Caste, untouchability and protective discrimination

Law and Social Transformation in India · Unit III · Topic 7 of 13 · 6 min read

Article 17 and the atrocities law, the reservation jurisprudence from Champakam to Davinder Singh, the backward classes commissions, and the debate on caste as a basis of social justice.

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1. Two theories of equality
2. Untouchability and atrocities
3. The reservation provisions
4. The leading cases in sequence
5. Backward classes commissions
6. Comparative note
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. “Constitutional provisions for the protection of SC, ST and socially and educationally backward classes” (2021); “protective discrimination in ensuring social justice” (2010, 2013, 2019 short note); “to what extent has non-discrimination on the ground of caste contributed to social transformation?” (2014); and the National Commission for Backward Classes (2013). The LL.M. answer must go beyond the list of Articles to the theory of equality behind them.

1. Two theories of equality

Formal equality treats everyone alike; on that view any caste-based measure is suspect. Substantive equality treats unequals differently to bring them to a common starting line. The Indian Constitution chose the second. In State of Kerala v. N.M. Thomas (1975) the Supreme Court held that Article 16(4) is not an exception to Article 16(1) but a facet of equality itself, a view confirmed in Indra Sawhney. Marc Galanter's Competing Equalities: Law and the Backward Classes in India (1984) remains the standard study; he called the scheme “compensatory discrimination”. Ambedkar's Annihilation of Caste (1936) argued that caste could not be reformed, only destroyed, and that its destruction required an attack on its religious sanction.

2. Untouchability and atrocities

Article 17 abolishes untouchability and forbids its practice in any form; enforcement of any disability arising from it is an offence. It binds private persons.
The Protection of Civil Rights Act 1955 (originally the Untouchability (Offences) Act, renamed and strengthened in 1976).
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, amended in 2015 to add new offences and in 2018 to insert section 18A.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013; Safai Karamchari Andolan v. Union of India, 2014 INSC 212, ordered compensation for sewer deaths and enforcement of the Act.

In State of Karnataka v. Appa Balu Ingale (1992) the Court upheld convictions for preventing Dalits from drawing water from a public well and stressed that courts must enforce the anti-untouchability law with full vigour. Sukanya Shantha v. Union of India, 2024 INSC 753, struck down State prison manuals that allotted work by caste.

The atrocities law saga. In Dr. Subhash Kashinath Mahajan v. State of Maharashtra, 2018 INSC 248, a two-judge bench, citing misuse, allowed anticipatory bail and required a preliminary inquiry before registering a case. Parliament reversed this by inserting section 18A in 2018. On review, a three-judge bench in Union of India v. State of Maharashtra, 2019 INSC 1102, recalled the directions, holding that a presumption of misuse against a whole class was itself discriminatory. Prathvi Raj Chauhan v. Union of India, 2020 INSC 157, upheld section 18A, leaving the High Court's inherent power to quash where no prima facie case is made out. The sequence is a useful study in law against social power: the presumption of false complaints itself reflects caste prejudice.

3. The reservation provisions

Provision	Content and origin
Art 15(4)	Special provision for SEBCs, SCs, STs (First Amendment, 1951, after Champakam)
Art 15(5)	Admission in private educational institutions, aided or unaided, except minority institutions (93rd Amendment, 2005)
Arts 15(6), 16(6)	Economically weaker sections, up to 10% (103rd Amendment, 2019)
Art 16(4)	Reservation in posts for backward classes not adequately represented
Art 16(4A), 16(4B)	Promotion with consequential seniority for SC/ST (77th, 85th Amendments); carry-forward of unfilled vacancies (81st)
Art 335	Claims of SC/ST consistent with efficiency; proviso for relaxation (82nd Amendment, 2000)
Arts 338, 338A, 338B	National Commissions for SCs, STs (2003) and Backward Classes (102nd Amendment, 2018)
Art 342A	Central list of SEBCs; States' power to keep their own lists restored by the 105th Amendment, 2021

