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LEGAL AND SOCIAL EQUALITY IN INDIA
Sreenivasarao
Vepachedu, March 1995
(A paper submitted to Howard University
School of Law)
Contents
INTRODUCTION
ANCIENT INDIA
REFORMATION
WOMEN AND RELIGION
THE DOWN TRODDEN
COCLUSION
REFERENCES
INTRODUCTION
Modern democracies such as the Indian Union and the United States of America* provide
citizens with greater social and political rights, a higher standard of living,
more leisure and better educational opportunities1. The extension of
these benefits to more and more citizens during the past hundred years or so
has been described as the process of the growth of the citizen or basic human
equality- the fundamental rights due to individuals by virtue of their
membership in a State. With the increasing democratization of governments, the
fundamental problem has been to pull down the barriers of segregation and to
offer equal opportunities to all. The aim of democracy has everywhere been to
eliminate "man made, socially fostered, discrimination that has enlarged
for some and has restricted for others avenues that lead to education, income
and advancement2." However, this doesn’t mean a
refusal to recognize the natural differences in character and intellect. Owing
to the differences in gifts which nature has bestowed on some and denied to
others, natural inequality has been and will continue to be a fact in society.
Democracy however believes that in a climate of equal opportunities and
privileges alone the differences in mental and moral equipment of man can best
come out. The chief problems, which every government has to solve, are to
reconcile this natural inequality as a fact with the principle of Natural
Equality Doctrine3. The author attempts to discuss this
reconciliation process in
So far as the Ancient Indian
Culture and Civilization is concerned; the Vedas and Smritis
speak highly of equality and brotherhood-'Vasudhaika Kutumbakam (One World One Family)'. "The entire world
is a family" was the motto of Vedic civilization4. All had
equal opportunity in all walks of life in ancient
In the Bhagavadgita (the divine song), Lord
The so-called casteism or the tribalism is based on
the tribal and religious differences. Naturally, certain groups have
monopolized certain trades. The tribalism segregated the society into ghettos
of isolation and exclusiveness, sealing the society into insulated social
divisions. This has been the case in every nation and society.
Added to this were gifts from a millennium of Islamic rule and occupation, such
as the Purdah system among women and the child
marriages. Then British rulers created a class of loyalists with an emphasis on
communal and feudalistic basis and awarded them with titles, patronage and
privileges. This created further discriminatory dimensions in the Indian
society.
REFORMATION
Since ancient times, there have been efforts by enlightened Indians to bring
about equality through social and religious reforms, e.g., Lord Budha (5th century BC), Mahavir
(5th century BC), Ashoka (2nd century BC), Shankara (7th century AD) etc. In the beginning of
the nineteenth century a new process of social reforms started which received an
impetus at the time of independence movement in 20th century. A pioneer among
these reformers was Raja Ramamohan Roy. He
compiled and edited the Hindu personal law of marriage, inheritance, religious
worship, woman's status, woman's property and caste system, by introducing the
most liberal principles of justice and equality. He worked out a synthesis of
eastern and western social values and postulates against the common background
of humanity6. He also started a movement for the emancipation
of the oppressed classes and urged a return to the original Vedantas and for a total
rejection of all the religious and social impurities that had crept into the Indian
society7.
Swami Vivekananda strongly condemned the social evil of segregation as a
non-Hindu attitude. He said, "It is not in the holy books," and
" don't-touchism is a mental disease"8.
Mahadev Govind Ranade regarded social advancement as the necessary prelude
to political emancipation. Under the moral law, all men and women are equal and
it is the supreme duty of man to love man and God with devout sincerity and
reverent faith9.
Mahatma Gandhi fought against the social evils of racism, imperialism,
communalism and segregation (so-called untouchability).
He was very much against social injustices, tyrannies and oppressions.
According to Mahatma, 'segregation was not a vital art of Hinduism, but was
only an excrescence and a plague10. The list of reformers goes on
and on. It is impossible to describe all reformers of even the modern age
in this essay because of time and space limitations.
All socio-political changes in any society result from the thoughts of eminent
thinkers. These thoughts influence not only a particular society or country to
which a thinker belongs to, but many other parts of the world also. Such has
been the case with the ideas and means suggested for attaining the social
equality conceived by western thinkers, as well as their Indian counterparts.
With the movement of time the notion of equality which was confined merely to
social and political thinking became a matter of legal consideration.
As such the awakening in the 19th and 20th centuries is affected by
consideration of equality which has been incorporated in the Indian
Constitution as well. Thus equality has a history of its own in becoming a
legal doctrine.
