The staple that one grew up on, was the idea, that WE, the people of India, had through a consensus, decided to constitute ourselves into a nation – a secular, democratic, Socialist (as an after thought perhaps, once Gharibi had been hataoed) republic. One was told that the Executive, the legislature and the Judiciary were the pillars that kept a check on each other, thus ensuring that every one was kept in their place, and the pulls and pressures exerted by each on the other two were built into the state structure in order that every one stayed on the straight and narrow.

All this was however soon forgotten to be replaced by the lived experience of the machinations of an uncaring and callous executive and a by and large insensitive legislature. The only hope now was the Judiciary, the third pillar of parliamentary democracy, and one waited with baited breath for the honourable courts to deliver this nation of a billion and more from the collective mess in which the other two had placed the people of the largest democracy in the world.

Judicial activism became the proverbial straw that one clutched at and hoped for more such straws to keep a destitute nation afloat.

Land mark judgement, after landmark judgement strengthened the belief that as long as we had a Judiciary, at least the Higher Judiciary, that was above reproach, things would eventually be sorted out. The Various judicial commissions that identified and castigated the perpetrators of violence, the Judicial pronouncements that prevented the executive from misusing its powers and the slew of pro people judgements on issues such as environment, pollution and such like gave hope, especially to ‘people like us’. But these hopes, as often recorded so pithily in political resolutions, were, however, soon belied.

Three recent Judgments, one closely following the other, have brought out in sharp contrast the mismatch that exists between democratic aspirations, in the widest sense possible, and judicial perceptions of what is right. One is talking of the Supreme Court judgement on reservation for OBCs in Institutes of Higher Learning, The Allahabad High Court Judgement on Minority status for Muslims and The Supreme Court Judgement on Valid grounds for divorce.

This may seem to be a rather strange set of examples, and it is that. But I have not made the selection; the judgements have come close on the heels of each other and have forced themselves upon us. The judgements are extremely significant because they deal with large sections of our population –

(1) Women – around 50% of the population, though their numbers have been declining of late, thanks mainly to modern technology serving the needs of a tradition that is essentially anti women in all its manifestations.

(2) Muslims around 10 % or so, their numbers will also become manageable very soon if the state continues to allow Modi, Hindutva and their henchmen and benefactors to rule the roost as they are doing at present.

(3) OBCs whose sons and daughters, wanting to study beyond schools, have now to wait a national census of OBCs before they have any hope of getting what should be heir constitutional right as Indian Citizens.

Not trained in legalese and petrified of being held in contempt of the courts I would try to tread carefully on matters that I understands only perfunctorily. An attempt would nonetheless be made to try to look at the issues involved from the much maligned ‘Secular’ and Democratic Perspective.

1. WOMEN: Cruelty as Ground for Divorce. The judgement is weighted heavily in favour of males. As far as one has been able to understand the case, the issue was related to a male seeking divorce because of the refusal of the spouse to continue conjugal relations. The plaint was to seek a divorce on grounds of cruelty. The judgement has said that this is a valid ground for divorce; the court has enumerated several other acts that could also be put forward as reasons for seeking a divorce and included among them is undergoing sterilisation without the consent and knowledge of the spouse. Shorn of all the hereasunders and whereases and notwithstandings what the Judgement means in plain English is that a woman has no right over her body, she is doomed to submit herself to sexual intercourse night after night whether she wants to or not. If she refuses to do her husbands bidding in this matter, she would be held guilty of Cruelty. If this is not legalising conjugal rape I would like to know what is.

And what about sterilisation without the permission of the spouse? Countless surveys conducted by agencies dealing with ‘Family Planning’ “Birth Control” “Family Welfare” and “Prevention of AIDS” have shown that the Indian male considers that sterilisation is an attempt to emasculate him, that if he can no longer beget children then he is not fit to be counted among men and therefore it is always the women who has to be sterilised and not the man.

