Supreme Court judge Justice D.Y. Chandrachud on 6 December, delivered the 13th B.R. Ambedkar Memorial Lecture, 2021 on ‘Conceptualising Marginalisation: Agency, Assertion & Personhood.’ The event was organised by the Indian Institute of Dalit Studies, New Delhi & Rosa Luxemburg Stiftung South Asia in India International Centre, New Delhi.
The full text of Dr.Justice Chandrachud’s lecture :
It is an honour for me to have been invited to speak at this lecture organised in the memory of one of the greatest social revolutionaries India has ever witnessed– Babasaheb Dr Bhimrao Ambedkar. In no uncertain terms, Dr Ambedkar has profoundly influenced and impacted the development of law and social change in India. He gave us the Constitution, and the rights that we so dearly hold on to.
I begin today’s lecture by sharing a story from Dr Ambedkar’s autobiography, titled Waiting for a Visa. As the story goes, the Government of Bombay had appointed a Committee to study the injustice, oppression, subjugation, and persecution faced by the untouchables in Bombay. Dr Ambedkar was appointed as a member of this committee. He visited Chalisgaon, located in the Jalgaon District in Maharashtra, to inquire into a case of social boycott that the members of the Dalit community in the village were facing. He had decided to stay the night with the Dalit community. The members of the community had arranged a horse carriage for him to travel from Chalisgoan. Shortly after embarking on the journey, the horse carriage in which Dr Ambedkar was traveling met with an accident. While investigating the cause of the accident, he was exposed to a tale of tyranny, domination, and social ostracization. It came to his notice that no coachman was prepared to drive a Dalit passenger in the horse carriage. The coachmen were willing to lend the horse carriage on hire but were not willing to drive a Dalit passenger. A member of the Dalit community of the village, who had no experience driving a horse carriage, had taken the reigns in his hands. In his autobiography, Dr Ambedkar recounts this incident by saying, “To save my dignity, the Mahars of Chalisgaon had put my life in jeopardy. It [was] that [when] I learnt that a Hindu tongawalla, no better than a menial, has a dignity by which he can look upon himself as a person is superior to any untouchable, even though he may be a Barrister-at-law.” In this account, there lies a melancholic tale of diminishing personhood. A well-educated Barrister who has been addressing the issue of untouchability at a high level, had to face ruthless and brutish humiliation by being a member of the Dalit community.
In the early 1900s, the discourse on the need to reduce the population in India was grounded on the alliance between eugenics and Malthusian ideas. Dr Ambedkar introduced a resolution in support of government-funded birth control in the Bombay Legislative Assembly. While introducing the resolution, he remarked, “If men had to bear the pangs which women have to undergo during childbirth none of them would even consent to bear more than a single child in his life.” He steered the discourse away from the arguments of development and eugenics, where only the middle and the poor classes of the country were regarded to be contributing to the population explosion, by emphasizing on the agency – or rather the lack of it –that women held in matters relating to bodily autonomy. In doing so, Dr Ambedkar highlighted the marginalisation women faced, even in conversations about their own bodily autonomy.
Keeping in mind the spirit of the two incidents I recounted, I propose to speak about marginalization today. I will first speak about the members of the marginalized sections of the society – on their struggles, loss of agency and personhood. I will then contextualize their marginalization as not just a product of their individual being, but as a consequence of their membership is a group that is supposedly considered to be inferior to others. Finally, I shall share some thoughts on what the law and society can do to remedy these concerns.
To begin, let us travel back to 1886. The United States Supreme Court in Santa Clara County v. Southern Pacific Railroad Co held that the equal protection clause of the Fourteenth Amendment applies to corporations. It is important to remember that this decision came only about thirty years after its decision in Dred Scott v. Sandford in 1857, where it ruled that black people who reside in the country are not citizens of the country, and are hence not entitled to any rights. Thus, in the United States, corporate entities acquired rights, before the members belonging to the African-American community did.
