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

324 Wisconsin International Law Journala scale comparable to the OBCs, including in the arenas of politics andland reforms. 375 Yet the inclusion of so many heterogeneous groupswithin the OBC category has both made for its enormous size and hascomplicated its demands for reservations.In Indira Sawhney v. Union of India, 376 which challenged theconstitutionality of then-Prime Minister V.P. Singh’s decision toimplement 27 percent reservations in government employment forOBCs, the Supreme Court affirmed that caste may still be used as acriterion for determining backwardness, as long as the caste is primarilysocially and educationally backward, as determined by empiricalevidence. 377 Furthermore, in order to ensure that the most disadvantagedwould benefit from reservations, the Court spelled out a means test, orthe “creamy layer” test, which imposed an income limit to exclude thoseeligible for OBC classification. 378 The Indian government subsequentlyimplemented a more complex means test to be applied to individuals andtheir families who attempted to claim backward status. 379 This test takesinto account a variety of indices of social, educational, and economicdisadvantage, such as parents’ professional status, and the claimant’soccupation and wealth as calculated by agricultural landholdings. 380Notably, the Supreme Court’s determination of “scheduledcaste” status embodies the critical recognition that one’s membership in aDalit caste per se subjects individuals to a particularly egregious form ofdiscrimination (“untouchability”) regardless of one’s socio-economicstatus, and merits positive action and special attention by the state. Bycontrast, the determination of “Other Backward Classes” recognizes thesocio-economic gains achieved by many members of backward castes inIndia—who are not subject to “untouchability” practices—andMeenakshi Jain, Backward Castes and Social Change in U.P. and Bihar, in CASTE: ITSTWENTIETH CENTURY AVATAR 136 (M. N. Srinivas ed., 1996).375 See CHRISTOPHE JAFFRELOT, The Uneven Emancipation of the Lower Castes: Non-Brahmins inthe South, OBCs in the North, in INDIA’S SILENT REVOLUTION: THE RISE OF THE LOWER CASTESIN NORTH INDIA 214-253 (2003).376 A.I.R. 1993 S.C. 477.377 Sridharan, supra note 179, at 116. Prime Minister Singh’s decision to implement reservationsfor OBCs came in the wake of the release of the report by the Mandal Commission. See OBCsForm 41% of the Population: Survey, supra note 14.378 Dudley Jenkins, supra note 31, at 771; Sridharan, supra note 179, at 116. The basis forimposing this threshold is a concern that reservations should not, through focusing exclusivelyon caste, aid only the privileged members of backward castes and thereby overlook the plight ofthe poor. See Pradipta Chaudhury, The “Creamy Layer:” Political Economy of Reservations, inRESERVATION IN PRIVATE SECTOR, supra note 158, at 299, 305.379 Sridharan, supra note 179, at 116.380 Id. at 117.