Community and the Law: Caste, Tribe and a Plural Society

The vocabulary this topic needs

Caste. A hereditary, endogamous group, membership of which is fixed at birth and which is ranked in relation to other such groups. The two words that matter are HEREDITARY, so it cannot be joined or left, and ENDOGAMOUS, marriage within the group, which is what keeps it separate.

Varna and jati. Varna is the fourfold classical scheme, Brahmin, Kshatriya, Vaishya and Shudra, with those outside it. Jati is the actual unit of social life: several thousand local endogamous groups. Reservation and social policy operate on jati; textbooks describe varna. Confusing them produces a wrong answer about how backwardness is identified.

Untouchability. Not defined by the Constitution. Article 17 abolishes it and forbids its practice in any form. Its meaning is dealt with in [Untouchability, and the Act That Abolished It].

Tribe. A community identified by a distinct culture, language and territory, historically outside the caste order rather than at the bottom of it. That distinction matters, and it is why the Constitution's design for tribes is autonomy and for castes is integration on equal terms, which is the point made in [Tribal India: The Fifth and Sixth Schedules].

Backward class. A class of citizens which is socially and educationally backward, or, for article 16(4), socially backward and inadequately represented in the services. The accent in article 16(4) is on SOCIAL backwardness, and Indra Sawhney held that a backward class cannot be identified only and exclusively by economic criteria.

Creamy layer. The socially advanced members of a backward class who are excluded from the benefit. Worked in [Backward Classes, the Creamy Layer and the Ceiling].

The apparatus, in four groups

The equality articles. Article 14, equality before the law and the equal protection of the laws; article 15(1) and (2), no discrimination on grounds only of religion, race, caste, sex, place of birth, the second binding private persons in respect of access; article 15(4), (5) and (6), the enabling clauses; article 16(1) and (2), equality of opportunity in public employment; article 16(4), (4A), (4B) and (6), the enabling clauses.

Article 17, and article 18. Untouchability is abolished and its practice in any form is forbidden; the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Article 18 abolishes titles, which belongs here because a title is a hereditary mark of status and the framers were legislating against exactly that.

Article 46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Articles 330 to 342A. Reserved seats in the House of the People and in the State Legislative Assemblies; claims to services under article 335; the Commissions under articles 338, 338A and 338B; the Union's control over the administration of Scheduled Areas under article 339; the Backward Classes Commission under article 340; and the Presidential lists under articles 341, 342 and 342A. Worked in [The Safeguards: Seats, Services and Commissions].

The two constitutional designs

For caste: integration on equal terms. Abolish the disability, forbid the discrimination, and compensate for the historical exclusion by reservation until representation is adequate. The unit is the individual, who is to be freed from the group.

For tribe: autonomy and protection. Restrict the alienation of land, restrict entry, give the community's own institutions a say, and administer the area under the Fifth or Sixth Schedule. The unit is the community, which is to be protected as a community.

Why the difference. Because the two disadvantages are different. A Scheduled Caste is at the bottom of a social order it is inside; a Scheduled Tribe was historically outside the order and is disadvantaged by contact with it, principally through the loss of land.

And the tension the difference creates. Reservation for tribes assumes integration; the Fifth Schedule assumes separation. Indian law does both at once, which is coherent as policy and produces litigation.

A worked example

A candidate belongs to a caste that appears in the Presidential List of Scheduled Castes for Maharashtra, and moves to Karnataka.

Their status in Karnataka. The lists under article 341 are "in relation to that State or Union Territory". A person notified as a Scheduled Caste in one State is not automatically one in another, and cannot claim reservation in the second State on the strength of the first State's list.

If their caste is also in the Karnataka list. They still generally cannot claim, because migration does not carry the status: the notification operates in relation to the State in which the person was ordinarily resident when the list was made applicable to them, and the settled position is that a migrant claims in the State of origin.

If the caste is not on any list. No claim at all, because the Constitution provides no route to Scheduled Caste status except the Presidential notification and Parliament's power to amend it.

And if they converted to another religion? Paragraph 3 of the Constitution (Scheduled Castes) Order 1950 provides that no person professing a religion different from Hinduism, Sikhism or Buddhism shall be deemed a member of a Scheduled Caste. Scheduled Tribe status is not conditioned in the same way. The point is dealt with in [Conversion and the Law] and again in [The Safeguards: Seats, Services and Commissions].

What this does NOT mean

It does not mean "community" is a legal category. MU's label uses the word; the Constitution names groups, and an answer should use the Constitution's names.

It does not mean the lists are permanent. Parliament may add or remove under articles 341(2), 342(2) and 342A(2).

And it does not mean the three groups are treated alike. The creamy layer applies differently to the Scheduled Castes and Scheduled Tribes than to the backward classes; the fifty per cent rule applies to some reservations and not to the economically weaker sections; and the tribal design is different in kind.

Quick revision

Three groups plus one: Scheduled Castes, article 341; Scheduled Tribes, article 342; socially and educationally backward classes, articles 15(4), 15(5), 16(4), 340, 338B and 342A, with the 102nd Amendment 2018 and the 105th of 2021; economically weaker sections, articles 15(6) and 16(6), 103rd Amendment 2019. Article 341(2): only Parliament may vary a Presidential list. Vocabulary: caste is hereditary and endogamous; varna is the fourfold scheme and jati the operative unit; untouchability is undefined; a tribe was outside the order rather than at the bottom of it; backwardness under article 16(4) is social, not merely economic. Apparatus: articles 14 to 18; article 46; articles 330 to 342A. Two designs: integration on equal terms for caste, autonomy and protection for tribe.

Test yourself

1. How does a caste become a Scheduled Caste, and who can change the list? By a public notification of the President under article 341(1), made in respect of a State or Union Territory and, in the case of a State, after consultation with the Governor. Only Parliament may include or exclude a caste by law under article 341(2), and save by such a law the notification may not be varied by any subsequent notification.

2. Distinguish varna from jati and say why it matters. Varna is the classical fourfold scheme of Brahmin, Kshatriya, Vaishya and Shudra with those outside it; jati is the actual unit of social life, several thousand local endogamous groups. It matters because reservation and social policy operate on jati while textbooks describe varna, so an answer that identifies backwardness by varna describes something the law does not use.

3. Name the four protected categories and the provision creating each. Scheduled Castes, article 341; Scheduled Tribes, article 342; socially and educationally backward classes, articles 15(4) and (5) and 16(4) with article 342A; and economically weaker sections, articles 15(6) and 16(6).

4. Why is the constitutional design for tribes different from that for castes? Because the disadvantages differ. A Scheduled Caste is at the bottom of a social order it belongs to, so the design is integration on equal terms through prohibition and reservation. A Scheduled Tribe was historically outside that order and is disadvantaged by contact with it, principally through the loss of land, so the design is autonomy and protection through the Fifth and Sixth Schedules.

5. Can a person notified as a Scheduled Caste in one State claim that status in another? Not as of right. The lists under article 341 operate in relation to the State or Union Territory for which they are made, and migration does not carry the status; the settled position is that a migrant claims in the State of origin.