'We Need To Redefine Our Notions Of Merit In Terms Of A More Inclusive & Plural Society':Justice DY Chandrachud [Full Text Of Lecture]

Continuing, he discussed, "Intersectional discrimination is not something which is confined only to the queer, but certain groups of queer people, due to their class and caste positions, are more susceptible and vulnerable to the abuse of law, both in terms of material and symbolic harm. Discrimination is intersectional in the sense that our identities intersect. The experience of, say, a Dalit blind woman would be very different from the experiences of a Dalit male student, or for that matter, from the experiences of a student from a non-Dalit segment of the society who is or is not visually challenged, in the day to day life. It is these intersectional identities which are different. We are an amalgam of a plurality of identities. I don't think anyone of us has any singular identity which is definitive of the life that we live or of our experiences. But the much-needed first legal steps that the Supreme Court was able to take was the decriminalisation of homosexuality in Navtej and that would not have been possible without the stories and experiences of the petitioners and countless others. One of the connected petitions was named Anvesh Pokkulluri v. Union of India before the Supreme Court. It comprised of a spirited chorus of 20 students and alumni from various IITs across, representing Pragati, a support group for the LGBTQ community. The youngest petitioner before the court was actually a young 19-year-old student of IIT Delhi. By taking a stand before the court in section 377 litigation, students and alumni of IITs help in building a modern contemporary India not just by advancing her technical skills but by taking the country closer to her constitutional values".

However, Nazir Ahmad, one of the members of the Sarkar committee had cautioned against the possibility of institutional isolation of the IITs and feared undemocratic limits to access. One of the criticisms which has been levelled against IITs is that they have diverted state resources From primary education while remaining islands of excellence. I may not necessarily agree with that criticism or critique. There have been sustained concerns of limited diversity in the IITs, even as the base of the student body at the undergraduate level has become more diverse, though diverse not enough. Questions have been raised time and again regarding the limited representation of gender diverse and marginalised communities and doctoral programmes and faculty positions"

He canvassed, "When we think of the expression science, we tend to think about words like objectivity, merit, excellence, maybe even competitive examination but what do these words and phrases actually mean. Excellence is normally understood in individual terms as a sign of individual merit, individual calibre, individual hard work but by focusing on the individual, we often mask the historical acquired privilege that each of us shares. Over the years families and communities have acquired different types of capital at different levels. Economic capital, cultural capital and social capital, the privileges which have acquired by the so-called general category are not limited to English medium schooling, access to coaching centres but it also Includes social and cultural capital inherited from their families. In a seminal book which is titled 'The Caste of Merit, Engineering Education in India' by Aganta Subramanian, the book relies on the works of sociologist Satish Deshpande to explain how policy terms like general category and reserved category or competitive examinations have mediated to transform caste capital into the modern capital of merit. Professor Deshpande points out the story of how upper caste transformed their caste capital into modern capital which is not very well known. By contrast, Deshpande continues the political leveraging of caste by the lower caste is a recurrent and publicly debated theme. The result of this asymmetry, as he maintains, is that the upper caste are naturalised as the legitimate inheritors of modernity while the lower caste are hyper visible as the illegitimate purveyors of caste"

Professor Amartya Sen said we are diversely different because of the plurality of our identities which intersect and cut across each other. Diversity is a virtue, it furthers our understanding of fairness and social justice. It was a diverse student population of the IITs who with their resilience decided to challenge section 377 of the Indian penal code in our courts. Diversity also leads to positive outcomes in terms of making better scholars, Better thinkers and better citizens. There is Innovation in science when someone has the courage to ask different questions, look at the problems from different perspectives and gain new insights. Diversity results in innovative thinking and decision-making and richness in the originality of scholarly thoughts. Learning is impoverished when it happens in groups of like-minded people. And the grave danger which intellectuals across our globalised world today face is the danger of sitting in information silos where we associate with only those who believe like us, who think like us and who do not look beyond the horizon of that which is familiar. The diversity enables us to combine doctrine with its potential learning. As science will teach you and as law has taught me, doctrine is not really neutral as text books would like to teach us. Because doctrine embodies within itself ideology preferences and a worldview which sometimes protects the dominant or that which lies in the mainstream. Our experiential learning whether we are faculty or judges or citizens is affected by what we combat in our day to day life. So the ability of diversity lies in its potential to transform what we learn in terms of doctrines in these institutions of higher education and technical excellence with experiential learning of others. It was a diverse student population of the IITs as I said which combated the stereotypes which were built into section 377 of the penal code", proceeded the judge.

