In 2012, IS Yadav, a doctor from Haryana, filed a Public Interest Litigation in the Supreme Court, challenging the constitutionality of “caste based recruitment” to the Indian Army.

“Certain regiments of the Army were organised on lines of classification because social, cultural and linguistic homogeneity has been observed to be a force multiplier as a battle winning factor,” the Central government argued in defence of the army’s recruitment practices, as per newspaper reports. “The commonality of language and culture only further augments the smooth execution of operation,” the government added.

The Supreme Court apparently did not probe further whether this “social, cultural and linguistic homogeneity” was code for a recruitment policy based on caste and ethnicity. It dismissed Yadav’s petition in February 2014.

Article 15 of Indian Constitution and resultant jurisprudence strictly prohibit discrimination on the basis of religion, gender and caste amongst other grounds. The only exceptions are welfare-oriented measures to address historical disadvantage – which means that the State can prioritise certain ethnicities or castes that have been traditionally under-represented in state institutions.

Recruitment to the Army, however, poses a reverse constitutional challenge. In contemporary India, certain states or ethnicities are disproportionately enriched by access to military salaries and pensions, while others do not enjoy such privileges. This is because the British recruited to the Indian Army on the basis of their categorisation of certain ethnicities and castes as supposedly warrior material or “martial” and others as being “non-martial”. The colonial recruitment practice has never been reformed.

At the time of independence, “half of India’s senior most officers came from one single province, Punjab,” points out Steven I Wilkinson in his extraordinary book, Army and Nation. The Punjab comprised only 5% of the population of newly created India. Wilkinson reminds us that armies with a “high internal cohesion” have a greater capacity to intervene in domestic politics – or stage coups.

Shortly after assuming office, India’s first Prime Minister Jawaharlal Nehru wrote to the Commander in Chief and Defence Secretary “urging large scale reform to the armed forces”. This was rather brave on his part, given that the armed forces had been deployed around the country to deal with the tremendous violence resulting from Partition.

India has not followed through on this promise, Wilkinson argues. In fact, free India has continued the colonial style of recruiting. Through impeccable research and data, Wilkinson demonstrates that by the beginning of the 1970s, India doubled the number of "martial class" units. The Punjab Regiment, that recruits mainly Sikhs and Dogras, has gone from five to 29 battalions since independence, he writes. The Rajputana Rifles (mainly Jats and Rajputs) has increased from six to 21 battalions in the same period.

Since substantial expansion of the army happened "through existing regiments", the consequence of this style of recruitment is that most of the army (infantry and armoured corps) is "disproportionately recruited from the same regions and castes". Consequently, states like Gujarat and Jharkhand remain underrepresented in Indian army.

Consequences

There are two grave constitutional consequences of such a recruitment policy.

First, this leads to an internalisation of an identity premised on the honour of a caste/ethnic/religion based regiment over the constitutional understanding of a multi-layered cosmopolitan Indian citizenship, where our common citizenship binds us together.

It also means that one of India’s largest state employers recruits on the basis of an apparently pre-constitutional norm. The Indian Army is reported to have approximately 1.3 million active service personnel, 2.1 million reserve personnel and 1.2 million paramilitary personnel. Our civilian administrations have the power to deploy regiments around the country. The choice of which regiment(s) to deploy where is influenced by ethnicity.

The second constitutional consequence is visible in Pakistan. Aqil Shah in his outstanding book, The Army and Democracy, writes that on June 14, 1948, in a speech at the Staff College, Pakistan’s founder and Governor General MA Jinnah said that the Pakistani army owed its allegiance to him, the unelected Governor General, and not to the elected prime minister and cabinet. Essentially, Jinnah continued the colonial style army, both in terms of its recruitment and allegiance. This was contrary to India’s founding government that committed to ensuring a civil-military dynamic that rendered the military responsible to the elected civilian government.

Shah illustrates the effects of Pakistan’s continuance of the colonial recruitment policy in its armed forces. By 1955, the "martial" Punjabi-dominated West Pakistanis were 894 officers to a mere 14 "non-martial" East Pakistanis. By 1958, the military had staged its first coup and taken over the country.

Shah explains the colonial rationale of classifying Bengalis as "non-martial". The British, he points out, were anxious to avoid recruiting Bengalis because the 1857 "Sepoy" Revolt was led by soldiers of the East India Company’s Bengal Army and Bengalis spearheaded the early years of the nationalist movement. This shows that recruitment based on caste and ethnicity was commenced by the British to segregate society and consequently stem the recurrence of revolts. This was not a natural ordering of military formations. Significantly, prior to 1857, when the British East India Company ruled, Presidency troops were "mixed caste" formations.

However, the post-colonial continuation of this recruitment policy in our neighbour has ensured an insular and homogenous Pakistani Army that has staged multiple military coups and debilitated democratic constitutionalism The continuation of the martial race policy meant that East Pakistanis or Bengalis had virtually no representation in the Pakistani Army prior to the creation of Bangladesh, and this contributed to their sense of alienation.

Unfinished tasks

The adoption of our Constitution was not intended to be the end of the nationalist movement’s aspirations. The fabric of democratic constitutionalism requires a consistent reaffirmation of constitutional values by appreciating the unresolved challenges experienced at the founding of the nation. One such unfinished challenge was to reform recruitment to our armed forces and bring the values of the Constitution into this venerable institution. Most unfinished foundational challenges are located in the ways our identities are created and continued.

Further, consider the case of units in the Army such as the Special Forces or the Brigade of Guards (created by Field Marshall Cariappa soon after independence). These are not based on caste or ethnicity. There is no evidence about their not being cohesive enough, or incapable of extraordinary courage in the line of duty, as Saikat Datta, co-author of India’s Special Forces, points out.

Likewise, the Mechanised Battalions, Artillery and Armoured Corps of the Army are all "mixed" formations. If anything, they all display extraordinary adherence to military discipline, and a dedication to our country.

The lack of reform of the colonial recruitment policies reflects poorly on the crafting of a professional fighting force. It may contribute to the high vacancy rate that plagues the officer cadre of the Army. It enforces a division of labour in the army that is located in caste, when it comes to tasks like cleaning. It reinforces that which the Constitution abhors – the caste system.

The Central government’s contention at the Supreme Court in 2012 was that this is a natural force multiplier. If this is indeed so, it posits a more dramatic challenge to our basic understanding of “We, the People". This means that we cannot be bound to each other and we will not stand up for each other unless we are of a common caste or ethnicity. This contradicts the Constitution’s conception of India.

Dr Menaka Guruswamy practices law at the Supreme Court of India.

This is the second article in a series on the creation of post-Partition India and some of the unfinished "founding’" challenges faced by our Constitution. See the full series here.