One of the greatest political acts of law is to define a legal person, i.e., define who can act in law, possess rights under the law and receive the protection of the law. The rights available under the Indian Constitution are categorized into rights that are available to citizens and rights that are available to all persons – both citizens and non-citizens. While the right to equality under Article 14 of the Constitution is available to all persons, the right to freedom of speech and expression under Article 19 is available only to citizens. Therefore, a significant conversation that we must all engage in is on the identification of persons. Who are persons? Who identifies persons? What are the characteristics of personhood? And, can personhood once granted be withdrawn?
Currently, there is abundant jurisprudential debate surrounding personhood. Questions have been raised on whether foetuses, animals, and even Artificially Intelligent robots possess personhood. However, when I think about these complex questions, I find myself considering a preliminary question – are even all human beings, who walk, live, and breathe on the surface of the earth conferred with personhood?
The criteria for the identification of personhood have evolved over time. One school of thought has defined personhood in terms of the entity that confers the right. They argue that a ‘legal person’ is any person who has the formal capacity to bear a legal right, and this person has no moral, social, political, or historical character. Scholar F H Lawson terms this method of classification as ‘mathematical equations’ made for simplifying legal calculations. The second school of thought defines personhood in reference to biological and metaphysical definitions of humanity. Under this categorization, a legal person is identified based on birth and death. The third school of thought uses the criterion of rationality for determining a legal person. This person is characteristically described in terms of their mental attributes, their ability to comprehend situations, their rationality, and their ability to assume responsibility for their actions. While all human beings would be considered a person by the first and the second schools of thought, the third school of thought excludes a sizable population of non-rational human beings from the category of ‘persons’.
We ought to be wary of consolidating the ideals of citizenship and personhood. It is a general conception that citizenship is an evolving concept since it is a product of the law and political community in power, while personhood is universal and not granted. Alexander Bickel, in his book “The Morality of Consent” states that “It has always been easier, it always will be easier, to think of someone as a non-citizen than to decide that he is a nonperson”. It is indeed true that we experience an uncomfortable sensation while terming a human being as a non-person. While citizenship is a legal construction, personhood is both a legal and moral construction. A person is a bearer of rights and has a moral standing in society. Citizenship and personhood, are both different yet very similar conceptions. Both are granted and can be withdrawn, and are both historical and political constructions. However, while citizenship can only be formally withdrawn by the law, personhood can be diminished, contracted, and moderated by non-legal tools as well. A class of the society may be citizens in the eyes of the law of the country, yet their status of personhood could be withdrawn by the acts of the society which they inhabit.
The Dalit community in India is by law recognized as persons and is also granted citizenship. The Constitution provides for their right to equality. In furtherance of the Constitutional mandate of substantive equality, reservations in higher education and employment are granted to the Dalit and Tribal communities. The Parliament has also enacted the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 to curb the commission of atrocities against members of the Dalit and Tribal communities. However, are constitutional and legal mandates sufficient to protect the personhood of an individual belonging to a marginalized group? Aruna Gogulamanda, a Dalit woman poet from Telangana who weaves her poetry around the discrimination that Dalit women face, aptly describes the life of Dalit women in India.
Her poem goes as follows:
“Her eyes two dry hollows bear silent witness Tell the tales of living through fears and years
Of centuries and millennia of violations and deaths She was told that she was dirt and filth, In the sacred land of thousands of goddesses, she is called a Dalit”
Yashica Dutt, an Indian Journalist in her book “Coming Out as a Dalit”, speaks of the pain of a Dalit woman’s soul living in the body of an upper caste woman. She speaks as a third-generation educated Dalit woman who found it necessary to mask her ‘Dalitness’ to shield herself from social ostracization. Dalits in Chakwara, a village in Jaipur, Rajasthan had launched a struggle to gain access to the pond in their village. After a prolonged struggle, the Dalits in the village were granted access to the village pond. The upper caste community, arguing that the water in the pond was impure after the Dalits had utilised it, stopped using the water. In a desire to humiliate the Dalit community, they dug a channel that directly sent the sewage water into the pond. Through this act, they sought to restrain the Dalit community’s exercise of agency, and impede their assertive capacity.
