The search for equality through constitutional process: the Indian experience

• Jurisdiction: South Africa
• Date: 23 May 2019
• Published date: 23 May 2019
• Pages: 255-272
• Author: Vikraman Nair
• Citation: 2001 Acta Juridica 255

The search for equality through

constitutional process:

the Indian experience

VIKRAMAN NAIR*

Mahatma Gandhi University

I THE IDEA OF EQUALITY

The idea of equality in India goes back to the days of Vedic Wis-

dom, which treated every individual as an embodiment of the divine

spark. Equality as a spiritual and philosophical precept was founded on

this theory of the divinity of humans. The Upanishads and the Dhar-

mashastras insisted that every individual should be given an equal

opportunity to pursue the Purusharthas

1

(the four-fold legitimate goals

of life) without any arbitrary interference from any external agency,

including the state in order to enable him or her to realise his or her

full personality. Perhaps the notion of legal equality can be traced back

to the natural law doctrine of the Stoics, which, in the name of uni-

versal reason, postulates equality of individuals, races and nations.

2

However, only at a spiritual and philosophical plane it may be said

that all people are equal, but in the actual world of material and social

life it may not appear to be so. There may exist natural inequalities as

well as artificially created social inequalities and economic disparities

among people and groups of people in society. In such a society, to

pursue the principle of formal or legal equality- which insists that all

people are to be treated equally by law- would be only to perpetuate

the existing inequalities, for, ‘the same law for the ox and the lion is

oppression’. Therefore the concept of equality, to be meaningful and

intelligible, should essentially be a dynamic and relative concept, cap-

able of accommodating the necessary equalisation strategies as permis-

sible means to remove the existing social and economic inequalities

and to secure the goal of ‘higher equality’ and social justice.

II BACKGROUND OF THE EVOLUTION OF EQUALITY AS

A LEGAL DOCTRINE

Centuries of internal dissension and social stagnation coupled with

political subjugation by foreign powers transformed India into a land

* B Sc LLM (Karala) PhD (Cochin); Director of School of Indian Legal Thought, Mahatma

Gandhi University, Kerala.

1

The four-fold legitimate goals of life according to Hindu philosophy are Artha – material

values; Kama – emotional values; Dharma – ethical values and Moksha – spiritual values.

2

W Friedman Legal Theory 3 ed (1953) 496.

255

2001 Acta Juridica 255

© Juta and Company (Pty) Ltd

of discrimination and inequalities. As happened in many parts of the

world, in India too, large segments of people, particularly those who

were at the bottom of the social hierarchy, identified by race and caste,

were subjected to segregation and subordination by the dominant

sections for the purpose of protecting their own vested interests.

Such subordinated peoples became slaves and untouchables, deprived

of their dignity and rights to equality and freedom. Religious tenets,

scriptures and even customs were distorted and manipulated and were

used to institutionalise, justify and perpetuate such oppression and

subordination. Thus, India as it stood in the beginning of the twentieth

century presented a society of oppressive and exploitative hierarchy

marked by graded inequality. It was further confounded, at the poli-

tical level, by the total denial of equality and the rule of law by

colonial rule, which deployed law as a means of oppression and ex-

ploitation.

It was against such a socio-political backdrop that the freedom

struggle gained momentum under the leadership of the great Mahat-

ma Ghandi, the Father of our Nation. Equality was the clarion call of

the freedom movement, which aspired to achieve not merely political

emancipation from foreign rule but also social emancipation of the

people from all kinds of inequalities and exploitation.

III EQUALITY AS A CONSTITUTIONAL GUARANTEE

When independent India set out to determine its destiny through

the adoption of a new Constitution, equality was embraced as a car-

dinal value and as a ‘basic postulate’ of the new socio-political order.

The major policy choices made on the issue, leading, eventually, to the

evolution of equality as a constitutional guarantee were the results of

matured conflicts and compromises that took place in the Constituent

Assembly.

3

The constitutional provisions on equality reflect the inten-

tion of the framers of the Constitution to adopt equality and non-

discrimination as the guiding principle of democratic governance,

their perception of deep-rooted and accumulated socio-economic in-

equalities which existed in society, and their commitment to eradicat-

ing those inequalities and to securing substantive equality for the weak

and the vulnerable through an array of preferential policies.

Thus the preamble to the Constitution proclaimed the resolve of the

people of India to secure to all its citizens ‘[j]ustice, social, economic

and political’ as well as ‘equality of status and opportunity’. Article 14

of the Constitution guarantees to every person the right to ‘equality

before the law and equal protection of laws’. The ‘non-discrimination’

provisions contained in arts 15 and 16 have further defined different

facets of this general right to equality. The state is thus forbidden from

3

Constituent Assembly Debates Vol VII (1948) 655 et seq.

256

ACHIEVING SUBSTANTIVE EQUALITY IN FOREIGN AND INTERNATIONAL LAW

© Juta and Company (Pty) Ltd