Caste Formalism: The Law and Politics of Equality in India

The following is an edited excerpt from Madhav Khosla and Pratap Bhanu Mehta’s article, “Caste Formalism: The Law and Politics of Equality in India,” published in Volume 87, Number 3 of Law and Contemporary Problems, which focuses on politics and the rule of law. Footnote citations have been omitted. Excerpt republished with permission from the authors. Please see original for all footnotes.

In modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense of a deeper understanding of discrimination itself.

In the United States, affirmative action remains a highly contentious topic in both law and politics. Nearly five decades after the Bakke decision, which generated significant scholarly and public debate, there remains scrutiny over the legitimacy and value of affirmative action, particularly following the Students for Fair Admissions verdict. Affirmative action serves as a focal point for contesting the meanings of equality, discrimination, and social justice. India, too, has a long history of group-based discrimination, exemplified by the caste system. Colloquially, one often finds comparisons between the caste system in India and slavery in the United States or apartheid in South Africa as a paradigmatic form of discrimination where individuals suffer simply because of their group membership. Despite global interest in the caste system, however, India’s postcolonial experiment with one of the world’s most extensive affirmative action schemes has received relatively less attention among comparative law scholars.

When the Indian Constitution came into force in 1950, the introduction of political equality arose amidst deep social and economic inequality. In confronting this reality, the Constitution focused on one principal axis of inequality: caste. It permitted preferential treatment towards particular groups — primarily targeted at Dalits, who had borne the full brunt of caste-based oppression — in the form of legally mandated quotas, commonly referred to as “reservations.” Through the scheme of reservations, India now has one of the most extensive affirmative action programs globally. Reservations in public employment and higher education extend to 49.5% for caste and tribal groups, with an additional 10% for those who are economically disadvantaged. In some Indian states, reservations in education and public employment have well exceeded this number, and there are calls on behalf of various caste groups to both increase the extent of quotas and extend them to the private sector.

This Article studies the evolution of reservations in India. It argues that the reservations scheme has, over time, come to embody a distinct kind of formalism, namely caste formalism. To understand the emergence and implications of caste formalism requires attending to the development of legal doctrine, the forms of sociological change and political mobilization, and the nature of identity and citizenship. The Article correspondingly unfolds in three parts. Part I offers a comprehensive account of affirmative action jurisprudence in India. . . . In contemporary India, the groups eligible for affirmative action have become the norm rather than the exception. Or, put differently, the present scenario raises the question of what the rule is. The focus on caste membership and representation makes reservations less of a framework that negotiates the realities of discrimination, inequality, and the like. It becomes akin to the compartmentalization of society into legally naturalized identities that compete in segregated pools. The new rule is thus caste formalism.

Part II reflects on the constitutional politics that has fueled caste formalism. Interestingly, legal understandings of caste interact with sociological and political perspectives. . . We consider the persistence of caste in postcolonial India, and how caste identities have adapted to the forms of democracy — an arena where victory turns on numbers rather than status. In particular, we underscore how reservations have become a political focal point. On the one hand, the legal entrenchment of caste engenders its further politicization: the recognition of caste and the presence of an entitlement drives mobilization, influences alliances, and pinpoints goals. On the other hand, it narrows the frameworks and policy choices within which the politics of social justice can be conducted. The system of reservations has become politically non-negotiable, making it all but impossible to have a politics structured outside the framework of reservations. Because reservations benefit the majority of the population, an anti-reservation politics must work against a majoritarian consensus. Consequently, political contests rest on how to refine and renegotiate the reservations framework — the rights of a particular caste group, the extent of their representation, and so on — rather than on alternative possibilities. The mantra of politics is not the transcendence of caste but the equal balancing of caste groups.

The legal institutionalization of caste results in a radical change in the forms of social self-knowledge available to citizens. This happens at several levels. For example, the sociological literature, which used to be relatively ambivalent about enumerating caste — recognizing fully that the act of enumeration modifies identities and not just describes them — now increasingly embraces the legal understanding of caste. Caste is beginning to function almost as a form of theodicy: a catch-all explanatory principle for a diverse range of phenomena. And it significantly influences the forms of collective action that citizens are willing to undertake.

Part III draws on how caste has become an inescapable reality and reflects on the implications that a scheme of power sharing among caste groups has for identity and fraternity. One significant concern with a generalized system of caste-based identification is that it perpetuates distrust, both between caste groups and towards the state. We distinguish between legitimate and illegitimate forms of distrust. We argue that caste formalism impedes Ambedkar’s vision of fraternity as a society characterized by shared experiences and mutual respect. Democracy becomes a system of distribution among predefined groups rather than a space for individual agency, social integration, and mutual trust. The state risks becoming a permanent caste state whose public functions, from appointments to delivery of services, acquire legitimation by their apportionment through caste. The emancipatory project of individualism unmediated by caste has transitioned into a federation of caste communities, each nudging for their share of representation against the normative goal of equal representation for each caste. Paradoxically, albeit in a different and non-hierarchical way, caste formalism reintroduces the rule of caste.

The transition from substantive equality in the form of a targeted affirmative action program to caste formalism is thus also an account about the rule of law in India. At one level, this transition is something of a success for the rule of law, insofar as groups making claims for quotas appeal, for the most part, to constitutional rules, court systems, and jurisprudential arguments. The picture seems more complicated, however, if we consider the character of the law that emerges. In this instance, law does not advance by the application of principles that examine the nexus between policies, beneficiaries, and values like equality and anti-discrimination. Instead, law is a site of contestation between competing group identities, and that competition shapes the nature of the law. The transition is, in other words, an illustration of how legal language and the underlying normative goals of a constitutional order can come to accommodate such competition in ways that subvert its normative aspirations. Semantically distinct terms, which each carry a specific logic, like “discrimination,” “backwardness,” and “representation,” collapse into one another. The formal features of legal reasoning are deployed to further the instrumental goals of power sharing that are put on the agenda by wider social and political competition. In such a setting, the courtroom is less a forum for the consideration of reasons and more a social mediator, reconciling interests and pressures. Here, the rule of law is a negotiation, one that manages claims made on the basis of caste membership. The conventional rule of law can accommodate the rule of caste in part because it interprets caste in formal terms. And, like the conventional rule of law, caste formalism is a rule that claims authority in its own right: it covers the majority of the population, it claims universality in that it applies to all caste groups, and it claims neutrality in that it aspires to treat all caste groups equally. Fundamentally, like all forms of law, the rule that emerges performs the ontological function of creating and structuring society in its image.

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Madhav Khosla is a professor of constitutional law and political science at Columbia University. Pratap Bhanu Mehta is a senior fellow at the Centre for Policy Research in New Delhi and a visiting professor at Princeton University.