equal by law, unequal by caste - International Dalit Solidarity Network

288 Wisconsin International Law Journalinternational human rights law. 177 Chief among these fundamental rightsis the right to equality. Article 14 of the Constitution of India reads:“The state shall not deny to any person equality before the law or theequal protection of the laws within the territory of India.” 178 Anexception clause allows for affirmative action measures under somecircumstances. “Nothing in this article . . . shall prevent the state frommaking any special provision for the advancement of the socially andeducationally backward classes of citizens or for the Scheduled Castesand Scheduled Tribes.” 179The clause marks a significant departure from the Americanmodel on which India’s equality provision is based and constitutionalizesthe validity of affirmative action in the Indian context. The Indian modelis also one of substantive equality. If formal equality aims at equalopportunity, then substantive equality aims at equal results byconsidering the social structures in which equal results would notnecessarily result from formal equality guarantees.The Court has interpreted Article 14 on a number of occasions ascharging the state with ensuring that there is equality among equals. 180 InState of Kerala v. Thomas, the Supreme Court noted that,The guarantee of equality before the law or the equal opportunity inmatters of employment is a guarantee of something more than what isrequired by formal equality. It implies differential treatment ofpersons who are unequal. . . . Formal equality is achieved by treating177 See generally MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSESIN INDIA (1984) (analyzing treatment of Dalits under Indian Constitution).178 INDIA CONST. art. 14. Article 14 thus marries the English doctrine of the “Rule of law” with theequal protection of clause of the Fourteenth Amendment to the U.S. Constitution. BashesharNath v. CIT, (1959) Supp. 1 S.C.R 528, 551 (Per Das C.J). In the U.S. Constitution, thelanguage of the Fourteenth Amendment reads, “No state shall . . . deny to any person within itsjurisdiction the equal protection of the laws.”179 The “schedule” of castes in India was originally created by the British in 1936, using the censusdata of the same year and “an ad hoc mixture of social, religious, economic, educational andeven residential considerations.” Christopher Ford, Administering Identity: The Determination of“Race” in Race-Conscious Law, 82 CAL. L. REV. 1231, 1269 (1994); Priya Sridharan,Representations of Disadvantage: Evolving Definitions of Disadvantage in India’s ReservationPolicy and United States’ Affirmative Action Policy, 6 ASIAN L.J. 99, 109 (1999). While this listdid not accurately reflect caste membership and group interrelations, the post-independencegovernment adopted the list as its own after incorporating some amendments. Id. at 110 (notingas significant the addition of Sikh “untouchables” to the list). The list of scheduled castes mayonly be modified by a full Act of Parliament involving “rather elaborate procedures,” and takinginto account multiple factors such as caste membership and economic data. Ford, supra 179, at1269; Dudley Jenkins, supra note 31, at 758.180 See State of Kerala v. Thomas, (1976) 1 S.C.R. 805 (“Those who are similarly circumstanced areentitled to equal treatment.”); Madhya Pradesh Ration Vikreta Sangh Society v. State of MadhyaPradesh, (1982) 1 S.C.R. 750.