court verdict, but the state was put on the defensive.

In reality the courts had been victorious in defeat. They had managed to firmly establish the primacy of the meritocratic norm over the aberrational status of social justice initiatives, at the same time that they made explicit and endorsed a new kind of agency that the Constitution implicitly offered to the upper castes, an agency based on the universal-normative position of ‘castelessness’. This was, however, a presumptive castelessness – that is, it did not require the upper castes to ‘give up’ their caste in reality; it simply assured them that they would be presumed to be casteless as long as they did not invoke their caste explicitly. In effect, the new Constitution forbade the state to name or act against caste-based privileges or advantages as long as they wore the garb of secular modernity. Constitutionally and legally, caste was henceforth to be recognized only as a source of disadvantage or vulnerability, not as a source of privilege or advantage. And when it invoked as a liability (as in social justice legislation), it was promptly imprisoned in the straitjacket of a regrettable and hopefully shortlived exception to the meritocratic norm.

The arguments in the Dorairajan case in the Madras High Court bring this out very clearly. The court is told that if the Communal G.O had not existed and selection to the roughly 400 seats in government engineering colleges were made solely on ‘merit’, i.e., in terms of the marks obtained in the qualifying examination, then Brahmins would have obtained 249 seats instead of the 77 they were allotted under their communal quota. The court sees this as clear evidence of injustice against Brahmins, with no attempt to reflect on how a republic committed to ending caste inequalities ought to deal with a situation where a historically privileged community numbering 3% of the population would corner 62% of the seats in a state-subsidised engineering college. Nor oes the court evidence any interst in the facts that, once admitted, all candidates would receive the same instruction, and would be held to the same academic standards. Justice Viswanatha Sastri is both eloquent and unequivocal in his defense of caste-cased advantages:

It may be that through the fortuitous operation of a rule, which in itself is not discriminatory, a special advantage is enjoyed by some citizens belonging to a particular caste or community. This advantage is not taken away by Article 15(1). If, for instance, students belonging to a certain community or caste by reason of their caste discipline, habits and modes of life, satisfy the prescribed requirements in larger number than others, it is not permissible to shut them out on that score… It would be strange if, in this land of equality and liberty, a class of citizens should be constrained to wear the badge of inferiority because, forsooth, they have a greater aptitude for certain types of education than other classes. (Madras High Court 1950)

Clearly what is at work here is not the ‘general category’ as such, but rather its immediate ancestor, namely the explicitly caste-based identity that has suddenly been freed of its particularistic burden by the “fortuitous” advent of a historically unprecedented category – the unmarked universal citizen. Pictured in this liminal moment at the cusp of tradition and modernity, and posed (so to speak) with its progenitors, the new republic and its freshly minted constitution, this figure is clearly recognizable as Brahmin even as it proudly wears the new clothes of a citizen. These are clothes; they are not – or not yet – a disguise or a costume, and the upper caste subject is at this early moment in its career remarkably uninhibited about exhibiting signs of caste belonging. But already, even at this inaugural stage there is an awareness that “in this land of equality and liberty” the public declaration of upper caste identity has been made voluntary. Unlike the compulsory making of lower class identity which the new republic continues and intensifies, upper class identity may be declared or not at will. Most important, the privileges and benefits that accrue to the upper class identity may now be accessed anonymously, while its political moral debts and liabilities are written off by the new constitution.

The broader consequence of these new changes is that the welfare of the upper castes need no longer be pursued in visible fashion through the mediation of public politics; it can now be made congruent with impersonal collective goals like nation building, development or later in the story, by anonymous forces like the market and globalization. While it is not perfectly symmetrical, the situation of the lower castes is a study in contrasts – the pursuit of their interests requires the mediation of public politics, and their needs must usually be articulated as particularistic demands. In brief, upper caste interests go with the grain of development and the market and appear to involve the exchange of equivalents, whereas lower caste interests appear as transfer payments that must be justified as exceptions. But what is taking shape here is not casteless egalitarianism, but rather a ‘democracy’ of castes qua castes, as Sudipta Kaviraj has suggested (Kaviraj 2011:291)

It is important to exaggerate the legal or policy impact of he 1950-51 judgments. The immediate effects were largely overturned by the swiftly enacted First Amendment. Also, the Dorairajan-Srinivasan case had little to do with the Constitutional reservations for the Scheduled Castes and Tribes; it was part of an ongoing local contest between the brahmins and the ‘non-brahmins’. The main impact of these early judgments was ideological, and in this respect it was considerable. By creating the conditions for the infra-visibility – ultra visibility division the category of the unmarked citizen helped to mystify the category of caste and social relations. In fact, it authored and disseminated a new kind of common sense where the very definition of caste was truncated and equated with the lower castes. This was in keeping with similar effects produced by other universal-modern categories invested with power – for example, patriarchal common sense reduced gender to women, while white supremacy limited race to non-whites or people of colour. The unmarked universal became the abode of normal, naturalized power, its transparent invisibility being the sign of its privilege in contrast to the compulsory markings that subaltern identities were forced to display. It took four decades and the emergence of the key category of the ‘Other Backward Classes’ (OBCs) before the infra-visibility of the upper castes qua castes – or at least its normal-natural status – could be named or challenged.  

This is the link for Part 3of 3 (http://tnlabour.in/?p=729)

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