IN THE COURT of the chief justice of India, DY Chandrachud, on 8 February, Gurminder Singh, the advocate general of Punjab, held forth on the meaning of the word “deemed.” He had thought about it the previous night, he said. “The word ‘deemed’ is very clear, because, as your lordships pointed out that ‘by mere inclusion in the list your caste birthmark does not get obliterated, and there is a possibility that, tomorrow, you may be excluded from the list.’ So, therefore, your caste, which is by birth, will never change, but your deemed status of a Scheduled Caste for the purposes of benefits under the Constitution can change.”
As a member of the Scheduled Castes, I processed Singh’s argument with great anxiety. He was arguing that, even though my community’s eligibility for constitutional benefits did not remove the social stigma of being untouchable, governments retained the right to withdraw those benefits at any time. Article 341 allows parliament to pass legislation to exclude castes from SC status. However, per Singh’s logic, my state government in Bihar, if it so deemed, could leave me with a social designation of “Harijan,” with no access to any measures for affirmative action.
The Aam Aadmi Party government in Punjab, which Singh was representing, was trying to convince the Supreme Court that SCs were only a collection of individual castes that, like the Other Backward Classes, differed from each other in their backwardness. Singh said that he was using the term “in a generic sense,” which might include social, economic or educational backwardness. As a result, he argued, Balmikis and Mazhabis deserved preferential treatment over the other SCs in the state.
Singh was not alone in making this demand. Over the three days that the seven-judge constitution bench heard arguments over the correctness of a 2004 verdict, by a five-judge bench, that upheld the homogeneity of SCs and Scheduled Tribes, the union government and half a dozen state governments—led by the AAP, the Bharatiya Janata Party, the Congress, the Dravida Munnetra Kazhagam and the Yuvajana Sramika Rythu Congress—supported subcategorisation. Their arguments included relative backwardness within SCs, the similarities in how the Constitution treats SCs and OBCs, an alleged separation between constitutional provisions for identifying SCs and for distributing benefits, and the idea of scheduled status being an artificial creation. While they all claimed to be concerned with the need of benefits percolating to the lowest of the low, the basis they recommended for doing so suggested political motives to realign SCs according to their vested interests.