Mr. Rajeev Dhawan?s article published on 28th December, 2001 in The Hindu – The Equality Amendment of 2001 neither talks about law nor talks about society. He has selectively quoted the statistics which show high percentage of SC/STs promoted at higher levels. Exceptions can?t be the rule but he has tried to make them so. He has condemned the accelerated promotion and justified the judgement given by the Supreme Court in the case of Ajit Singh. His courage to condemn the? Will of the People? of this country is surprising. The Parliament represents the will of the people, which he has called undemocratic, ill-conceived and mindless, because it has tried to rectify the wrongs done by the Supreme Court. I think he suffers from elitist syndrome.
Reservation is nothing but a compensatory measure for thousands of years? old ancient wrongs. If Rajeev Dhawan had been born in a dalit family he would have never condemned Parliament?s act in favour of reservation. I am representing the will of millions of people and I am ready to exchange the position enjoyed so far by the upper castes in lieu of reservation. Why did we at all fight against British was precisely because of non-representation of indigenous people in decision making process, i.e., the freedom struggle was for participation of natives in sharing wealth and power etc.. After independence , power came into the hands of Indians and dalits also aspired to share in the decision making process. Dalits are also citizens of this country and hence reservation is not a favour but their share in the political and administrative realms in a limited way. Mr. Dhawan seems to treat dalits as aliens. Except where there is reservation ,dalits are still at the periphery, be it industry, trade, commerce, higher judiciary, art and culture, higher education, profession and in many other fields.Should they not even be allowed to share political and administrative fruits? Of course, Mr. Dhawan does not want that.
He appeared before the Supreme Court for the implementation of Mandal Commission report and no body denies his contribution. Sometimes the system favours even what it does not want to do. It is done precisely to legitimize the longevity of the system and perhaps Mr. Dhawan is a product of this process. The issue before the Supreme Court was not to decide or give observation (obiter dicta) in respect of dalits? reservation but to consider reservation for backwards. However,the Supreme Court made observations to the effect that reservation should be restricted at the entry point meaning thereby to deny reservation in promotion, limiting the recruitment level below 50% and withdrawing relaxation in departmental exams etc. Subsequent judgements of Supreme Court based on obiter dicta in Mandal judgement paved the way for the Department of Personnel & Training to issue five anti-reservation orders in 1997.The All India Confederation of SC/ST Organisations came into existence under my leadership to get these anti-reservation orders annulled. For achieving this objective, the Confederation had organized four massive rallies on 26th November 1997, 16th November 1998, 13th December 1999 and on 11th December 2000 of about 1 lakh, 4-5 lakh, 7-8 lakhs and more than 10 lakhs respectively. Because of our struggle 81st and 82nd amendments were made in the Constitution by the Parliament to restore the right of back log recruitment and relaxation in departmental examinations etc. Parliament has again made 92nd Amendment in the Constitution on 28th November,2001 to enable dalit employees to get accelerated promotion with a view to share administration at higher level. It has irked Mr. Dhawan and issue of merit has cropped up again.
The so called argument placed by Mr. Dhawan regarding merit is all humbug.As on date Westerners are more meritorious than us in many fields if we apply his standards. Britishers gave us law, Acts, judicial system but why we woke up against them was because of non-representation of Indians in the governance of the country. According to the yardstick applied by him, we should have not revolted against the British because they were more meritorious and hence were fit for all posts. What is merit ? Is it fetching good marks in school, colleges or in a competitive examination or writing and speaking good English is merit ? And hard work , loyalty, sincerity, integrity and honesty are not taken into account while framing the bond of merit. In addition, on most of the occasions only Annual Confidential Reports are crucial for further promotions which are in the hands of biased superiors. The superiors are free to judge or reward at their own sweet will and it is mostly based on sycophancy and buttering and the whole administration is running on it.
According to him, the Parliament can not sit in appeal over the Supreme Court. The essential feature of democracy is to govern the society by the mandate of the people. If people want, they can change the Constitution also , what to talk about Supreme Court. The Parliament represents the will of the people and it has got every right to implement the will of the people and above amendments are nothing but a reflection of the will of the people. If Mr. Dhawan and alike people go on provoking the Supreme Court to meddle with the Power of Parliament then the days are not far off when higher judiciary will have to be controlled by the will of the people. Nowhere in the world such unchecked power has been vested in the judiciary as we have done.
