Saturday, January 23, 2016

Why the attempt to deny Dalit status to Rohith Vemula is a shocking ignorance of the law


Or a deliberate misrepresentation. Apart from being extremely undignified, it is indicative of the high stakes involved.

Anup Surendranath  · Today · 07:30 pm


The political pressure arising out of Rohith Vemula’s suicide is evident from the wide range of unsavoury responses we have seen over the last few days. Amongst the worst of those responses has been the attempt to deny Rohith Vemula his Scheduled Caste status after his death.

One of the arguments being put forth to not treat Rohith Vemula’s suicide as a Dalit issue is that he cannot be considered a Dalit in the first place.

Apart from being extremely undignified, it is a response that demonstrates a shocking ignorance of the law.

The argument is that since his father belonged to the Vaddera caste (Other Backward Classes or OBC in Andhra Pradesh) and his mother to the Mala caste (Scheduled Caste or SC in Andhra Pradesh), Rohith Vemula takes on the caste of his father and not his mother.

That argument reflects an extremely problematic position in Hindu personal law that has long been abandoned by the constitutional jurisprudence developed by the Supreme Court in the context of determining social disadvantage.

Judicial discourse

The judicial discourse on determining caste status arising out of inter-caste marriages is now well-settled but has followed two trajectories in the past. However, for the purposes of establishing social disadvantage, neither of those two trajectories endorsed the position in Hindu personal law that a child born out of an inter-caste marriage assumed the caste of the father.

These questions have come to the Supreme Court in circumstances where an individual’s membership in a beneficiary group has been under challenge under a variety of circumstances relating to reservations in representative bodies, education and public employment.

In adjudicating these disputed claims about caste status arising out of inter-caste marriages, the Supreme Court early on in cases like Chatturbhuj Jasani (1954) and Jahan Ara Jaipal Singh (1972) adopted an approach that focused on the assimilation of the concerned person within the beneficiary group and her acceptance by other members of the beneficiary group.

It will be noted that even within this approach the Supreme Court refused to adhere to the rule that the person assumes the caste of her father.

The Supreme Court started doubting the above approach in Valsamma Paul (1996) while still upholding the position that the father/ husband’s caste in an inter-caste marriage could not automatically determine caste status of the child/ wife.

The disagreement with the approach developed in Jasani and Jahan Ara was over the role attributed to assimilation within the beneficiary group and the acceptance of the concerned person within that group. In Valsamma Paul, the Supreme Court took the view that the relevant consideration would be the life experience of the individual.

However, the decision in Valsamma Paul was by a two-judge bench whereas the decisions in Jasani and Jahan Ara were by three-judge benches. The approach that considered the life experience of the individual as the determinative factor received the approval for a three-judge bench of the Supreme Court in Sobha Devi (2005). In a decision from January 2012, the Supreme Court settled the position in favour of the approach in Valsamma Paul.

The Supreme Court in Rameshbhai Naika (2012) was confronted with a judgment from the Gujarat High Court that upheld the decision of a local authority to cancel the appellant’s Scheduled Tribe’s certificate on the ground that the appellant had to necessarily inherit his father’s forward caste status and not his mother’s Scheduled Tribe status.

The Supreme Court held that a mechanical application of the position in Hindu personal law that a child born out of an inter-caste marriage inherits the caste of the father is constitutionally invalid as far as determining beneficiaries of reservations is concerned. In the context of inter-caste marriages, the court took the view that it must be the individual experience that must be established to determine the membership in a beneficiary group.

Missing the point

Similarly in Rohith Vemula’s case the argument that he was not a Dalit based on his father’s OBC status misses the entire point of the constitutional jurisprudence that the court has attempted to develop.

When dealing with inter-caste marriages, the Supreme Court has adopted the sensible constitutional position that a mechanical application of Hindu personal law cannot determine social disadvantage. It is futile and incorrect to argue that Rohith Vemula’s caste status is determined by his father’s caste.

The attempt to misrepresent the constitutional position on this issue is indicative of the stakes involved.

As a society we collectively failed in protecting his dignity in life and the least we can now do is to zealously guard his dignity in death.

Anup Surendranath’s doctoral work at the University of Oxford was on reservation policies in India and he currently teaches constitutional law at National Law University, Delhi. The legal issue in this article was discussed in an earlier blog post on ‘Law and Other Things’ in January 2012.

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