Further, though personhood, like citizenship, is also granted by the law, it need not necessarily be diminished only by the law. For an individual to be recognised as a ‘person’, the components of externalisation and internalisation have to be fulfilled – firstly, the society and the law must regard her as a person holding rights; and secondly, she must view herself as a person worthy of holding rights in the society. Thus, an action that affects both, externalisation and internalisation, would diminish personhood.
Marginalization embodies a principle of graded inequality. It is important to remember that humiliation is an integral part of an inherently dominant society that perpetuates marginalization. Humiliation means degradation and violation of their self-respect to bring down their image in their own eyes. It need not be direct and physical, but can also be indirect and institutionalised. Its direct effect is that a member of the marginalized community faces embarrassment, shame, indignity, and disgrace while being shunned. When a person is humiliated, the “outcast body becomes a stranger to itself”. The members of the marginalized community are thus forced to live out of their bodies, where the soul is alienated from the body. In her work, V Geetha had focussed on this dissociation that humiliation causes to the untouchables in India and stated that “This body in which the untouchable lives but does not inhibit is her prison-house even if she changes her vocation – through negotiation and struggle – her corporeal being precedes her. Forced to live out of a body that is its own ruin, the Dalit suffers a state of permanent dissociation”. Similarly, one of the arguments made by the African-American community before the United States Supreme Court in Plessy v. Ferugson was that segregation of transport based on race was degrading and humiliating. However, the Supreme Court rejected their contention and observed that, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the coloured race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the coloured race chooses to put that construction on it.” Thus, the members of the African-American community were humiliated with the policy of separate transportation because in effect, the segregation was not by mutual consent but because the members of the privileged white community felt degraded in having any contact with the African-Americans. Dalit scholar Bama in her book, Karukku describes the residential segregation in her village. She recalls that the village had different settlements for every caste, and that the Paraya (Dalit) settlement was right next to the village cemetery. She states that the Dalits would only go the settlements of the other castes for work, and the upper caste would never visit the Dalit settlement because amenities such as a post office, school, and milk-depot stood in the upper caste settlements. The residential segregation based on caste depicts the chasm between Dalits and the upper castes, where the members of the Dalit community are humiliated and denied their just entitlements. Enraged by the discrimination based on caste, Bama asks us all, “Are Dalits not human beings? Do they not have common sense? Do they not have such attributes as a sense of honour and self-respect? Are they without any wisdom, beauty, dignity? What do we lack? They treat us in whatever way they choose, as if we are slaves who don’t possess human dignity”. Sujatha Gidla breaks down the Caste system for the American audience when she is questioned on the how the caste identity of a person is identified, since unlike race, caste is invisible. She tells them that everybody in India knows everybody’s caste identity because ‘your life is your caste, your caste is your life’ – it is an identity that cannot be shred, reversed or invisibilized.
The Indian Constitution mandates redistribution of material resources to further the Constitutional ideal of substantive equality. However, we need to ask ourselves a very important question – would redistribution of material resources, automatically and by itself, extend respect to the members of the marginalized community? Suraj Yengde has written in his book “Caste Matters”, “A single Dalit success is taken as a sign of guaranteed success available to all Dalits. Dalits are not only hungry for economic and political emancipation but also for ‘identity, meaning, and self-worth”. The access to the village pond did not extend recognition to the Dalit community in Chakwara. Formal equality requires recognising all persons as equals, and substantive equality aims at equitable outcomes. However, without the fulfilment of the principle of recognition, the ideals of both formal and substantive equality would not be sufficient to address concerns of freedom. It is only through recognition that our existence as social beings is generated. As scholar Charles Taylor has emphasized, “Due recognition is not just a courtesy we owe people. It is a vital human need.”
An individual may be humiliated for her achieved status or her ascribed status. People may confer respect to an individual for her nature as a human being, or her professional achievements. An individual may be respected as a human being for her kind, humble, or fierce nature; she may also be respected for her professional success. Many people of this country respect and admire PV Sindhu, Mithali Raj, Mother Therasa, and Kalpana Chawla due to their achievements in their respective fields. However, sections of the population are also either provided or denied respect based on the ascribed identity of a person – that is, based on caste, race, gender, or sexuality. Indeed, it is this form of denial of respect that diminishes personhood. When a young Dalit homosexual woman is denied respect, she is humiliated for a feature of hers that she has no control over, unlike her nature or professional losses. When she is losing respect in the eyes of others over an attribute that she has no control over, she distances herself from her metaphysical being.
