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Mainstream, VOL LVII No 6 New Delhi January 26, 2019 - Republic Day Special

Reservation in Judiciary?

Monday 28 January 2019

by A.K. Biswas

The demand for an inclusive judiciary is almost a century old, if not longer. When the Indian Statutory Commission with John Simon as its Chairman—also known as the Simon Commission—visited the Indian subcontinent in 1928 for consulting as also assessing public opinion for constitutional measures in the light of experiences obtained through the operation of the Montagu-Chelmsford Reforms, the Bengali Depressed Classes, the euphemism for the untouchables, submitted two memoranda, one by the All-Bengal Namasudra Association and the other by the All-Bengal Depressed Classes Association, to them. The memorialists realised that their hopes and aspirations along with their grievances were common and identical and they, therefore, resolved to agitate jointly before the Commission in support of their case. The All-Bengal Namasudra Association pleaded for representation of the Depressed Classes in the judiciary on the ground of public confidence in the administration of justice as follows:

 “The courts and judiciary should be so constituted by legislation that there may be representatives of different communities on these in order that the people may have confidence in the administration of justice.”1

This underlined the strong feelings and apprehension of injustice in the minds of the masses in the administration of justice in Bengal. A vast section of the Bengali population, over a long period of time, had gathered this perception of the judicial dispensation in Bengal. The Bengal Depressed Classes Association stated in their memorandum:

“The Depressed Classes form more than 58 per cent of the Hindu population of Bengal. According to the last census, their number is 11.5 million. The Namasudras are the most prominent class amongst them, numbering 2,007,259 in 1921. They have made vigorous, steady and successful fight for their self-elevation. Annual Conferences are held to right their wrongs and advance their rights. They are the second largest Hindu caste in Bengal, the Chasi Kaibartta (Mahishya) alone being more numerous.”2

The bhadralok comprising Brahmans 13,09,539; Baidyas 1,02,931; and Kayasths 12,97,736 aggregating at 27,10,206 accounted for 13 per cent of Hindus, whereas they were 5.8 per cent of the whole population of Bengal. The census returned 4,66,95,536 souls in 1921.3 We will see, just a little later, that this minuscule segment had monopolised the whole administrative machinery in every branch of the Government of Bengal to the near total exclusion of others. This created a very unhealthy and unfortunate situation.

To remedy this unfortunate situation in the administration of justice, the memorialists argued and demanded that “Appointments should be made from amongst the qualified candidates of the different communities in proportion to their numerical strength.”4

Furthermore, the Namasudra Association incorporated in their demands something which was far ahead of the time and preceded development of political thoughts in this behalf in the subcontinent. They urged the Statutory Commission that “At the first instance, candidates of the Depressed Classes and others, including Muhammadans, should only be appointed until and unless an equalisation of these classes is secured to those who have already filled these services.”5

Their submission, highlighting the aspirations of the deprived classes, was revolutionary, if not altogether unique, in a land so intensely and deeply vitiated by the communal virus as well as unmitigable hatred. The memorialists exhibited exceptional catholicity in their thought and outlook by underlining inclusion not only of the depressed classes but also of the Muslims in the judiciary in proportion to the people who hitherto dominated the services already. Public services were the exclusive domain of the few who styled themselves as bhadralok, accounting for merely 6.15 per cent of the population of Bengal in 1931.6 The public, in general, was suspicious, if they had not lost confidence, the memorandum suggested, ‘in the administration of justice’. This was a serious challenge as well as embarrassment for the authorities to remedy.

The total absence of the non-bhadralok in any service arose out of a peculiar situation obtaining in Bengal. This merits cursory probing into the sorry state of the history of education in the nineteenth century which is euphorically claimed as a period that characterised the renaissance of Bengal. This era is credited with great efflorescence and achievements in every branch of human life and society! The high-pitched claim notwithstanding, the great and the glorious did not make any change in educating the masses who were a badly deprived lot.

While analysing the census returns of appointments in 1901, the authorities were struck by a noticeable feature that a very small share of high appointments which fell “to the Muhammadans and the practical monopoly of all such appointments held by Hindus by the members of the Brahman, Baidya and Kayasth castes”.7

