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Some thoughts, some reservations

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by Fali S. Nariman at http://www.indianexpress.com/story/3497.html

A case of great constitutional significance is being argued before a bench of five justices of the Supreme Court, presided over by the chief justice of India. A few years ago both houses of Parliament added sub-clauses (4A) and (4B) to Article 16 of our Constitution by a rare unanimous vote, but with hardly any discussion. The question presently engaging the court’s attention is: do these sub-clauses violate the “basic structure” of the Constitution?

I had always thought they did. But after reading a perceptive newspaper article by a sociology professor of JNU recently, I have some doubt. The professor goes for the jugular: “Dalits can ask Brahmins that if they were so meritorious, why is half of our country’s population still illiterate?” If meritorious economists and administrators manage the affairs of our country without any reservation how and why are we still so economically backward?”

In the realm of super-speciality education where (at present) there are no ‘reservations’, only three Indian institutes of higher learning figure in the top 500 of world universities — Indian Institute of Science (at No 260), and the Indian Institutes of Technology at Kharagpur and Delhi (at No 459 and 460, respectively). The IITs in Madras, Kanpur, Mumbai and Roorkee don’t figure at all, despite the fact that there are no reservations for OBCs in these centres of learning. And, the professor goes on to say, why do we have hundreds of thousands of cases pending at all levels despite our ‘meritorious’ judiciary? The professor is quite indignant and he won’t wait for answers, but what he says must be put in the ultimate reckoning — without rant or recrimination.

I believe that the truth is that we have not yet resolved the complexities that lie buried in the doctrine of equality. How long are we to atone for the oppression of the centuries? For how long should the claim based on merit and on the fundamental right of equality be ignored? How long should we go on equalising downwards? There are no easy answers. Much of the backwardness in the so-called backward classes continues because small sections of its more progressive members corner all the privileges for themselves. Our judges have characterised these sections as the “creamy layer”. But neither bureaucrats nor politicians are willing or able to remove the creamy layer.

The problem of inequality in India continues to haunt us — more now than before. There is an increasing resistance to the view that the sins of generations of our forefathers in the higher castes have to be expiated here and now — in a couple of generations. And yet the stark fact of continuous under-representation of the underprivileged in the higher echelons of public employment cannot be just wished away. Many years ago, UN Under Secretary-General Ralph Bunche explained why: “Because inalienable rights cannot be enjoyed posthumously.”

Of course, the final word in all constitutional matters is with the judges. But the courts have not been very helpful. They have interpreted the compensatory discrimination clauses (Articles 15 and 16) differently at different times. True, they have prodded and energised governments to live up to the constitutional commitment to alleviate the lot of the downtrodden, but the ground rules have kept fluctuating depending upon the background of individual justices. Not surprisingly. After all, courts are a mirror of the larger society in which we all live, and judges reflect — in their deliberations and pronouncements — the ambiguity and vacillation that shrouds the elusive concept of equality.

But one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain a fact of life, the ideal of an egalitarian society envisaged by the founding fathers in our basic document of governance will remain a bad dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can providence. It is not in our stars but in ourselves that we are thus. It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed to be achievable goals in 1950.

A former Union law minister told me some years ago about a “casteless” Parsi judge (we Parsis do have prejudices, but they are not caste-based!). He was Justice Jal Vimadalal who was compulsorily transferred during the Emergency of June 1975, as a judge of the high court of Andhra Pradesh (from Bombay); the entire bar took to him instantly, simply because he ignored the caste to which the lawyers appearing before him belonged: “When he left,” Shiv Shankar told me, “the entire bar wept.”

If the under-privileged have been oppressed for centuries, its backlash in the psychological make-up of the ‘privileged’ cannot be underestimated. I recall what the late Justice D P Madon used to say when he became chief justice of Bombay. He had sent for and looked into the records on the administrative side of the Bombay High Court about promotions of judges from the district courts and to his horror he found that judges in the subordinate judiciary of equal and at times greater merit were not promoted to the high courts simply because they did not belong to the ‘privileged’ classes!

