Book Extract: The making of an egalitarian state

Title Who Is Equal: The Equality Code of the Constitution / Author Saurabh Kirpal / Publisher Penguin Random House India / Pages 304 / Price Rs 699 (hardcover)

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The discussion about equality in the areas of education, employment, business and elections is largely about the actions of the state when it acts as a public entity. However, some of the greatest inequalities are to be found not in public but in private spaces. In particular, sex, gender and sexuality are some of the areas where inequalities within families manifest themselves. This is partly because women and sexual minorities have to face the patriarchal power structure. The law too, reinforces these structures by institutionalising discrimination in religious personal laws.

Inequality manifests itself not only in the black letter of the law, but also how the law is applied within the power structures in a marriage. These imbalances cause some feminists to question the very worth of the institution of marriage. That, of course, leads one to ask: if marriage is inherently problematic, why do so many people want to marry? In particular, why do non-heterosexual persons seek to get married under an institution that is patriarchal?

The answer to this question […] lies partly in the legal benefits that the institution of marriage endows upon a couple, and partly the legitimacy that State recognition bestows on a non-heterosexual marriage. [In this regard], the courts have been reluctant to intervene in the ideal of equality. While different reasons are given for this reticence, patriarchy is at least part of the reason for the decisions made in the context of the family.

Having examined various substantive questions in relation to equality, the [book] speculate[s], to an extent, on the unique challenges that lie ahead. In the case of employment, the focus in the coming years may shift to reservations in the private sector.

In education, the question of reservations on grounds other than caste will also arise. In particular, the question of reservations based on religion will also arise. In the field of family law, the Uniform Civil Code is being touted as a means to ensure gender equality. [Is there] a legal and political basis for such a claim, or [is] incremental reform in personal laws a better idea.

Finally, the [book] examines the consequences of not having a general anti-discrimination law in the country and, therefore, its impact on fair play in the everyday lives of citizens.

Equality: The courts, parliament and the people

We live in deeply polarised times. In the multiple conflicts that surround us, there is also a struggle for control over that most sacred of texts—the Constitution. Parliament claims for itself the power to amend the Constitution, arguing that it represents the will of the people.

The judiciary, on the other hand, has asserted its prerogative as the ultimate interpreter and protector of Constitutional values and ideals. This debate is most trenchant when the discussion moves to the ‘basic structure’ of the Indian Constitution. At its heart, the basic structure of the Constitution comprises those rights and features which makes the Constitution recognisable.

The proponents of the doctrine argue that amending something which is the very essence of the document would no longer be an amendment but would repeal it. For instance, one could amend the Constitution to provide for hereditary, dynastic rule. The Constitution would technically still exist but would not be recognisable in any form. This, the courts have held, is not permissible.

Relying on the basic structure doctrine, the courts have held that the power to amend the Constitution is limited and reserved for themselves the authority, to determine how much of the Constitution can be amended. On the other hand, the government has accused the courts of disturbing the delicate balance of power enshrined in the Constitution by using this doctrine to strike down Constitutional amendments passed by Parliament, charging them with usurping the domain of the legislature.

What forms part of the Constitution’s basic structure is a deeply contested issue. While the courts, over the years, have held different facets of the Constitution to be integral to it, they have decisively also held that certain fundamental rights guaranteed to citizens form part of this basic structure. These are the rights to equality, freedom and life. Together, these three rights have been held to constitute the ‘golden triangle’ of fundamental rights.

Chief Justice Y.V. Chandrachud wrote in 1980: 'Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31-C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.'

The words of the judgment exhort us to remember that in any tussle between the executive and the legislature, it is the individual who is at the heart of the Constitution. The ‘egalitarian era’ cannot be achieved by trampling upon rights in the name of equality. Instead, it is only through safeguarding her right to equality that a citizen’s dignity can be assured. The Constitution provides an elaborate structure which seeks to promote a robust form of equality, both in terms of the substantive rights as well as institutional mechanisms to operationalise the rights.

However, no Constitution, no matter how well and laboriously drafted, will ensure fairness and equity. Dr B.R. Ambedkar, in his last speech to the Constituent Assembly, said, ‘However good a Constitution may be, it is sure to turn out bad [if] those who are called to work it happen to be a bad lot.

However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.’

The Constitution ultimately belongs to the people of India and its efficacy depends on how we act upon its principles. It is only when we, a collective of citizens, conform to Constitutional values and follow the spirit, as well as the text of that document, that the promises made in the preamble can be accomplished. There is, therefore, a great responsibility on us to pursue constitutional values—after all the price of liberty is eternal vigilance.

To be vigilant pre-supposes a need to be aware, and that is what this book seeks to achieve. The exact contours of how the equality code has been interpreted over the years is something only lawyers and Constitutional experts are aware of. This book aims to be a bridge between the abstractions of the law and the realities of lived experiences with the fond hope that an educated electorate would also be a wise one.