A women may want to have children but if the husband says no she has to go in for an operation, she has no choice in the matter, conversely can she initiate legal proceedings for divorce if she does not want to undergo the operation? The court is silent on this aspect. Why has the court not given its opinion on this possibility? I have not come across any judgement that tries to free women from this coercion.

Now let us consider the case that a women no longer wants to bear children, does she have to do it because the husband or the in laws want her to. Does she have the right to seek a divorce on this ground? Silence once again! What about the law of equality, why does she have to be sterilised and not the husband or why does she not have the right to get sterilised if she wants to or refuse to be sterilised if she does not want to? Why must she surrender to her husbands demands for sex if she does not feel like it. How can this become a ground for males seeking divorce? One has not seen such overriding concern for victims of rape and of torture for dowry; one has not seen too many convictions for amniocentesis. In fact Judgments in several divorce Cases before higher courts have been full of homilies to women who file cases to harass their in laws, a whole lot of rapists are being freed every day because the police deliberately prepares cases that help acquittal of the accused. This judgement will only worsen the status of ordinary women and strengthen the feudal hold of men over women. The judgement militates against the very idea of Equality before law.

Should not the Higher Judiciary acquaint itself of the actual reality of this great nation and its hallowed traditions that are so heavily loaded against women that it seems necessary, almost to the point of being a life and death question for millions of women, that Judicial officers and others engaged in the legal profession are made to understand the meaning of equality before law. And then perhaps try to ensure that it is followed not only in letter but in spirit as well.

2. MUSLIMS: No Longer a Minority. A single Judge bench of the Allahabad High Court pronounced a judgement that Muslims were no longer a minority in UP since they were almost 18% of the Population of the state. The state government went in appeal against the judgement and the Honourable court has stayed the order. The judgement has however brought to the fore certain important questions about judicial propriety and a simple question about basic arithmetic. The case apparently pertained to the issue of release of grant to a Madrassa.

The honourable court had not even been approached to opine on the question of the Minority status of the Muslims. One is not even sure whether such issues fall within the jurisdiction of a high court, be that as it may, the judge had clearly gone much beyond the brief of the case. It has been reported, one prays and hopes that the reports are wrong, that the same judge had made pronouncements to the same effect on an earlier occasion as well and in that instance too the plaint before him was not seeking his honour’s opinion on the issue of what constitutes a minority.

Even if the report of the earlier instance is wrong the recent case is before every one. Why did the Judge choose to make this pronouncement without any one asking for it. The inescapable answer is that the Judge has already reached this considered conclusion and is bent on holding forth on his position at every occasion. If the earlier report is correct then the present judgment would only be a reiteration on the part of the judge of something that he believes to be the truth..

If the judge has reached the conclusion that Muslims are longer a minority and do not need specials provisions geared towards the amelioration of their circumstances, then we have cause to be seriously worried.

The Sachar Committee report gives us one picture, a picture that has made a lot of people sit up and take notice, obviously some like the BJP are extremely happy to learn that despite all their protestations to the contrary the secularists have also not done anything more than paying lip service to the cause of the largest minority.

The question to ask in this instance, however, is where did the Honourable Judge get his facts to reach the conclusion that he did.

The fact that Muslims are educationally, socially, economically backward and therefore special schemes are required to bring them on par with the general population has been recognised, by Social Planners, for more than a few decades. Several studies have pointed to blatant discrimination being practiced against Muslims – more in some areas and less in others. In the face of this reality it has been pointed out repeatedly that there is need to put in place more such special schemes for minorities, especially the Muslims, to help them rise above their miserable circumstances.

One needs to look at the implication of denying Muslims the status of a minority. Even the miniscule proportion of GDP that has been kept aside to meet the lofty ideal of Uplifting Muslims, to help “ameliorate” their level of education, health and social well- being, will be denied to them.

We need to stop and ask ourselves what are the forces that clamour for putting a stop to this ‘policy of appeasement’ and whose interests will judicial interventions like this help? Certainly not of strengthening the notion of an unbiased and objective judiciary.

