Two judges of the Supreme Court — Justices Arun Mishra and UU Lalit — said last week that laws in India ‘should be uniform and cannot be for general category or SC/ST category’. The judges made this observation while reserving their judgment on the Narendra Modi government’s petition for a review of the Supreme Court’s March 2018 order diluting stringent provisions of arrest under the SC/ST Act. Several states witnessed violent protests followed by a Bharat Bandh against the court’s order last year, forcing the Modi government to introduce an amendment bill, which Parliament passed in August, nullifying the court ruling.
Even though the Modi government has already corrected the dilution by taking the parliamentary route, the review petition of the Supreme Court’s March order was still pending. The judges’ statement pertains to a hearing of this review petition.
This isn’t the first time when we are hearing a debate like this, and it isn’t just confined to the legal arena. The public too often delves into the argument about having ‘equal laws’ for everyone. They say when people are ‘equal’ in the eyes of the law, then why should there be separate laws for separate communities. People use this logic to oppose special rights to minorities, women, children, differently-abled and SC/ST in this case.
The judges’ observation would reinforce the beliefs held by common people, which might have larger implications on the Indian democracy in general and the legislative power of the legislature in particular. Therefore, it is time to theoretically examine the broader meaning of the judges’ statement and point out serious limitations of it. With the help of principles of rights and democracy, this article tries to highlight at least three fallacies in the judges’ statement, which would redefine our understanding of rights in general and fundamental rights in particular.
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First and foremost, the fallacy of treating SC/ST as separate from the General category. But the fact is that the former is merely a subset of the latter. And so, laws under IPC and others that apply to members of the General category are the same as and applicable on those belonging to the SC/ST groups. But it’s not the other way around.
Second, the judges’ observation seems to be a product of conservative reading of the doctrine of rights in general, and the fundamental rights in particular. Fundamental rights, which are incorporated in Part III of the Constitution of India comprises three sets of rights – natural rights, human rights and state’s rights. The state’s right can be found in Article 22, which incorporates provision of preventive detention. Human rights are broader category of which natural rights are also a part.
Mainly, natural rights connote the meaning of equality or universality of law. British philosopher John Locke, who is considered the main proponent of natural rights, identifies life, liberty and person property as natural rights. The basic assumption is that these rights are derived from the law of nature. Since natural laws are applicable beyond time and space, rights derived from such laws would also be universal. In the Lokean schema of rights, only life, liberty and personal property are considered as natural rights. The second fallacy in the judges’ statement arises when they define universal (fundamental rights) with the help of particular (natural rights).
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The doctrine of natural rights has one major lacuna – since their evolution, natural rights have put emphasis on individuals rather than the groups. Due to mounting challenge from the first generation of feminist movement, the doctrine of natural rights was modified to incorporate special rights for women. In the 20th century, the idea of groups rights — comprising socio-economic and cultural rights — began to emerge. Later, with individual (natural) rights and group rights emerged the idea of human rights. And so, the rights whose existence owe to the socio-economic and cultural struggles cannot be used to define natural rights. This is the third fallacy in the judges’ observation.
To consider individual rights as above the rights of the group goes against the beliefs held by the founders of Indian Constitution because they had incorporated the group’s rights under the fundamental rights to guarantee safety to the group. If the founders of the Constitution had considered individual rights as paramount and rejected the rights of the group, then the Constitution would not have had special rights or protective measures for women, children, Scheduled Castes, Scheduled Tribes, socially and educationally backward classes, labourers, linguistic and religious minorities.
While making the said observation, the bench of Justice Arun Mishra and Justice UU Lalit seems to have overemphasised on the Article-14, which says that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. This article is believed to have equality principle. But the real question is: how should equality be defined?
In the long literature on political philosophy, it is an established fact that equality neither means identical nor sameness. It also does not mean universal. The meaning of equality comes from two school of thoughts- Kantian categorical imperative and feminist’s difference principle. The Kantian categorical imperative advocates that every human being is born with unique intrinsic value, so each intrinsic value so be protected. The intrinsic value can be protected by treating each human being in end in itself. Treating end in itself means not treating instrumentally. So Kantian equality principle would be treating every human being in end itself.
