The Beats of Equality Lie on the Drum of Differentiation

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In the dry legal world of drier books, propositions, and oppositions, and resultantly driest judgements, marrying with the law is 'idiocy' let alone romancing with the law. However, the cross-fertilization of liberty and equality giving birth to fraternity inspires at least to endeavor of falling in love with the law for romancing with the duo of liberty and equality, thereby giving birth to the fraternity. 

As narrated by some as an example, liberty is the freedom of becoming a billionaire like the Ambanis or more than them by receiving or achieving opportunities equal to what Ambanis have received or achieved from their family. Thereby, the example envisages establishing an ideal 'fraternity of rich, richer, and richest' ceasing 'a fraternity of poor and rich'. Now, a set of questions arise namely, should a person receive an opportunity or he/she must achieve it? Should the State grant fund for traveling overseas for studies as Ambanis have traveled overseas for studies? Does everyone have the right to receive/achieve funds from the State? The answer to these questions lies in the answer to why liberty and equality were claimed for. 

The war for Liberty, Equality, and Fraternity originated from the revolutionary genes of the French people who claimed liberty and equality as a matter of right because of the unreasonable taxes that the 'poor but working class' of France had to pay. Utilizing such the 'rich but non-working class' of France became richer and richer by paying no tax thereby dividing the society into a privileged class and an underprivileged class. Therefore, the French people have claimed liberty and equality for ending the practice of becoming rich by using the poor as 'steps of the staircase' but not for making everyone a billionaire. 

The dissatisfaction of the French people towards the government has led to revolution after revolution which has troubled France to architect Constitution after Constitution as it has had 14 Constitutional lastly on 4 October 1958. 

Interestingly enough, the people of France had to relinquish liberty for guiding their revolutions under Napoleon who publicly declared:

Liberty is a necessity felt only by a not very numerous class. It can therefore be restricted with impunity. Equality on the other hand pleases the multitude. 

However, for the French people, equality has stood the test of time and they once had to relinquish their liberty for embracing equality.

The narrative is equality cannot be realized without liberty, but for the French people, the idea of equality is different from that of the rest of the world as they claimed equality for ceasing the oppression of the poor by the rich and not for elevating the poor to rich. Hence, for some time, the French people were married with equality without romancing the liberty of becoming rich from poor. 

The Preamble of the operative French Constitution made on 4 October 1958, adopts the rights enshrined under The Declaration of the Rights of Man and of the Citizen, 1789 (hereafter ‘said declaration’) which is gifted ‘eyes, tooth, and heart’ by the National Assembly of France. The said declaration uses the word ‘imprescriptible and inalienable’ to inject 'unceasing' quality into the rights achieved by the French people unlike the word ‘fundamental’ which has been used by our Constitution to inject 'necessity' into our rights. Necessity changes with time that is why our Constitution permits restriction on Fundamental Rights but when a right is having an ‘unceasing’ force no circumstance can shorten it. Therefore, the question arises can the right to equality and liberty be restricted for the French people the way it can be done for the Bharatiya nagriks? 

The romance with the duo of equality and liberty does not allow a person to breed without limitation but to breed with restriction because France, who cut the first cut of liberty and equality, restricts the ‘imprescriptible and inalienable’ rights. Some restrictions enshrined on the said declaration are been enumerated in the following:

i. Men are born, and always continue, free and equal in respect of their rights. Civil distinctions, therefore, can be founded only on public utility.

ii. Political liberty consists in the power of doing whatever does not injure another. The exercise of the natural rights of every man, has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the law. 

iii. The unrestrained communication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write, and publish freely, provided he is responsible for the abuse of this liberty, in cases determined by law. 

Therefore, the French people’s right to Equality and Liberty could be restricted on the ground of public necessity; therefore, the ‘unceasing’ force of the rights ends at the point from which the exercise of a right leads to the reason for crying for the public. The same principle applies to Bharat. 