They also observed that “the Hindus are less than twice as numerous as the followers of the Prophet, but they hold nearly nine times the number of high appointments, viz., 1,235 compared with only 141. Again, of the total Hindu population, less than 1 in every 11 is a Brahman, Baidya or Kayasth, but these three castes between them hold 1,104 of the 1,235 appointments filled by Hindus. Their advantage is still more marked, if we consider only the highest appointments. The three High Court judgeships and the 22 posts in the Covenanted and Statutory Civil Service, which are held by Hindus, are all filled by members of these three castes.” As regards their relative success, it was also observed, amongst themselves the Baidyas had by far the largest share of these appointments and the Brahmans the smallest. The Baidyas were outnumbered by the Brahmans and Kayasths in the ratios of 34 to 1 and 18 to 1, respectively; yet they could boast of 7 Covenanted and Statutory Civilians compared to only 2 who were Brahmans, and 13 who were Kayasths. “Of the Deputy and Sub-Deputy Magistrates, 70 are Baidyas, 128 Brahmans, and 144 Kayasths. The proportion of Baidyas is not so high amongst the Sub-judges and Munsifs, but even here, with 40 appointments, compared with 186 filled by Brahmans and 160 by Kayasths, they have far more than their fair numerical share.”8

They did not forget to record that numerous castes went “entirely unrepresented in the higher grades of the Civil Service of the State, amongst whom, it will suffice to mention the Rajbansis and Namasudras with an aggregate strength of nearly 4 million, and the Kurmis and Bagdis, each numbering over a million”.9,10 

Celebrated Nationalist’s aversion against Education for Masses!

ABSENCE of representation of the lower social orders and Muslims in Covenanted and Statutory Civil Service was a result of widespread illiteracy which vindicated what Greek philosopher Socrates had apprehended long, long ago: “We can easily forgive a child who is afraid of the dark, the real tragedy of life is when men are afraid of the light.” Fear of darkness brought what millions of Indians suffered at the hands of the upper castes who surrendered national interests at the altar of their insatiable selfishness. They opposed education reaching far and wide among the masses.

Celebrated nationalist leader Bal Gangadhar Tilak opposed education for the masses. His startling stance deserves focus: “You take away a farmer’s boy from the plough, the blacksmith’s boy from the bellows and the cobbler’s boy from his awl with the object of giving him education....and the boy learns to condemn the profession of his father, not to speak of the loss to which the latter is put by being deprived of the son’s assistance at the old trade.”11 He was clear and specific about the nature of education for them. “...the education befitting their rank and station in life should be provided to the peasant’s children”, while general education should be given to those who had a “natural inclination for it”.12 That the editor of Kesari and Mahratta was irreconcilable to the idea that Kunbi children attained education at all becomes glaringly clear when we hear him say “the indiscriminate spread of education...was unsuited, useless and positively injurious to Kunbi children”.13 Gandhiji echoed the same vulgar opinion what Tilak expressed years before him in his Hind Swaraj or Indian Home Rule. (1909)

Bal Gangadhar Tilak would be happy to keep under a thick blanket of ignorant 98,10367 Indians who were Kunbi in various parts like the North West Provinces, Punjab, Hyderabad besides the Bombay Presidency and Central Provinces and Berar.14 Add to their strength a vast illiterate population of Chamars numbering 1,16,55,117 spread over large parts of India to gratify the venerable scholar.

‘Macaulay Putra’ targets of Hatred, why?

TILAK was also an inveterate enemy of social reforms and those who dedicated themselves to social reforms, which included education for the untouchables and women, attacking orthodoxy etc. Activities of social reformers, who were his eyesore, came under his severe and unremitting attack. According to him, “Their work is that of destruction, their first and foremost attempt was to dispel through the land any reverence that might be felt for the Brahmins; their next sally was against the time-honoured institutions, customs and manners of the Brahmins and the Hindus generally. The late R.B. Deshmukh and the late Jotirao Fulley may be cited as instances of such reformers.”15

Macaulay advocated Western education through the medium of English. Nowadays we often hear accusations hurled against him. The English educated are referred pejoratively as Macaulay-putra or Sons of Macaulay. Why so? We find an answer for the insinuation against them. According to Tilak, “English encouraged the people to defy the caste restrictions and the spread of English education among the natives will bring down their caste system.”16

English educated people are enemies of caste and they would, his apprehension was, bring down caste. Hence his extreme anxiety for safe-guarding and perpetuating “the time-honoured institutions, customs and manners of the Brahmins and the Hindus generally”. All obnoxious customs which survive till date enjoy the blessings of these classes of people only because they yield benefit and recognition to them.

The tall nationalist Tilak was blindly against female education. When he amended his views and attitude in this behalf, he came around to this: “What is urgently wanted is primary schools for girls that would give them such knowledge as is useful in domestic life ... teaching English would prove to turn out girls to be a dead weight on their husbands.” The scholarship of the editor merits no comments.

