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"Overt Discrimination Has Now Become Systemic; Casteist, Ableist, Genderist Hierarchies Entrenched Structures In Society": Justice DY Chandrachud
Mehal Jain
15 April 2021 12:56 PM IST
"One may argue that after 70 years of the Constitution of India, caste-based discrimination no longer exists because untouchability and other egragious caste atrocities have been outlawed. However, overt discrimination has now become systemic! Casteist, ableist and patriarchal, genderist hierarchies are entrenched structures in our society", remarked Justice D. Y. Chandrachud on...
"One may argue that after 70 years of the Constitution of India, caste-based discrimination no longer exists because untouchability and other egragious caste atrocities have been outlawed. However, overt discrimination has now become systemic! Casteist, ableist and patriarchal, genderist hierarchies are entrenched structures in our society", remarked Justice D. Y. Chandrachud on Wednesday.
The judge was speaking at the virtual launch event of CEDE (Community for the Eradication of Discrimination in Education and Employment), a network of lawyers, law firms, judges, and other organisations and individuals, who are committed towards reforming the Indian legal profession.
"Discrimination now manifests in the form of inferior gender roles for women, fuelled by the bias that women are just not fit for certain jobs, underpaid and exploitative jobs for the bahujans and poverty and isolation for the disabled", continued the judge.
He explained how even when the Supreme Court had last year in the case of Babita Punia held the practice of the Indian Army in forbidding women officers from applying for Permanent Commission as discriminatory, a sizeable number of women officers had to knock the doors of the Supreme Court again this year over the methodology of the grant of the PC-
"Fostering indirect discrimination, the authorities were applying to these women the same medical and evaluation criteria as the male officers. Women officers in the age group of 40 to 50 were being required to meet the standards of a male officer in his youth!"
"At interviews, women are repeatedly enquired about their marriage and child care plans to determine if an institution should invest in them as a candidate. They are even asked if they are looking at the law as a career or a short-term hobby. No one asks these questions of men! Although there are an equal number of men and women candidates at the threshold, this parity is not reflected in the number of those who make partners at law firms, senior advocates or even judges. Even at the Supreme Court of India, the representation of bahujans, adivasis, Dalits, women, the disabled has been abysmal", discussed Justice Chandrachud.
He continued to speak of the innumerable stories of people hiding their sexualities and gender, no matter how overpowering the gender dysphoria. "These are the problems which we are dealing with today", he said.
Justice Chandrachud proceeded to state that discrimination is even an endemic within the legal fraternity, with its fragmented structure – he mentioned how social networks and existing families with roots in the profession translate into quality mentorship, referrals from peers and clients, designation as senior advocate and even in collegium selection to the higher judiciary.
"The discrimination begins even before one enters law school. Most of the top law schools, which offer the five-year integrated law course, conduct admissions through a competitive test which is only in English, besides English also being a separate component of testing. The effect of this is that only the privileged students with access to high-quality English medium education are able to qualify for it, while the underprivileged students whose earlier education has been in the national or regional languages and who aspire to enter into the judicial services are deprived of the learning at these institutions. As a result, these national law schools turn out candidates who are vying for lucrative placements at private law firms, which also has a consequence on the legal education to those who join the judiciary...", elaborated the judge.
He added that till the last year, the CLAT incorporated questions which tested logical reasoning capabilities that required the use of sight and which in turn discriminated against the visually challenged candidates. "Although the National Law School consortium has now assured that this would not happen in the future, the replication of this commitment in reality is awaited", said Justice Chandrachud.
"Even if a student clears this exam, then begins the secondary gradation – the choice of law school. There is a real and perceived bias among various law schools and students of the top tier National Law Universities are deemed to be better on account of their law school affiliation. But these institutions are expensive and scholarships, or even loan-based scholarships, may not suffice. So one exam taken by an 18-year-old becomes a means of differential treatment which has consequences on their law school experience and life trajectory thereafter", reflected Justice Chandrachud.
He continued to explain that it is within the law school where begins the third gradation, that determines which students thrive and succeed. He mentioned that students hailing from Dalit, adivasi and other marginalised sections are often found to be relatively behind not only in terms of academic grades, but also other extracurricular activities like moots, debates and internship. "The explanation which is most commonly rendered for this is that they are just not coping with the pressure. Nothing could be further from the truth! The fact is that the natural privilege which their counterparts have been entitled to manifests into their confidence to participate and even seek training and mentorship, while there is just not enough peer and faculty support for the students from marginalised backgrounds. They are deprived of publishing and research assistance, internships offered are often in tier 1 cities and do not pay a living stipend, as a result of which students who do not hail from well-off backgrounds dismiss these opportunities ", said the judge.