No one could possibly fault the senior judges of the Bombay High Court — they were fine intellectuals many of whom moved on to the highest court on merit. Their predilections were unconscious, unintentional. The truth is — and this is the bottom line in the entire ‘reservation controversy’ — that although we have abolished untouchability and outlawed backwardness in our Constitution, many of us — even the most distinguished of us, alas — have not eliminated it from our hearts.

Meanwhile the debate in the Great Constitutional Case continues. I would respectfully suggest to the distinguished MPs who did not have the inclination to discuss these important questions on the floor of the two houses, when the equality clauses were being amended, to visit the court and witness the intensity and solemn sobriety with which arguments are being advanced on each side, with searching questions being put by the justices. Sometimes even Parliament can learn from the Supreme Court.

In the end, the vexed problem about ‘reservations’ will only get resolved with more meaningful opportunities for better education of all sections of our society, particularly the under-privileged.

The writer is an eminent jurist [email protected]

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  1. Hai Dr. Bruno!
    It is disgusting to see a learned man like you posting article supporting Reservation. I have a few questions which you may not answer. Anyhow I ask these – Dare to answer without beating around the bush?
    1. How can a doctor who had received MBBS be backward? If it doesn’t give him/her any equality then why you need reservation in MBBS level?
    2. Do you know why there was reservation in first place? When our constitution was formed the inequality in society was based on caste system. But is it so today? Do you think still do we face discrimination based on caste system. Today caste exists only in education.I can never remember anyone choosing their friends asking their caste in this modern age. So Why ask for a privilage when you read in the best possible school/college? Isn’t it criminal?
    3. You might tell me caste still exists among those in villages. I agree – but do you think students from villages will go for attending AIIMS in delhi? What’s the use of reservation then?

    Do I mean there should be no reservation? NO The present day India need a reservation system not based on CASTE but based on economy. An OC from a village & SC from village are facing similar conditions. Similarly Those from City are facing same conditions too. Make A Reservation based on Economical status That would be welcoming.
    At last I ask you consider your own consciense Dr.Bruno Haven’t ur Social status improved After M.B.B.S
    A last word Dr.Bruno please read Sujatha’s story on an interview of a OC & SC candidates. It is for YOU

  2. 1. How can a doctor who had received MBBS be backward? If it doesn’t give him/her any equality then why you need reservation in MBBS level?

    Please read my full post. (Like all other Anti reservation guys who do not give any valid points for their idiotic claims) don’t shout without knowing basic facts. I have been telling that RESERVATION should be given AT ONE TIME for a person and after a person has availed the benefits, his future generations should come under Open Category SO THAT THE OTHER REALLY BACKWARD people from his same community get the benefit of reservation.

    2. Do you know why there was reservation in first place? When our constitution was formed the inequality in society was based on caste system. But is it so today? Do you think still do we face discrimination based on caste system. Today caste exists only in education.I can never remember anyone choosing their friends asking their caste in this modern age. So Why ask for a privilage when you read in the best possible school/college? Isn’t it criminal?

    There are relevant posts for this also. For example the attitude of few antireservation arrogant people (including one Narayana Moorthy for whom I had great regard, but now I consider him a filth) who say that Merit will be compromised by reservation, but they want reservation to be based on economic criteria. So as per their words, if a SC student who scores low mark is admitted the merit goes down. But if a Poor forward class guy is given seat merit does not suffer. If persons like Narayana moorthy are with this mindset, will it not affect his selection process. That is the reason why reservations are needed

    3. You might tell me caste still exists among those in villages. I agree – but do you think students from villages will go for attending AIIMS in delhi? What’s the use of reservation then?

    Only if you give reservations villagers can come to AIIMS
    Even your comment looks a little arrogant. So according to you AIIMS is a right of City guys and students from village should not study there….. Your comments itself are a proof that there is a authoritative mindset among forward caste people EVEN TODAY. And that justifies reservations

  3. Society is like a bullock cart with two bulls…….

    Now if the cart has to run fast, BOTH BULLS are to be good….

