Recently, the Rajasthan High Court has issued an standing order that the caste of any person, including accused, should not be incorporated in any judicial or administrative matter. The direction has been issued against the practice of the officers of the Registry of the High Court as well as by the presiding officers of lower courts and tribunals, who used to mention a person caste's...
Recently, the Rajasthan High Court has issued an standing order that the caste of any person, including accused, should not be incorporated in any judicial or administrative matter. The direction has been issued against the practice of the officers of the Registry of the High Court as well as by the presiding officers of lower courts and tribunals, who used to mention a person caste's in the court documents (For example: ABC, by Caste 'XYZ' v. State of Rajasthan). The order notes that such a practice is against the "spirit of the Constitution". This has come after an advocate wrote a letter to the Chief Justice of India raising concerns over the "regressive practice" of mentioning the caste in the cause title/affidavit/memo of parties in court filings.
The decision of the High Court is a welcome step. Ideally, mentioning of castes in case titles should have never happened after the Indian Constitution came into force. In our society, caste has resembled a system of hierarchy and prejudices. The lower castes have been stereotyped and discriminated against. The Constitution rejects this system of hierarchy, and replaces the notions of prejudices and stereotypes attached to castes with the assurance to every individual of the right to lead a dignified and an equal life. It prohibits any form of discrimination and stigmatization. The Constitution gives every individual the opportunity as well as the right to break the restrictions of the socially entrenched caste identities. Addressing the Constituent Assembly on 4th November 1948, Dr B.R. Ambedkar had thus emphasized on the importance of individual identity in our constitutional framework: "I am glad that the Draft Constitution has... adopted the individual as its unit". A person might not want to restrict herself/himself to the caste identity imposed upon her/him by the society. It is upon an individual to define her/his private as well as identity and thus choose to dissociate oneself from the identities which were forced upon her/him by birth — be it religion, caste, etc. Whenever an individual approaches a court of law, she/he does so primarily in the capacity of a citizen of the country, and therefore case title cannot mark her/him as belonging to a particular caste. The Constitution does not recognize caste identity as the defining identity for an individual. A court decides the issue on the basis of the law of the land, and not by the regressive social codes which impose an unfair advantage to an individual, based on caste identity. The courts in Rajasthan should not have started this practice of mentioning the caste during court or any administrative proceedings, in the first place.
A judgment, however, may record the caste of an individual in the summary of facts in two circumstances. Firstly, it can happen for the purpose of identification. There is a difference between identity and identification. Identification is a matter of proof — of establishing that a person is actually, the individual who claims a right, entitlement or a benefit. For an individual to claim the constitutional benefit of affirmative action, she/he would have to disclose his identity as a Scheduled Caste/Tribe or a Backward Class as required by the Constitution. A court may record the claim and nature of dispute on the basis of this constitutional identity of a citizen. Secondly, a judgment may mention an individual's caste in the summary of facts in cases of caste atrocities or clashes. It is very much required that the cause of the case is highlighted in clear terms. For example, when an atrocity is committed against a Dalit because of her/his caste identity by an upper caste, a court must deal with the issue with utmost sensitivity towards the victim as well as firm language and a stringent approach towards the crime.
While the Rajasthan High Court has done away with one regressive practice, it must do another thing immediately : to remove the statue of 'Manu' from the premises of its Jaipur Bench. Manu is seen as a figure whose ideas are blatantly discriminatory to Dalits, women and weaker sections of the society. The ancient socio-legal code codified by Manu, called the Manusmriti, had led to the institutionalization of caste hierarchies and oppression. Opposition to Manu and Manusmriti has been the core of social reform and anti-discrimination movements. In particular, Dr. Ambedkar was unequivocally critical of the Laws of Manu. He questioned the rules framed by him. For instance, Manusmriti prescribed heavy sentences such as cutting off the tongue or pouring of molten lead in the ears of the Shudra (lower caste), who recites or hears the Veda. In his classic, yet delivered speech 'Annihilation of Caste', Dr Ambedkar termed Manusmriti as the infamous code of "social injustice". Under his leadership, copies of Manusmriti were burnt during the Mahad Satyagraha on December 25, 1927, as a symbolic move against the hierarchical and oppressive caste-based social order — a day which is celebrated every year as 'Manusmriti Dahan Diwas' by his followers. Dr Ambedkar had once remarked, "I may seem hard on Manu. but I am sure my force is not strong enough to kill his ghost. He lives, like a disembodied spirit and is appealed to, and I am afraid will yet live long". The presence of Manu's 'statue' in the premises of a High Court is a testimony to Dr. Ambedkar's fear.
The statue was installed in 1989 by Rajasthan Higher Judicial Officers' Association, with the permission of then Chief Justice of Rajasthan High Court N M Kasliwal. After that, on July 28, 1989, in a full court meeting of the High Court, the judges unanimously decided that the statue would be removed. But just as it was about to taken down, VHP leader Acharya Dharmendra and others challenged the decision on the judicial side and obtained a stay order. Since then, the matter has been pending in the court without any final decision. There have also been several protests seeking removal of the statue, including the incident of two Dalit women blackening the statue in October 2018.
Courts are looked upto as place of equality, where justice is ought to be done. The presence of a symbol of inequality and caste-hatred within a court premises in independent India is antithetical to constitutional values of equality and dignity as well as an insult to the centuries-old struggle against inequality. It sends a wrong message about our courts, and undoes the progressive path initiated by the founding parents of India.
Like the practice of mentioning of castes in judicial orders, the statue of 'Manu' should have never been installed in the Court premises. The Rajasthan High Court must adopt corrective measures for it as well.
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(Anurag Bhaskar is a lecturer at Jindal Global Law School, Sonipat and an affiliate faculty with the Center on the Legal Profession at Harvard Law School. He is also a contributing editor at Live Law. He tweets at @anurag_bhaskar_.)