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The best definition of equality comes from feminist school of thought which suggests that equality means treating people with differently. So, any law which claims to be treating people equally must treat people differently. Difference means bodily differences based on physical characteristics such as age, sex and disability. On the basis of ‘difference principle’ the world has seen emergence of different sets of rights for women, children, and minorities. The ‘difference principle’, which is the founding concept in the feminist philosophy, rejects the idea of universality of law because then the laws embedded with the patriarchal values would get imposed on the women. Even the Indian Constitution has recognised the ‘difference principle’ to highlight the biological, sociological and economic difference between the citizens.
Therefore, if the Supreme Court puts over emphasis on universality of law, meaning it unilaterally advocates for making every individual ‘equal’, then it would greatly impact the rights not only of the SCs and STs but also of women, differently abled, OBCs, religious and linguistic minorities.
At a time when the world is moving ahead with legislative protections for women, African-Americans, minorities and other oppressed groups, would the Supreme Court of India raise questions and doubts on the special rights accorded to the country’s deprived groups. If this happens, then it would be a big step in the opposite, adverse direction. One hopes that the Supreme Court will view equality in the way the Constitution makers and great philosophers of the world have taught.
The author is currently doing his PhD on Rising Inequality and Its Implications on Political Behaviour of People in India at the Department of Politics and International Relations, Royal Holloway, University of London. Views are personal.
This article has been translated from Hindi. The original can be read here.
Affirmative action exists in jobs, college admissions and other government subsidies in USA,Canada and Australia for Native Americans, Aboriginals and people of African descent. Indians in these countries take full advantage of this affirmative action, including the ones graduating from Ivy League Universities like Harvard, Yale, Columbia, etc.
However, the same people oppose affirmative action in their own country. Talk about hypocrisy and double standards. Both judges mentioned in this article are upper caste wealthy individuals. Where are the inputs from SC/ST/OBC jurists? Are there any at all in the Indian judiciary?
Equality can never be achieved by treating people differently. This is equally true for caste based laws as well as women centric laws. The repeated argument that these benefits to certain classes are enshrined in the constitution is nothing but an attempt to ensure it’s continuation in perpetuity. Far from being a social stigma, caste is now looked upon as a trump card for benefits from the government and vote banks for the politicians. This is amply evidenced by more and more castes claiming ‘backward’ ‘status’. If a caste being classified as ‘backward’ is such a stigma can someone please explain why so many people are fighting for their communities to be classified as’backward’? The Marathas, Jats, the Patels? There is only one genuine backwardness which is poverty and that can affect anyone irrespective of their caste or gender. Poverty is also something which people can overcome with education and hard work. Education for all must be provided by the government and hard work is a individual persons ability and choice. The way to eradicate casteism is to stop making caste a decision point for everything from education to jobs.
“So, any law which claims to be treating people equally must treat people differently.”
The above sentence demonstrates the writer’s erudition (After all he is a PhD scholar in UK! Not a plebian in India). The force of his erudition is to argue the absurd against common sense. The most militant of feminists do not want perpetual preferential treatment. But all Bahujan leaders want rights in perpetuity. If they were modest at the time of writing the constitution and got 22.5%, they are already the largest voting block. So what else do they need? Methinks they cry too much.
Governments are swayed by political / electoral compulsions. The Constitution can be amended in 48 hours to provide reservation to poor upper caste individuals. In the present case, the apex court had injected a note of reasonableness to drastic provisions in the SC / ST Act regarding automatic arrest and denial of bail. How this Act works on the ground, MLA Sengar from Uttar Pradesh provides a better example. In the calm, judicious rooms of the apex court, it is expected that basic questions of equity and fairness will be raised, as the two learned judges have done in this instance.
The paragraph that talks about constitution keeping group’s rights over individual’s rights is problematic. The Constitution makers don’t do that. It’s not about hierarchy. If it were about hierarchy, Art.44 of UCC wouldn’t have been incorporated. And i think the smallest group/minority is always an individual. Every individual is an end in itself.