I recall what Katherine Mayo wrote also prophetically, “...if Indian self-government were established tomorrow, and if wealth tomorrow rushed in, succeeding poverty in the land, India, unless she reversed her own views as to her ‘Untouchables’ and as to her women, must still continue in the frontline of the earth’s illiterates.”17

Treacherous Foot-soldiers of Macaulay

LORD MACAULAY, while drafting the famous Education Policy for India in 1835, had aimed at the upper social order for instruction at the first instance. We may take a cursory look, with immense benefit, at the history of education in the nineteenth century. According to him, “We aim at raising up an educated class who will hereafter...be the means of diffusing among their countrymen some portion of the knowledge we have imparted to them.”18 Needless to stress, he grievously erred in deciphering the crooked and hostile character of the social aristocrats and supremacists towards the Indian layman. He wanted to replicate in India what Britain successfully experimented with the filtration theory of education there. The homogeneous social structure was entirely responsible for the success of the filtration theory of education in his country. Macaulay’s misjudgement in framing his policy was destined to suffer a serious setback due to the discriminatory social structure of India. “We mean these youths,” he wrote, “to be conductors of knowledge to the people.”19 His foot-soldiers were the enemies of his policy to carry beyond themselves. The conductors of education and knowledge were plainly treacherous. They not only let Macaulay down but portrayed him in dark colours. This becomes clear if we hear what someone of the stature of a Governor-General long after Macaulay had sadly discovered.

Lord Richard Southwell Bourke, the Sixth Earl of Mayo (February 21, 1822-February 8, 1872), was, as the Governor-General of India, giving a new and dynamic direction to the education policy and had observed: “I dislike this filtration theory, in Bengal we are educating in English a few hundred Babus at great expense to the State. Many of them are well able to pay for themselves, and have no other object in learning than to qualify for Government employ. In the meanwhile, we have done nothing towards extending knowledge to the millions. The Babus will never do it. The more education you give them, the more they will keep to themselves, and make their increased knowledge a means of tyranny. If you wait till the bad English, which the 400 Babus learn in Calcutta, filters down into the 40,000,000 of Bengal, you will be ultimately a Silurian rock instead of a retired judge. Let the Babus learn English by all means. But let us also try to do something towards teaching the three R’s to ‘Rural Bengal’.”20

The whole of the educated bhadralok fraternity of Bengal not excluding Pandit Iswar Chandra Vidyasagar, strongly disapproved the idea of educating ‘rural Bengal’ at all.21 This was the central feature of the character and culture of the Babus of Bengal during the overrated and overhyped renaissance of nineteenth century. They turned education into “a means of tyranny”, capable of mass destruction by denial. Let us not talk in nebulous terms. The chronicler of the British Empire in India, Sir William Hunter, recorded thus to drive home, the point soon after Lord Mayo: “The upper classes are opposed to the lower orders being taught at all. The Brahmans and Kayasthas deem education to be strictly their inheritance.”22 They raised an invincible as also insurmountable wall against the untouchables to ensure perpetual illiteracy.

What a great role the great protagonists of nineteenth century Bengal assigned to education in the end! A knife saves life in the hands of a surgeon; a butcher kills his victim with the same weapon. Their early accomplishment in Western education had invested with them arrogance and superciliousness towards others, the less fortunate masses in the scale of life. They derided them as chotalok [as against bhadralok], bajelok [useless], even borbor [savage] etc.

Does the Law Minister want representation for SCs and STs in the judiciary?

ON December 26, 2018 the Union Law Minister made a vague reference to what the media wanted us to believe as a government initiative for reservation favouring Scheduled Castes and Scheduled Tribes in the judiciary. The Minister’s speech at Lucknow to the All-India Lawyers Board, covered by a national English daily, quoted him as saying: “An all India judicial service with an entrance examination conducted by the UPSC, could provide reservation for Scheduled Castes Sand Scheduled Tribes, would be helpful to create a pool of trained judicial officers and improve the judiciary’s represen-tative character.”23

The tone and tenor of his speech suggests no initiative on his government’s part favouring representation for the Scheduled Castes, and Tribes in the judiciary. This is just an election-eve vote-catching carrot dangled in a garbled language before prospective voters to garner votes.

“Shoot me but don’t target my Dalit brothers”—did the Prime Minister mean Anything?

REMEMBER the passionate speech of the Prime Minister at Hyderabad in August 2016 after viewers globally watched with horror the lynching of six Dalits at Una in Gir Somnath with the Gujarat State Police in attendance. That was the native State where the Prime Minister had ruled consecutively for thirteen years (2001-2014). Nonetheless a section of people habitually extends barbarous treatment to the Dalits and tribes there. No sense of remorse and mortifi-cation torment the offenders or those who fail to take deterrent action against them. With the sole aim of deflecting attention from the festering episodes of lynching and other forms of atrocities against Dalits, occurring everywhere across the nation the Prime Minister made his high-decibel speech at Hyderabad: “If you have to attack, attack me; if you have to fire bullets, shoot me but don’t target my Dalit brothers.”24

His speech, even if we take it as his sincere desire for fool-proof security and welfare for the Dalits, made no impact even on the Chief Ministers of States ruled by the BJP. They simply brushed aside their Prime Minister on the security of Dalits and the tribal people who form over 300 million Indians.