At this point in the lecture, I must remind everyone that humiliation is perpetuated by two actors – the institutions and the society. Seventy-two years ago, we gave ourselves a Constitution premised on justice, liberty, equality, and fraternity of all.The text of the Constitution, in furtherance of the objectives in the preamble, incorporated specific provisions providing the right to equality. However, it was only in 2005 that women by birth became a coparcener in their own right; and it was only in 2018 that homosexuality was decriminalised. Thus, for nearly half a century of the Constitution’s existence, a group of persons was denied its rights as equal members of this country.
The members of the marginalized communities can also be institutionally humiliated not merely by using the tool of law but also by establishments that further a conducive environment for discrimination and humiliation to be perpetuated. Even if a discriminatory law is held unconstitutional by the Courts, or is repealed by the parliament, the discriminatory behavioural pattern is not immediately overturned. The British Raj enacted the Criminal Tribes Act 1871 through which a “tribe, gang or class of persons addicted to the systemic commission of offences” were notified. Once a tribe was notified, then all the members belonging to the tribe were required to register themselves. The Criminal Tribes Act was later repealed in 1949 once our Constitution was enacted, and the tribes were ‘de-notified’. However, even after nearly seventy-three years since the tribes were de-notified, the members of the tribes are still subject to oppression and cruelty. Members of the de-notified Tribes are still picked up by the investigating officers to cover up shoddy investigations. This Court in Ankush Maruti v. State of Maharashtra allowed a review petition filed against the conviction of six accused persons on rape and murder charges. The decision judicially recognised that the members of the nomadic tribes belonging to the lower strata of the society are regularly harassed by investigating agencies by using the forces of criminal law.
The Constitution does not initiate change but only permits and accommodates the change. The Constitution was created in a social order dominated by hierarchical power structures. It tells us a story of freedom, liberty, and independence. But it also tells us a story of subordination, subservience, and lawlessness. The personhood conferred to members of the marginalized groups would be diminished unless we recognise and abolish, in spirit, the unequal power structures which facilitate humiliation.21
Pertinently, the preamble of our Constitution begins with the phrase, “We, the People of India”. But who are the ‘People of India’? In 1990, the United States Supreme Court in United States v. Verdugo-Urquidez was concerned with an application seeking protection against unreasonable search and seizure under the Fourth Amendment. In that case, a Mexican national was arrested by the United States Officials and his residence in Mexico was searched by the officials. The majority judgement dismissed the argument by carving a class of ‘people’ from the class of ‘persons’. It was observed, “The people’ protected by the Fourth Amendment…. refers to a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of the community”. Thus, I often wonder if ‘the people’ referred to in the preamble of the Constitution includes the Tribes which were still recognized as ‘notified tribes’ when the Constitution came into force? Does it include the homosexuals? Does it include the women? The Dalit community, and the disabled?
Unlike the western democracies where the right to vote was granted gradationally to different classes of people after a protracted political struggle, our Constitution granted universal adult suffrage to all Indian citizens. However, this was not without its detractors and the Constituent Assembly debates ought not to be ignored. Numerous voices in the Constituent Assembly echoed against the proposal to grant Universal Adult Suffrage. Their arguments were centered around the supposed ignorance and lack of rationality of the members of certain communities. One of the members of the Constituent Assembly, Mr Frank Antony, in the context of universal adult suffrage, remarked, “Democracy has always carried the postulate, the implication that at least the exercise of the franchise would be made, if not on an essentially rationalistic basis, would be made at least on a common-sense basis.” Hence, some members of our Constituent Assembly were indeed of the opinion that certain classes or groups of people in India did not possess the rationality to make informed decisions and choices. As I had mentioned earlier, the externalisation component of personhood requires both the law and the society to recognise a person. Thus, personhood cannot be said to have been granted to members of the marginalized communities in India when the Constitution came into effect, in spite of including the provisions such as Articles 14, 17, and 326, when a segment of India did not, and probably still does not, recognise the ability of the Marginalized sections to live as rational human beings who deserve their respect.
