The Delhi high court bench of Justices Vipin Sanghi and Rekha Palli on Wednesday (May 8) made sharp observations against the Centre’s defence of caste-based recruitment to President’s Body Guards (PBG). Only men belonging to three castes – Jat Sikhs, Jats and Rajputs – can apply for recruitment as PBGs, and men belonging to other castes are denied recruitment.When the Centre described this as a “sensitive issue”, the bench asked the government to place its views in a counter affidavit within six weeks, and observed: “Very often, we find status quo continuing because of non-application of mind” (on whether such a recruitment policy is in tune with our constitutional guarantee of equality before the law and equal protection of the laws).The official website of the President’s Secretariat refers to the PBG as having been raised in 1773, and as the senior-most regiment of the Indian Army carrying out ceremonial duties for the president of India. PBG personnel are excellent horsemen, capable tank men and paratroopers, it says.What the website conceals is that only men belonging to the three castes can apply for recruitment as PBGs. That this discriminatory practice has enjoyed official sanction for all these years since independence should shame the republic. Yet, the Centre’s defence of such discrimination before the Delhi high court on Wednesday as a “sensitive issue” raises the question whether the Centre has any convincing grounds at all.Also read: Why It’s Wrong – and Irrelevant – to Question Modi’s Backward Caste CredentialsThe Centre also told the bench that the high court had dismissed a similar challenge to the recruitment earlier. When the petitioner Gaurav Yadav’s counsel, Ram Naresh Yadav told the bench that the earlier petition was dismissed because it lacked locus standi and therefore, the court did not consider the substantive grounds against the recruitment, the Centre conceded, and promised to place its views in an affidavit. The bench clearly told the Centre that maintainability of the petition is no longer an issue.Interestingly, the Supreme Court too dismissed an appeal against the Delhi high court’s dismissal of the earlier petition, again without considering the substantive grounds of challenge against the caste-based recruitment by the PBG.The present petitioner before the Delhi high court, Gaurav Yadav, attended the selection rally for the PBG on September 4, 2017 in New Delhi, and was rejected because he did not fulfil the caste criteria as he belongs to the Ahir caste. Earlier, both the Delhi high court and the Supreme Court had dismissed similar petitions challenging the recruitment on the ground that the petitioners did not suffer any discrimination themselves, and had merely filed public interest litigation petitions, without the locus standi which would duly qualify a petitioner to allege a violation of the rights guaranteed by the constitution. Locus standi suggests that the petitioner suffered discrimination himself or herself, and therefore, is well within his’her rights to challenge it.The age limit for the recruitment to the PBG is between 17 and 21 years. The candidate should have passed 10th or 12th standard with a minimum of 45% marks, and the height of the candidate should be six feet (183 cm). Gaurav Yadav found that although he fulfilled all these conditions for eligibility, only Hindu Jats, Jat Sikhs and Hindu Rajputs were recruited at the rally.The Central Public Information Officer of the Indian Army informed Gaurav Yadav under the Right to Information Act that the PBG is recruited as per policy of the Indian Army, and its class composition is evenly distributed among the three castes. Appalled by the discrimination, Yadav has alleged that his fundamental rights guaranteed under Articles 14, 15 and 16 of the constitution have been violated.Since the army is covered under the definition of state under Article 12 of the constitution, and president of India – the supreme commander of the army – is a constitutional post, the discrimination being resorted to by the state is clearly challengeable as unconstitutional, Gaurav Yadav has pointed out in his petition.Also read: The Annihilation of Caste Requires Dismantling Hinduism’s Code of OrdinancesCiting the Supreme Court’s judgment in R.K. Garg vs Union of India (1981), the petition states that if the differentia (the basis of classification) and the object of the Act are distinct things, it follows that it is not enough that the differentia should have a nexus with the object, but it should also be intelligible. The presence of some characteristics in one class which are not found in another is the difference between the two classes, but a further requirement is that this differentia must be intelligible, the Supreme Court had held in this case. “If the basis of classification is on the face of it arbitrary in the sense that it is palpably unreasonable, it is not possible to call the differentia intelligible.”The classification, for the purpose of recruitment of PBGs, the petition contends, must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and the differentia must have a rational relation to the object sought to be achieved by the recruitment. It can be nobody’s case that the persons belonging to the three castes are distinguishable from those of other castes, or that such an artificial distinction would help to achieve the objects of recruiting the PBGs, the petition rightly suggests.The petition further submits that where two citizens are placed more or less similarly in all material respects, any state action placing one of them alone under a disadvantage would be discrimination under Article 15. Article 15(1) requires that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. No one can contend that the three castes can claim exception under Article 15, which is granted only in favour of those who suffered historical disadvantage or backwardness.Curiously, the petition which was heard by another bench (of Justices S. Muralidhar and Sanjeev Narula) on December 21 last year had directed the respondents – the defence ministry, chief of army staff, the commandant, PBG and director, army recruitment, Hamirpur, Himachal Pradesh – to file their replies within four weeks, followed by a rejoinder by the petitioner. On Wednesday, the bench noted with dismay that the “respondents did not file the counter affidavit” as directed by the court earlier. However, the court gave the respondents one more opportunity to file their responses, despite the inordinate delay caused by their failure to file responses as directed earlier.The hearing in the case will be listed again on December 6.
