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Law As A Means Of Upholding Morality: The Right To Equality

The name, Law as a means of upholding morality: right to equality, we all know that equality is the basic human necessity as equality among equals is needed to balance the social conditions and to live harmoniously with all, but this project needs to be not only about the right to equality in India, but about the concept of equality, and how law in the modern times is working to aid this right, also this needs to be understood that how has the concept evolved and why has it been so important, what is the history behind it coming to the light as such an important law, at the end, everything also needs to cover why this is morally important.

In this project, we would be exploring various things like first going through the basic question of what is equality?, while exploring the views of various great thinkers on this matter, it also needs to tell about when we ask for equality, what are the things we need equality in and what type.

After this we would explore why morally, equality is required in the first place? After this we would get to know how was the concept of equality introduced to the Indians and the mystery around it. After that we have covered the international scenarios of equality and how the difference in those countries resolved, by giving the examples of multiple countries like south Africa, America, and France.

Historical Context Of Equality

The idea of equality is one of the core values of the contemporary world's social and political philosophy. The idea of equality started getting its modern definition from the French Revolution in 1789 there 'equality' was among the three mottos 'liberty, equality, and fraternity. With the advent of modernity equality as an idea gained its currency in the West.

However, outside of the west, these ideas were implicitly getting expressed; like in India thinkers had a crucial concern for forefront critics of caste discrimination. Throughout the medieval and modern period, thinkers and philosophers like Kabir, Ravidas, Tukaram, Guru Nanak, Jyotiba Roa Phule, and recent thinkers like Perriyar and B.R Ambedkar have contributed to developing a discourse of equality in India. B.R Ambedkar sourced the Ideas of Equality from Buddhism.

The concept of the idea of 'equality' started way back in ancient Greece when the philosophers like Plato and Aristotle devised the initial idea of 'equality'. Plato in his book 'Republic' advocated for the first time about gender equality and stated that women should be provided the same opportunities as men and marriages should be controlled by the state. Aristotle mentioned, "Treat like cases a like". In the later period, Roman Stoics gave the equality which coincided with the natural rights. So forth Christian clergy had a perspective of equality which resonated with the biblical teaching that all human beings on earth are equal as all are children in the eyes of the almighty god.

Jj. Rousseau was one of the first to give the idea of the equality, for him all men are equal since they are morally entitled to be treated equally. John Loche found this as the problem of political philosophy or ideology and ideology. He was the first to coin the idea that all men should be treated equally in the eyes of the law and that this is a natural right.

Karl Marx said that the bourgeois' concept of equality was unacceptable to him as the equality of people who enjoy property rights under the capitalist system. So this equality is given only by the people who already got a stake in the capitalist system. Real equality can be only achieved after the abolition of capitalism.

In the 19th century with the rise of liberals, there also arose differences in the definition of 'equality'.

Leonard Trelawney Hobhouse - and Richard Tawney wrote that the capitalist property system is not acceptable because this system would lead to private affluence and public squalor.
In recent times, economist Amartya Kumar Sen focused on the pragmatic problems that consisted in the modern capitalist system specifically in the third-world countries and said that there should be larger public spending for the benefit of the deprived marginal section of the society. Public spending must be in the respect of public education and health care. And this would be the first leap toward achieving equality.

In America, legal, moral, and political philosopher John Rawls through his book 'A Theory of Justice' in 1971 led to a pivotal point in the liberal perspective of equality. His magnum opus attracted the attention of many within the U.S and outside in the 20th century. His work has a philosophical study of equality and used both utilitarianism and contract theories selectively to advance a normal theory of justice. By the 'veil of ignorance,' he conceived their 'original position'.

This original position presupposes the parties have political equality. Also, the idea is that equality is necessary but liberty must get the priority and for achieving economic equality progressive taxation is the solution. [1]

The modern sociologist has opined that there must be some social differentiation and social stratification to make social structure equal.

Throughout history, different philosophers had different principles and conceptions of equality.

Equality Of 'What'?

Before coming to the three forms of equality reflected in political, social, and economic terms it is important to understand the 'Primary goods' of John Rawls, these primary goods are things that any rational person could reasonably be expected to want, these are liberty and opportunity; income and wealth.

Primary Goods Are Distributed Per Two Principles Of Justice:
  1. Liberty principle
  2. Social and economic inequalities have to be dealt by following;
  3. Difference Principle based on 'Rawls'
  4. Equal opportunities for all.
  1. Equality of welfare:
    In this Equality of welfare, people should get equal opportunities for welfare and opportunities. This welfare is the satisfaction of the preferences of the people that they have to achieve.
  2. Equality of resources:
    There are various natural and social resources and people should have access equally to all of these resources.
  3. Equality of opportunities:
    There are certain opportunities and everyone in the society should have access to these opportunities.
  4. Equality before law:
    The law should treat everyone in the society equal and should not discriminate its citizens.
There has been evolving idea and principle about what 'equality' is? All unfair injustices that were inflicted on specific strata of society led to the awakening of their conscience and they fought for the equal dignity in society. However, the economic and social exclusion for many hundreds and thousands of years has made huge disparity between the weaker and the stronger section of society all around the world.