Google tells us that personhood is the ‘quality or condition of being an individual person’. Such a characterisation of personhood considers it as an individual and universal concept. However, I do not agree with this characterisation of personhood. I think that personhood is a group right that is granted based on the political will of the powerful. Indeed, was personhood, ever in the history of mankind, granted to individuals? I cannot think of any such instance where an individual was granted personhood by the law and society. Personhood has always vested in groups or classes of people: the Blacks, the women, the Dalits, the Tribes, and the homosexuals. It is the granting of legal and social recognition to individuals based on their membership of social groups. These groups were granted diminished personhood at some point in the history of mankind. Personhood is thus never granted to or taken away from one individual. Consequently, an individual’s membership in these groups also becomes a part of their identity and who they are. These “groups” or “collectives” can take different shapes and forms. Some of these can be as basic as belonging to the same school or college while others can over time become extremely complex institutions in themselves – such as religion, caste or race.
Having argued that the members of the marginalised groups possess diminished personhood because of social and institutional marginalization, an appropriate approach to tackle this problem needs to be ascertained. The assimilation or obliviousness of group identity would not rectify the problem of diminished personhood. Treating every person as an individual, irrespective of their differences and membership of multiple groups would not be sufficient to gain personhood because it would be ignoring the lived realities of those for whom their membership in such groups is a crucial part of their identity. Hence, members of the marginalized communities would be able to gain complete personhood only by assertion and recognition of their group identities. The international framework and the Indian Constitution facilitate this approach, of identifying an individual as a member of the group to remedy marginalization.
Article 2 of the Universal Declaration of Human Rights provides that no one can be denied the benefits of the Declaration on the basis of their membership of a particular race or sex or religion or a linguistic group. In principle, the requirement seeks to ensure that an individual’s membership in a particular group does not disentitle her to the benefits of any rights she may have otherwise had. Such a requirement is also present in the International Covenant on Civil and Political Rights, wherein Article 26 explicitly lays down that no one can be discriminated against because of their membership of such a group. Within the international human rights framework, this ultimately culminates in the International Convention on the Elimination of All Forms of Racial Discrimination, which not only opposes discrimination based on an individual’s racial identity but also places positive obligations upon States to combat it. A similar positive obligation is imposed upon States under Article 27 of the International Covenant on Civil and Political Rights, which mandates them to protect the rights of minority ethnic, religious or linguistic groups to preserve their own culture. Another positive recognition of “group rights” in the Covenant is in Article 1, which recognises the ability of every group of individuals to determine its own future, or their right to self-determination. All these examples highlight how the international human rights framework recognises a duality inherent in the existence of an individual’s “group identity”. On the one hand, it seeks to protect against the negative consequences of belonging to a particular group. While on the other hand, it simultaneously protects the right to assert that very identity.
This duality is also traced to the provisions of the Indian constitution. Articles 15(1) and (2), and Articles 16(1) and (2) recognise that individuals may be identified as belonging to a certain group due to their religion, sex or caste, amongst others. Further, it acknowledges that this membership or perceived membership may be the basis on which they are discriminated against. Finally, it then holds such discrimination to be unconstitutional. A very specific and abhorrent form of such discrimination, untouchability, is specifically declared unconstitutional through Article 17. However, at no point does the Constitution recommend that an individual should be considered as a silo or solely as themselves. It acknowledges the existence of group identity and membership, and that it may be used for a positive change as well. In this vein, Articles 15(3) to (6) and Article 16(3) to (6) protect the actions taken by the State to create beneficial legislation for the benefit of groups who have been historically discriminated against. Further, as we are all well aware, it legitimises reservation in educational institutions and public employments for those who belong to the Schedules Castes, Schedules Tribes, and Other Backward Classes. Examples of positive recognition of group identity and group rights in the Constitution also include the freedom of religion under Article 25, the freedom to manage religious affairs under Article 26, the protection of minority groups under Article 29, and the right of religious or linguistic minority groups to administer their own education institutions under Article 30.