Continuing, Justice Chandrachud discussed, "If I may take the liberty to give a personal example. Over the years, I have had brilliant law clerks from diverse backgrounds from different genders. A young Dalit student, castes, classes, regions, cultural experiences, including students belonging to the LGBTQ community. My interactions with them continue to give me a new perspective, whether it is through the suggestion of a new movie or a book or actively seeking new solutions to old problems. For example, one of my clerks from the batch of 2021 gave me an insight into the various issues of governance that people with disabilities face in their daily lives. In our own office, we ensured that the scanned case files were received OCR readable, steps were taken to change the visual captcha on the Supreme Court of India website to an audiovisual captcha, making it more accessible. When I dealt with the case of a young blind Dalit girl who had been subjected to rape and when the perpetrator was charged with a crime punishable under section 376, I learned deeply from the experiential learning which one of my very dynamic young Dalit clerks had brought to the table. I use these examples to show that diversity needs to be understood for their uniqueness which is the resource rather than a liability. From my own judicial clerk who were the members of the LGBTQ community and their friends, I have understood what really happens in society across us and that enables us to live more fuller, more richer lives as individuals as we transform the lives of others. In other words, we need to recalibrate how we understand old vocabulary and realise that diversity and excellence actually compliment and reinforce each other. To go back to one of my older judgments, the way we understand merit should not be limited to individual agency or ability which in any event is not our soul or own doing; it must be envisioned as a social good that advances equality because that is the value which our Constitution espouses. It is important to know that equality here does not have a mere redistributive dimension but also includes recognising the worth and dignity of every individual. The content of merit cannot be devoid of what we value in our society. Excellence, like life itself, is enriched by diversity. When we talk of diversity, we need to bear in mind that it should exist on three levels. First, the diversity should exist in terms of structural diversity, in terms of the composition of the people at the education institutions; diversity in the classrooms and the teaching resources of a higher institution; and thirdly, interactional diversity in terms of how inclusive the higher education institution is to facilitate interactions across diverse groups. Just as technology must have within it the ability to converse with each other at diverse levels, so also we must have the ability to converse, accept and respect each other and be accepting of the views of each other. On rare occasions when students are able to cross the structural barriers and struggle against immense odds to enter into institutions of higher education, the toughest battle then begins within the institution. An institution which is only diverse but that is not inclusive imposes additional burdens on students due to their stigmatised identities. Instances of discrimination, micro aggressions, social exclusion, feelings of a lack of connectiveness or support from peers and mentors can all have a pernicious impact on the dignity and mental health of students. Social justice cannot be restricted to access alone but substantive inclusion is needed in higher education institutions which promotes meaningful social and academic interactions with a larger campus community including professors, administrators, staff and peers"

Justice Chandrachud explained, "I would like to recount the story of Prince Jaibir Singh a young Dalit student who travelled from Allahabad, now PrayagRaj to Kharagpur to Mumbai and ultimately to the Supreme Court in Delhi, having been allocated a seat in civil engineering at IIT Mumbai. A technical error made him miss his acceptance fee deadline. He moved the court to allow him to pay the acceptance fee and to facilitate his admission to IIT. Sitting with my colleague, Justice A. S. Bopanna, we invoked the Supreme Court extraordinary power under article 142 of the Constitution and directed the state to ensure that the bright young student was admitted to IIT Bombay. Special steps in this case were necessary because of the digital divide and limited resources technology became an impediment instead of being a great enabler. Jaibir did not have the money to pay acceptance fee, he had borrowed some money from his sister but the credit card did not really give him support at the last minute. Similarly intentional initiatives aimed at promoting integration and higher institutions are needed. It translates into putting into work, setting goals, earmarking resources and seeing what more needs to be done to make it work. The work undertaken by the office of diversity and inclusion- whether it is by providing assistive technology or holding gender sensitisation workshops, initiating conversations through movies, providing formal recognition and institutional support to a decade old initiative like Indra Dhanush for organising remedial or educational support programs, this work is the first step forward in the long journey towards the IITs' role in furthering social justice"

"There is much to be done in the project of realising diversity, fully integrating diverse communities, different along a number of intersecting dimensions including gender, class, caste, religion and culture, both in the Indian society and in our higher educational institutions", he signed off

In response to a question from a student on the chasm between policy and implementation of policy, Dearth of PhD scholars, faculty drawn from Dalit particularly, Justice Chandrachud articulated, "This divide between law and social reality is one of the very fundamental problems of our social life which confronts us every day as judges in our lives. There is this wide chasm in between the ideals that the law represents and the policy that is a facet of law, because policies have to be consistent with law, and what social reality is. In so many which ways, the law is either ahead of social reality or it is behind social reality, it is catching up. So there are two different facets. I think the task of realising rights is not just a task of realising rights by using legal instruments but by engagement of the community in the realisation of rights. And very often we look too much or depend too much on legal institutions in the realisation of rights which is not to say that legal institutions do not have a very positive impact on the realisation of rights but legal institutions are necessarily constrained by issues which are brought to the courts. There is a great potential for the engagement of the community in creating awareness and it is this sense of community awareness which I think would enable A greater achievement of the policy objectives. For example, Professor Shamnad Basheer began this movement called the IDIA initiative in the national Law schools of bringing into the mainstream, of training students from underprivileged backgrounds, giving them a certain degree of social importance or putting them in the limelight and then ensuring that they then transform into very important positions of responsibility. CEDE is another initiative which is trying to bring Dalit students into the mainstream, into the legal profession. These are examples which can be replicated across various different social platforms, not just in terms of what is happening in medicine or law but take it across society by bringing greater community awareness on the realisation of rights"

