Ad-libbing justice

Poorva Paksha

Babasaheb Ambedkar once observed that the good of a Brahman man was popularly regarded as a benefit to the nation whereas the good of a Dalit was seen only as a boon to his particular caste. An attentive reading of the Supreme Court’s recent decision, or more precisely its concurring opinions, in Punjab vs Davinder Singh might seem to corroborate the sentiment despite the fact that the justices appealed to Ambedkar 52 times throughout their texts.

It is, of course, a standard casteist trope for Savarnas to reduce Ambedkar to a figure who worked only for Dalits and not for India as such. While it is true that the uplifting of Dalits remained Ambedkar’s self-avowed life mission, as he clearly articulated in the 1920s, it is also patently obvious for anyone who looks at the Ambedkar of the 1940s that he worked equally tirelessly for all Indians. Indeed, he laboured over the drafting of the Constitution until he was incurably ill. He was too sick even to stand up during the special ceremony adopting the Constitution and thereby inaugurating the new republic and had to be accommodated in a specially-designed chair for the occasion.

Babasaheb worked himself nearly to death to establish in fundamental law a nation not only enjoying total sovereignty but one that also championed equity and inclusion -- one that took proactive measures to ensure that all Indians, irrespective of caste, community, gender, would share equally in India’s newly-won liberty. The following year, in 1951, the Supreme Court upheld an abstract, ahistorical and literalist view of the fundamental right of equality as enshrined in the new Constitution, rather than a grounded and contextualist view and, ironically, held reservation to contravene the Constitution’s equality clauses. This, despite the fact that Indian courts were courts of equity, empowered to interpret law according to the intention and not the letter.

Ambedkar felt profoundly betrayed by the regressive judgement, and he said so openly. A fellow parliamentarian complained to the Speaker of the House about Ambedkar’s “express disrespect to the highest judiciary in the land”. Ambedkar’s characterisation of the court’s decision reminds me of Ella Fitzgerald’s Grammy-award-winning rendition of Mack the Knife, sung live in Berlin in 1961, when she forgot the lyrics mid-way and decided just to ad-lib the song:

Oh, the shark has pearly teeth, dear/

And he shows them, pearly white/

Just a jack knife has Macheath, dear/

And he keeps it out of sight.

There are some domains where we can expect casteism and unfairness, such as the informal social order. But there are others, like the juridical order, where we expect equity and justice to prevail. It is a most rude awakening when we discover that the latter might at times be a veiled avatar of the former.

Oh, the shark bites with

his teeth, dear/

Scarlet billows start to spread/

Fancy gloves, though, wears Macheath dear/

So there′s not, not a trace of red.

A book could be written on Punjab vs Davinder Singh. The decision of the Chief Justice, the many concurring opinions and the one dissenting opinion come to 565 pages, so anything I cover in a short piece such as this one does nothing but scratch the surface. There is one itch I wish to scratch: the nebulous notion of ‘empirical data’ that is so crucial to this decision.

The court shows awareness that the motivation behind sub-classification will tend to be political, and attempts to preclude this from happening by demanding that “any exercise involving sub-classification by the State must be supported by empirical data”. Ironically, the concurring opinions of Justices Gavai and Mithal offer no data when suggesting, among other things, that reservation should not extend beyond one generation. Is there any data to suggest that socially-marginalised families can pull themselves out of poverty and/or social stigmatisation in only one generation of positive discrimination? Doesn’t the empirical data that we have actually suggest that this is impossible?

The insistence on empirical data is meant to morally justify the court’s perspective, distinguishing an objective and equitable court from the dubious realm of caste politics. But for the distinction to hold, the focus on empirical data must be consistent. Take, for example, the idea of ‘merit’, which the court feels must be preserved as far as possible in an affirmative action framework. What does the social-scientific data reveal with respect to how ‘merit’ manifests in society? Have we not known for nearly a century of empirical sociological, economic, and psychological studies that ‘merit’ is preponderantly a by-product of generationally-accrued social, cultural and/or economic capital?

I’m all for empirical data. But claiming objectivity when effectively upholding casteist norms is…well…how did Ella put it?

On a Sunday, Sunday morning,
lies a body, oozin’ life/

Someone′s sneaking
‘round the corner/

Tell me could it be, could it be,
could it be/

Mack the Knife?’