When I say that the approach in the Indian Constitution is through the assertion of group identity and not assimilation, I do not restrict my views to material disbursement of resources through reservation or other policies of affirmative action. What I mean is that the only way for the members of the marginalized communities to achieve personhood is through social mobilisation as a collective against discrimination. Such mobilisation should not be considered as ‘politics of identity’ but as a necessary means for redressing historical discrimination. The Supreme Court in Abiram Singh v. CD Commachen was tasked with determining if the electoral candidate is only prohibited from appealing for votes on the basis of “[her] religion, caste, community or language”, or also on the basis of the voter’s. The minority opinion by three judges held that the prohibition was only limited to the ascribed status of the candidate and not of the voters. Thus, in protecting the right of candidates to appeal to the constituent group identities of the voters, it was observed, “Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics. In numerous provisions, the Constitution has sought to preserve a delicate balance between individual liberty and the need to remedy these histories of injustice founded upon immutable characteristics such as of religion, race, caste and language.”What is common to all these examples however is the central idea that these groups exist and individuals recognise themselves as being a part of it, in order to seek the protection of the law. However, such a recognition is not only legal but also social and cultural. Indeed, an individual’s inseparable link to her group identity is often strongly asserted when she belongs to a marginalised group. A leading scholar Erving Goffman has noted that reducing an individual’s personal identity down to their membership of a particular marginalized group has the effect of “disqualifying” her as a whole person on the basis of one characteristic. Ralph Ellison, one of United States’ leading African-American authors, had addressed these concerns in his work of fiction called Invisible Man.26 The book tells a hauntingly real story of an African-American protagonist who despite all his achievements and success, still remains invisible to the rest of the white elites except as a “black man”. The story is one of alienation that is attached to this “invisibility”, and the feeling of futility that accompanies any achievement because one would always remain only a “black man”.
Such a form of marginalisation not only occurs to members from the lower castes or specific races but to those who belong to a particular gender or identify with a specific sexual orientation or are in other ways different from what is considered to be the “norm”. This Court saw this with respect to women when we had to adjudicate two cases in order to decide whether women officers could be granted Permanent Commission in the armed forces. In Secretary, Ministry of Defence v. Babita Puniya and Lt. Col. Nitisha v. Union of India this Court found that the armed forces were willing to overlook all military records and meritorious achievements of women officers when it came to granting them Permanent Commission, by effectively reducing their identity to being “women”. Similarly, in Navtej Singh Johar v. Union of India, this Court noted that one of the effects of Section 377 was to reduce the identity of all members of the LGBTQ community to their sexual relationships alone. While our judgments in all these cases have tried to improve the legal status of these groups, yet their impact on the society continues to be limited. Members of LGBTQ community are still looked at with suspicion by the society, many a times their own parents. And even with the Permanent Commission having been granted to the women officers, our Court continues to hear applications that seek to delay the process.
Having now spoken about the effect that group identity has on an individual’s personhood, we must ask ourselves what happens when an individual wishes to be considered only as who she is, and not as a member of a marginalised group? Indeed, many members of the LGTBQ community continue to remain “closeted” due to the fear of the discrimination they may face. However, does our society allow every individual such a freedom, especially when their membership in a group is impossible to hide?
In relation to an individual’s caste identity, Satish Deshpande has located the answer to my question in a joke which became popular when the 93rd amendment to the Constitution was enacted which introduced reservations for OBCs. The joke goes as follows: When India decides to send a space exploration team to the moon, feverish negotiations begin immediately on the composition of the team. After much discussion, it is decided that the team will include nine OBCs, six SCs, three STs and, if there is any place left, two astronauts. Professor Deshpande notes that the insight herein being that “the “astronauts” are not identified by their caste but only by their qualifications (as astronauts), whereas the [“supposed”] quota-walas are identified only by their caste and not by their qualifications…[As such] upper caste identity is such that it can be completely overwritten by modern professional identities of choice, whereas lower caste identity is so indelibly engraved that it overwrites all other identities and renders them illegible, along with the choices that they may represent.” To put it in simpler terms, while the professional achievements of upper caste individuals are enough to wash away their caste identity, this can never be true for the lower caste individuals. For them, their membership of this group will indelibly remain a part of their personhood forever. As Dr Ambedkar himself noted, he could have become a Barrister At-Law but to many, he was still no more than a lower caste individual.
