INTRODUCTION:

Equality as a concept posits itself in contradistinction to inequality. Inequality, on the other hand could be either natural or man-made. We are mostly concerned regarding man-made or man-reinforced inequality when we talk about equality. Inequality generally involves uneven distribution of political (power), economic (wealth) and social (status/prestige) resources and basically involves feelings of injustice and deprivation in

the society. Needless to say, inequality is displayed when transactions/interactions occur between members of different social groups. It becomes a rallying point for members of a particular social group (intra-group) and at the same time becomes the gateway to inter-group alignments and conflict. This is more so in country like India where the social structures is made up fissiparating groups and sub-groups of castes and sub-castes who are, despite all claims of a democratic society, act as little republics when it comes to the question of interaction. To put it straight, they are closed social groups when it comes to the question of close interaction involving marriage, commensality etc.¹

At the receiving end of this unequal mode of multidimensional transactions are thus the so called scheduled castes, scheduled tribes, backward castes and the religious minorities. Heuristically, women form another collectivity which face the brunt of what we call multi-polar inequality operating at different levels of the private (i.e. home/domestic) and public sphere ( i.e. the larger all-engulfing and all encroaching society outside). Our main objective in this paper is to go into the details of different rational legal safeguards available to the marginalized groups particularly through our codified constitution and the different issues surrounding it.

The rule of law has established a rational-legal authority at the helm of affairs the source of whose legitimacy lies with the trust of the citizens displayed by the exercise of adult franchisee with equal voting rights. The governance of the nation has to be guided by the written constitution which the people of India have given to themselves through deliberations in the constituent assembly. It is thus essential to go through different provisions of the Indian constitution and see the kinds of assurance given by the Indian constitution to different social groups particularly when it comes to the question of equality.

Constitutional safeguards towards Equality:

Article 14 of the Indian Constitution guarantees both equality before the law and equal protection of the laws². Thus, the government shall not give any special privilege to anybody just because of birth, creed or any other ascriptive criteria. Again, the state has to treat those persons equally who are placed under equal circumstances. Conversely, the government, in the fulfillment of its duty towards equitable distribution of resources among citizens can go for affirmative action so as to bring the lesser privileged at par with the already privileged. Article 15 on the other hand is prohibits the state from discriminating any citizen just because he/she belongs to a particular caste, creed, gender, race, religion or because of birth at a particular place³. Article 16 talks regarding equality of opportunity in matters of public employment⁴. However, this does not preclude the government from providing reservation to the disadvantaged groups like scheduled castes, scheduled tribes, other backward castes, disabled and the transgenders.⁵ Article 17 is the most important of all the articles of the Indian constitution since it professes to reverse the biggest crime against humanity which is none other than untouchability⁶.

Articles 25 to 28 of the Indian constitution on the other hand is an endeavour to assure a sense of neutrality to people of all religions. They are meant to ensure that everyone is given a free hand to practise and propagate a religion of one’s own choice⁷. Article 29 on the other hand requires the state not to impose on any community a culture other than its own⁸. More than anything else, the religious and linguistic minorities have been given the rights through article 30 to establish and administer educational institutions of their own choice. On the top of it, the state is prevented from not granting aid to such institution only on the grounds that it is under the management of a minority community.

The Every Day World versus the Sacrosanct Constitution

While the constitution spells out the binding norms for the Indian state and society in their journey towards an egalitarian society, the state-society interaction in this matter is not like a unilinear straight line. It is rather too topsy-turvy for a common man. While the constitution enjoins upon the Indian state to strive for an egalitarian society with equitable distribution of resources, the change from a hierarchical society to that of a egalitarian society is anything but smooth. It has raised doubts regarding the change-managemnt measures adopted by the Indian society.

While article 19 offers the freedom to assemble peacefully and without arms, and to move freely throughout the territory of India, we still come across caste atrocities and tortures against members of the disadvantaged sections. While such events occur on a daily basis either in this or that part of the country, we look into certain cases which have come to public gaze in the recent past. Let us have a look into a news article in the the Times of India Web Edition of 17^th April 2018 that reads as follows:

“At least seventeen persons were booked on Monday for allegedly pelting stones at the marriage procession of a Dalit Youth, who was riding the horse against the dictats of the attackers, ……”⁹

The above narrative provides us a picture where there are not just two players but at least more than four players in this social transaction between different communities. On the one side of the conflict is the victim who is not simply an individual but member of an oppressed group posited against members of an entrenched group. While the role of the state in this case is to preserve the sanctity of the rule of law in accordance with the constitution, very often the apparatus of the state has to play a balancing act so as to avoid social unrest. For when there is a fight between the state and society and state during a process towards change, in most cases the state has to play both the role of a peacekeeper as well as an active combatant. As a combatant the state apparatus has to take the side of the law in order to protect the rights of the down trodden people as enshrined in the constitution. On the other hand the role of the peacekeeper requires the state apparatus to take a middle path so that every social group is made to understand that they are on the winning side. This becomes imperative for the state to maintain law and order. What is however lost in this balancing ball game is the deprived section’s journey towards equality and the state’s responsibility towards creation of a just society.

Woman is another disadvantaged group which has been a victim of patriarchal norms and suffer from inequality in almost all spheres of life. At the home sphere is the caregiver for everybody and is the last to take care of herself. Even when she is employed, she has to sacrifice on her professional front so that her domestic front of rearing the elders and younger generations does not suffer. What is however more disgraceful to the society is that in many circumstances the society, in the name of tradition and convention, makes a joke of the right to equality enshrined in the Indian constitution. A case in point, for instance, is the attempts by women of different religious communities to their respective shrines, namely Shani Shingnapur, Sabarimala and Haji Ali Shrines.

