Assume that in a classroom, a teacher is faced with students with differing command over the English language. There are three groups: some students are excellent, some require minimal guidance, and some others, a lot of attention. The teacher decides to give a special class of half an hour for the second group and a class for two hours for the third. Since the first group needs no additional support, they won’t be given any. Is the teacher wrongfully discriminating among her students? Most of us would think that she is not. Treating students at different levels in the same way would do little to help those who lag behind. Those students could benefit from some support to catch up with those ahead. This is the idea behind affirmative action and reasonable accommodation: to enable those who are worse off to become on par with others.
What is true in the classroom context is also true in a policy context. The controversy around the award of scholarships to minority students in Kerala illustrates this. The dispute surrounds the question of how scholarships for minority students should be distributed between different minority groups. On October 29, the Supreme Court issued notice on an appeal of the Kerala government against a High Court order directing it to award the scholarships by the proportion of minorities in the overall population of the State.
The background of the decision is as follows. The Kerala government passed an executive order in 2015 prescribing that minority communities will be entitled to scholarships. Of the scholarships, 80% were distributed to Muslim students and 20% to Latin Catholics and converted Christians. In Justine Pallivathukkal v. State of Kerala (2021) , the Kerala High Court set aside this order holding that all minorities must be treated alike. Hence, it held that the only relevant criterion is the minority groups’ share of the population.
The government argued that its policy was based on the findings of the Sachar Committee report and the Kerala Padana report on the disadvantages faced by Muslims. It pointed out that Muslims were far behind Christians, Dalits and Adivasis in college enrolment, just as they are in employment and land ownership. Besides, studies on discrimination in labour and housing markets reveal that Muslims experience substantial levels of discrimination when applying for jobs or housing, often even more than Dalits.
All of this underlines the point that some minorities face greater obstacles than others. Scholarships for minority students are a form of affirmative action. The aim is to facilitate students from these communities to study, and reduce the inequalities between different communities. If that is the goal, the only sensible policy is one which identifies the most disadvantaged groups. This is exactly what the Kerala government did.
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Hence, reserving a higher proportion of scholarships for Muslims is justified. The different kinds of backwardness of a community must be considered while awarding scholarship schemes. Any other scheme defeats the purpose of offering scholarships to students from minority communities. The High Court prohibited an allocation sensitive to social realities by adopting a form of blind equality approach. This was a mistake. This is not in consonance with the constitutional and just vision of equality, a vision which needs to be mindful of social inequalities. As the Supreme Court rightly noted in B. K. Pavitra v. Union of India (2019), “For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them.”
It is important, therefore, that the Supreme Court corrects the error of the High Court. This case will be significant for constitutional law. It will determine how representation is understood in the law on reservations. The High Court’s reasoning suggests that access to the benefits of affirmative action must follow an approach which is blind to the relative backwardness of different communities. This is dangerous in the Indian context. One of Ambedkar’s great insights was that the caste system is a form of graded inequality. Even when we identify disadvantaged castes or communities, we need to remember the forms of inequality and hierarchy among them. The logic of the High Court’s judgment forbids this. It tells us that once we identify the beneficiaries of measures of affirmative action, we need to treat everyone alike regardless of any inequalities or hierarchies between them. We should not let such bad reasoning obstruct affirmative efforts to remove inequality. The fight against inequality is too important for that.
Thulasi K. Raj is a lawyer at the Supreme Court and Bastian Steuwer is a political philosopher at Rutgers University