4. The leading cases in sequence

State of Madras v. Champakam Dorairajan, 1951 INSC 26: communal G.O. struck down; Article 15(4) followed.
M.R. Balaji v. State of Mysore, 1962 INSC 279: a Mysore order reserving 68% struck down; caste is relevant but not the sole test of backwardness; reservation should generally stay below 50%.
Indra Sawhney v. Union of India (1992, Nine Judges): the Mandal Commission's 27% for OBCs upheld; caste can be a class; the creamy layer must be excluded among backward classes; the 50% ceiling holds save in extraordinary situations; no reservation in promotions (overturned by the 77th Amendment); a permanent statutory body to examine inclusion and exclusion, which led to the NCBC Act 1993.
M. Nagaraj v. Union of India, 2006 INSC 711: Articles 16(4A) and (4B) upheld, but the State must show quantifiable data on backwardness, inadequacy of representation and efficiency.
Ashoka Kumar Thakur v. Union of India, 2008 INSC 473: the 93rd Amendment and OBC quotas in central institutions upheld, with the creamy layer excluded.
Jarnail Singh v. Lachhmi Narain Gupta, 2018 INSC 881: Nagaraj's requirement of data on backwardness of SC/ST was wrong, since they are presumed backward; the creamy layer principle can apply to SC/ST in promotions.
Dr. Jaishri Laxmanrao Patil v. Chief Minister, 2021 INSC 284: Maharashtra's Maratha reservation struck down; no extraordinary situation to breach 50%; the 50% rule reaffirmed.
Janhit Abhiyan v. Union of India, 2022 INSC 1175: the EWS amendment upheld 3:2; economic criteria alone can found reservation; the majority held that excluding SC, ST and OBC from EWS did not violate the basic structure, and that the 50% ceiling applies to backwardness-based reservation, not to this new class. The dissent (Bhat J., for himself and Lalit C.J.) called the exclusion discriminatory.
State of Punjab v. Davinder Singh, 2024 INSC 562 (Seven Judges, 6:1): sub-classification within Scheduled Castes is permissible, overruling E.V. Chinnaiah v. State of Andhra Pradesh, 2004 INSC 644. Several judges also urged a creamy-layer test for SCs and STs, which is not yet the binding law.

5. Backward classes commissions

The Kaka Kalelkar Commission (1953–55) was not acted on. The Mandal Commission (1979–80) used social, educational and economic indicators and identified OBCs as about half the population; its report was implemented in 1990. Karnataka has had a long series of its own commissions (Havanur, Venkataswamy, Chinnappa Reddy). The NCBC became constitutional under Article 338B in 2018, with powers to investigate safeguards and inquire into complaints, but its advice on inclusion in lists is now matched by State commissions after the 105th Amendment.

6. Comparative note

United States: Regents of the University of California v. Bakke (1978) struck down fixed racial quotas but allowed race as a factor; Grutter v. Bollinger (2003) upheld race as one factor in individual assessment; Students for Fair Admissions v. Harvard (2023) held race-conscious admissions unconstitutional. India, by contrast, entrenches quotas in the Constitution.
South Africa: section 9(2) of the 1996 Constitution treats restitutionary measures as part of equality.
International: ICERD (1965); the CERD Committee's General Recommendation 29 (2002) treats discrimination based on descent, including caste, as covered. India rejects that reading.

Has non-discrimination transformed caste? Yes in part: a Dalit and OBC middle class, political representation, and the collapse of overt ritual exclusion in public places. No in part: benefits concentrate in a few castes within each category (the case for sub-classification and the creamy layer); caste persists in marriage, rural land relations and manual scavenging; atrocities continue. Inter-caste marriage, which the Court protected in Lata Singh v. State of U.P., 2006 INSC 407, and against khap panchayats in Shakti Vahini v. Union of India, 2018 INSC 266, is the real test of whether caste is dissolving.

How this is examined

Essays on constitutional protection of SCs, STs and SEBCs, or on protective discrimination and social justice. Begin with the theory of equality, then the table, then the cases in order, then the evaluation box. Short notes: protective discrimination, the NCBC, the creamy layer, the 50% rule, untouchability, the atrocities law. The Karnataka angle (Balaji, Appa Balu Ingale, the State commissions) earns marks.

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