The Shani Singnapur Temple in Maharashtra is dedicated to Lord Shani and women were barred entry into it since a few centuries¹⁰. The sanctum sanctorum of the temple was purified when two women entered it. We already know how much struggle it took for Tripti Desai and other Civil Society members had to undergo for this entry. However, it was possible at last with the order of the Hon’ble Bombay High Court. The situation at Sabarimala was still worse as despite the favourable order of the Supreme Court, women in the age group of 10-50 are still unable to enter the sanctum sanctorum of the temple due to resistance by the section of the devotees who believe that it would violate tradition.

The issue of Triple Talaq is another domain where we see a see-saw battle where patriarchy, emboldened with the intricacies of societal norms makes an attempt to throttle egalitarianism contained in the Indian constitution. It is a norm which allows the Muslim man to divorce his wife by uttering the word talaq thrice in one go. While this is banned in many Muslim countries of the world, this is still prevalent in India. From a rational-legal viewpoint what is problematic is that the societal norm while empowering the man to divorce his wife instantly in one go, such a reciprocal facility is not available to the woman thereby making woman’s a pronounced subjugation to man. A woman can take divorce only after availing approval from the husband, or other religious authorities¹¹. Many people want that this be protected taking into consideration the rights of minorities under article 29 of the Indian constitution. What is however important in this case is whether we can take the shelter in one fundamental right (article 29 in this case) in the constitution in order to violate another fundamental right ( article 14 and 15 in this case) given in the same constitution. Here the question would arise which one is a bigger right for humanity. On the one hand, is the Cultural rights of a particular community and on the other is a still bigger question of woman’s rights as an equal partner. However, we still have problems in the societal acceptance of the verdict given by the apex court of the country nullifying the practice.

Thus we see a direct confrontation between the ethos of the state as enshrined in the constitution and social practices deeply ingrained in a male-hegemonic society.

Another arena of contestation between the egalitarian ideas of a progressive constitutional democracy and the well entrenched prejudice of “family honour” linked with Indian society. This is found mostly when it involves a girl gets married to someone outside her caste against the will of the guardians and the community. The problem is still bigger if the marriage is “Pratiloma” in nature, i.e. the girl is of a caste/sub-caste/community which is socially ranked higher than that of the boy. We have even seen cases of “honour killing” of the grooms and/or brides in many such cases.

What is important to remember is that the idea of woman as the “honour” of one’s family does not come as a good news for the girl child. It is basically an idea that dehumanizes, enslaves and subjugates woman to man. Even though, at the surface level the idea of “honour” associated with woman bestows higher respect for the feminine. At the same time however, it places “value” on the woman thereby making woman in the class of human beings in the class of “property” of the man/family/community. The fact that honour crimes are also committed by well read people tell us that it has nothing to do with awareness level of the people in question. Rather it is an evil which is deeply ingrained/entrenched in the collective psychology of men/women.

CONCLUDING REMARKS:

The human journey towards fetching equality and justice for every human being irrespective of caste, creed, colour, sex, religion or place of birth is a tumultuous one. It is more so in a country as diverse and pluralistic as India. In a pluralistic country what we call rights of one individual/group is basically a result of the duties of another group. India as an avowed democracy vouching for equality, fraternity, liberty and social justice cannot afford to allow untouchability, honour crime or violation of woman’s human rights in the guise of protection of cultural rights or the kind. What is however important is that the state apparatus has plan these social changes in an orchestrated, designed manner rather than leaving everything to the law enforcing agencies or the decisions of the court. A social change that clamours for achieving equality, justice and liberty becomes possible in totality only when most people accept and welcome the change. A law, howsoever, well-intended will fail during implementation if it is merely imposed from above by the state apparatus without involving contesting social-groups in the planning of its implementation. What the Indian state requires is thus not only a well intended set of rules or laws with coercive state machinery but it also requires meticulous planning by the state for management of social change. Then only can minimize conflict between egalitarian laws and the norms of different social groups of the country.

REFRENCES:

1. Ghurye G S.Caste and Race in India, Popular. 1970

2. Basu, D D. Introduction to the Constitution of India. LexisNexis.Gurgaon.2015.p.99.

3. Ibid. p.101.

4. Ibid

5. Ibid.

6. Ibid.108

7. Ibid. pp.130-131

8. Ibid.135

9. Salil Mekaad. Madhya Pradesh: Dallit groom Beaten, forced off horse during Marriage Procession.Times News Network. Apr. 17, 2018. Web link: https://timesofindia.indiatimes.com/ city/indore/madhya-pradesh-dalit-groom-beaten-forced-off-horse-during-marriage-procession/articleshow/63789554.cms

10. More, Manoj Dattatrye and Mishra, et al. Breaking 400-year-old tradition, women enter Shani Shingnapur inner sanctum. Indian Express.Pune. 9th Apr. 2016(Web edition link: https://indianexpress.com/article/india/india-news-india/shani-shingnapur-temple-trust-finally-accepts-hc-order-lets-women-in/

11. Schultz, Kai. India Criminalizes Instant ‘Talaq’ Divorces for Muslim Men. New York Times. 20th Sept. 2018.(web Edition link: https://www.nytimes.com/2018/09/20/world/asia/india-talaq-muslim-divorce-html

Received on 18.11.2018 Modified on 19.12.2018

Int. J. Rev. and Res. Social Sci. 2019; 7(1):161-164.

DOI: 10.5958/2454-2687.2019.00012.1