The Information and Broadcasting Ministry’s letter to television channels to refrain from using the word ‘Dalit’ (and use ‘Scheduled Caste’ instead) is silly and legally indefensible. The ostensible basis for this is the order of the Nagpur Bench of the Bombay High Court in Pankaj v Joint Secretary which is partially extracted in the letter.
Ignorance or Ulterior Motive?
It also refers to an earlier communication by the Ministry of Social Justice to other officers of the central and state government requesting them not to use the term ‘Dalit’ when they mean the constitutional term ‘Scheduled Caste’. That communication came after the order of the Madhya Pradesh High Court in a petition filed by one Mohanlal Mohar which seems to suggest that the Central and State Government should refrain from using ‘Dalit’ in official documents.
Neither the MP High Court nor the Bombay High Court direct or in manner demand that the use of the word ‘Dalit’ be banned under all circumstances.
The MP High Court merely says that “the Central Government/State Government and its functionaries would refrain from using the nomenclature ‘Dalit’ for the members belonging to the Scheduled Castes and Scheduled Tribes as the same does not find mentioned in the Constitution of India or any statute.”[sic]
The Bombay High Court on the other hand, notes that the central government has asked its officers to not use the term and on an argument made by counsel for the petitioner, asks the I&B Ministry to “consider” issuing directions to the media regarding the use of “Dalit”. There’s nothing here which suggests that the media be asked to refrain from using this word.
The Ministry of I&B’s actions suggest either an ignorance of the meaning of the High Courts’ order, or a deliberate misreading of it to give itself powers of censorship it does not have.
Widespread Use of ‘Dalit’ in Judgments
But really, what’s the problem with using the word ‘Dalit’ (a nomenclature adopted by oppressed people) instead of the term “scheduled castes” (a constitutional category to describe the same people)?
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While at first glance the MP High Court and the Bombay High Court’s orders may make some sense – after all the Constitution itself does not use the word ‘Dalit’ and one wouldn’t want to cause conceptual confusion – it appears absurd when we realise how often constitutional courts themselves use the term ‘Dalit’ in their judgments.
A survey of the Supreme Court cases database tells us that the Supreme Court first used the term ‘Dalit’ (outside the title of the case) in 1975, uttered by Justice VR Krishna Iyer when he made a reference to ‘Dalit panthers’ in State of Kerala v NM Thomas. Since then, its use has only increased in the Supreme Court and no fewer than 50 Supreme Court judgments have used the term.
High Courts have been using ‘Dalit’ for much longer.
Ironically enough, the first High Court to use the term (outside the name of a person) is the Madhya Pradesh High Court in BK Mukerji v Emperor in 1943, where the meaning of the term is also explained in the judgment to refer to communities then referred to as “depressed classes”. However, the widespread use of the term in judgments only took place in the 80s, as with the Supreme Court.
A Pointless & Absurd Argument
If the Madhya Pradesh and the Bombay High Courts’ orders were to be applied liberally, should the Supreme Court and other High Courts also be directed to stop using the word ‘Dalit’? And should older judgments be erased and re-written for having committed the mortal sin of having used a term that a community chooses to identify itself with, than with a constitutional classification?
There are absurd lengths to which one can take the logic of the MP and Bombay High Courts.
For the purposes of the freedom of religion under Article 25, “Hindus” and “Hindu religious institutions” includes Sikh, Jaina and Buddhist religious institutions. Should we therefore call the Golden Temple in Amritsar a Hindu religious building? Should the Dalai Lama be considered a Hindu for official purposes?
One other way to see these orders is to also see them as part of the increasing trend where constitutional courts, far from being the forum to defend and protect rights, are becoming “more executive minded than the executive” and finding new and dangerous ways of restricting individual rights. From media gags at the drop of a hat to imprisoning Hadiya ignoring her pleas, we are seeing the distressing phenomenon of courts going out of their way to limit the rights of individuals.
A Disregard for Common Sense & Public Interest
Both the High Court orders relating to the use of the word ‘Dalit’ are singularly unreasonable and do not stand the slightest of scrutiny. They are entirely casual about what they are saying and the impact of what they are saying.
They are the result of judges and courts in India getting too used to over-extending their powers in the name of “public interest” with scant regard for law, procedure, or even common sense. In as much as the Information and Broadcasting Ministry deserves ridicule for this silly “advisory”, the High Courts need to be called into question for their indefensible behaviour in the guise of performing “judicial function”.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)