And finally the simple question of arithmetic. When does a minority cease to be a minority? To my mind there are 2 possible solutions to this question.

1) A minority will cease to be a minority when it ceases to exist. This solution is actively being pursued in Gujarat, preparations are also afoot to follow the path shown by Sardar Modi in Rajasthan, Madhya Pradesh and Karnataka. Given the ‘vigorous’ manner in which our Secular polity has moved to defend the Muslim minority one will not be surprised if Muslims Cease to be anything in these states in the near future.

2) A minority will cease to be a minority when its strength becomes equal to or more than the majority. The votaries of Hindutva have been shouting from roof tops that Muslims are multiplying so fast that they will soon become a majority. Muslims were around 10 % of the population in 1947; 60 years later they are at around 12 %. At this rate they should be around 50 % of the Indian population in the next 1140 years. This it seems is too close for comfort and to prevent this from happening, a solution, as outlined in the para above, has been evolved and field tested.

Now if the above line of argument is sound there is little possibility of any minority, including the muslims, ever becoming a majority in India. In the light of the above more ingenious schemes will have to be devised for preventing them from becoming Urdu Teachers and LDCs etc in UP.

It has been shown in demographic studies all over the world, that the economically deprived and the least educated have a higher rate of growth than those that are economically better off and are better educated. In fact a comparative study of demographic patterns in India and economic stauts of the respondents will, in all likelihood show, that poor muslims – they are unfortunately a maority of Indian muslims – will return a higher rate of population growth, when compared with well-to-do muslims – unfortunately a miniscule minority of the Indian Muslims. I am certain of another result, the rate of population growth among Dalits will be higher than that of the well-to-do members of the upper castes.

One method of ensuring that Muslims do not ever become a majority in this country is to put in place mechanisms (one gathers that this is the appropriate terminology) that will improve their economic status and educational levels. Once they achieve that their rate of growth will stabilise, because their standards of education will also improve, they will no longer need special packages for minorities that the honourable court was apparently unhappy with. The question is do we want the minorities to reach the same levels that we want for ourselves? Do we sincerely want equal status for all our citizens – Women, Dalit, Adivasi, Minorities? do we?

OBCs: Stay on Reservation in Higher Education From the time that the Mandal Commission recommendations were implemented one has been subjected to essentially the same argument being bandied about in different forms across the length and breadth India, especially the North Indian part of the Subcontinent. The burden of the argument is that Indians did not look at other Indians from caste tinted glasses and every one lived in complete harmony before V.P.Singh and B.P. Mandal unleashed their divisive agenda.

It has also been argued that the whole OBC reservation issue has been raked up to divide Hindu society and to create social tensions among Hindus. The mostly unstated suggestion, that has none the less sought to be driven home, is that this conspiracy to create cleavages among the Hindus has been hatched with the clear objective to derail the efforts of Hindu India to regain its lost atm samman and to avenge the injustices of the past.

All these arguments are put forward and it is vehemently argued that implementing this or that law will divide the nation along caste lines, that merit will be a casualty, that the nation will slide down into the nadir of mediocrity and inefficiency.

I think there is need for this nation, including the three arms of the state and the media to take a reality check.

When it is said that reservation will divide the nation along caste lines, the assumption is that we are not, as of now, divided along those lines. If this is so will some one explain to me the millions of entries for Kanyakubj, Kashyap, Kanojia, Kashtriya, Kayash, Saraswat, Chitpawan Deshasth, Iyer, Ayengar, Aggarwal and what have you grooms and brides in the matrimonial coloumns of the news papers and, the johnnies arrived lately, the matrimonials .com. I am confident that the first matrimonial ever published for a Hindu Boy or Girl in any Indian newspaper in India, would have clearly indicated the preferred caste. And the first matrimonials pre-date any talk of reservation in this country. And those who claim that Islam is free of caste, need not gloat for they too ask for Sheikh, Sayed, Pathan, Ansari, Qureshi, Saifi, Kazmi, Zuberi etc, Bridde or Groom for their progeny.