However, the Right to Equality in Bharat can be restricted by Casteism. The concept of equality in India is elevating the backward to the forward by allowing the backward an ‘entry’ essentially on the ground of caste at the cost of indirectly disallowing the forward an entry essentially on the ground of caste so that one day the backward can surpass the forward. This entry is gifted but not achieved. This discrimination, at the first blush, may appear to be barred under Articles 14, 15(1), 16(1), and 16(2) of our Constitution as they declare that everyone shall be equally placed before the law however Article 15(3), 15(4), 15(5), 15(6) and 16(3), 16(4), 16(4-A), 16(6) of our Constitution grant the power to make law for displacing a person from another. 

Article 14 is available both to the citizens and foreigners but Articles 15 and 16 are available only to the Bharatiyas. Article 14 is the principal of the ‘equality’ school whereof Article 15 and 16 are the students. Article 14 vaguely directs the law to see everyone equally, now how the law can equally see a 4 years child beating his father and 24 years old adult beating his father? Article 15(1) and 16(1), 16(2) definitively direct the law not to distinguish one Bharatiya from another Bharatiya only based on their biology, caste, belief, and geography, therefore, permits the said distinguishment based on merit. However, Article 15(3), 15(4), 15(5) definitively declares that the law can distinguish one Bharatiya from another Bharatiya only based on their caste in the case when the law is willing to provide an entry to the educational institutions barring educational religious institutions to a group of people which our society does not respect and who does not have felt the need of correctly pronouncing and spelling the word ‘education’, and this group falls under those castes whose situation in the past has been socially and educationally backward as described. Therefore, your caste could grant you a seat in an ‘intellectually provocative’ educational institution. 

Interestingly enough, Article 16(3) confers power to the Bharatiya Parliament but not to a Bharatiya Rajya’s legislature to make law declaring that only persons, irrespective of caste, having their house within a Bharatiya Rajya can be appointed to an office under the Government of that Bharatiya Rajya or to any office situated within the territory of that Bharatiya Rajya. Therefore, your residence can grant you a job. Therefore, your right, under Article 19(g) read with 19(d) and 19(e), to pursue your profession by getting appointed in an organization situated outside your Rajya will only get fulfilled if you are having a house at the place of your organization. Therefore, the exercise of the right to reside in any part of Bharat under Article 19(e) seeks money. 

Article 16(4), 16(4-A) declares that your backward caste can give you a government job and secure your promotion in that job. 

This ‘inherent casteism’ is the brainchild of the Mandal Commission which said ‘backward class’ is ‘backward caste’. However, this culture of "my caste is my security of elevation" cannot be claimed as a fundamental right, and those who argue that this culture should have been a fundamental right, their bottom line is caste is the reason for elevation and merit is the reason for deprivation. 

Article 335, which says appointments made by the Government of the Bharat and Bharatiya Rajya shall not be ruined by casteism, has been murdered by a hypocrite proviso (introduced in the year 2000) attached to Article 335 which says caste should prevail over merit. Therefore, the person, whose caste is securing his job, has scored 50/100 and the person, whose caste is not securing his job, has scored 60/100, the former shall not have to compete with the latter to achieve that job. 

Therefore, the beats of the equality of Bharat lie at the drum of differentiation made on caste. However, the French people cannot be differentiated based on caste but on talent and virtues as enshrined under said declaration, and therefore, the beats of the equality of France lie at the drum of differentiation made on merit. 

VI. The law is an expression of the will of the community. All citizens have a right to concur, either personally, or by their representatives, in its formation. It should be the same to all, whether it protects or punishes; and all being equal in its sight, are equally eligible to all honours, places, and employments, according to their different abilities, without any other distinction than that created by their virtues and talents. 

Understandably, the backwards are not having the resources that the forward are having, and therefore, the former must get the resources but not the preferences.

Bharatiya equality romances with liberty but marries with caste despite acknowledging that one should marry the one with whom one loves to romance.