Whether, that is slavery in the west, Apartheid in the South Africa or Caste system in India. These ideas and principles of equality had led human to institute the egalitarian society and law which protects itself and others members of the society. The Law all around the globe recognizes individual's dignity and stipulated various statues to protect the rights and to protect against any kind of discrimination.

Right To Equality In Indian Constitution:

In Indian Constitution the right to equality is enshrined in the "Articles 14 to 18". This is the fundamental right against any discrimination on the ground of gender, race, ethnicity and caste etc.

These rights are:
  • Equality before law - equal protection of law.[2]
  • Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth � equal access to shops, hotels, wells, tanks, roads etc.[3]
  • Equality of opportunity in public employment [4]
  • Abolition of Untouchability"[5]
  • Abolition of Titles [6]

Right To Equality In Un Charter

The Equality is one of the foundational elements in the United Nation Charter in "Article 1 (3)": "To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion,"[7].

Why Is Equality Morally Required?

In the modern world, the importance of equality is emphasized upon quite a lot, but very less of the emphsisers explain why is equality required? After all we know that we certainly have aspects that mark a difference . We know that through natural evolution men are, generally, stronger than women, women are naturally better strategists and planners, people from certain regions are used to living in different conditions and adapt to be stronger than people from some other regions etc. .

If we know all these differences, than why not accept these differences? The reality is that the generalized line between these differences is very thin and if strongly marked, it would create unnecessary obstructions for skilled people, for example, if we strongly generalize the idea that asian people are stronger at Maths than anywhere else.

It would be hard for a Norwegian mathematician would find it hard to leave his mark of talent, in the same way if we generalize the idea that whites are smarter people than brown folks, which by the way used to be a false generalization, the brown people would struggle to gain the confidence in coming up and proving their calibre or if you generalize that men are stronger than women then in the society women would be subjected to unnecessary prejudice regarding strength related jobs.

Equality is a symbolism that is required in the society, not to enforce ambiguous neutrality or to take away the due credits of certain sets of people, but it is required to balance out the natural prejudices and bring about opportunities for people equally is they are capable too.

How Were Indians Introduced To The Concept Of Equality?

Many of the modern day thinkers like to believe that we Indians were introduced to the concept of equality by European texts, inconsiderate of the fact that those colonists were the very people who have treated black, brown and yellow people in the most unequal way ever in history.

The conception of ideas of equality dates centuries back in India as evident in the ancient texts like multiple dharmasutras and commentaries which mentioned the concept of equality to a certain extent and also state that all are equal in the eyes of Dharma and the king and Brahmins were the carriers of Dharma. Yes, there were certain discrepancies in those ideas of equality, but those were indeed necessary at those times for the proper regulation of the society and these texts never mentioned that the king or Brahmins were above the laws of God.

Yes there was certainly a period in the Indian society where these classifications were cruded in their form because of sabotage of culture by foreign invaders and with time the interpretation of those texts went in a wrong direction and these system formed the shape of a toxic society where there was a concept of higher castes and lower castes and this gave rise to a new stem of inequality.

Even this stem was not cut by the contemporary European thinkers but this line was blurred by the combined struggle by the nation against foreign forces, and this amalgamation of manpower and people from varied backgrounds was seen by the land multiple times in the last 1000 years against foreign invaders.

This could've been seen when the Bheels and Rajputs of Mewar came together to fight the Islamic invaders, this was evident when the Holkars and local Nomadic tribes of Indore came together to fight the Portuguese intrusion, and this was best seen when Gandhiji gave the call for 'Sampoorn Swaraj' and Brahmins, Rajputs, Harijans, and people from all walks of lives irrespective of caste, creed, gender, age came together to liberate the nation once and for all from the foreign forces.

International Scenario Of Equality In Different Communities

  1. First Battle For Equality: French Revolution

    "Equality is the most natural of things, yet the most unreal", this was Voltaire on the philosophy of equality. Equality is fundamental to the social structure and yet achieving true equality has been a struggle at various points in different civilizations.

    In France the concept of equality (along with fraternity and liberty) was born out of struggle, during the French Revolution. All men are equal in the eyes of God and no one shall be denied their natural rights, this came up as an attempt to limit down the excessive powers of monarchy and the clergy. Equality in the French revolution was aimed to bridge class gaps and create a society based on principles laid down in "Declaration of Rights of Man 1789".

