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.
The Vision of Constituent Assembly Members
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, illiteracy 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 believed all 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.
The vicious hierarchy of Caste
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.
‘Liberty, equality and fraternity’ was the battle 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.
The Doctrine of Equality
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.
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 concept of equality before 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.
The Equality Codes in Constitution
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.
In as much as public employment always gave a certain status and power – it has always been the repository of State power – besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
At the same time, care was taken to declare in Clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state. Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles (not representing military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign state.
Article 16 has remained unamended, except for a minor amendment in Clause (3) whereas Article 15 had Clause (4) inserted in it by the First Amendment Act, 1951.
The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 46 contains a very significant directive to the State. It says:
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. – The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
It is evident that “the weaker sections of the people” do include the “backward class of citizens” contemplated by Article 16(4).
Part XVI of the Constitution contains “special provisions relating to certain classes”. The “classes” for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community. It also provides for appointment of a Commission to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations.
Article 338, which has been extensively amended by the Sixty-fifth Amendment Act, provides for establishment of a Commission for the Scheduled Castes and Scheduled Tribes to be known as ‘the National Commission for the Scheduled Castes and Scheduled Tribes’.
Article 335 provides that “the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”
Reference
Indira Shawney v. Union of India (1992)