The Flawed Concept of “Equality before Law”

Justice, a quintessential element of society, the absolve of which gives birth to oppression and anarchy, the mere dream of which has given birth to thousands of revolutions, a conception so powerful which transcends all barriers of class, society and religion. Ina country as diverse as India, it is worth enumerating whether our Indian constitution been able to enforce this very spirit of justice or not.

Now justice is not a single concept, it is an assimilation of liberty, equality and fraternity and truly speaking in the absence of any one of them, justice is a failed concept. The most complex part of justice is equality and equality itself has different dimensions for its application, which can broadly be classified as:

• Political equality

• Social equality

• Economic equality

Now if we look from the Indian constitution point of view, the last two equalities are addressed by providing various affirmative actions as article 15 (2) & (3), 16 (4), 17. But the foremost equality, that is political equality, talks about the famous maxim “Equality before law”. The maxim means that there will be equal application of law in spite of the person’s social and economic standing, and for maintaining its sanctity article 39-A was introduced in Indian constitution (which provide for free legal aid and speedy trial) .

But the above mentioned maxim has not accounted for the unpredicatable swaying tendencies of human beings, which tend to favour some elite class in the society and hence failing the very idea of “Equality before law.” Whether it be the judiciary or executive, the application of rule of law is flawed which leads to the failure of the very concept of state.

Now, the judiciary being the super authority for maintaining the rule of law, it is its constitutional and moral duty for upholding the spirit of the above maxim. But recent judgments in favor of the wealthy and powerful and the amount of corruption dwelling behind these once sanctum walls tend to shake the very substratum on which our whole concept of state was evolved.

A contemporary philosopher, John Rawls (1921-2002), is noted for his                contributions to political and moral philosophy. 

Rawls’ Equality and Indian Affirmative Actions

Well truly speaking John Rawls’ ‘theory of distribution’ has a lot of similarities with the Indian reservation system. John Rawls, who is regarded as having one of the most shrewd minds in economic thought in the 20th century, was of the view that the biggest reason for differences in the economic structure of society is the initial hindrance with which a person of a lower economic strata has to go through, which logically will offspring lesser opportunities for him to develop or progress in life as compared to person with a sound economical background. Therefore, to pursue this idea, John Rawls talked about a world in which this person from the lower strata is emancipated of all its initial hindrance and is given an equal opportunity to develop. The same can be easily linked with article 15, 16 and 17 of the Indian constitution which more or less does the same job of debilitating the initial hindrance which an individual of lower caste or minority religion has to face.

But here’s a difference which is striking, while John Rawls batted for reservation, his structure was a dynamic one according to which the society should firstly empower the weakest link in the societal chain and keep repeating this process as the other got weak, in a way creating an ever changing system. In this aspect, the Indian reservation system has failed Rawls idea miserably. The Indian reservation system has been a stagnant story in which the same weak links have been receiving society’s help, whether it be the Gujjar in Rajasthan, Marathi in Maharashtra or the new contenders, Patels in Gujarat, it simply shows a system whose main aim was devouring the initial hindrance of an individual has become a means of political appeasement.

Ashit Kumar Srivastava is a 5th Year Law Student at the University of Lucknow