The Supreme Court’s recent publication, “Report on Judicial Conceptions of Caste”, released by the court’s Centre for Research and Planning, during former chief justice B.R. Gavai’s tenure, analyses the court’s own discourse around caste through its constitution bench decisions.

Authored by Anurag Bhaskar, Farrah Ahmed, Bhimraj Muthu and Shubham Kumar, it is a careful work of institutional memory. In its authors’ hands, the report serves as self-reflective acknowledgment and moral reckoning by the Supreme Court of its own practices of talking about, and thereby doing, caste.

This sets the report apart from earlier reports the authors say they are building upon. The previous handbooks released by the court, on gender stereotypes, on sensitising judiciary to the queer community and on disability rights, adopt a pedagogical posture, locating the Supreme Court as an enlightened evaluator of discursive practices and linguistic codes through which gender, disability and queerness are constructed.

On the other hand, the latest report – and an allied report on reforming the casteist nomenclature of service positions within the Indian judiciary – the court actually takes a step down, howsoever small and brief, from that pedestal. Instead, it reflects on itself as a complicit participant in the very discourses it purports to evaluate.

In Navtej Singh Johar v Union of India, the hallmark case in which the Supreme Court had decriminalised consensual same-sex relations, it had noted abstractedly that “history owes an apology” to the queer community. While this report is far from an apology, it at least marks a shift towards the court talking in more concrete terms about its own agency in the histories of oppression – as opposed to turning its critical gaze only at the faceless forces of history or other ‘lower’ courts and institutions.

This is a powerful shift. Its power lies not in the didactic exercise of prescribing codes for linguistic hygiene, but in the introspective one of examining the Brahmanical assumptions in the court’s own speech – that too in a space like the constitution benches, treated as sanctified sites of high theory. While didactic approaches are premised on definitiveness and moral certainty, introspective approaches have the potential to begin conversations rather than merely clean them up, reforming language and rhetoric through an ongoing process involving self-reflection and epistemic humility.

In the same spirit, I offer two primary critiques in response to this beginning of a conversation:

One, the upshot of the report is how language about caste emerges, not just as a potential site of subordination in itself, but also as a site on which subordination by law may be justified and shaped. However, the structure of the report isolates the court’s discourse about the caste system and oppressed caste people from its discourse about constitutionally permissible and desirable remedies for caste-based injustice. This obscures the influence of rhetoric on the law.

Analyses that brought out these interconnections would have enabled an even richer account of how the stories, historical or mythical, that we tell about caste and members of oppressed castes inform and justify what the court sees as the constitution’s ‘law’ – just as much as any distinctly legal source of interpretation.

This would have also revealed new points of tension within this discourse, that currently go unnoticed in the report. For example, noticing the possible connection between Justice K.G. Balakrishnan’s caste-pessimist view of the caste system as an “unbreakable bondage”, and his highlighting the argument that the constitution may have aimed at achieving equality between castes, as opposed to annihilating them, was illuminating. Particularly so because, coming from the first Dalit Chief Justice of India, it stood in too stark a contrast with Justice Arijit Pasayat’s insistence on the need to annihilate caste and how this seemingly more radical project tied in to his status-quoist plea for more formal equality and fewer quotas.

The often counterintuitive discursive work done by these competing visions of transformation and the politics of optimism/pessimism that may underpin them is a pattern worth further analysis, especially at a time when Anand Teltumbde’s writings on the caste census and its implications for the project of annihilating caste are bringing this conversation back to the wider political field.

Two, the report’s analysis of the Supreme Court’s discourse on caste is limited to studying the presences of caste in constitution bench decisions. As a result, all but one of the cases cited in the report emerge from challenges relating to reservation schemes in education or public employment – the only other judgment being the Sabarimala Temple Entry case.

However, without a parallel study of the absences of caste, we risk reifying the court’s particular understanding of what is really about caste, and thus, what caste is really about. Instead, we must take the court’s silences to be as relevant to its discursive construction of caste as its speech, and be willing to see the social realities that are shaped in the spaces between words. Two very recent examples come to mind.

In 2024, a nine-judge of the Supreme Court considered whether private property is included in the “material resources of the community” that Article 39(b) of the constitution directs be distributed so as to subserve the common good. Neither the majority opinion – some private property falls outside the remit of Art. 39(b) – nor the dissent – the legislature decides what private property is a “material resource of the community” and the judiciary may not make a priori exclusions – really considered the issue’s deep grounding in caste and the constitutional project for its annihilation.

This, when Dr. B.R. Ambedkar identified the concentration of land in the hands of caste Hindus to be the material basis of the caste system, criticised mainstream land reforms for being limited to abolishing zamindari and creating ‘peasant proprietors’, and instead proposed a system of state-owned collective farming as the only solution.

In 2023, while upholding the practice of jallikattu, a five-judge bench of the Supreme Court recognised the legislature’s claim that it was part of the cultural heritage of Tamil Nadu. The fact that the cultural practice is distinctly associated with certain dominant caste groups and is steeped in feudal discourses of caste pride, and is often considered an instrument of caste dominance and conflict, was erased. Instead, there was a neat discursive folding of dominant caste culture into the culture of a community or region.

Relatedly, in cases related to cow slaughter, the Supreme Court either erases caste altogether or speaks of the specificity of beef/meat consumption and production practices among the oppressed castes – but while it erases the cultural aspect of food it, instead, constructs meat-eating as either economic necessity or habit (see Hanif Qureshi and Mirzapur rulings).

Note also that the court’s discourse on both issues was marked by an absence of caste-as-culture and a curious inversion: In Jallikattu, it’s the specificity of caste that’s erased and the (dominant caste) cultural claim is projected on to a seemingly casteless community or region. But in the cow slaughter cases, the specificity of oppressed caste practices may be recognised, but their claim as culture is erased.

The combined effect of these two discursive moves, made entirely through absences, is to universalise dominant caste culture-as-culture, and reduce Dalit culture to mere habit or patterns of behaviour.

Why should these absences matter for the report’s analysis of the court’s discourse on caste? The court’s abandonment of caste when speaking of cultural rights and the distribution of the means of production betrays a larger delinking of remedying caste-based injustice from the more radical project of annihilating its cultural and material bases. This delinking is achieved in language and rhetoric, in the discursive construction of caste and what issues are ‘caste’ as opposed to ‘economic’ or ‘cultural’ issues, before it is achieved in doctrine. Both speech and silence, in the hands of the court, have caste-making power – the study of one must be supplemented with a study of the other.

Hrishika Jain is a constitutional lawyer, a law graduate from NLSIU and Yale, and currently a Fellow at the Melbourne Law School.

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