Consider a hypothetical situation. You will come across two people who are injured and dried up. One is more seriously injured than the other. There is a small bottle of water, but it’s only for one bottle. Who will you give this water to?
Unlike physical injuries such as bruises, lacerations, and burns, injuries caused by discrimination may not be visible to the naked eye. It is difficult to know who was injured and how. Among other things, empirical studies such as censuses can help ascertain the overall impact of discrimination. The 2021 census remains suspended and the need for caste census is being selectively implemented in Bihar. However, statistical information is not the only basis for state action. Executive, legislative, and judicial branches are frequently asked to make decisions regarding reservations and other forms of affirmative action.
Reservations are not “exceptions”
Judges have long delved into the doctrinal justification for caste-based reservations, going back to the early days of the Supreme Court’s House judgments. State of Madras v. Champakam Dorairajan (1951). These justifications have invoked the constitutional ideals of the welfare state, equality, non-discrimination, equal opportunity, and adequate representation. Non-discrimination has often been argued against reservations. In a paradox of sorts, this opposition considers all caste-based reservations to be fundamentally discriminatory. At best, reluctantly or kindly, perhaps as a benevolent concession, this opposition accepts reservations as an “exception” to the principle of equality.
On the other hand, it hired an unusually large number of judges, consisting of nine Supreme Court justices. Indra Sawhney & Others vs. Union of India (1992) make it clear that reservations are provisions of equality rather than exceptions. The doctrinal understanding of affirmative action in the United States is similarly dialectical. More ardent supporters of affirmative action characterize it as a remedy against discrimination. Other supporters characterize it as an exception to anti-discrimination principles, while opponents characterize affirmative action as unfair “preferential treatment.”
The condemned bill, which is currently pending judgment, appears to have fallen into a preference framework. Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006 provides ‘first preference’ to Valmikis and Mazabi Sikhs with 50% of the quota reserved for Scheduled Castes (SCs). It stipulates that. Constitutional Court of five judges EV Chinnair v Andhra Pradesh (2004) did not allow such subdivision as it would be considered as a manipulation of the list first notified to the SC. The fate of the condemned provisions now rests in the hands of a larger seven-judge Constitutional Court.
“Creamy layer” controversy
The word “preference” evoked the concept of corresponding preferential treatment, which is contrary to the doctrinal basis of reservation. This invokes the same dialectical position posited earlier between the reserved and non-reserved general categories of the SC. Only now, so-called preferential treatment is justified within the SC category, leading to intense intra-group conflicts among SCs. Tangled questions arise about who is more discriminated against, more dehumanized, subordinated, marginalized, disadvantaged, oppressed, silenced, erased, and victimized. There is.
This opens a Pandora’s box of the ‘creamy layer’, a legal invention of Indra Sawhney (1992) that sought to distinguish the relatively affluent among the backward classes (BC) from the actual backward classes. , and contests leading to widespread in-group resentment. Similarly, divisive sentiments are currently on the rise among anti-caste Dalit groups. Some SC groups cite their experience of caste-based ‘untouchability’ as a factor that distinguishes them from BC, which makes the concept of creamy layer inapplicable to SC.
Justice Gavai, on the other hand, pointed to the SC Group’s internal hierarchy and historical practice of “untouchability.” He reportedly said, “Weren’t they (the scavengers) untouchables of untouchables?” This slippery slope is such that the caste specificity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, allows an SC person to commit a crime (under Section 3 of the Act) against another SC person. This would raise further questions about whether or not the person could become a person.
About substantive equality
This conundrum inadvertently derives, in part, from the preferential treatment debate. First of all, it could have been avoided by replacing priority with the word “priority” in the Punjab law. It would just be a petty speech strategy, a kind of workaround. It makes no real difference.
As Chief Justice DY Chandrachud has distantly suggested, India’s existing jurisprudence on substantive equality is strong enough to support the constitutionality of the subclassification of the SC group.
In conclusion, to answer the hypothetical question at the beginning of this opinion, if I were a state official, I would give respite to the more seriously injured. I intend to do this as a rational prioritization (of scarce resources) rather than whimsically prioritizing one subgroup over another.
(Dr. Sumit Baudh teaches Constitutional Law. The views of this opinion are based on their comparative understanding of critical race theory. He can be reached at X @BaudhSumit)
Disclaimer: These are the author’s personal opinions.