Will any one, who talks of caste not being part of the collective consciousness of the subcontinent, tell me why the Brahmin / Kshatriyas live in the best location not only in the village but also in many old cities and the dalit always on the outskirts, or in the most neglected quarters?

20% reservation for the dalits in all government jobs has been in place from 1950. Why is it that till today the quota is implemented fully only among the class four employees and nowhere else. Who is stopping the dalits from getting their share, certainly not the dalits because they are not the appointing authorities? I know of dalit women who worked as a cleaning staff in one high profile department in one of our key social ministries, she had been there for more than 20 years and no one had ever asked her for a glass of water, not because they got their own water. No sir, this was not the reason why, the reason was the woman, she was an untouchable. This is Delhi, 1995. A friend of mine, an expert in one specialised field of research as prevented from attending seminars organised by a department of the ministry in charge of that area because he Babus, that ran that department believed that this friend o mine was a dalit, when they realised that he was not a dalit they told him in so many words. What a pity, you missed all those opportunities, it was such a terrible mistake that we all made, we are so sorry. The friend is now in Pune. The events that I described took place between late 1970s to mid 1990s. the realisation came in 1995.

Every year we hear of entire villages gathering together, men women, young and old, to sit in judgment on a young couple who has transgressed the boundaries prescribed by caste, the young girl and the young boy have fallen in love across the diiding line of caste, they have run away, eloped, gotten married or decided to do so. Such couple are always caught and brought before the village panchayat. How is it that the police always succeeds in arresting such runaways, but never the killers of caste carnages? The couple is stoned to death, burnt alive, hung from the nearest tree, if the boy is a ‘low caste’ then women from his family are raped and paraded naked. If the girl is low caste and the boy is upper caste, the low caste women are raped and paraded naked as before.

The dalits have suffered this for centuries,( if you think as many indeed do, that the evil of caste was brought in by the muslims, please read the punishment, to be given to a shudra for insulting a Brahmin, prescribed by Manu described by many as the “great law giver”) and think again..

The OBCs of today were for long the musclemen of the Brahmins and the Kshatriyas, it were, the kurmis and yadavs who wielded the lathis on behalf of the landlord. The mandal reservation has taken them out largely from this situation, they have never been as oppressed as the dalits, they have traditionally exercised a certain measure of autonomy within the caste structure, despite being backward educationally and socially they have had better access to education than the dalits and they have never been untouchables.

Mandal has given them confidence, they have begun to refuse to be used as musclemen for entrenched political forces. They want to use their muscle now for their own ends. And this is the real fear. When it is said that Society will get divided in castes, what is actually being said is that the lower castes and the OBCs will no longer serve the interests of the upper castes, they may actually begin to do the unpardonable, they may stoop low enough to refuse to do our bidding.

The Dalits alone could never do this, the upper castes could continue to keep them in servitude as they had done, with the help of the OBCs, for eons. The breaking away of the OBC has created spaces for the dalits as well. It was for the first time in large parts of west UP and Haryana that the Dalits actually went out to vote for the first time after the implementation of mandal commission recommendations. The emergence of Dalit and OBC CM’s in several states and across parties is just one manifestation of Mandal. It is not the 27% govt jobs or seats in IITs and IIMs that are at stake, the entire caste edifice built over thousands of years of Mythical Merit and Superior Birth is at stake. Is it any wonder then that the attack against reservation is so vicious and attempts to subvert it so systemic.

Objections to using data of the vintage of the 30s has been raised, and used as an argument for staying the operation of the Law. The figures returned by the latest NSS places the proportion of the OBCs to the national population at somewhere close to 40. A people who are 40 percent of the population are being promised 27% of the jobs and 27% of the seats.

Promised! Actual delivery may be as elusive as the promised 20% has been for the dalits all these years. But even this promise, we are being told is not to be made. The actual fear, I think, stems from the possibility that in the case of the OBCs it may not be possible to deny them their share for too long. It has, therefore, been thought appropriate to prevent it from becoming law.