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Embracing a (dis)continuance History

By Ashit Kumar Srivastava

“The only difference between a judges’ rationality and yours’ rationality is that his rationality is the law”                                                                                                           

The title of the piece might seem deceptive or might represent the heavy influence of the ‘Endgame’ but surely the story has a lot of parlances which can be drawn from. The Indian institutions are a rudimentary example of how one line of thought can be confirmed onto without any major aberration from it for decades. The Indian Constitutional Jurisprudence might have multifarious universes attached to it, but however, we have been able to limit ourselves to particular semantics of it without a fail.

It is not that we were able to distort our history completely on 26th January 1950 and walked into a new house but rather we carried our old baggage into the new house. The principles of dignity, equality and liberty are not unknown to the Indian jurisprudence but their connotation had changed significantly, for India had emphatically relied on western constitutions for describing dignity, equality and liberty. This is one of the prime reasons that the Indian Constitution has been termed as a color-blind constitution, which does not seem to see any color. However, the same cannot be said about the Indian society, on 26th January 1950 only the mode of governance changed, there was a shift of power from the colonial rulers to some elite Indians. Can this be regarded as a complete distortion from an unforgiving past? This western connotation demands complete separation of the present with the past, but that is something hard to achieve for a country which still pretty much is entangled in its historical practices. Subduing this feeling requires more than a change of government but rather requires serious training or at least educating people about the principles of Constitutionalism.

The palpable disruption in the theoretical utopia called the Constitution and the pragmatic reality is not hard to establish. The great irony has been as to how institutional machinery in India, mostly Parliament and Judiciary has not been able to promulgate a sense of continuity in the working of India. It is not hard to accept that India has an unpleasant past, something which the Government of India has accepted with open arms. The very first circular by the Madras government for giving reservation to people from the non-Brahmin community is a clear acceptance that India cannot stay a color-blind document for long. It has to give one according to his needs. It took some time for the judiciary to accept this fact though, the very first case of Champakan Dorairajan (1951) stands witness to it, wherein the Supreme Court rejected this reservation on the grounds that it discriminates on grounds of caste. However, after a decade of suspension, the Supreme Court realised this fact that ‘Caste’ can be a basis for determining ‘backwardness’. This slow realization that India stands in a suspension between the atrocities of the past and the egalitarianism of the future was fully culminated by the time we reached 1990’s when the Mandal Commission report had drawn raucous around India.

However, the intricacies of the fact lie that throughout this tussle between the Parliament and the Judiciary as to the history of our great nation. There was a no penultimate decision as to what shall be the appropriate ground of adjudging a particular group of people as backward. The irony is, that the Supreme Court emphasized that yes, the Indian Constitution does see color but as to which color it is still undecided. The fact that the Indian Supreme Court has been able to change the criteria for determining backward group every decade tells much about their sociological incapacities.

Yes, the Indian Constitution does subscribe to the philosophy of equality among the equals and not among the un-equals, but the Sisyphus task of determining as to who is this unequal, who shall be classified and given benefits of the reservation is still a labyrinth. We all thought that Indra Sawhney (1993) judgment was the last nail in the coffin for determining the backwardness, but the present government was able to change that by bringing a new mix of 10% reservation for ‘Economical Weaker Section’ this brings about an existential crisis for the budding jurisprudence of over two decades which had affirmatively brought in a sense of stability for deciphering as to who is a backward person.

Ashit Kumar Srivastava (AKS) is an Assistant Professor of Law (Teaching Constitutional Law) at National Law University, Odisha.                       

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