    Article 1 of the 1789 Declaration states:
    "Men are born and remain free and equal in rights. Social distinctions can have no other basis than common utility" This formed the basis of the French Revolution, and it was the genesis of the modern concept and understanding of equality. Impact of the French Revolution and the birth of ethos of equality, had profound impact in shaping the world, politics, ideas of religion and social structure.
  2. Racial Equality: Apartheid

    What is apartheid?
    From 1948 through the beginning of the 1990s, South Africa and South West Africa (now Namibia) were home to the apartheid system, which institutionalised racial segregation. It was defined by a boss-hood or boss-ship-based authoritarian political culture known as baasskap (boss-hood or boss-ship), which made sure that the country's majority white population ruled politics, society, and the economy of South Africa.

    The highest status was granted to white residents under this system of social stratification, subsequently it was given to Indians and Colored people, then black Africans. It was further divided into two types: petty apartheid, which involved racial segregation at social gatherings and in public spaces, and grand apartheid, which controlled access to housing and jobs.

    How was it abolished?
    Under the leadership of the South African president F.W. de Klerk, apartheid was repealed in the early 1990s, and a new constitution that gave blacks and other racial groups more rights was approved in 1993. A black majority government lead by well-known anti-apartheid activist Nelson Mandela of the African National Congress party was established in 1994 after the all-race national elections. Even while these changes signalled the end of officially sanctioned apartheid, its social and economic impacts are still very much present in South African society.

    Current situation
    Mandela was elected as South Africa's first black president in April 1994 at the first democratic elections held there. Even though there was still much to be done to improve the lives of all South Africans, the harsh apartheid rule appeared to be magically coming to an end in peace.

    Many of those initial promises are still unfulfilled today. The ANC faces harsh criticism for South Africa's ongoing poverty, inequality, violence, health crises, and corruption after 25 years in power.

    The new president of South Africa, Cyril Ramaphosa, has a challenging list of goals to achieve as he attempts to modernise the country: spur economic growth, reduce debt, establish a working, law-based government, and maintain the ANC even as it appears to be disintegrating. Therefore, still the condition of South Africa has not improved that much.
  3. Slavery

    American Slavery
    The legal institution of human chattel slavery, which included the enslavement of largely Africans and African Americans, was widespread in the United States of America from the time of its foundation in 1776 until 1865, primarily in the South. Slavery evolved during the time the Europeans colonised the Americas. The legal system viewed an enslaved person as property that might be bought, sold, or given away. Slavery persisted in about half of US states until it was abolished. In the decades that followed the end of Reconstruction, segregation, sharecropping, and convict leasing served many of the economic and social purposes of slavery.

    How was it abolished?
    Chattel slavery was abolished in America as a result of the American Civil War, which started in 1861. On June 22, 1865, the civil war was declared over, and in all of the Southern states that had not yet released the slaves, the Emancipation Proclamation came into effect. For a few months, slavery was still in effect in other places. On June 19, 1865, federal forces came in Galveston, Texas, to carry out the emancipation.

    The commemoration of that event, Juneteenth National Independence Day, has been declared a national holiday in 2021.The Senate approved the Thirteenth Amendment in April 1864, and the House of Representatives did the same in January 1865, making slavery illegal in all but criminal punishment. The ratification of the amendment by three-fourths of the states, which Georgia did on December 6, 1865, was necessary for it to go into effect.
Current Scenario
Even today African Americans in America faces a lot of discrimination in every fronts of there life be it a job opportunity, health facilities, welfare schemes etc. Every day there are cases of police officers either mistreating or killing African Americans on the slightest of disagreements. All of this spurred the movement which recently took place that is "BLACK LIVES MATTERS".

Black Lives Matter is a movement that draws attention to the racism, prejudice, and racial inequity that black people face. When its supporters congregate, they do so mostly to denounce instances of racialized violence and police brutality against black people. It began after the murders of several people, including George Floyd, Trayvon Martin, Michael Brown, Eric Garner, Pamela Turner etc.

The movement and the groups that support it frequently push for a number of legislative reforms that are thought to be important for black emancipation. But now the time is changing and slowly- slowly we can see the positive changes for e.g., the 49th Vice President of USA Mrs. Kamala Devi Harris became the first African American and first Asian American vice president of USA.

  • Larry Alexander and Maimon Schwarzschild, 'Liberalism, Neutrality, and Equality of Welfare vs. Equality of Resources' (1987) 16 Philosophy & Public Affairs 85 accessed 21 September 2022.
  • NCERT, 2018. Indian constitution at work. New Delhi: National Council of Educational Research and Training, pp.20-40.
  • Ibid.
  • Ibid.
  • Ibid.
  • ibid.
  • United Nations, 'Universal Declaration of Human Rights' (United Nations) accessed 10 October 2022.

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