He canvassed the fourth gradation which commences at the stage of employment after law school. The students from the marginalised backgrounds are underrepresented in law firms. Even employment at the chambers of advocates/senior advocates are based on informal references through privileged networks and those students who hail from families having roots in the legal profession have an edge over the others. "So a lawyer, who is 23-25 years old at the embarkment of his career, has already been knocked down 4 gradations in relation to his peers, for no fault of his!", commented the judge.
'Mere legislative or judicial intervention is not enough to upend the inequities entrenched in the society'
"Every day in my life as a judge, I come across multiple forms of discrimination that strongly persist. Legal cases before the court are stories of caste atrocities, sexual violence, unreasonable difficulties in demanding reasonable accommodation...My brothers and sisters at the bench attempt to do justice, but we are painfully reminded that our interventions cannot offer a sweeping reform of discriminating attitudes that govern all interactions of society, especially in the private realm of family and kinship", expressed Justice Chandrachud.
He mentioned that looking at the issue in the Sabarimala case (2018) through the transformative lense of untouchability, he was one of four judges who sought to strike down the religious practice denying women in the menstruating age group the right to embark on pilgrimage. However, that does not necessarily mean that the struggles of women, whose existence stands diminished to gender, have abated. "The Supreme Court grants compensation to her dependents under the MV Act in case of the death of a homemaker. Labour is recognised in death", continued Justice Chandrachud, indicating how due recognition by the society, and even by their families, for the "thankless" job they perform continues to elude them.
"Homosexuality may no longer be punished, but the society continues to punish these people when they apply for education, employment, housing...transgenders are ostracised by their families". "Mere legislative or judicial intervention does not guarantee anything", stated Justice Chandrachud.
He was of the considered view that offering due chances to the marginalised communities is indispensable because it is only through their representation that existing ways of doing things can be moulded and completely dismantled. "The existing status quo is often justified in the self-validating language of practicality. Only when discriminated groups find representation that they can meaningfully push back at this slow process of changing. To rid our society of evils that are perforated by hierarchy, we need to think about how to equal the existing structures and networks in a way that enables people", expressed Justice Chandrachud.
Reservation v. Meritocracy
"Those who argue against reservation in public employment suggest that the quota system results in the meritorious being deprived of their fair share, while the non-meritorious get in, lowering the standards and the quality of the institution. These people miss the point of what merit is! If merit is defined in an exclusionary sense, our answers will exclude the marginalised. If we see a reservation as a value that promotes an inclusive society, our answers will be inclusion-oriented", articulated Justice Chandrachud.
The judge cited a 2013 article in the Economic and Political Weekly, where academician Satish Deshpande reflects on this attitude through a joke, which had become popular at the time when the 93rd Constitutional Amendment on OBC reservation had been introduced. "The joke goes like whenever India contemplates sending a space exploration team to the moon, feverish discussions will begin as regards the composition of the crew. Finally, it will be decided that the team shall comprise 9 OBC, 6 SC, 3 ST and, if there is still space left, two astronauts… The insight was that the astronauts are not identified by their caste but by their modern professional qualification as an astronaut, while the supposed quota-beneficiaries are identified by their caste and not their qualification! The lower caste identity is so indelibly engraved that it overwrites all other identities which one may have acquired by exercise of the right of choice!", explained the judge.
He called this a stark reminder to all those who believe that the implementation of a proper meritocracy will erode the evils of the caste-system and will make the society casteless. "The privilege of being casteless is only available to the upper caste, since their caste did not negatively affect them to begin with...", stated Justice Chandrachud.
'Representation, though it matters, has its limitations'
Before signing off, the judge touched upon the issue of intersectionality – "There is an intersection between an individual's numerous identities. As a consequence of the many facets of their identity, they may simultaneously undergo discrimination in more than one ways"
"The experience of a heterosexual Dalit man will not be the same as that of a queer Dalit woman...When a woman is sexually harassed at the workplace, it is her right to financial independence and her right to work which are also impacted as a result....When a Dalit woman is raped by an upper caste man to exert their dominance over the Dalits, it is not a case of gender violence alone", explained Justice Chandrachud.
He reflected that experiences of marginalisation cannot be considered as "universal or monolithic", and that Representation, though it matters, has limitations.
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