Michael J Sandel, in his book Tyranny of Merit has noted that individuals with vast privilege can define their identity and success not as a consequence of their privilege but because of their belief that they have earned it through their ‘merit’. Hiding behind such a narrow conception of ‘merit’ only allows upper caste individuals to mask their obvious caste privilege. At the same time, it allows them to relegate the achievement of Dalits and others reserved classes as being a consequence of caste-based reservation afforded to them. The Supreme Court through its judgment in B.K. Pavitra v. Union of India, however, has squarely rejected such a limited definition of ‘merit’. Instead, it articulated a broader definition, which takes into account the accumulated caste privilege of the upper castes and the years of oppression suffered by the reserved castes. Re-framing this definition has allowed the Courts to approach the debate of reservation from a different point of view, and it also changes the conversation surrounding reservation in the public arena. Alas, it remains to be seen whether this can positively change the mindset of every individual of this country as well.
Having now considered a situation where the society continues to impose group identity upon individuals, we must now consider when such an identity is taken away only to deny them the legal protection their group identity would offer. Our Court saw a prime example of this in the case of Vikash Kumar v. Union Public Service Commission, where a disabled individual was refused access to a scribe simply because his disability did not meet the requisite benchmark set by the examination committee. The examination committee’s attitude herein highlighted how access to beneficial legislation is also sought to be limited only to those who are considered sufficiently marginalised within their own marginalised group.
When responding to such marginalisation, it is often assumed that what needs to be addressed is the discrimination based on an individual’s membership of a marginalised group. However, individual identities are extremely complex and they cannot often be reduced only to membership of certain groups. Pertinently, an individual’s identity can be a combination of her membership in multiple groups. Audre Lorde acknowledged this problem when she noted that “as a Black lesbian feminist comfortable with the many different ingredients of my identity, and a woman committed to racial and sexual freedom from oppression, I find I am constantly being encouraged to pluck out some one aspect of myself and present this as the meaningful whole, eclipsing or denying the other parts of self. But this is a destructive and fragmenting way to live.” Hence, not only does membership in a marginalised group affect an individual’s identity by reducing it to the membership alone, but it also forces individuals to make it the focal point of their lives when seeking to combat this marginalisation. And when individuals belong to multiple such marginalised groups, this often is presented as a choice, in order for them to decide which part of their identity is responsible for their marginalisation the most.
Feminist scholar Kimberle Crenshaw introduced the concept of “intersectionality” to counteract this very problem. She noted that the experience of marginalisation suffered by black women was inherently different to white women, and hence, a common theory of feminism could never address both of them. She called for an acknowledgement that individuals who belong to multiple marginalised groups can feel oppression on multiple axis, which has to be meaningfully considered as a whole. In the Indian context, Dalit feminist scholar Shailja Paik has similarly noted how a traditional feminist framework does not adequately capture the lived experiences of Dalit women, which ignores their caste oppression. Similarly, studies in caste oppression only focus on Dalit women’s oppression from the upper castes while ignoring their specific position in the society as Dalit women. Thus, she instead proposes the framework of “womanist–humanist complex” along the lines of intersectionality, which acknowledges the unique location of Dalit women in society. Pertinently, she observes how Dalit women are often vulnerable to sexual exploitation due to their female identity, while at the same time losing all protection due to their Dalit identity.
Intersectionality has thus become an important conceptual tool for all of us today where numerous individuals are marginalised to different degrees due to their varying group identities. Therefore, any solution to this issue has to be one which does not force these individuals to choose between these multiple identities.
