Though the Indian constitution envisaged the abolition of untouchability and an end to discrimination, prejudice is rampant among the affluent sections of society and those entrusted with upholding the constitution have tended to treat Dalits and Adivasis with utter insensitivity.

For years, mainstream discourse in society has focused on limiting the constitutional provisions enacted in favour of Dalits and Adivasis. In particular, two key concerns of these groups protection from atrocities, and adequate representation have been the target of several prejudices, stereotypes, and fake propaganda. It is unfortunate that even the Supreme Court of a constitutional democracy like ours has often failed to sift fact from fiction.

In 2018, a two-judge bench of the Supreme Court diluted the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act 1989 (SC/ST Act). Instead of focusing on the poor implementation of the Act, the bench said its very application was perpetuating casteism, calling it an adversary of constitutional values. Clearly, the bench did not have any understanding of the social protection needed by Dalits and tribals.

Particularly in rural areas, these communities have to face social barriers and institutional apathy even to get a complaint registered for an atrocity committed upon them by the upper castes. The judgment of the court had added one more institutional barrier by endorsing a false stereotype against the Act that it is misused and that complaints under it are questionable. This judgment was later overturned by an amendment in the law made by parliament due to political pressure from Dalits and tribals, and the Supreme Court had to back off from its earlier position in a subsequent judgment upholding the validity of the amendment.

Also read: SC/ST Act: A Hostile Environment and an Atrocious Interpretation

The application of affirmative action policies through the constitutionally entrenched provisions of reservations has consistently been limited by the Supreme Court in a series of judgments. The language in these judgments reflects the inherent stereotypes against the idea of reservations. In February this year, a two-judge bench of the court held that a government is not bound to provide reservations, even if there is inadequacy in representation in services.

This view is damaging and contrary to the constitutional obligation of the state to provide adequate representation to Dalits and Adivasis. On one side, the Supreme Court has restricted the application of reservation through its consistent judgments by placing a mandatory condition for any government to collect data regarding the inadequate representation of Dalits and tribals and to exclude the creamy layer, before making reservation in promotion policies. But, on the other side, the court abdicated its responsibility by holding that it would not hold the government accountable even if the under-representation of Dalits and tribals in public services is brought to its notice.

Representational image of a protest against caste discrimination. Photo: PTI

In a recent constitution bench judgment delivered on April 22, the court, once again, made regressive remarks against the entire concept behind reservations. The court has held that 100% reservation provided to tribals by the erstwhile state of Andhra Pradesh in Fifth Schedule areas is unconstitutional. In doing so, the court made an obiter dicta or observation that the affluent and socially and economically advanced classes within Dalits and tribals are not allowing the benefits of reservation to trickle down to the needy.

The constitution bench noted that there is a struggle within the Dalits and tribals community, and therefore the Central government should revise the list of castes or classes within those castes who can avail the benefits of reservations. The issue of revision of lists was not among the questions of law (as framed in the starting of the judgment) to be dealt by the bench. Yet, the judges could not refrain themselves from making negative remarks about reconsidering reservation structures for Dalits and tribals.

The court had, once again, ignored the basic premise behind implementing reservations, i.e. social representation. Social identities are so entrenched in our society that they often decide the fate of individuals. In some instances, Dalits have not been allowed to take out marriage procession or were attacked for growing a moustache. The discrimination and atrocities did not stop even when the Dalit belonged to so-called affluent class within Dalits a category which the court intends to exclude from representation.

Also read: If Community Recognises Itself As Dalit, How Can Court, Government Dictate Terms?

There is also no empirical backing to the claim that the benefits of reservations are not reaching the lowest lot. The observation made by the Supreme Court is ironic for two reasons. Firstly, the Supreme Court, which as an institution has always asked the government for data to question its reservation policies, is making negative claims about reservation based on the perception and beliefs of individual judges. Secondly, the court has ignored the issue of diversity within its own institution, and has largely been comprised of affluent sections from upper castes.