Discrimination against women in
In
The constitution of
The opposition to reforms is based on the constitutional right to freedom of
conscience, a Fundamental Right by articles 25-28, which claimed to include
right to be governed by religious personal laws. The constitution does not
resolve the question that if the secular state can interfere in these religious
personal laws. Strangely, though there was opposition from Hindu community, the
same State has interfered and reformed the Hindu personal law extensively to
the extent that it no more resembles any of the zillion Hindu laws for zillion
Hindu religions and castes that existed before Muslims and the British came to
The situation in the
The
The present ruling party (Congress Party) has a track record of pampering
various minority groups and using 'divide and rule' policy, adopted from
British for its political gains. Yet at the same time Congress I successfully claims to be secular. The secular credentials in
In
I am pretty sure that even if the BJP came to power by chance, it would never
implement its pet project, the UCC, for the fear of losing its Muslim and
leftist allies and, thereby, the power. The BJP probably would play the same
minority card as Congress does today since Hindu groups are mostly leftist or
communist. As a result, the Muslim population has no reason to reform
since nobody dares to force reform contrary to as in the case of reform minded
Hindu groups dominated by leftist ideology. The Muslim leadership is quite
happy with the status quo.
While the law may not be very useful in directly changing the peoples'
convictions and values, it can function as a persuasive norm. In other
words, rather than prohibiting certain behavior in absolute terms, law may
permit certain behavior, by providing facilities for a pattern of behavior
different from the practices followed until then. The
availability of a possibility, which was previously not available, unthinkable
or not thought about, transforms the psychology of the subjects, as well as the
legal possibilities and their expectations and tolerances11.
Thus one measure of effectiveness of a law can be a gradual change in social
attitudes, may be a partial change in the actual behavior of some- perhaps the
elite of the society- who can in turn serve as role models to be emulated. Such
transformation in the behavior of people, if widely achieved, can in turn lead
to a structural transformation of institutions as well. For example, Hindu
marriage has been transformed in the perception of people, from a polygamous
union to a monogamous union in less than 40 years. Although, Lord Rama
emphasized on "one wife for life" principle, which is different from
Judeo-Christian monogamy which prescribes "one wife at a time"
and allows divorce and remarriage; polygamy and polyandry were also acceptable
to Indians. The Hindu Marriage Act, 1956 prohibited polygamy. But, the
only person entitled to bring charges against a person guilty of polygamy is
the affected spouse. It does not need to be mentioned that most Indian
women are not in a position to bring a legal action against their husbands.
Yet, throughout
In
But this situation cannot be used to argue that the legal rights are not useful
because very few Indians can enforce them. This argument is not a valid reason
for not reforming the laws. Thanks to the enlightened elite, leftist or
otherwise, the process of reforms that started long before independence still
continues. At present the situation for Hindu woman in
The legislation that purports to give individuals personal rights in many
matters such as birth control, abortion, marriage or divorce has the potential
for yielding more immediate results than the laws that attempt to remove sex
discrimination or any discrimination from the overall system. This is because
individuals can start the implementation of laws concerning personal matters on
their own initiative while laws against discrimination in employment, for
example, require institutional enforcement. Even though laws cannot eradicate
all the causes of discrimination, they can eliminate its permissive causes -
the situation that persists when there is nothing to stop such discrimination.
The movement of middle and upper class women from the home into the labor force
began with the safe female -typed jobs such as nursing and teaching and for a
few of the more highly skilled women the professions of medicine and law.
Although women had been entering these occupations for some time in
It is very tempting to cite the examples of Prime Minister of
I cannot visualize this happen in the
Though I don't mean to belittle the achievement of Indian women, I wonder if it
is a real achievement. Indian women were lucky that Mr. Nehru
didn’t have sons. Nevertheless, this luck of Indira
(Nehru) Gandhi that she was the only heir to Nehru's throne has paved the way
for masses to follow and hence the liberation of women and the down trodden. I
wonder if a woman ever can become a president of the
The so-called
“Downtrodden” group in
The term Scheduled Castes as defined in article 366 (24) of the Constitution
means "such castes, races or tribes or parts of or groups within such
castes, races or tribes as are deemed under article 341 of to be scheduled
castes for the purpose of this Constitution." In accordance with the
provisions of the Constitution, scheduled castes order was promulgated in
August 1950, and was amended in 1956. The second category of the downtrodden is
the scheduled tribes. The term Scheduled Tribes is defined under article
366(25) as "Scheduled Tribes means such tribes or tribal communities as
are deemed under article 342 to be scheduled Tribes for the purpose of this
Constitution".
One of the crucial problems faced by all tribal communities in
The term “backward classes” appears in articles 15(4), 16(4), and
29(2) of the Indian Constitution. The other backward classes are the least
homogenous and the most loosely defined of the 3 divisions. Their problems are
also in many ways different from those of the first two. Because of this loose
definition we find the number castes included into this group grows at the will
of politicians and at the public demand.
Like the affirmative action in the
To begin with, these reservations/quotas are baseless and are purely for
political gains. In addition, the benefits provided to these downtrodden
classes exceed the ratio and any reasonable limits. For instance, reservations
for these classes in various educational institutions and in government jobs
exceed beyond 70% of the total, which is outrageous. In 1963, the Supreme Court
enunciated a rough and ready dictum when it observed: “Speaking generally
and in a broad way a special provision should be less than 50%, but how much
less than 50% would depend upon the prevailing circumstances in each case.”
However, in 1986 the Chief Minister of Andhra Pradesh increased the quotas in
various institutions well beyond 70% in total.
