Foundational Flaws

On 1 August, the Supreme Court delivered a judgment that fundamentally changed the constitutional identity of Dalits. It introduced two new principles: that traditional occupations, among other sociological differences, can now be used to divide Scheduled Castes into subgroups for the purpose of reservation benefits, and that you can distinguish between the different castes by creating a hierarchy between them. In a piece I wrote for this magazine in April, I detailed the historical background leading to the making of SCs and how bringing in the proposed changes would undo their historical identity. Dalits won their constitutional safeguards from the imperial government, in 1935, as a special minority, suffering as a class with the common social disability of untouchability. More than a dozen editorials, mostly authored by non-Dalits, have justified the recent verdict by arguing that the representation of some Dalit castes in education and employment is extremely low. The underlying idea here is that a few Dalit castes are eating away the representation of most other Dalits.

The debate eclipses three longstanding truths. Government services, especially those of decision-making posts, are still a monopoly of upper-caste Hindus. The economic upliftment of a Dalit caste does not necessarily wash off the stigma of untouchability. And Dalits as a class continue to face systematic discrimination from the government machinery. The verdict and its justifications, as projected in the media, need to be examined seriously because they will forever change the lives of a fifth of the population. The discussion on the heterogeneity of Dalits is not new. It was strenuously examined by BR Ambedkar and taken into consideration by committees of the imperial government, before a special minority status was granted to SCs as a class.

In the run-up to the subcategorisation verdict, the Aam Aadmi Party, the ruling party in Punjab, argued that, though Balmiki and Mazhabi Sikhs constituted 41.9 percent of the total SC population in Punjab, their job share was “totally disproportionate” relative to it. In the past, a nine-judge bench of the Supreme Court adjudicated the constitutional validity of reservations for Other Backward Classes in proportion to their population and accepted the principle of “adequate representation” in place of “proportional representation,” introducing a 50-percent ceiling. The union government still follows this principle while implementing reservation in recruitments. Nevertheless, in the subcategorisation debate, half a dozen state governments from across ideologies argued that, inter se, the reservation share within SCs was not proportional to certain castes’ populations. The governments argued that they had the empirical data to justify their demands for preferential treatment of a few castes over others and that they only needed to know how to divide them.

This exercise was done only for SCs—none of them presented the job share breakdown of upper castes and OBCs. Seen this way, the data naturally gave a sense that a few Dalit castes had taken most of the spaces within SC categories. None mentioned that these same Dalit castes also got there by competing on a cut-off determined for an entire heterogenous Dalit class. Subcategorising Dalits within this bracket carries the danger of various SCs facing exclusion from the system altogether, since states can decide which communities get to compete for benefits. The court’s caution to the states against exclusion is lip service, since a smaller competition field will automatically exclude certain SCs from reservation benefits, and they may even have to resort to competing on a benchmark stipulated for unreserved seats. The projection of a few Dalit castes as monopolists is an intellectually dishonest conclusion if we do not also bring into view the education and job share of all other castes in proportion to their population.