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

by | Jan 30, 2023

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About Rishika Sahgal

Rishika Sahgal is a University Teacher in International Human Rights Law at the University of Sheffield. She completed her DPhil in Law at the University of Oxford in 2022 as a Rhodes Scholar, where she explored the role of rights holders in defining the content of their right to housing in the face of evictions, thereby envisaging rights holders playing a protagonist role in rights interpretation. Her research and teaching interests span human rights, equality law, constitutional law and criminal justice issues.

Image Description: A small signage which says ‘Reserved’.

In this post, I continue to engage with the Indian Supreme Court’s decision in Janhit Abhiyan v Union of India. For an overview of the decision, please see my previous post. In that post, I argued that (1) the Indian Supreme Court remains wedded to a formal conception of equality. In this post, I argue that (2) on a substantive view of equality, it becomes clear that ‘economically weaker sections’ (‘EWS’) or the poor face multi-dimensional inequality; (3) the abolition of untouchability and caste discrimination remains an essential feature of the equality code under the Indian Constitution; and that (4) insights from intersectionality are useful in understanding why the exclusion of lower caste communities from reservations for the poor is invalid.

The multidimensional nature of inequality faced by the EWS/poor

If we are to adopt Fredman’s multidimensional approach to substantive equality, we will be able to see that the EWS/poor face inequality along multiple dimensions, and also that the lower caste poor ought not to be excluded from the benefit of affirmative action for the poor.

The poor clearly face maldistribution harms – unequal distribution of resources, or opportunities to be and do what they value. At the same time, the poor also face misrecognition harms, including stigma, stereotyping, and humiliation. Past decisions indicate the prejudicial views of the Indian judiciary towards the poor. For example, in Almitra Patel, providing residents of informal settlements alternate accommodation upon eviction was considered akin to rewarding pickpockets. Ramanathan has written eloquently about how the ostensibly poor are treated as criminals not by virtue of committing any criminal acts, but by their very poverty. And the inequality is structural under capitalism.

Given that the disadvantages faced by the poor go beyond maldistribution harms, affirmative action on grounds of poverty may go beyond being a ‘poverty alleviation’ mechanism, and rather serve to redress the multidimensional inequalities faced by the poor. At the same time, the lower caste poor face intersecting disadvantages on grounds of poverty as well as caste, and any measure to redress disadvantage faced by the poor ought not to exclude the more disadvantaged within the group. A substantive rather than formal conception of equality helps us understand why this is the case.

The abolition of untouchability

As the minority opinion recognised, the abolition of untouchability (Art 17) as the most egregious form of caste discrimination, and the elimination of caste discrimination as a whole (Art 15(2), 16(2)) is an integral part of the Equality Code of the Indian Constitution (Arts 14-18). Briefly, untouchability refers to the oppression of Dalits under the caste system, who are considered to be outside of the system as ‘untouchables’.

There is no reference to Article 17 in the opinions of the three judges who formed the majority in Janhit Abhiyan. An interpretation of equality that pays fidelity to the text and history of the drafting of the Indian Constitution (Bhatia), as well as the context of caste discrimination that persists in India, ought to pay attention to the need to address caste discrimination even as the EWS are recognised as beneficiaries for reservations.


Intersectionality theory helps us see that ‘systems of power are … co-constituted such that no single dimension of power can be individually delineated and examined as the sole cause of discrimination (Atrey). The discrimination against lower caste poor communities is co-constituted both by poverty under capitalism and the caste system. Intersectionality theory helps explain this, and therefore helps explain why it is problematic to exclude those who face intersecting and multiple forms of disadvantages from the benefit of poverty-based reservations for EWS.’ Insights from intersectionality theory would aid such an interpretation of the Equality Code under the Indian Constitution. There is no reference to intersectionality within any of the opinions in Janhit Abhiyan.

Overall, it makes constitutional sense to grant reservations to the poor, given the persistence of poverty and the multiple dimensions of inequality this entails. This helps explain why all judges upheld the 103rd amendment to the extent it grants reservations to EWS. However, it violates the Equality Code of the Indian Constitution to deny these reservations to the lower caste poor, even if they can seek reservations based on their lower caste status alone. Attention must be paid both to the intersectional nature of discrimination they face, and the importance of eliminating caste-based discrimination under the Indian Constitution. This contextual, substantive interpretation of the Equality Code must be preferred. As the minority found, this would render aspects of the 103rd amendment unconstitutional.

Want to learn more?

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

Read: Intersectionality at 30

Read: Understanding the Indian Supreme Court Judgment on The Atrocities Act, Against Backward Classes

Listen: Poverty and Politics in the SDGs (with Philip Alston)

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