Denial of reservations for Dalit Christians/Muslims goes against substantive equality – The Leaflet

The validity of the Constitution (Scheduled Castes) Order of 1950 was upheld by the Supreme Court in 1985 on a severely limited conception of the equality code. Recent developments require its reconsideration.

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What is the Constitution (Scheduled Castes) Ordinance 1950 and why has it been in the news recently?

THE The Constitution (Scheduled Castes) Ordinance 1950, which is currently the subject of a second constitutional challenge, states that only persons of the Hindu, Sikh or Buddhist religions are eligible to constitute the constitutionally designated class of scheduled castes. The Supreme Court asked the Union Government to take a stand on the issue of the discriminatory nature of the 1950 Ordinance, and the Government proposed to set up a commission to undertake a new study on the backwardness of Dalit Christians and Muslims dalits.

The first challenge to the 1950 Order was launched in Soosai v Union of India & Ors. (1985), in which the Supreme Court upheld it based on evidence and the deferential nature of its inquiry.

Dalits who have converted their religion to Christianity or Islam, which is a significant number numbering in the millions, are denied reservation benefits on the grounds of converting to another religion.

Dalits who have converted their religion to Christianity or Islam, which is a significant number numbering in the millions, are denied reservation benefits on the grounds of converting to another religion. The causes of such conversion include the determination to escape caste-based exclusion and violence, and the desire to disassociate oneself from the caste structure as a whole.

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How was the test of arbitrariness misapplied in Soosai?

In Soosaithe petitioners challenged the 1950 ordinance on the basis of violations of Articles 14, 15 and 25 of the Constitution, but the court only addressed the issue of arbitrariness through an inquiry under the section 14.

The 1980s era is seen as the high tide of the arbitrariness test, with each successive judgment enshrining the principle that any arbitrary state action (legislative or executive) is ipso facto contrary to equality.

The origins of the arbitrariness test lie in a critique of the highly deferential nature of the section 14 classification inquiry which leads to undesirable results. In Dhirendra Pandua vs Orissa State (2008), for example, the Supreme Court upheld the exclusion of electoral contestants with leprosy on the grounds that classifying people as leprosy and non-leprosy is consistent with the purpose of the law, which is to prevent the spread of leprosy. The unscientific nature of the object of the law, which is at the root of the illegitimacy of the object, cannot be examined within the contours of a two-step classification test.

Arbitrariness has been presented as a panacea to the judicial inability to deal with obvious commissions of injustice that are not affected by the classification test. The application of arbitrariness is therefore more appropriate when the classification inquiry is unable to address the commission of an obvious injustice, which requires intuition-based reasoning that identifies arbitrary action.

The formulation of the criterion of arbitrariness in Soosai, however, is contrary to the above formulation in both of its criteria: neither does it combat the deference standard of the ranking criterion, nor does it choose to apply the arbitrariness criterion as a result of failure of the classification criterion for dealing with the commission of a manifest injustice. It frames the issue of equality solely in terms of arbitrariness and argues that the differential treatment offered to groups entails a presumption against the commission of arbitrariness which must be rebutted by the plaintiff.

To deny reservations, shouldn’t the State fulfill its burden of proving non-arbitrariness?

many in Soosai depends on the role of the burden of proof that its deferential formulation of the criterion of arbitrariness highlights. In his conclusion that there must be a presumption versus arbitrary, the court orders an investigation which presumes that the disputed rule is well reasoned, objective, transparent, not fanciful and therefore not arbitrary, and the responsibility to refute it is imposed on the applicant.

It would be relevant to distinguish the doctrine of the presumption of constitutionality from an investigation which presumes the existence of a well-founded reasoning not disclosed to the petitioners, which the latter are required to refute. Not only is the rule’s constitutionality presumed, but there is an additional presumption in favor of the rule’s compliance with epistemic standards of justification and reasonableness. According Soosaithe State is not obliged to disclose the information which constitutes this justification, the sole obligation to refute this justification rests with the applicant.

