The Indian Constitution came into effect on 26 January 1950 and from that day we celebrate 26 January as our “Republic Day” it has been 72 years that we have our constitution and it took several years to make it. After thorough debate and having listened to every part of the society this thorough document was enacted. The constitution guarantees us certain rights that are known as the “Fundamental Rights” and one of them is the “Right to Equality” which is enshrined under Article 14 of the constitution which clearly states that the state shall not deny any person equality before the law or the equal protection of the laws within the territory of India. But is it the truth? Do people get equal protection before law? Even today, people get discriminated against either based on gender or caste, and these types of cases are still prevalent in our society.
- Why Equality?
Since ancient times there were many types of discrimination either based on gender or the basis of caste, as lower caste people were made to live in the outskirts of the cities and were not allowed to do any type of work other than working for upper caste people. People belonging to the lower castes (Dalits) were considered untouchables. Women were not allowed to study and read as they were considered to be the weaker section of the society, women were forced to marry at a very early age. Even when there was the colonial rule in India, there was discrimination based on color as they were whites and they considered Indians as a lower class. After getting independence, the right to equality was introduced.
- The Principle of Equality Before Law
The principle states that all are equal before the law and all have equal rights and protection. The fundamental rights that are borrowed from the US constitution, among them are the Right to Equality which is enshrined in the Indian constitution from articles 14 to 18. The fundamental rights are the part of the basic structure of the constitution which was held in the case of Kesavananda Bharati vs State Of Kerala And Anr, hence it can’t be amended by the legislature. The Right to equality says equality before the law and equal protection of rights(Article 14), prohibits any type of discrimination on grounds of religion, race, caste, sex, or place of birth(Article 15), abolishes untouchability (Article 17).
Analysis of the relevant laws
Several laws were made for the protection of women such as Section 375 of IPC which defines “rape” as “when a man commits sexual intercourse with a woman without her will”. Also, Section 354 of IPC talks about sexual assault on a woman. But the problem lies that these laws only talk about rape or sexual assault where the victim is only a woman, there are no laws that are made for men. There are cases of rape against men so it is crucial for the legislature to form laws regarding this. The same goes with Section 18(D) of The Transgender Persons (Protection of Rights) Act, 2019 which defines sexual, verbal, and emotional abuse but does not define rape as an act with a Transgender, so how does this show equality before the law? Provisions in Section 11 of “The Prohibition of Child Marriage Act, 2006” talk about the punishment for promoting child marriage but, if a man gets convicted he will get imprisonment and a fine but if a woman gets convicted, she will only be liable to pay the fine. When Section 497 of IPC was legal, it talked about women committing adultery, and the punishment was only given to men, but now it has been declared unconstitutional as it was violative of Article 14 and Article 15 in the case of Joseph Shine vs. Union of India, 2018.
The reservation was introduced for the upliftment of weaker sections of the society mainly people belonging to SC and ST communities. In the landmark judgment of State of Madras v. Champakam Dorairajan, the Supreme Court of India upheld the decision of the High Court of Madras and declared the reservation in admission to the engineering and medical college introduced by the Tamil Nadu government, unconstitutional. It led to the first amendment to the Constitution of India which reversed the judgment. It allowed the government to make special laws for the weaker section of the society and made suitable changes to Article 15(3). At the time of introduction of reservation, the reservation was only available for the SCs and STs but after the due consideration of the report of the Mandal Commission in 1990, the government introduced the reservation for the people belonging to the OBC category for 27% and introduction of the creamy layer within the OBC was coined in the case of Indra Sawhney vs. Union of India and Others, Etc. Supreme Court upheld this decision of the government and also gave the criteria of the reservation that it should not exceed 50% but the Constitutional (103rd Amendment) Act of 2019 provided for 10% reservation in government jobs and educational institutions for the “economically backward” class in the unreserved category which exceeds the 50% cap set by the Apex Court. However, the 50% limit is not set by any legislature but as it is laid down by the Apex Court and hence it is binding to all the authorities. Many states like Maharashtra, Telangana, Rajasthan, Madhya Pradesh, Tamil Nadu, Haryana, and Chhattisgarh have several laws which have breached the 50% cap. There is a reservation in promotion for SC and ST U/s 16 (4A) but after they have got the government jobs, how they are in the need of the reservation? The main purpose of reservation is to promote equality. Equality should be there among equals and not unequal. But this shows that there is no equality among the people who are getting a reservation. As only a small portion of the people getting the benefit of it. As SC and ST are homogeneous groups, the castes in the SC and ST are different from various perspectives like social and economic. Some castes are backward, some castes are more backward.
Many laws were made in India made for women or the weaker section of the society as in the past they suffered a lot but now as time changes the laws should also change. It should fulfill the need of society. A rape or sexual assault can happen to anyone including men, transgenders, etc. It should not cover women only and should be more inclusive. The same goes with reservation as it was introduced for the upliftment of the lower caste but now the benefit of it is being taken by some small portions of the community, sub-categorization of the reservation is the need of today’s society. The community is in serious need of reservations for transgender. These people who are still suffering due to loopholes in the law remain outside the ambit of justice.
Author(s) Name: Ankit Rajput (Nirma University, Ahmedabad)