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

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322 Wisconsin International Law Journalexert 100 percent reservations. Inequality of opportunity is the socialnorm and one that the state has stepped in to legislate against in order tosecure equality of respect and concern for its most marginalizedinhabitants. Left to its own devices, Indian society would no doubtswallow Dalits whole. Until now at least, the Indian Supreme Court hasagreed.5. INDIAN SUPREME COURT JURISPRUDENCE ON RESERVATIONSAccording to comparative constitutional law scholar Jacobsohn,each nation’s constitution contains a vision of the kind of polity it seeksto preserve and to become, which combines distinctive aspects of thecountry’s political culture with features of a universal culture ofconstitutionalism. 369 Jacobsohn refers to the gap between the idealespoused in a constitution and the societal status quo as the “disharmonicjurisprudential context,” within which courts have incentives andopportunities to learn from the constitutional approaches of othercountries, although they may also incur costs in doing so. 370Indeed the Indian judiciary has on numerous occasionstriumphantly stepped into such a disharmonic context to attempt toharmonize India’s constitutional vision with the abysmal condition ofDalit social reality (borrowing in some cases from the Americanexperience). The jurisprudence of the Indian Supreme Court has to datelent much credence to this ethos. In ABSK Sangh v. Union of India, 371Justice Chinnappa Reddy noted that,[W]hen posts . . . are reserved . . . to members of Scheduled Castes,Scheduled Tribes and other socially and economically BackwardClasses it is not a concession or privilege extended to them, it is inthe recognition of their undoubted fundamental right to equality ofopportunity . . . and to secure to all its citizens, justice, social,economic and political and equality of status and opportunity . . . toensure their participation on an equal basis in the administration of369 Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 TEXAS L. REV. 1763,1767 (2004).370 Id. Jacobsohn cautions that while the Indian constitution lays out an agenda for social reform,judges who adapt ideas from other countries in order to further this agenda must be aware of thespecific cultural context within which they operate.371 A.I.R 1981 SC 298.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 323the country . . . . Every lawful method is permissible to secure thedue representation of SCs and STs in the public services. 372In that same case, Justice Krishna Iyer noted:Trite arguments about efficiency are a trifle phoney . . . . Thefundamental question arises, as to what’s “merit” and “suitability?”Elitists, whose sympathies with the masses have dried up, are fromstandards of Indian people, least suitable to run the government andleast meritorious to handle the state business . . . . Unfortunately, thevery orientation of our selection process is distorted and those likethe candidates from Scheduled Castes whom from their birth, have atraumatic understanding of the conditions of agrestic India, have inone sense more capability than those who lived under affluentcircumstances and are callous to the human lot of the sorrowingmasses. 373As the following discussion shows, implementing thisunderstanding of Dalit’s social reality is far from straightforward. Aschallenges to the constitutional validity of reservations grow, the limitsof the Supreme Court’s ability to reconcile the state’s duty to takepositive action with its duty to ensure the right to equality areincreasingly tested.a. Caste vs. Class, and the “Other Backward Classes”The period starting in the early 1990s is significant not onlybecause it launched the era of economic reforms, but also because it sawthe entry of “Other Backward Classes” (“OBCs”) into the reservationsconversation—an entry that has resulted in much confusion andbacklash, including against Dalits, and has paved the way for Class toenter the Caste debate. OBCs or so-called backward castes are identifiedas those whose ritual rank and occupational status are above“untouchables,” but who themselves remain socially and economically“depressed.” 374 Few groups in independent India have made progress on372 Id. The case contested the validity of “concessions and relaxations” offered to scheduled casteand scheduled tribe community members in order to fill vacancies for reserved posts in theRailway Administration.373 Id.374 The term OBCs is a problematic categorization. Jain notes that OBCs:Span[] such a wide cultural and structural arch as to be almost meaningless. Thereare at one extreme the dominant, landowning, peasant castes which wield power andauthority over local Vaishyas and Brahmins, whereas at the other extreme are thepoor, near-Untouchable groups living just above the pollution line. The category alsoincludes many artisan and servicing castes.
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