The Dissenting Judgment Versus the Razing of Equality

November 25, 2022

Jayna Kothari, CLPR Executive Director analyses the dissenting opinion of the recent EWS Supreme Court Judgment. This ruling upheld the 103rd amendment to the Constitution which allowed 10% reservation for the Economically Weaker Sections (EWS) among the general category.

 

Excerpt from the Article:

 

If poverty is the criterion for reservation, it is a matter of record that the bulk of the poor in the country are from Dalit, Adivasi, and Bahujan communities due to centuries of stigma and discrimination they have experienced. How can they be excluded based on their caste status? The dissenting judgment eloquently recognises that human beings do not exist in separate distinct ‘silos’. A person who is poor, would also most likely be from an oppressed caste background, minority religion, female, or may have a disability, and in fact, many of these conditions may be the reason for her poverty. The UN Committee on Economic, Social, and Cultural Rights recognises that “discrimination may cause poverty, just as poverty may cause discrimination”.

 

The EWS amendment turns the theory of intersectionality on its head. The concept of intersectionality is a lens for seeing the way in which various forms of inequalities often operate together and exacerbate each other. Crenshaw argues that we may talk about race or caste inequality as separate from inequality based on gender, class, sexuality or disability, but fail to see how some people can be often subject to all of these, and the experience is not just the sum of its parts. Instead of recognising the aggravated discrimination faced by persons at the intersections of caste and poverty, the EWS amendment punishes them for being at the intersections. By excluding the SC and ST communities, the amendment actively discriminates against them. Justice Bhat and CJI Lalit point out painfully that if poverty is the criteria for reservation, then can it be justified that an Adivasi girl would not be entitled to such opportunity because she already has existing reservations, although she falls under the EWS description? It would amount to her gender and Adivasi status being used to discriminate against her and from denying her the opportunities for the EWS. They argue that this convenient way of putting people within “silos” fails to locate the individual within a collective and reduces her visibility in the debate. Reservations on the basis of caste in Articles 15(4) and 16(4) are not privileges or benefits, but reparative measures meant to level the field for communities facing social stigmatisation. To use this as a ground to deny EWS reservation to the poorest, based on their social backwardness and legally acknowledged caste stigmatisation, the dissent held that it would amount to discrimination which is prohibited under the Constitution.

Cite:

'The Dissenting Judgment Versus the Razing of Equality' (The Hindu, 25 Nov 2022) <https://www.thehindu.com/opinion/lead/the-dissenting-judgment-versus-the-razing-of-equality/article66165455.ece> accessed on 07 Feb 2023