The Constitution is the mother and the Judiciary, Executive, Legislature are its children but the judiciary has now defiled its mother by misinterpreting and diluting it in many ways. In 1981 in the 1st Judge case – S.P. Gupta V/s Union of India (1991), the Supreme Court held that the opinion of the Chief Justice of India does not hold primacy in appointment and transfer matters of judges and constitutional functionaries like the President, P.M., Governor, Ministry of Law as per article 217 of the Indian Constitution must be consulted. In the 2nd Judge case S.C. Advocates on Record Association V/s Union of India 1993 Supreme Court held that the Chief Justice of India holds primacy in transfer and posting of judges and the process of selection of judges of Supreme Court must be initiated by the CJI. This is complete departure from constitutional provisions. In the case of reference case ( 1998) it has again confirmed the primacy of CJI. Unfortunately, there is no clear and comprehensive law to govern judiciary in this country. In the appointment of judges no objective procedure can be followed in the present situation to judge the character, capacity and ability of a judge and sycophancy, nepotism and favoritism is the order of the day. Since plurality of hands like President, P.M., Governor, Ministry of Law are not allowed to play a role in a judge?s appointment, therefore such appointment is bound to be corrupt and biased. Who has given power to CJI to appoint judges ? Neither people nor the constitution of this country have given this power to him. How can they assume and snatch Parliament?s power ? Before this the executive held say in appointment of judges and that was more or less fair because the executive is answerable to the people of the country. What is the criteria of merit to select a judge ? There is no criteria. The Bar Associations are very powerful and very often they do not allow strict High Court judges to play fully and if they do so,they are not sent to the Supreme Court. What is the criteria to select an advocate for appointment in the High Court ?. There is no criteria. Those judges who flock around seniors are preferred in the Supreme Court and in fact the whole system of appointing judges is fallacious and subjective. Many brilliant advocates do not want to become judges; then in that case where is merit ? After independence things were purportedly done on the basis of so called merit but why have things gone from bad to worse ? Those who cry for merit want to reap the fruits of independence alone without sharing them with marginalised people.
Mr. Dhawan can very well appeal against 92nd Amendment at the cost of power sharing of dalits. In 1995 ,the 77th amendment was made in the Constitution by the Parliament to enable dalit officers to get promotions in higher echelons of services but the Department of Personnel & Training restricted it to the lowest rung of Class I. The appeal in this respect is lying before Supreme Court for disposal. Supreme Court has no business to interfere either in the case of 77th amendment or like cases. However, in the absence of proper representation of dalits, backwards and women in higher judiciary, Mr. Dhawan may succeed in instituting the appeal against 92nd Amendment but it will not be good for country on the whole. The Parliamentary Committee on the Welfare of Scheduled Castes/Scheduled Tribes in its second report for 1999-2000 held, “Judges take oath that they uphold the Constitution and the laws. But the Supreme Court, and a few High Courts by claiming power above the Constitution, practise untouchability and are disobeying the Indian Constitution with regard to article 16(4) and 16(4A). It said that there were only 15 Scheduled Castes and 5 Scheduled Tribes judges among the 481 High Court Judges in India. The Parliamentary Committee on the Welfare of Scheduled Castes/Scheduled Tribes wanted to know the strength of dalit staff in the establishments of High Courts and data furnished by a few High Courts like A.P. High Court 0.69%, Bombay 1.06%, Gauhati 8.00%, Gujarat 6.28%, H.P. 0.57%, J.K. 3.11%, Karnatak 1.60%, Madras 0.15%,Orissa 0.84%, Patna 4.25%, Rajasthan 0.54%, Calcutta 1.42%, M.P. 1.72 %and Sikkim 31.58% reflects a very pathetic condition. The Supreme Court did not furnish the information despite repeated reminders which shows it does not observe reservation. At present there are about 120 Secretaries in Government of India, perhaps none is from dalit community. After lots of hue and cry, the over all strength at Class-I level in Government of India is about 9% only against 22.5% of the quota. Why Mr.Dhawan has not filed petition against them? He may find smooth passage to get stay or judgement against dalits as the judiciary is favourably disposed in favour of the elite and some upper castes.
India suffered and is still suffering many setbacks because of caste system only. It had to see defeats at the hands of plunderers coming with their personal gaurds and paraphernalia. More than 95% people were alienated from the defense of the country because of division in society. Today also I see regress and failure in almost all walks of life. We are trying to survive upon foreign investment. There is no reservation in higher judiciary, then why there are more than two crore cases pending in different courts ? There is no reservation in sports, then so far why we did not win a single gold medal in Olympics and in other important international events? In professions, army, entrepreneurship, higher technology ,the things are grim. Who is responsible? When there was undeclared reservation in ancient and medieval times for the upper castes in governance, then why had the country to suffer? Mr. Dhawan should realize that it is a matter of opportunity and nothing else. No one is meritorious by birth. Children of film actors and actresses, politicians, judges, lawyers and businessmen become generally what their parents are.
In fact Mr. Rajeev Dhawan, a brilliant lawyer of this country, should go to the Supreme Court for elimination of caste and introduction of compulsory and equal education. If Parliament has done something to implement reservation at higher level, no where it has deprived general category people and has altered the basic structure of the Constitution . I know that reservation alone is not going to solve the problems of dalits and the country as well, and if country has to be reconstructed then it is through elimination of caste system and compulsory and equal education. I am ready to give up reservation in lieu of elimination of caste system and compulsory and equal education for building up the nation. n n n
This article was sent for publishing in The Hindu but was edited into letter form and published on 3rd January, 2002 and it created hot debates