Jakob De Roover


India’s legal system gives a decisive role to membership of a specific set of caste groups. Groups included in the schedule attached to the Constitution (Scheduled Castes) Order of 1950 are the beneficiaries of special protections and provisions. This legislation appears to discriminate on grounds of caste. However, the Supreme Court permits such special treatment under the condition that the classification is reasonable: for one, it must be founded on intelligible differentiae which distinguish the persons grouped together from others left out of the group. Which intelligible differentiae then distinguish the groups that belong to the Scheduled Castes? This essay argues that this question was never answered in any satisfactory manner. The Constituent Assembly simply accepted the colonial division of the Indian population into ‘Caste Hindus’ and ‘Depressed Classes’. Yet, the colonial administration had also failed to find empirical tests that allowed it to identify the ‘Depressed Classes’ as a distinct set of castes. The notion of ‘untouchability’ did not help here, because it functioned as a label used to name a collection of practices. It was unclear how to identify the victims at the receiving end of ‘untouchability’, since these practices could be found both among groups classified as Depressed Classes and among those considered Caste Hindus. The conclusion is puzzling: in 1936, the British Monarch ordered how the people of India should be divided into Scheduled Castes and others. Since 1947, Indian political and intellectual elites have enforced this decree in their country through caste legislation.