Look at the States like Rajasthan, Madhya Pradesh, Chattisgarh [before the Assembly elections], UP, Haryana, Maharashtra, Gujarat etc. Crimes/atrocities against the Dalits have not made any difference. Rather the violence against them is on the rise.

The secret blitzkrieg that the NDA Govern-ment launched overnight for 10 per cent reservation in government jobs and education favouring the poor upper castes shows their admirable capability. Why did not the same government take similar action alongside to ensure reservation for SCs and STs? This proves that the Union Law Minister told a lie on the issue of judicial reservation to befool millions of Dalit and tribal people of India at Lucknow.

FOOTNOTES

1. Indian Statutory Commission Report, Volume I, Survey, 1930, quoted by A.K. Biswas, The Namasudras of Bengal, pp. 57-58.

2. All-Bengal Depressed Classes Association Memorandum to Simon Commission quoted by A.K. Biswas, Namasudras of Bengal, p. 71.

3. Census of India, 1921, Vol. V Bengal, Part I Report, by W. H. Thompson, ICS, p. 3.

4. Ibid., p. 58.

5. Ibid.

6. Census of India,1931, Volume V, Part II, Bengal Tables by A. E. Gait, pp. 220-221, Total population of Bengal returned in 1931 aggregated at 51,087,338 of whom Muslims were 27,810,100 and Hindus, 22,212,069. Bhadralok accounted for 31,41,905 [Baidyas being 110,739; Brahmans, 1,477,691 and Kayasths 1,553,475 totalling, 31,41,905. Ibid., pp. 229-232.

7. Census of India,1901, Volume VI, The Lower Provinces of Bengal and Their Feudatories, Report Part I, by E. A. Gait, 1901, para. 956, p. 486.

8. Ibid.

9. Ibid.

10. Madhab Chandra Giri, mohant or chief priest of the temple of Tarakeswar in Hooghly district developed illicit relation with the young Elokeshi, wife of Nabin Chandra Banerjee. When the husband came to know of the liaison, he killed his wife with a fish-cutter and surrendered to the local police. He was prosecuted, convicted and sentenced to life imprisonment. The acknowledged leadership of the native society of Bengal submitted a petition to the government for clemency. The murderer was let off after two years of sentence.

11. Mahratta, May 15, 1881, pp. 3-4, “Our System of Education—A Defect and a Cure”, quoted by Parimala V. Rao in Education and Lose Nationality—Reading Bal Gangadhar Tilak”, Critical Quest, New Delhi, 2008, p. 8.

12. Ibid.Hindu Castes and Sects: An Exposition of the Origin of the Hindu Caste, by Jogendra Nath Bhattacharya, Thacker, Spink Co., Calcutta, 1896, p. 270.

13. Mahratta, August 21, 1881.

14. Ibid. 

15. Mahratta, May 5, 1901, p. 9: ‘Letter to the Editor’ by “an observer from within”

16. Mahratta, August 21, 1881, p. 2.

17. Katherine Mayo, Mother India, New York, March 1931, p. 202. https://archive.org/stream/motherindia035442mbp/motherindia035442mbp_djvu.txt

18. Herbert Alick Stark, Vernacular Education in Bengal from 1813 to 1912, Calcutta General Publishing Co., 1916, p. 55.

19. Herbert Alick Stark, Vernacular Education in Bengal, Calcutta General Publishing Company, 1916, Calcutta, p. 89.

20. Maj. Baman Das Basu, India Under the Crown, R. Chatterjee, Calcutta, 1935, p. 128. https://archive.org/details/in.ernet.dli.2015.77310/page/n17

21. A.K. Biswas, “Universalisation of Education: India in a Trap: Bane of Negligence Portends National Disaster”, Mainstream, Vol XLVII, No 38, September 5, 2009. https://mainstreamweekly.net/article1615.html

22. W.W. Hunter, Statistical Account of Bengal, Vol. VI, Trubner & Co., London, 1876., p. 352.

23. The Times of India, “Now, Law Minister pushes for SC/ST quota in judiciary”, December 26, 2018.

24. The Telegraph, Calcutta, August 8, 2016, “‘Shoot me, not Dalit brothers,’ says PM.”

The author, a retired IAS officer and former Vice-Chancellor, B.R. Ambedkar University, Muzaffarpur, Bihar, may be reached at biswasatulk[at]gmail.com

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