The statue of B R Ambedkar, holding a copy of the Indian Constitution in one hand, while the other hand is outstretched, its index finger pointing straight ahead, is perhaps the most ubiquitous piece of Dalit iconography. It can be read as Ambedkar teaching the lessons of democracy, fraternity and equality — all principles of the Constitution he holds under his arm. Just as this Dalit exemplar, the principal drafter of the Indian Constitution, dots the landscape of this country, the Constitution itself continues to serve historically marginalised groups, safeguarding their rights and according them opportunities.
From Nehru to Modi, the Constitution continues to evolve. For both the marginalised and women, it serves as an instrument which protects them — even from the vagaries of the legislature — when needed. In the popular Dalit imagination, the Constitution has served in stark contravention of the laws of caste hierarchy, which restricted their movements, governed social relations and even laid down prohibitions regarding food, thus making social, political and economic justice impossible. The Constitution was the first refuge in independent India against the disabilities and indignities forced unto a Dalit’s personhood. The Constitution provided a legal assurance of equality: Not only is the practice of untouchability banned (Article 17) and equality guaranteed (Article 14), but the generational inequalities resulting from the complex and regressive caste system are acknowledged and addressed via the constitutional promise of affirmative action (Article 16(4)).
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The constitutional vision whereby difference is justified only when it brings the greatest benefit to the least advantaged, thereby entailing special provisions for the marginalised, arguably stems from the fact that Ambedkar was its principal architect. Ambedkar, in his “States and Minorities” memorandum in 1947, argued that separation in religion wasn’t the only test of a minority; rather, social discrimination was the real test for determining the minority status of a social group. Therefore, constitutional provisions as legal safeguards constitute the principal instruments of state action for the welfare of Dalits and women. While Articles 15(1) and (2) bar the state from making any laws discriminating on the basis of caste, gender and religion, Articles 15(3) and 15(4) are exceptions to these on the grounds that they would have come in the way of making favourable laws for the marginalised, women and Dalits. The Constitution’s most significant emancipatory potential can be seen in the fact that Fundamental Rights were made enforceable in the high courts and the Supreme Court. The Constitution seeks to provide social and economic justice rather than just political justice, for Ambedkar understood that the latter rang hollow without the former.
Social justice in India has been built into the design of the Constitution, providing Dalits with a legal imagination of substantive socio-economic equality. The responsibility of interpreting, and thereby upholding, the letter of the Constitution is one of the most critical functions of the Supreme Court, and these powers flow from the Constitution itself. In the past 75 years, we have reached where we are mostly through the hard work and toil of each and every citizen, and due to the safeguards provided by the Constitution.
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The journey from equal opportunity to equality of opportunity has not been an easy one and took several decades of judicial exercise. It started with State of Madras v Champakam Dorai Rajan wherein classification made on the basis of caste was disallowed as being violative of Fundamental Rights under Art. 29(2). The mistakes of this judgment were undone with Parliament passing the first-ever amendment to the Constitution in the form of Article 15(4), paving the way for reasonable classification when read with Article 16(4) whilst forbidding class legislation which is discriminatory and a clear violation of the Constitution as given in Articles 15(1) and 16(1). In 1964, the minority opinion by J Subba Rao in his seminal dissent in T Devadasan vs The Union Of India, laid down the principle that substantive equality and social justice are essential aspects of the Constitution. Finally, substantiating it in the landmark Indra Sawhney v Union of India judgment in 1992, also known as the Mandal Commission case, wherein the Supreme Court finally held that reservation is not an exception to Article 16(1) but rather an instance of classification implicit and permitted by the said article and classification of backwardness can be done even without the presence of Article 16(4).
The process of holistic affirmative action has come full circle with the acknowledgement of economic backwardness as part of the spectrum of marginality. However, a serious re-look is required into the threshold of economic backwardness and bringing it in line with the social and economic ground reality of India and defining the vulnerability index.
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The essentiality of any law must pass constitutional muster. This has been a sacrosanct Lakshman Rekha that has upheld and protected the rights of women in Shah Bano, given breathing space to the LGBTQ+ community and upheld free speech and religious freedom. The Constitution is entrusted not just to the conscience of the country but also to the consciousness of its people. The Supreme Court’s judgment on Ram Janmabhoomi was not just legally sound but also had at its heart the spirit of religious pluralism. The Constitution is not just emblematic of the collective conscience of our country but is also the conscience keeper. It is entrusted with sustaining, maintaining and attaining the social, religious and economic harmony of the nation.
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Indian constitutionalism evolved into an inclusive ideology through the intellectual interaction of active ideas during the multiple phases of India’s struggle for freedom. Despite differences on certain principles, there was a consensus on certain ideas like inclusiveness, pluralism, social justice, and the annihilation of discriminatory policies and practices.
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The writer is assistant professor, Maitreyi College and founder of DAPSA (Dalit Adivasi Professors and Scholars Association)