Avirup Mandal, Government Law College, Mumbai
For many of us who identify ourselves as elite, educated and a part of the polished erudite class of citizens contributing to the economic growth of India, caste is absent in consideration or conversation. The urban India is often perceived as casteless, forward looking and a picture is painted that comfortably suits our list of privileges. A society that refers to look at caste only from the prism of economic discrimination and not the multitude of social and political disadvantages that continue to be thrown at the Scheduled Caste and Tribes exhibits its narrower outlook and approach. The problem of not acknowledging the existence of caste-privileges is extremely deep rooted. The implicit bias is invisible but not dormant and the case at hand that we deal through this article throws light on the many assumptions and presumptions which are deep seated and unashamedly amalgamated with the sense of Justice.
The Delhi High Court in the matter of Rumy Chowdhury versus Department of Revenue, Government of NCT Delhi & Anr. held on 14th August 2019 that caste certificate would not be granted to the petitioner-mother’s two sons for their inability to prove how they have faced deprivations and hardships of their mother’s caste.
The petitioner is a senior officer of the Indian Airforce hailing from the state of Assam and belongs to the Bania community wherein her caste is notified as a Scheduled Caste in Assam. The petitioner was married to a forward caste person and later filed for divorce. Since the petitioner’s sons were aged 4 years and 1 year during their mother’s separation, they have been living with their mother and had never lived in their father’s company who had remarried. The non-issuance of caste certificate by government authorities for non-production of caste certificate from paternal side led the petitioner-mother approach the Delhi High Court.
Caste Certificate Can Be Issued on Mother’s Identity
The Supreme Court had decided in Rameshbhai Dabhai Naika versus State of Gujarat and Others that the mother’s caste identity can be passed on to her children. The court stated that “in an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well.”
Therefore, caste certificates can be issued as per one’s mother’s caste identity but the same is a qualified issuance of certificates. The problem of rebutting in evidence lies in the presumption that ‘the child has the caste of the father’ is itself patriarchal. While obtaining the caste certificate from the father’s identity one does not have to prove the trials and tribulations, discrimination and deprivation attached to the caste system but when obtaining a caste certificate based on one’s mother’s identity, one has to necessarily prove the hardships faced by the child. The preferential treatment being meted out to male identity is questionable and requires the law to justify the discrimination that women and their identity still face in the highest courts of this country.
The Problem of ‘Evidence of Discrimination’
Imagine a scenario where one is not invited to the birthday party of a classmate because of her belonging to a caste/linguistic or religious denominational identity. How would one necessarily prove the implicit bias of the one inviting others or that of one’s family member’s bias to not invite another.
In the matter of Rumy Chowdhury (as stated above), the Delhi High Court stated in the judgement that the petitioner has not been able to produce any evidence or material to establish that they have suffered the deprivations, indignities, humility and handicaps like any other member of the community to which the petitioner belongs though the Petitioner’s sons have stayed with her and her family. The idea of caste-based discrimination that an individual faces in their daily lives is difficult to prove. Every act of discrimination faced by caste underprivileged communities is not litigated due to economic situations or of circumstances where the law is absent or where the law would treat such incidents as a trifling act.
Denial of access to user a road, a pond, a well providing drinking water or to be able to sit in the first few rows of a classroom, have been continuously faced by Dalits or caste underprivileged communities on a daily basis. The idea of producing proof is ingrained in an implicit privilege to not recognise the discriminatory social order of the society at large. Visible discrimination leading to visible proof may only take place in an ideal but not in a practical world.
Assumptions to Counter
The Delhi High Court in Rumy Chowdhury’s case had stated that “it is well accepted that persons from the Indian Armed Forces live in a secluded and protected environment (cantonment area). There is little scope for any caste discrimination in such an environment.”
In 2018, Gaurav Yadav had approached the very same Delhi High Court alleging the recruitment policy of the personnel in Indian Army’s elite unit known as the President’s Bodyguard Guard of only Hindu Jats, Hindu Rajput and Jat Sikhs. The army had replied to the court stating that ceremonial duties require common height, weight and appearance which is a functional requirement. However, even if we accept the argument one necessarily questions to understand that in the country of more than 2,500 castes does only three have common height weight and appearances and is there any biological of scientific data to prove the same.
Therefore, the argument of the Delhi High Court that there is little scope for any caste discrimination in a secluded life in a cantonment area is questionable.
Secondly, the court stated that “both the children of the petitioner have completed substantial portion of their education in New Delhi and there is no material that the environment in the school had placed them in any disadvantageous position as compared to students belonging to a forward class. The said school is run by the Society of St Patrick. The school prides itself for inculcating high ideals amongst its students.”
The idea of discrimination based on caste privileges in an urban educational setting has persisted for years. Denial of entitlement on campus in educational institutions is often subtle. AIIMS (All India Institute of Medical Sciences), a campus that is known to be one of the best medicine schools to become a doctor or nurse is situated in the heart of the capital of India, Delhi and yet is time and again seen to discriminate students and staff members in the name of caste as found by the National Commission for Scheduled Castes (NCSC). The NCSC in its report submitted in 2008 had specifically named the then director of AIIMS for indulging in caste discrimination though no action was taken based on the report for over two years and finally when the report was considered by the governing body in its meeting held on 16th January 2012 the governing body had concluded that since the director had retired, no action could be taken against him. The other officials against whom the NCSC had recommended action had left the institute by then for which the governing body held that it was not feasible to take any action against them. It is also significant to note that, the commission had observed that to condone any impression of the perpetrators of such crimes to be allowed to walk away scot free is to condone such acts. The commission strictly observed that it is an absolute must that those who are found guilty by the Thorat Committee be prosecuted under the provisions of SC/ST Prevention of Atrocities Act of 1989. However, little was seen in implementation.
Therefore, the assumption that elite education institutions are free from caste-based discrimination is faulty. The courts’ assumptions do not consider that caste continues to pervade in each institution or environment through individuals that constitute such institutions. Hence, patriarchy and casteism continue to segregate and discriminate whether by law or in its absentia.
Avirup Mandal is a final year student, B.L.S L.L.B at Government Law College, Mumbai. You may contact him at email@example.com. The author is highly indebted to Miss Vatsla Varandani for helping him edit this article.
Vatsla Varandani is a penultimate year student, B.L.S L.L.B at Government Law College, Mumbai who you may contact at firstname.lastname@example.org.
Photo Credits: Margaret Bourke-White/The LIFE Picture Collection
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