We all assume, writes Saurabh Kirpal in this elegantly crafted work, that equality as coded in Article 14 of the constitution is a valuable goal. Is that actually the case? Does the concept stand for equality of opportunity or equality of result? In posing this question, the author wades right into one of the most contentious debates on equality – the equality of what?
This was the question asked by Amartya Sen of the Rawlsians and his famous answer was – the equality of capabilities. And then of course, there is the long-standing debate between equalitarians and egalitarians. Can people who are unequal be seen as equals in the eyes of the law and of the constitution?
Un-equals have to be treated differently. This is the basic logic that underlies the minority rights principle coded in Articles 29 and 30 of the constitution. Philosophical reasoning on equality is rife with many such debates, and perhaps the one question that remains to be fully fleshed out is – equality for what? Why is equality a good that has to be secured to every citizen?
Kirpal sets out to negotiate this as well as other questions that dodge the concept of equality. Bringing philosophical reasoning to bear upon legal judgements, he tells us that the judicial imagination of the court is shaped by the way judges understand the right to equality. For whereas the formal notion of equality is non-discrimination by the law, the substantive view takes into account the actual impact of the law.
Saurabh Kirpal
Who is Equal? The Equality Code of the Constitution
Penguin (August 2024)
He takes us through the complicated biography of equality, from Section 377 of the Indian Penal Code that criminalised sexual activities against the ‘order of nature’, to the final reversal of earlier decisions by the court.
In this judgement, which is an instance of substantive equality, the five-member bench of the Supreme Court held that Section 377 did not only criminalise an act; it criminalised an entire group and its identity. Therein lies the difference between formal and substantive equality.
The author argues that differences in understanding can legitimise or delegitimise a law that holds adverse consequences for a community. This is a bit scary. It almost prompts us to demand that the beliefs of an aspirant judge should be subject to investigation before he or she is appointed to the various courts that decide the fate of men and women.
Their beliefs might amount to a handful of prejudices that they defend by the empty formalism of a law, instead of commitment to the liberation and emancipation of citizens.
To rephrase Plato, unless judges become philosophers or philosophers become judges, we will never achieve a just society.
Equality is of course one of the most difficult concepts in political theory. Whereas the struggle for freedom is a normal impulse of human beings, equality is a much more intellectual concept. It has to be justified more rigorously than other concepts of political theory. To subscribe to this proposition as the makers of our constitution did in a society which is unequal, hierarchical and prejudiced was a brave act.
Kirpal takes us through the legal course of the concept in the Constituent Assembly and in the courts. The issue is perhaps more complicated. The path to a more enlightened interpretation of equality is strewn with disagreements on reservations in education and employment.
Matters are not helped by the realisation that reservations are used by politicians as an electoral tool and a soft option; in short, as an alternative to the substantive equality concept that prioritises redistribution. Legislation, in order to be acceptable to the people, has to be justified. The courts have an onerous job clearing up the mess that politicians create in their search for power.
This is unfortunate, for as Kirpal argues, the best way to achieve the constitutional ideal of egalitarianism (perhaps a better term would be equalitarianism, but no matter egalitarianism is much more noble concept) is by having a sensitive government and legislature that achieves this objective through economic and social policies. The route to a sensitive government is a foolproof electoral system, which the author examines meticulously.
This must be the most idealistic objective advocated by a lawyer. Just look at what the electoral process throughout the world has thrown up in the shape of right-wing populists. All we can hope for is that the process of voting is fair, for no one can and no one should tamper with the results no matter how unpalatable they might be. Democracy is procedural, it is not consequentialist.
Still, the effort made by Kirpal to overhaul the system has to be appreciated.
Also read: How ‘Unconvicted Felons’ Stood in the Supreme Court and Watched Section 377 Fall
And then he arrives at the crux of the equality/inequality problem, the private space of gender and sexuality, in one of the most powerful chapters of the work.
This debate on what is private and what is public is of course an old one. Too much respect for the private can sanction domestic violence and child abuse. Intervention in the private domain of sexuality can prove to be an unpardonable intrusion and criminalise, as Kirpal points out, an entire community for its sexual preference to which every citizen has a right to.
In the concluding chapter, the author ties up the strands of the argument that range from employment and reservations in the private sphere, education and the domestic sphere, and offers suggestions to counter the issues that arise out of governmental intervention or non-intervention.
“The question is also about the power and jurisdiction of the court … The same activist court which marches in to decide all manner of public interest litigation from midday meals to corruption in government suddenly exercises self-restraint when asked to intervene on behalf of the most oppressed,” he writes.
A woman cannot be said to be free when her choices are either to stay in a loveless and oppressive marriage or face the Herculean task of getting a divorce where her rights will be overridden by an uncaring legal system, argues the author. And this can happen in the name of privacy and autonomy.
And then is the case of sexual minorities being halted at the gates. This vision of equality is surely not compatible with the jurisprudence of the court in other areas discussed in the work he concludes.
In the epilogue, Kirpal lays out an ambitious agenda for courts and judges to follow in order to deliver justice from gender, sexual preference and caste discrimination. Two comments on this very readable work are in order.
One there is a principal contradiction in the division between public and private. The argument is that the state should intervene in cases of domestic violence. It is true that violence is centred in the household. But if the state has the legitimate right to peer into our bedrooms, what happens to the right to sexual preferences?
We are of course not sanctioning torture, sadism or crimes against humanity by asserting this right. The question is whether the state should have absolute power to monitor our sexual choices.
The second issue is this. The role of the court depends largely on the mood of the political moment. I am not speaking of an ideologically charged government. I am speaking of society.
A radical shift was discernable in the public mood when citizens began to assert their rights to their sexual preferences in unique ways. Collective action can also influence judiciaries. The ruling de-criminalising the community that was criminalised by Section 377 took place in a highly charged context: with the media, fellow travellers of the community, films and music exhibiting hope and optimism.
Since then, our society has become more conservative, more prejudiced and more judgmental. This perhaps accounts for our repeated disappointment with the judgements of the Supreme Court.
Neera Chandhoke was professor of political science at Delhi University.
