The Supreme Court judgments have placed equality of opportunity, in its narrowest literal sense, above social justice. By fixing the entire burden of persuasion and proof on the Dalit, the apex court is open to the criticism that the seductive power of ‘equal opportunity’ is being used as a tool for maintaining the hegemony of the governing elite. Indeed, equal treatment of the unequal is an insidious way of perpetuating inequality. But then, like a judge famously remarked in another context, the Supreme Court in this case, it would appear, has acted as a court of law, not as a court of justice.
From all accounts, Parliament is poised to amend the Constitution to overcome the hurdles created by these judgments. However, this will not be an easy ride if the ominous warnings of the court are any indication. In the Nagaraj case and again in the Rajesh Kumar case, the apex court has warned: “If the appropriate government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then the court will certainly set aside and strike down such legislation.” The conviction of the court about the rightness and finality of its interpretation of the law seems misplaced, especially when one considers the fact that on the issue of the backwardness of SCs/STs, the Supreme Court has expressed contradictory views. In all fairness to the most vulnerable section of our society, Parliament is duty-bound to amend the Constitution to ensure reservation in promotion for SCs/STs at every level, while making sure that the mandated quota is not exceeded.
Finally, if we have to do away with reservation, we have to reconstruct our social relations in order to mend the social cleavage. For that, we first need to recognise how caste influences the way social and economic privileges are enjoyed, how it determines the nature of human interaction, and how it influences our justice system. Only after such soul-searching and realisation can we begin working towards a society of common citizenship where all citizens are equal and treated equally.
(The views expressed in this column are the writer’s own)