    WHat is the use of a cart where one bull is very strong and another bull is weak…….. The MAXIMUM speed of the cart CAN BE ONLY THE SPEED of the weakest bull……. So we improve the nutrition of the weak bull even if it leads to starving the STRONG BULL…..

    This is what reservation is exactly…. You give the seats WHICH A STUDENT FROM FORWARD COMMUNITY WOULD HAVE GOT to a student from the weaker community, because ONLY if the weaker community gets a little stronger, the cart can move………….

    Now what criteria to follow who is strong and who is weak…..

    1. Economics……….. It is a well known fact that THIS is the easiest factor to cheat………. If we give reservations based on economics, the students of employeed sector will suffer……. WE very well know that you and me pay more income tax than the leading textile owner in your town who earns 2 to 3 lakhs per month………… Except for salaried class of people, how can you check the TRUE income of other sectors . Another factor is that wealth is not stationery………. Many persons who had a comfortable life were rendered homeless after Tsunami or earth quake.. A rich person can become poor over night……… Many people earn well by their hard work and a poor person can become rich in few years (if he enters cinema or other art field for example)….. So MONEY is subject to change and can be hidden

    2. Religion… Easy to change……. If you say that there is 20 % of reservation for those following Din-e-Ilahi, every one will embrace that …..And more over I can show you atleast 100 people who do not believe in god……….. What religion will you fix to them…….And then there are people who believe that there is ONE God……… What religion can you give them………… and there are few who follow more than one religion (when both their parents are of different religion, for example)…… Other than the fact that Religion can be changed with regard to time, it can be hidden………

    3. Caste….. Because this system is routed deeply in our culture, WE CANNOT CHANGE our caste….. hence this was based as the criteria for reservation…….. because of the various criteria we can consider this DOES NOT CHANGE WITH TIME

  4. //A last word Dr.Bruno please read Sujatha’s story on an interview of a OC & SC candidates//

    You mean Rengarajan Iyengar from Srirangam

  5. //The present day India need a reservation system not based on CASTE but based on economy//

    I have umpteen times explained that this is the MOST STUPID Idea in a country where you can never estimate the real income.

    THe salaried class will have to suffer where as the business people wil gain by this

    Any how those who tell this point are the ones who are not against “reservation”, but are against the people who will get “seats by reservation” and that is apartheid.

  6. please read my blog fully. I have time and again stressed that I support reservation with one condition that Kids of a person who has been benefitted by it should compete in open quota

  7. So Dr.Bruno,
    Based on your posting I’m assuming that you would be a beneficiary of the proposed reservation. If not you don’t have to read any further.

    If so, now if u wanted to join IIM or AIIMS do you think u should have seats reserved for you as opposed to a FC/OC in a similar situation like yours…

    You say that reservation based on economic conditions is not possible fair enough. But how do u propose to identify kids of those who have already enjoyed the fruits of reservation. If financial ability of a citizen cannot be deduced by a country can such prior availing of opportunities be tracked ? So I think you are part of the camp that enjoys reservation, and I would think you son/daughter would probably do so but on the outside you will say that creamy layer be removed….Ullondru vaithu puram ondru pesuvaar…

    BTW, I have my own questions on this centuries old suppression of entire India by Brahmins (you seem to have a very indignant attitude towards Rengarajan Iyengar, whose contribution to Tamil language and literature is well known). Show me historically how and when did Brahmins suppressed 80% of Indians.

    The Brahmins were the seat of Vedas but heck who cares about Vedas. They are decidedly evil right. So care to explain that in ur next post..

  8. //But how do u propose to identify kids of those who have already enjoyed the fruits of reservation. //

    Very easy. You can easily find out my father’s educational qualification, but not my money

    This is a very simple fact.

    // I have my own questions on this centuries old suppression of entire India by Brahmins//

    Yeah…. By your post, I assumed that you did not learn history in school …So better read history once again and you will know it

  9. //Show me historically how and when did Brahmins suppressed 80% of Indians.//

    Till Britishers came, only the brahmins and upper castes and royals were allowed to study.