As regards the query that the Legal profession has very limited awareness of social problems, the judge replied, "It is ironical that you say that because in that sense the legal profession is really a profession which is in deep connect with the grassroot society where injustice takes place on the ground. The problem I think which the legal profession does face is the problem of a certain intellectual isolation because you tend to believe that law as a discipline is an end in itself. That is one of the great dangers because when you forget that law has a deep connect with social reality, you forget the potential for the law to transform. So the answer is how do you deal with this. My answer is very simple- broaden the base as opposed to focusing on the pyramid. When we broaden the base of the profession, I think that would be very key. Broadening The base means including people from different backgrounds to enter the profession- of diversity in gender, caste, socio-economic background"

On How do we eliminate caste, the judge responded, "Without meaning any disrespect to the question, I just want to say that this whole theme that this caste must be eliminated seems to be a theme which generally the upper caste propagates. It is the upper caste which believes that the caste is one of the most pernicious features of our Indian society. There are people who have been subject to discrimination, to stigmatisation, to assault on grounds of caste. Caste defines their identity and every day of their lives they are reminded of their caste by the perpetrators of those who practice discrimination against them on the grounds of caste. So that I think the true answer to that question would lie in this and the answer is not to make a casteless society but to enable those who have been subjected to centuries of discrimination and that discrimination still continues, the answer to that must lie in our being aware of the extent of discrimination that is still perpetrated in our society today, that we must come face to face with that discrimination which still pervades and permeates our society and to find justice to those who are discriminated on the grounds of caste. I think that is far more important than anything else"

On how to draw the balance between upliftment and merit, Justice Chandrachud articulated, "The question has an underlying assumption that upliftment and merit are two ends of a conflicting spectrum- that if you have to uplift, you have to sacrifice merit; but if you have to emphasise the merit, then of necessity you have to ignore upliftment. I have a problem with that sort of q paradigm. You just need to redefine merit. How can you define merit in only terms of say test scores in the examination, how do you only define merit in terms of entrance tests, would somebody who scores much better in, say, a CLAT examination, somebody who scores much higher than somebody else, will that define the potential of that student to become a more responsible citizen? Or to contribute better to society 20 or 30 years later down the line? We need to redefine our notions of merit but inclusion itself has a very positive element in defining merit. So when we redefine merit in terms of a more Inclusive society, in terms of a more plural society, a society which truly represents India as it stands today, we would really speak of true upliftment and not then treat upliftment and merit as lying on a dichotomy or on 2 opposing ends of the spectrum"

"The last question which was extraordinarily interesting was when you do justice or when you are in a court of law and you have your human biases, how do you confront those human biases. At a very theoretical level, we were told that the law is objective, that the law is uniform, that it applies equally to everybody. But when you enter the actual practice of law, the practice of judging, you realise there is no such thing as an abstract law. Doctrine itself is not objective, doctrine itself suffers from all the asymmetry which you find in society, because doctrine itself is in that sense formulated by the products of that asymmetry in society. We know that algorithms are not that asymmetrical. So I think part of the issue of good judging, and I am speaking from my own experience- don't take it as a gospel truth because I am sure there are different parts to achieving the same objective- is that the important thing first and foremost is to be aware of your own biases, where you come from. When you confront your own biases and you are not afraid of your own biases, that helps in overcoming. Second is exposure. The greatest learning that you have is from the exposure of others around you who teach you. One of the problems which all of us today face is that we feel we know everything that there is to learn. That is what the age of information technology tries to tell you, that all the information that you need is at the click of a mouse. It is not necessarily so because there is some vision which lies beyond information. That vision, that knowledge which lies beyond the information you really gather from your association and it is in the multiplicity of association, not with like-minded people but with people who don't necessarily think like you, who don't necessarily dress like you, who don't necessarily believe like you or people who do not believe agree with you, that gives you better perspective. Speaking for myself, the dining table is a place for discussion with a feminist spouse who does not think like me or agree with me and I believe there is a great deal of learning in that process of dialogue which takes place. Finally, it is never to be judgmental about the lives of others. It applies not only to the judge but to each one of us that very often we tend to judge others. Wait for a moment and ask ourselves the question why is he like this or why is she like that and why am I like this. I think the important thing about whatever profession we are in is the importance of not being judgmental about others, by just letting others be And allow others to lead their own lives and learn how enriching it is that others live lives in ways which are very different from the way in which we lead our life", concluded Justice Chandrachud.