India Supreme Court to Prioritize Treatment of More Injured Scheduled Castes by Sub-Classifying SCs

Consider a hypothetical situation. You come across two injured and parched people. One is more severely injured than the other. You have a small bottle of water that will only suffice for one.

Who will you give this water to? Unlike physical injuries such as bruises, lacerations and burns, injuries caused by discrimination may not be visible to the naked eye. It is hard to figure out who is injured and in what ways. Empirical exercises such as censuses are helpful in viewing the aggregate effects of discrimination.

Yet, statistical information is not the sole basis for state action. The executive, the legislature and the judiciary are frequently called upon to make decisions on matters of reservation and other forms of affirmative action. Justifications for affirmative action invoke constitutional ideas of a welfare state, equality, non-discrimination, equal opportunity, and adequate representation. Non-discrimination has been often invoked in opposition to reservations.

Some opposition views all caste-based reservations as fundamentally discriminatory, while others see reservations as an exception to the principle of equality. The doctrinal understanding of affirmative action in the US has taken similarly dialectical positions. Supporters characterize it as a remedy against discrimination or as an exception to the anti-discrimination doctrine. The opposition characterizes affirmative action as unjustifiable “preferential treatment”.

An impugned legislation currently pending adjudication appears to have lapsed into the framework of preference, leading to intense intra-group rivalries among the SCs. Troubling questions arise over who is more discriminated against and how to justify so-called preferential treatment within the SC categories, leading to wide intra-group resentment and contestations. This slippery slope raises more questions about the caste-specificity in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, such as the SC persons cannot be perpetrators of offences against other SC persons. There are divisive sentiments being raised among anti-caste Dalit groups, as some groups invoke their experiences of caste-based “untouchability” as a distinguishing factor from the BC.

In conclusion, if I were a functionary of the state, I would give respite to the one who is more severely injured. I would do this as a reasoned prioritizing of scarce resources, not as a whimsical preference of one subordinate group over another.