The backward class commission had suggested in 1956 an increase in reservations
up to 70% for such classes. But this would result in neglecting the interest of
the rest of the society. Would such percentage of reservation in favor of these
so-called downtrodden classes be justified? The population of these groups
together composed a little more than 30% of the total population of the
country. The reservations suggested by the commission would not maintain the
balance. But, after 40 years, in which period the country had made tremendous
progress in aspects including the social status and economic status of the down
trodden, the then Prime Minister Mr. V. P. Singh (in 1990-91), claiming to be the
champion of the oppressed and downtrodden, brought the backward commission
report from cold storage and implemented its recommendations. This was done for
pure political gains, which resulted in large-scale agitations and deaths of
hundreds of innocent young students and a fresh lease of life and boost to the
existing divisions in the society. All of a sudden everybody became more aware
of his own caste and religion than ever before.
In
Education also plays an important role.
Hopefully with the open market and economic reforms, things might change for the better. If the mass media became free from the government control and leftist so-called secularism of peculiar Indian variety, people might see the reality and understand.
CONCLUSION
The progress made in the decades for the upliftment
of the downtrodden and women, socially, economically and educationally is
impressive. But it has not yet reached the level of satisfaction. New laws are
to be promulgated taking into account the progress, the pitfalls and failures. The
legislature and judiciary should work in cooperation for the benefit of the
entire population rather than for a particular group. Hopefully, the changes
that are being brought since the beginning of this decade will continue and
will give an impetus to the efforts towards social justice and equal
opportunities for all and the realization of the Vedic goal of vasudhaiva kutumbakam
(One World One Family).
REFERENCES
1. Thompson, Dennis F: John Stuart Mill and Representative Government,
(Princeton, NJ, 1976), P. 164.
2. Lipson, Leslie: The Great Issues of Politics, (
3. Bryce, James: Modern Democracies, Vol. I, The World
Press Pvt. Ltd.,
4. Yajur Veda - XXXVI-2.
5. Prtabhavananda, Swami and Isherwood, Christopher,
' The Song of God: Bhagavadgita,
p. 51.
6. Seal, Brajendranath, 'Rammohan
Roy: The Universal Man', Raja Rammohan Roy Century
Volume, part II, Sadharan Brahmo
Samaj,
7.
8. Vivekananda, Swami:
9. Roy, M. N. and Mukherji, A;
10. Gandhi, M. K.: the Voice of Truth, Vol VI (1968).
Gandhi, M. K., The Removal of Untouchability,
(1954) P. 20.
11. Allot, A. N. (1980) The Limits of Law,
12. Archana Parashar,
'Women and Family Law Reform in
13. Ross, AD, Family and Social Change in Modern
14. Sen, S, 1972, Participation in National
Politics', Social Change 2 (March) 23-32
15. In
See When separate became unequal, Chicago Tribune, Published May 8, 2004
available at: http://www.chicagotribune.com/news/opinion/chi-0405080074may08,1,7474377.story
Fifty years later, the Supreme Court's landmark
decision in the Topeka, Kan., case of Brown vs. Board of Education offers a
striking example of the power of the law--but also its limitations--in
provoking social change.
The Supreme Court ruled unanimously on May 17, 1954, that racially segregated
schools were unconstitutional. Until then, "separate-but-equal"
facilities for children of different races had been allowed under an 1896
decision, Plessy vs.
Yet the court neglected to include in Brown a mechanism for its enforcement.
Many states, especially in the South, reacted with foot-dragging and fierce
resistance. A year later almost no schools were desegregated and the court took
up the case again, issuing a new order for Brown to be enforced "with all
deliberate speed." That tentative expression was taken by segregationists
to mean "never." Southern mayors, sheriffs and governors stood pat.
Prince Edward County, Va., went so far as to close its public schools in 1959
and raise money for a private whites-only academy until the federal government
forced its public schools to reopen almost five years later. By the time the
1964 Civil Rights Act was passed, 10 years after Brown, fewer than 2 percent of
segregated schools had been desegregated.
By the 1980s, legal action ran up against new socioeconomic realities.
Desegregation efforts peaked as courts increasingly decided that the goals of
Brown had largely been achieved. Segregation persisted, but white flight had
left too few white students to spread around the urban public school systems
and too few blacks and Latinos in suburban systems. Black and Latino families
also began to show less support for integration than for quality education,
even if it came without contact with children from other races.
Today, desegregation often has given way to resegregation.
Most white students across the country still have little contact with black or
Hispanic students--and vice versa. Schools in
No one mandates today's resegregation through
"Jim Crow" laws or "whites only" signs. The new resegregation results from differences in income more than
skin color. Brown helped launch a new era of civil rights demonstrations,
confrontations, legislation and reforms that opened doors to new black
opportunities. Parents who can afford to move to districts with better schools
do so. But too many non-white students are relegated to substandard schools and
resources.
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In
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To learn more about the untouchability in America
visit: Still
Separate, Unequal , also available here;
Still
Seeking Unity, also available here; Recalls
Segregation, also available here; Back
Then and Now, also available here;
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