Image Description: A small signage which says ‘Reserved’

In Janhit Abhiyan v Union of India, a five-judge bench of the Indian Supreme Court was asked to decide on the validity of the 103rd amendment to the Indian Constitution. Through this amendment, the Indian state is empowered to make reservations in higher education and public employment for ‘economically weaker sections’ (‘EWS’), BUT only for the upper caste poor. Reservations are an affirmative action measure that entail reserving a fixed proportion of seats (quotas) for specific groups. Caste is a system of graded inequality prevalent chiefly in South Asia, but also globally wherever there is a presence of South Asians.

The petitioners challenged the amendment on two interrelated grounds: arguing that (1) reservations cannot be made on the ground of poverty; and (2) even if reservations may be permissible for EWS, the exclusion of lower caste communities is invalid. Eventually, all five judges agreed that reservations on the ground of poverty are permissible in higher education. The majority (three judges) held that reservations for EWS are also permissible in public employment, and that the exclusion of lower caste communities from the benefit of these reservations is valid. The minority (two judges) held that reservations on the ground of poverty are not permissible in public employment, and that the exclusion of lower caste communities from the benefit of these reservations is invalid.

The case is significant for discrimination lawyers around the world because it squarely addresses the issue of class/poverty as a ground for affirmative action, as well as the intersection between poverty and caste, or more generally, race. It is also likely to be of interest to constitutional lawyers, given that it was a challenge to a constitutional amendment, and not statutory law, and so the court was asked to decide whether the amendment violated the basic structure of the Indian Constitution, and more specifically, the Equality Code.

In a series of two posts, I engage with four issues around the judgment. In this post, I argue that (1) the majority of the Indian Supreme Court remains wedded to a formal rather than substantive view of equality, and especially the ‘reasonable classification’ formulation, and this helps explain how it accepted the exclusion of lower caste communities from the benefit of poverty-based reservations. In the next post, I argue that (2) on a substantive view of equality, it is clear that the poor face multi-dimensional inequality; (3) the abolition of caste discrimination remains an essential feature of equality; and (4) that insights from intersectionality are useful in understanding why the exclusion of lower caste communities from reservations for the poor is invalid.

Formal equality

The Court remains wedded to a formal conception of equality. For example, J Maheshwari held, ‘In a nutshell, the principle of equality can be stated thus: equals must be treated equally while unequals need to be treated differently’ [44]. It also remains wedded to the reasonable classification formulation. J Trivedi held, ‘A reasonable classification is permissible, which includes all who are similarly situated, and none who are not’ [15]; and J Pardiwala recognised, ‘the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question’ [26].

On applying the reasonable classification formulation to the 103rd amendment, reservations for EWS were considered permissible, given that EWS face disadvantages not faced by the non-poor. And the exclusion of lower caste communities from EWS reservations was considered permissible, because lower caste communities can claim reservations under separate provisions of the Indian Constitution (Articles 15(4) and (5); 16(4)). Here we can begin to see the problem with the reasonable classification formulation. This permits exclusion from the benefit of reservations for the group that faces multiple and intersecting forms of disadvantage amongst the poor – poor lower caste communities. This is because of the emphasis on rationality of classifications, rather than on the social and historical context of inequality faced by the poor as a whole, and by lower caste communities on grounds of both poverty and caste. In this context, classification entrenches disadvantage faced by the lower caste poor.

Want to learn more?

Read: The Indian Supreme Court on Affirmative Action for the Upper Caste Poor – Part II

Read: The Long and Winding Road of Caste Legislation in the UK

Read: Suing for Caste Discrimination in the US under the Civil Rights Act of 1964

Read: Caste Discrimination under UK law: Chandhok v Tirkey