Tracing Equality: Historical Roots, Constitutional Mandate, and Contemporary Relevance

Table of Contents

Author: Shreya Shrivastava

Institute: APS University, Rewa, Madhya Pradesh

Introduction

We studied about the Harappan civilization of India. An ancient society, it is known for its advanced city structures. However, civilization is still a mystery because of many unanswered questions. As to how the people of this civilization live? What rules or norms did they follow? There was multiple evidence that proved that the Harappan civilization was an idol civilization as it might not have caste segregation. As all the houses looked the same. But it wasn’t the case in many other upcoming civilizations.

Every society throughout the world has structure and rules and division to make it work. In the 1600s France had divided its society into 3 groups. India had 4 groups and so on. Americans had black people as slaves. Hence, the question comes into our mind: does social segregation is part of human development or is it just a common fault in all these societies?

Many people would argue that not every person can be judged on the same pedestal. Which is true, however, treating people differently based on their status, power, birth, caste, religion, race rather than their individuality and that is absolutely wrong and unfair.

What changed society and how discrimination kills the potential and how the constitution tackles such problems?

History

As we have known, In ancient Rome, Greece and Mesopotamia were known to have slaves. Mughals had slaves. Americans had slaves. What is a Slave? Slave is a person who is forced to do labour or work without a pay. Sometimes they were treated like any other person and in some places they were treated worse than animals. They were forced to procreate so slaves could bring in more slaves. Some individuals were born slaves and died as slaves. This is the inhumane practice that took centuries and centuries to be abolished.

In India, slavery or caste discrimination were a common practice. The society was divided into four castes, Kshtriya, Brahmin, Vaishya and Shudra. In Vedas the division was on the basis of skills. However as the time passed and as the nature of humans to destroy themselves they changed the meaning and made it according to birth.

Humans distorted and forgot their own norms and discriminated against certain people. As we call them minorities.

India has a history of discrimination against the shudras. As they were considered the “untouchables”. The term meant for people who can not be touched. As they were too lowly in the caste system.

Many historians argue that the caste system wasn’t native to Indians but was brought to divide us by the Britishers. While others deny this argument and view it as an ancient practice. That is still a debatable topic. However, the point is that people were actually behaving ruthlessly against the lower caste. They still do.

During the pre-independence period, lower caste individuals were not allowed to obtain any kind of education. They were often refused to use village wells or rivers or ponds. They cannot enter temples. Such discrimination was considered common.

However many of these untouchables were actually used to be allowed in the upper caste residences, they were the untouchable women. They were used for prostitution. They live a normal life with their husbands and children but sometimes they serve the upper caste men. Which also raises the hypocrisy of the society.

The atrocities are uncountable, it was years of oppression. Even when shudras were still part of society but the adivasis were dragged into these caste based societies. Adivasis were individuals who lived in the forest. Their day to day activities were dependent on forest resources. They used to hunt or gather food rather than farming. They were inclined with forest and nature. But they became subject to cruelty as they were considered not so civilised. Britishers broke their backbone too. They exploited their forest and their life.

Post Independence

When under the constituent assembly Dr. Bhim Rao Ambedkar was making the constitution, he knew the need of Right to equality. As he came from such hardship of being a lower caste individual. He knew he needed to end this systematic discrimination and exploitation and treat every person the same. Hence, he added the Right to equality as a fundamental right.

Constitutional provision of Right to Equality

Article 14 to Article 18 provides for the right to equality.

Equality before law (Article 14)

It states that, “the state shall not deny to any person equality before law or equal protection of law.”

Article 14 provides for two expressions, first, “equality before law”, is derived from the American Constitution, and next is “equal protection of law”, which came from the British constitution.

Equality before law suggests that every individual is equal before the law. Where equal protection of law means that every person should get equal treatment in equal situations.

No discrimination on grounds of Religion, Race, Caste, Sex, Place of Birth or any of them (Article 15)

This article with its title being so direct already expresses its motive. It considers all people to be equal and prohibits any individual, group or authority to discriminate against any person on the basis of religion, race, caste, sex, place of birth.

It allows every person to be able to enter any public space and use any water resource. Clause 3 of the article provides that states should be able to make any special law regarding women and children.

As they are also considered an oppressed population.

This clause raises the concern that minorities can also be given special privileges to raise their standard in society. In 1951, the government of Madras gave special reservation in medical and engineering Colleges to certain communities. Which was challenged in the case of State of Madras v. Champakam Dorairajan SC held it to be unconstitutional as it discriminated on the basis of religion and caste. Which resulted in the 1st amendment in 1951 and added clause 4 in the article 15. Allowing reservation for socially and educationally backward classes.

Later came the case of T.M.A Pai Foundation v. State of Karnataka SC held that states could not make reservations for seats in private educational institutions.

Then 93rd AA, 2005 was added as clause 5. It provides reservation for socially and educationally backward classes for Schedule Castes or the Schedule Tribes.

Then reservation for Economically weaker sections under Clause 6 by 103rd Constitutional Amendment Act 2019.

Equality of opportunity(Article 16)

The article or for equal opportunity for every citizen of India. And no one could discriminate on the basis of religion, race, caste, sex, descent, place of birth, residence. In employment in any office under the state.

Under clause 4 the government has power to make laws related to employment or appointment in office under the state.

After the Mandal Commission report 1979, the report recommended 27% reservation for other backward classes (OBC) which was challenged in Indra Sawhney v. Union of India The 9 judges bench of SC by 6:3 majority held the reservation of OBC to be valid. With some restrictions like 50% ceiling, creamy layer, no reservation in promotion.

To erase the effect of Indra Sawhney, parliament added 77th AA, 1995. Provided reservation in promotion and consequential seniority. Inserted Clause 4A in Article 16.

Ofcourse with the provision of 50% ceiling. Hence, came the 81st AA, 2000 added clause 4B to end the 50% ceiling on reservation.

Abolition of Untouchability (Article 17)

Abolish Untouchability and forbid its practice. Laws were made in case somebody violates Article 17. The protection of Civil Rights Act, 1956.

Abolition of titles (Article 18)

Article 18 prohibits the state to confer any titles on any body whether a citizen or a non-citizen. Except military and academic titles.

Conclusion

The right to equality is a basic right. Every person should have it. The right to be treated equally should be common sense and not a privilege. However, as human beings we have failed to show other people compassion and sense of belonging. Hence, government intervention in these topics is a reasonable approach.

The Constitution made it very clear that they take the right to equality very seriously. Giving the unprivileged population a kickstart towards a better future is not wrong.

However, we still see such inhumane activities in our societies which tell us that reservation was not the only way. We still have to achieve this intellect to actually not treat fellow humans less than us. On grassroot level things haven’t changed much which shows the failure of authorities on how they were unable to end such evil norms.

The government and authorities are trying with the help of the judiciary to protect the rights of people. But as a society we should also condemn such people who still believe in the caste system. Honour killings should be facing social boycott. Instead of shaming the family for inter caste marriage, it should be celebrated and see it as any of the normal marriages. Also children should not be taught to discriminate and practice untouchability. Then maybe one day we will see the change we hope for.