The collection of information that shows the persistence of discrimination after conversion, in addition to being impossible to eliminate by an individual petitioner, also depicts an unfortunate formulation of the individual-state relationship. The State can discriminate, injure or kill with total impunity, with a presumption in favor of its non-arbitrariness intact, which each claimant must rebut in the face of injustice.

Based on this, the court finds that the claimants must use social science data, statistics and information, the burden of collection imposed on them, which shows that Dalit Christians (or Muslims) continue to face discrimination on the basis of on caste after their conversion. It considers that the following obligation rests with the applicants:

“It is not enough to show that the same caste continues after conversion. It is necessary to further establish that the disabilities and handicaps suffered by such caste membership in the social order of its origin – Hinduism – continue in their oppressive severity in the new environment of a community of religions. different (sic).

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The collection of information that shows the persistence of discrimination after conversion, in addition to being impossible to eliminate by an individual petitioner, also depicts an unfortunate formulation of the individual-state relationship. The State can discriminate, injure or kill with total impunity, with a presumption in favor of its non-arbitrariness intact, which each claimant must rebut in the face of injustice.

Recent doctrinal developments on the question of burdens of proof, mainly in Navtej Singh Johar vs Union of India (2018), indicate that the state must be subject to greater responsibility in its actions which give a tinge of prima facie arbitrariness.

A look at Soosai would occur through the imposition of a duty on the state to disprove the existence of arbitrariness after a prima facie case of discrimination has been established.

Such a makeover must take place in the light of doctrinal developments on the role of interrelations within the code of equality and those in the area of ​​reserves, because the question of exclusion from the category of Scheduled Castes is intimately linked to the purpose of reservations.

What is substantive equality?

The rule-exception logic enunciated by the Supreme Court in its first decisions of Managing Director, Southern Railway vs. Rangachari (1961) and MR Balaji v Mysore State (1962), was largely canceled in any case after Kerala State vs NM Thomas (1975), and it is now well established that the principles of affirmative action are categorical restatements of the principle of equality rather than being deviations from it. Once it is established that sections 15(4) and 16(4) form part of the principles of equality set out in sections 15 and 16, the courts have also observed that sections 15 and 16 also reaffirm the fundamental principle of “equal protection of the laws” in article 14.

If the mandate of the equality code is so broad and the obligation to ensure that equality rests with the state, the ability to accord unjustified differential treatment to disadvantaged groups must be considered anathema to the code of equality. equality as a whole.

This is the Equality Code, which seeks to redress historical injustice, identify indirect discrimination, hold the state accountable for manifestly arbitrary acts and ensure the rule of law. If the mandate of the equality code is so broad and the obligation to ensure that equality rests with the state, the ability to accord unjustified differential treatment to disadvantaged groups must be considered anathema to the code of equality. equality as a whole.

How is the refusal of reserve incompatible with real equality?

In Mukesh Kumar vs Uttarakhand State (2020), the Supreme Court held that there is no right to obtain reservations, because reservation provisions only allow the state to take affirmative action. The state, she argued, is not required to make reservations, nor is it required to collect data on insufficient representation that would qualify a group for reservations. . This proposition conflicts with the nature of the equality code which pursues substantive equality. Scholars have written on this issue with alternative conceptions of enabling power in Article 16(4), characterizing it as a power coupled with a duty.

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Whereas Mukesh Kumar constitutes an obstacle in the challenge of Soosai, given its proposition that denial of the benefits of the reservation does not require the performance of any duty by the state, this constitutional challenge is also an opportunity to reconsider Mukesh Kumar. This review must also take into account the principle against violating one constitutional provision to apply another, indicating that the arbitrary use of state power to deny reservations under Article 16 is also contrary to Article 14. The use of power under section 16(4) to deny reservations to Dalit Muslims and Christians cannot therefore run counter to the substantive equality mandate in the equality code.

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