    There was a famous teacher who told that he will teach princes and not common boys. Such racist fanatic !!!

    And a poor boy, who WAS REFUSED EDUCATION (BASED ON BIRTH like all other boys) took effort to learn how to use bow and arrow on his own.

    Do you know what happened

    Our expert, who had such fanatism and racism went to the extent of asking the thumb of the poor boy as “gurudharshana” making sure that HE IS NOT ABLE TO PRACTICE WHAT HE LEARNED HIMSELF

    Such was the attitude

    Not only the nepotist teacher refused to teach, but he also made sure that none other than his community and king community learned arts

  10. >>//But how do u propose to identify kids of those who have already enjoyed the fruits of reservation. //

    Very easy. You can easily find out my father’s educational qualification, but not my money >>

    What if the father never used reservation and come up thru the general category. I know many BC and OBC friends of mine who came up that way !!!!

    Dr.Bruno, all u could come up with is a story from Mahabharatha. Now either u and ur ilk should dismiss them as rubbish or if u want to use them for arguments like this then accept them as truth. Now stake ur position about these epics and then quote them.

    You never answered any of my questions though. So I’m again asking u.

    If u used reservation to get in to MBBS, you have achieved equality with everyone who did MBBS with u right. So why would u need reservation for PG course in AIIMS or IIM ? Should reservation be used by one generation or only at one stage by that generation ?

    Why would u need reservation in recruitment ?

  11. Burning headlines – Dr. Bruno Mascarenhas Demands reservation for BCs/OBCs in 2006 because one of his ancestors Eklavya was denied Archery lessons by a sadistic Brahmin teacher named Drona way back in 7000BCE (Approx. 10,000 years ago)…

    Dr. Bruno, Hopefully you won’t convince mythology with history. If u want history, read about Chanakya-ChandraGupta. That’s an apt representation of a Brahmin-Hunter working together. Heck let’s fast forward a few centuries, I hope you know where Babasaheb got his last name (Ambedkar) don’t u.

    Now go back and read actual history books.

    BTW if we implement ur reservation system based on father’s education I wanted to see who will qualify on the BC/OBC side

    It will include whos who of TNagar shopping moguls like Saravana Stores kids, Saravana Bhavan kids etc etc. I don’t think u want these ppl hijacking ur method do u ?

    Heck if Bill Gates throws some bones at one of our VAOs he can also get a BC certificate and his kids will still qualify as he never completed a degree :-0).

    Okay you have one more day try again.

  12. YOu asked “Show me historically how and when did Brahmins suppressed 80% of Indians” and I told the answer. You asked hisotically and so i told a story from mahabharata.

    If you want the latest example, it is the cong by Delhi doctors asking the OBC to remember their place.

    //If u used reservation to get in to MBBS, you have achieved equality with everyone who did MBBS with u right. So why would u need reservation for PG course in AIIMS or IIM ? Should reservation be used by one generation or only at one stage by that generation ?//

    Please read here
    http://www.nellaimedicos.com/blog/bruno/2006/01/reservation-and-upliftment.html

    I have time and again told that reservation should be given to a person ONLY ONE TIME in his life time and when a person gets benefitted by reservation, bis future generations have to be allowed competetion only under Open Quota.

    SInce I had written that post a long time ago (way before Arhun singh even announced this scheme), you can know my opinion on the issue.

    How many times do you want me to type the same thing again and again

    //Dr. Bruno Mascarenhas Demands reservation for BCs/OBCs in 2006 because one of his ancestors Eklavya was denied Archery lessons by a sadistic Brahmin teacher named Drona way back in 7000BCE (Approx. 10,000 years ago)…//

    Again, my dear friend, (as usual) you are completely worng

    The headline is

    Dr. Bruno Mascarenhas Demands reservation for BCs/OBCs FROM 2006 because ALL HIS ANCESTORS were denied ALL FORMS OF EDUCATION by Upper caste teachers named Drona way back in 7000BCE (Approx. 9,000 years ago)TILL 100 Years ago

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