Justice BP Jeevan Reddy [1]
635. Forty and three years ago was founded this republic with the fourfold objective of securing to its citizens justice, liberty, equality and fraternity. Statesmen of the highest order – the like of which this country has not seen since – belonging to the fields of law, politics and public life came together to fashion the instrument of change – the Constitution of India. They did not rest content with evolving the framework of the State; they also pointed out the goal and the methodology for reaching that goal. In the preamble, they spelt out the goal and in parts III and IV, they elaborated the methodology to be followed for reaching that goal.
636. The Constituent Assembly, though elected on the basis of a limited franchise, was yet representative of all sections of society. Above all, it was composed of men of vision, conscious of the historic but difficult task of carving an egalitarian society from out of a bewildering mass of religions, communities, castes, races, languages, beliefs and practices. They knew their country well. They understood their society perfectly. They were aware of the historic injustices and inequities afflicting the society. They realised the imperative of redressing them by -constitutional means, as early as possible – for the alternative was frightening. Ignorance, illeteracy and above all, mass poverty, they took note of. They were conscious of the fact that the Hindu religion – the religion of the overwhelming Majority – as it was being practiced, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even belong to the caste system – ugly as its face was. The fourth, shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their ‘karma’, they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been – and there is – in every country. But none had the misfortune of having this social division — or as some call it, degradation — super-imposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted – and do still constitute — a vicious circle. The founding fathers were aware of all this and more.
637. Liberty, equality and fraternity was the cry of the French Revolution. It is also the motto of our Constitution, with the concept of ‘Justice – Social, Economic and Political’ – the sum total of modern political thought super-added to it. Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular. Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this judgment will illustrate in due course.
638. The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under the sub-heading “Right to equality”- (Articles 14 to 18). In short, the goal is “equality of status and of opportunity”. Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State Policy), “Justice, Social, Economic and Political”, is the sum total of the aspirations incorporated in part IV.
639. Article 14 enjoins upon the state not to deny to any person “equality before the law” or “the equal protection of the laws” within the territory of India. Most constitutions speak of either “equality before the law” or “the equal protection of the laws”, but very few of both. Section 1 of the XIV Amendment to the U.S. Constitution uses only the latter expression while the Austrian Constitution (1920), the Irish Constitution (1937) and the West German Constitution (1949) use the expression “equal before the law”. (Article 7 of the Universal Declaration of Human Rights, 1948, of course, declares that “all are equal before the law and are entitled without any discrimination to equal protection of the law”.) The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression “equality before the law” is illustrated not only by Articles 15 to 18 but also by the several articles in part IV, in particular, Articles 38, 39, 39A, 41 and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the scheduled castes and scheduled tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality – either equality before law or equality in any other respect.
640. The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to shops, public restaurants, hotels and place of public entertainment or to the use of well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of state funds or dedicated to the use of general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in clause (3) that nothing in the said Article shall prevent the state from making any special provision for women and children.
[1] This article is an excerpt from the judgment of Justice BP Jeevan Reddy in Indira Sawhney v Union of India 1993 (1) SCT 448, authored on behalf of M. H. Kania, C.J. and M. N. Venkatachaliah, A. M. Ahmadi, JJ.) (Majority view)