20, Dec 2017 | Amala Dasarathi

This article, published in Sabrang India is being reproduced here today, the day Justice Karnan has been released after serving a six month jail term in Kolkata. The Supreme Court first delivered the judgement dishing our serious contempt of court charges against a fellow judge in May 2017. This judgement may be read here. Before that, in 2014 the Madras High Court had delivered a judgement charging him with contempt in 2014. That judgement may be read here.

The caste and class compositions in Indian private law schools shows a stark exclusionary reality. A 2015 National Law School of India University (NLSIU) Survey showed that 80 per cent of students were Hindu and 1 per cent Muslim. An Increasing Diversity by Increasing Access (IDIA) Law survey across national law universities found 65 per cent students belonged to ‘upper’ castes, of which 27 per cent were Brahmin. In the law school, caste takes the form of class, manifesting as accent, fashion and attitude.

On July 21, 2017 Dalit judge Justice C.S. Karnan was arrested on a charge of contempt of court. He has been in the news since his appointment in 2009 with his frequent public complaints against the judiciary. In November 2011, he filed a complaint before the National Commission for Scheduled castes alleging harassment and discrimination by fellow judges. In 2014, he entered the courtroom where a PIL on a list of recommended judges for appointment was being heard and stated that the list was ‘not fair.’ The judiciary, at large, condemned his behaviour, calling it ‘unbecoming of a judge’ and ‘uncharitable.’ In September 2016, he accused the Chief Justice of the Madras High Court of caste discrimination. Justice Karnan’s allegations have all been met with scorn and ridicule. Outrage over the sheer impossibility of a High Court judge making such direct allegations against his seniors has taken center stage, with no one actually looking at whether there is any truth in Justice Karnan’s allegations.

Legislations require judges to exercise their independent discretion and reasoning to decide different cases based on their factual situations. In doing this, it is impossible for judges not to draw from their own lived experience. This is why the caste composition, among other parameters of identity, of the judiciary is important; in order to ensure fair representation and understanding of the interests and problems of different classes of people.

Traditional caste-based opportunity structures continue to shape access to, and participation in, legal education. Although elite law schools claim to be casteless and classless, caste remains present both systemically and otherwise in these institutions, impacting the eventual composition of the legal fraternity in the country.

A survey conducted by some students in NLSIU in 2015,showed that over 80 per cent of the college’s students were Hindu, while less than 1 per cent were Muslim. IDIA Law found the same statistics when they surveyed students across several National Law Universities. It was found that 65 per cent percent of the students at NLSIU are upper-caste, with 27 per cent being Brahmin. Similarly, a survey conducted in Jindal Global Law School in 2014 found that 61 per cent of its student population is upper-caste.

In the law school, caste takes the form of class, manifesting as accent, fashion and attitude. IDIA’s Diversity Survey found that around 20 percent of students surveyed in various National Law Schools face harassment, or bullying, because of various factors, such as their familial background, poor English language skills, dressing sense, knowledge of popular culture, caste, or ethnicity. Thirty-five percent also reported that they had trouble fitting in with the student community in their college because of their background. A survey of students conducted by two of its students in NLSIU in 2003, showed a strong correlation between the caste/class background of students and various activities, such as mooting and debating, which are important markers of social capital in law school environments. Ten years later, the IDIA survey also found that students with poor English language skills tended to participate less in extracurricular activities. Caste manifests strongly as class in terms of fluency of English in urban India today.

As an upper-caste law student, I have the privilege of not experiencing my caste in any institution.Lower-caste students from elite law schools, however, speak of experiencing discrimination and casteism in college. For instance, Akhil Kang, a Dalit graduate of NALSAR, an elite law school in Hyderabad, writes of how classmates would look directly at him while speaking about how ‘some lower caste’ individuals do not deserve the opportunity of studying in an institution like NALSAR. SumitBaudh, a Dalit graduate of NLSIU, Bangalore writes of what he refers to as the ‘roll call of shame.’ The roll numbers of students were arranged with the names of General category students followed by SC/ST students, or ‘reserved category’ students. Attendance would be taken before each of their classes daily with names read out in this order, a ‘rehearsal of (the institution’s) merit and casteism.’In this manner, the caste which students had entered law school with remained in spite of their entrance into an elite legal institution. Anoop Kumar also notes the resistance and disbelief expressed by upper-caste students when they are told that caste still exists even in urban spaces and is not only linked to poverty, but also broader systemic oppression.

Historically, upper-castes have controlled the production of knowledge by restricting lower castes’ access to education, which continues today, as seen from the statistics above. ‘Merit’ is considered the sole legitimate marker of ability, when in reality it cannot be distanced from the privilege of one’s birth.

Ever since Justice Balakrishnan retired from the Supreme Court in 2010, no judge belonging to a Scheduled Caste has been appointed to the apex of the judiciary. As of 2016, no High Court in the country had a Chief Justice who belonged to a Scheduled Caste or Scheduled Tribe. As an upper-caste woman, I will never experience caste even if I do become a judge one day, so I cannot speak to the veracity of Justice Karnan’s claims, or to his lived experience. As upper-caste allies, it is our bare minimum duty to listen when someone tells us they experience casteism, not shut them out like everyone has done with Justice Karnan.

Other articles by the author can be read here