[xviii] The Civil Rights Protection Act, 1956 was passed to strengthen the declaration of Article 17 of the Indian Constitution criminalizing untouchability. Glanville Austin, in his acclaimed book “Indian Constitution, the cornerstone of Nation,” wrote in this context that the Indian constitution is a social rather than a political document. A very important point that we need to understand is the role of political-legal structures in the life of a nation. I would put it figuratively in a different format. The right, understood in the broadest sense, can be pronounced in two ways, “guiding law” and “right of delay”. The guiding law is one in which the law determines the nature and orientation of the objective towards which the system should aim. The law of lag, on the other hand, would follow the social mechanism and develop a rule to solve the emerging problem. We proceeded at the moment of independence understanding that the indigenous model has become inappropriate for various reasons and has gone through so much social rot and must therefore receive a new direction, the direction determined by the project of modernity. The project of modernity, a product of Western thought, has already slandered indigenous thought to such an extent that the generation of political leaders assumed that they were ushering in an era of modernity determined by the Western paradigm. Typical Western thought was characterized by Henry Maine`s disparaging remark that much of the wisdom of ancient India consisted of a “Brahmanical superstition of Dotangen.” [iii] This kind of attitude towards ancient Indian traditions of law and justice represents the colonial administration`s attempts to discredit the ideological foundations of Hindu hegemony of ideas. It would be interesting to know how the supposedly disadvantaged groups in Indian society easily accepted their position within the framework of the Dharmic order of things. India`s genius for adaptation can only be understood in the context of this dharmic order, which has embraced the whole society holistically. This social system was certainly not the rigid hierarchical structure as it was described, on the contrary, it was comparatively a dynamic order that is unprecedented in today`s societies, and I suppose it still retains a lot of socio-political validity.
A brief overview of the equality provisions of the Indian Constitution would make it clear that the social evil of the caste system and the resulting deprivation for the entire class of the population weighed heavily on the minds of the drafters of the Indian Constitution and that they were not only trying to introduce measures that would eliminate caste handicaps from the Indian social scene. But it has also sought compensatory measures for these disadvantaged and less privileged sections of society so that they can compete on an equal footing with the rest of the world. Under these provisions, special provisions have been made for people belonging to planned castes and tribes, 22 per cent of whom now enjoy reserves as State services. In some Indian states, such as Tamil Nadu and Karnataka, the proportion of civil service job bookings can be as high as 69%. With the above ideal vision of law in mind, the founding fathers of India`s new destiny drafted a constitution that was to be the embodiment of all that is rational and modern. Justice, freedom and equality are in the spotlight, as the fundamental organizing principles of the new constitution, the caste system and untouchability, which are considered the main obstacles to the achievement of social solidarity, must now be abolished. The basic idea of Article 14 is that there is nothing more unequal than the equal treatment of unequals. [xvii] And therefore, in order to treat fairly all citizens found to be unequal, the state may use compensatory means to protect discrimination. But the question is what to do with the inhumane practices of community life, which not only do not correspond in any way to modern liberal ideas of democratic life, but also demean human life. Should such practices be tolerated in the name of the general conscience of the people? It has been mentioned above that the Indian Renaissance saw a whole series of social reform movements.
They were essentially two streams of reformers. People like Mr. Sharda, Jyotiba Phule and Agarkar were in favor of using the instrument of law to influence social change, and as they not only tried to reform the system from within, but also urged the British colonial administration to pass laws that influenced social reform. [xxiii] So they had ordinances such as the Widows Remarriage Act, the Sati Abolition Act, etc. This tradition of using the law to influence social reform continued in the aftermath of independence and the Civil Rights Protection Act of 1955, the Dowry Prohibition Act of 1960, the Child Marriage Prohibition Act of 1961, and another Dowry Prohibition Act of 1987. But what impact did it have? Any impartial observer of the Indian social scene would testify that this approach to policy law of influencing social reform through the use of the instrument of law has not been successful. Overall, the dowry became more widespread than it was before 1960 and proved to be something of a status symbol. Child marriages are still practiced in abundance in full knowledge and vision of the state machine,[xxiv] traces of the caste system are still seen and practiced in many parts of the country, and the Roop Kanwar Sati law is not a matter of the past too far away. This clearly shows that the main law approach has not really worked in India. What has happened, however, is that either the legislation has been observed in complete violation before the eyes of the administration, or the practices targeted by the legislation are more secretive and more difficult to detect.
Studies of legal consciousness, with the declared opposition to the dominant position of the prevalence of the institutional point of view and the bias of public policies in law, emphasize the constitutive theory of social action and highlight its attack on the instrumentalist vision of law, which Mc Cann says by opposing the approach of the guiding law with ascending jurisprudence[ix]. According to Evick and Silby, how the law is experienced and understood by ordinary citizens when they invoke, avoid or oppose the law is an essential part of the law. The investigator`s attention is focused on these concrete everyday social practices, in which legal rules are perceived as constitutive elements of reality. This emphasis on routine rather than the extraordinary, on the social rather than the institutional, on mental representation instead of the coercive justice system is the common element of this shift in perspective from “principal right” to “right of delay.” .