Since the core problem herein seems to be arising out of an individual’s membership in marginalised groups, one would be remiss not to wonder why eliminating all these groups is not an appropriate solution? Indeed, some scholars have suggested that all such “group identities” are nothing but human constructs or a myth created by humans to organise their behaviour.37 If so, can human beings not easily eliminate them too? In the context of race, the answer to this question can be found within the texts of Critical Race Theory. Proponents of this theory do not wish to eliminate “race” because they acknowledge that it is and will always remain a part of their life. Further, they highlight that after years of racial oppression, eliminating race will only serve the members of the privileged race, who have managed to convert their racial privilege into forms of social, political and economic capital in modern society. Hence, once it is acknowledged that race and racial discrimination exists, it makes it possible for the years of damage to be counteracted by positively uplifting the discriminated races.38 A similar analysis also holds true for India with respect to caste, where castelessness is a privilege that only the upper caste can afford because their caste privilege has already translated into social, political and economic capital. On the other hand, individuals who belong to the lower caste have to retain their caste identity in order to claim the benefits of measures such as reservation, which are in themselves a recognition of a historic harm.39
The question that then remains for us is what can be done to rectify diminished personhood of the marginalized communities? How do you rectify internalisation which diminishes personhood of the members of the marginalized communities?
Firstly, the most obvious answer would be through legal means which provide them positive rights. However, as I have already highlighted from examples in this lecture, the presence of multiple such rights in our Constitution has not always led to a positive change in the society’s perception of these marginalized groups and the individuals who belong to them. Would it then be fair to say that the groups and individuals should lose their faith in the framework of rights, and try to claim their recognition through other means? Patricia Williams, a leading scholar of the Critical Race Theory, has eloquently conveyed the simultaneous mistrust of and reliance upon rights by African-Americans by noting that, “To say that blacks never fully believed in rights is true; yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before. We held onto them, put the hope of them into our wombs, and mothered them-not just the notion of them. We nurtured rights and gave rights life. And this was not the dry process of reification, from which life is drained and reality fades as the cement of conceptual determinism hardens round but its opposite. This was the resurrection of life from 400-year-old ashes; the parthenogenesis of unfertilized hope.”
Professor William’s powerful words remind us that our rights framework is given meaning only due to the belief reposed on it by those who are the most marginalised. Anurag Bhaskar in his award winning paper titled “Ambedkar’s Constitution: A Radical Phenomenon in Anti-Caste Discourse?” succinctly explains how the Constitution and the rights framework is used by Dalits to mobilise, assert, and reclaim their dignity. The rights provided in the Constitution constitute, in other words, a symbolic tool for emancipation and empowerment for members of the marginalized communities. Taking Anurag Bhaskar’s thesis forward to fruition, it is important for our rights to constantly keep evolving to address new forms of marginalisation that these groups face.
Secondly, though providing protective rights to the members of the marginalized community is empowering since it furthers internalisation, it is in itself insufficient to confer personhood. It is important that we celebrate their identity, recognise their individual and group identities, and create conducive spaces for them to exercise their agency. The process of ‘othering’ and exclusion must be put to an end. There must be a transformation towards securing a communal vision premised on inclusiveness. It is necessary that the privileged members of the society break free from the shackles of the past, and confer respect and recognition to the members of the marginalized communities. Axel Honneth, in his work titled the ‘Struggle for Recognition: The Moral Grammar of Social Conflicts’ emphasises on the importance of self-confidence, self-respect, and self-esteem for the development of personhood. He argues that each of these factors are dependent on the emotions conferred on them by ‘others’42. Love and concern showered is a pre-requisite for self-confidence, one’s sense of possessing rights for self-respect, and viewing yourself as a ‘special person’ for self-esteem. These three forms of recognition would allow the members of the marginalised communities to claim holistic personhood from the continuous state of depletion.
In his final address to the Constituent Assembly on the eve of the Constitution’s adoption, Dr Ambedkar also recognised these two methods when he acknowledged that our Constitution would only be as good as the people who implemented it. With an eye towards the future, Dr Ambedkar noted that “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot…The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics….It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.” Thus, with his parting words, Dr Ambedkar has squarely placed the responsibility upon each one of us to uphold the ideals behind our Constitution and give life to them through our actions. Combating something as prevalent and deep-rooted as marginalisation is no easy task, and I admit to having no easy solutions. The only recourse available to us is to faithfully abide by and give life to the Constitutional ideals which Dr Ambedkar helped formulate, and use those to bring transformative change in the minds and perceptions of the society.