Taking a strong exception to the general practice adopted by litigants mentioning their religion or caste along with their names, the apex court has recently directed all the courts across the country to shun the practice and comply with its order
By Dr Swati Jindal Garg
The caste issue was taken up by the apex court bench of Justices Hima Kohli and Ahsanuddin Amanullah and pertained to the transfer of a case to a family court in Punjab. The Court was surprised to find that the caste of both the parties, the husband and the wife, had been mentioned in the petition. On seeking a clarification from the counsel of the parties, the Court found that the caste had also been mentioned in the proceedings in the court below, and thereby, it had to be included in the proceedings before the apex court, as laid down in the procedure.
The bench then decided to pass a general order to be implemented across all courts, including the High Courts and the subordinate courts under their jurisdictions in the country in this regard. The top court also directed that its order shall be brought to the notice of the members of the Bar as well as the Registry for immediate compliance. “We see no reason for (it)… Such a practice must be ceased forthwith. It is therefore deemed appropriate to pass a general order directing that henceforth the caste or religion of parties shall not be mentioned in the memo of parties of a petition/proceeding filed before this court, irrespective of whether any such details have been furnished before the courts below.”
Taking due note of the order passed by the apex court, the Gujarat High Court too has ordered that the caste or religion of litigant should not be mentioned in petitions and proceedings before the High Court vide a circular issued by Chief Justice Sunita Agarwal on January 31. The circular stated: “Therefore, the Honourable Chief Justice has been pleased to direct that henceforth, the caste or religion of a litigant shall not be mentioned in the memo of parties in any petition/suit/ proceeding filed before the High Court of Gujarat, irrespective of whether any such details have been furnished before the courts below. All the learned Advocate(s)/ Government Pleader(s)/Public-Prosecutor(s)/Party-in-Person(s) are directed to comply accordingly.”
Following suit, Justice Lanusungkum Jamir, ACJ of the Gauhati High Court, too, has directed that from henceforth caste/religion of a litigant will no longer be required to be mentioned in the memo of parties in any petition/suit/proceeding filed before the Gauhati High Court or the courts under its jurisdiction. Coming into force with immediate effect, the notification stated that the existing filing forms in respect of the principal seat and the outlying benches of the Gauhati High Court will be modified accordingly and is to be used hereafter at the time of filing of fresh cases.
Taking into consideration the grip that the caste system has on the minds of the Indian society, this decision of the top court was not only required, but also a long anticipated one. A litigant who approaches the court for justice, must come in order to seek redressal on the merits of his case and not on extraneous factors like his caste, religion or other issues. Time and again, it has been seen that a litigant claims that he has been wronged due to him belonging to a certain caste or religion whereas later it turns out that the issue was something else altogether.
Apart from shunning the practice adopted by litigants mentioning their caste, the apex courts has also in the past deprecated the practice followed by certain trial courts and High Courts of mentioning the caste or religion of a party in the cause title of the judgment.
In a child sex abuse case from Rajasthan, the Supreme Court was surprised to note that in the cause title of the judgments of the trial court and the High Court, the caste of the party had been mentioned. The Court also noted that the same detail was also given in its own record due to the procedural practice followed by its registry that said that the details of the case filed before it had to match the details in the lower court and cannot be changed when an appeal comes before the top court.
“An accused has no caste or religion when the Court deals with his case. We fail to understand why the caste of the accused has been mentioned in the cause title of the judgments of the High Court and the Trial Court. The caste or religion of a litigant should never be mentioned in the cause title of the judgment,” the bench comprising Justices Abhay S Oka and Pankaj Mithal ordered in the judgment. The same bench had in an earlier interim order passed in the case deprecated the practice of citing the caste name of parties.
The bench had made these observations in the judgment deciding an appeal filed by the state of Rajasthan challenging the order passed by the Rajasthan High Court reducing the sentence awarded to a convict for the rape of a girl child from life term to 12 years. Even though the Supreme Court did not restore the life sentence awarded by the trial court, but it directed that the convict must serve a sentence of 14 years without remission. The Court had also passed some general directions regarding support for child victims of sexual offences in this case.
These steps taken by the apex court are ways in which the Indian legal system recognises and regulates the caste system as an institution. In the long run, the higher court’s pronouncements not only tend to reflect what the police and the magistrates are doing, but also prove to be uniquely influential—firstly, by disseminating the so-called official conceptions of caste which have an impact on the caste system as a whole, and secondly, by persistently deflecting behaviour towards conformity with the doctrines they promulgate. The relationship between caste and the law is a complex one: if the law claims to govern a society that is, at least in principle, broadly committed to egalitarianism in the public sphere, it must necessarily take account of and intervene into caste structures that are driven by the contrary logic of hierarchy. But the very act of doing so becomes constitutive of changes in the concept of caste itself, under pressure from the force of law. Law and caste, therefore, are in constant tension with one another, and their relationship remains a fluid and dynamic one. Law and the caste system interact with each other at many levels, primarily in the following four forms:
- The ways in which caste appears in the Indian Constitution,
- The role of caste in the Indian Supreme Court’s engagement with reservations,
- The jurisprudential link that has been drawn between caste, territory, and religion, and
- Legislative attempts to prevent and redress caste-based domination and subordination.
While the world is pushing towards enacting new anti-discrimination laws and reforming judicial systems, India’s Supreme Court has delivered a judgment that shows its intent towards forming a society that is evolving into a more egalitarian one. The journey has already started, how long we will take to reach our destination—only time will tell.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi