From Sacred Order To Statutory Residue: Manufactured Hierarchy, Colonial Codification, And The Persistence Of Caste And Gender Discrimination In Indian Legislation
Mukti Jain, Alliance University
I. Introduction
In October 2024, the Supreme Court of India held in Sukanya Shantha v. Union of India that prison manuals across multiple states formally assigned labour on caste lines, directing members of Scheduled Caste communities to perform sweeping and sanitation duties within correctional facilities. This was not a colonial-era relic. It was an active administrative practice of the Indian state, operating decades after Article 17 of the Constitution declared untouchability abolished and its practice in any form a punishable offence and notably, Article 17 does not confine itself to caste-based untouchability alone. The provision uses the expression ‘in any form and language
The persistence of this practice within a state institution poses a question this paper seeks to answer: how does a manufactured hierarchy survive constitutional abolition? The answer lies not only in failures of enforcement but in something more foundational. The hierarchy that Indian constitutional law set out to dismantle was constructed over centuries through identifiable acts of text manipulation, administrative imposition, and bureaucratic classification. That construction left its residue not only in social attitudes but in the legislative classifications, conditional protections, and definitional frameworks that independent India inherited and, in several instances, preserved. This paper traces that construction and identifies where its residue remains.
II. The Historical Construction of Hierarchy
A. Varna as Profession, Not Birth
The most foundational misrepresentation in the intellectual history of caste is the claim that the varna system was always hereditary. The Bhagavad Gita states in Chapter Four, Verse Thirteen: chaturvarnyam maya srishtam guna karma vibhagashah, meaning the fourfold order was created according to qualities and work, not birth.3 The operative terms, guna denoting inherent qualities and karma denoting action, carry no reference to lineage or hereditary transmission. Varna on these terms is a fluid descriptor of present conduct, not a permanent inherited identity.