The judgment is also problematic for the insulting remarks made about the identity and culture of the tribals. The judgment authored by Justice Arun Mishra, and signed by Justices Indira Banerjee, Vineet Saran, M.R. Shah, and Aniruddha Bose, held that the primitive way of life of tribals makes them unfit to put up with the mainstream and to be governed by the ordinary laws.

It was further held:

The formal education, by and large, failed to reach them, and they remained a disadvantaged class, as such required a helping hand to uplift them and to make them contribute to the national development and not to remain part of the primitive culture. They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances.

The manner in which the language in the judgment stereotyped tribals as traditionally being of primitive culture and a human zoo is completely insensitive by any scale and violates the dignity of tribals. The language of the court reflects regressive colonial constructs. If the Supreme Court was intending to show concern for tribals, it should have avoided these words which reflected typical and negative stereotypes against tribals.

The bench must be reminded of the first speech made by Jaipal Singh, a constituent assembly member belonging to a tribal community, and a passionate campaigner for Adivasi rights and equal representation. Speaking about the Objectives Resolution laid down by Jawaharlal Nehru, Jaipal Singh, in 1946, proudly said:

Sir, I am proud to be a Jungli, that is the name by which we are known in my part of the country. As a jungli, as an Adibasi, I am not expected to understand the legal intricacies of the Resolution. But my common sense tells me, the common sense of my people tells me that every one of us should march in that road of freedom and fight together. Sir, if there is any group of Indian people that has been shabbily treated it is my people. They have been disgracefully treated, neglected for the last 6,000 years. This Resolution is not going to teach Adibasis democracy. You cannot teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth.

Also read: Indias Cocktail Recipe for Affirmative Action Should Be Replaced With a Simplified One

The identity, culture, and way of life of the tribals is respected by the constitution in text and spirit. The Supreme Court ought to have taken note of this in proper words and should not have spoken contrarily.

It was further noted in the same judgment that it is very hard for any elected government to have the political will to make revision in the concerns highlighted in the judgment. The court seems to have forgotten, or perhaps ignored the fact that policies made in favour of Dalits and tribals are not patronising in nature or made out of pity or charity. These freedoms have been won by Dalits and tribals after constant struggle and sacrifice, as they believe that their identity and way of life is in no way inferior to anyone elses in the country.

Adivasi protestors at a rally in New Delhi. Photo: Reuters/Parivartan Sharma

Each and every inch of progress of these communities towards equality has often come after the loss of several lives while facing social atrocities and oppression. The individuals from Dalit and tribal communities, whom the Supreme Court intends to remove from access to representation under the garb of the creamy layer and affluent sections, have sometimes occupied key positions in the government and have used it to push for legislation, schemes and initiatives for the rights of Dalits and tribals. The Supreme Court is damaging every bit of progress of Dalits and tribals made through democratic, political and administrative participation.

Instead, the court should consider dealing with questions like why the abolition of untouchability has failed in India or why a Dalit dies cleaning sewers every five days. The court which often pats its back for taking suo moto cognizance of instances of violation of fundamental rights, has never taken cognizance on its own of any instance when a Dalit has been murdered for breaking bigoted social barriers or for marrying outside his or her caste or when a Dalit dies while being forced to clean sewers due to inefficiency and apathy on the part of government authorities.

Of course, there are a few instances when the Supreme Court has supported the issues of these communities. For instance, in the BK Pavitra (II) case in 2019, a two-judge bench shattered the stereotypes and myths around merit and administrative efficiencies, which have been hurled at Dalits and tribals to ridicule them.

Therefore, the judges of the apex court must sit down and decide collectively: whether they want the Supreme Court of India to be known in history as a socially regressive institution like the US Supreme Court, which has been harshy criticised for its regressive decisions on issues relating to the African American community. Or, whether the court should tread the path of liberty, equality, fraternity, and justice, and set an example before others. The ball is technically in the court now.

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 tweets at @anurag_bhaskar.

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When It Comes to Dalit and Tribal Rights, the Judiciary in India Just Does Not Get It - The Wire