Remembering Babasaheb Ambedkar's forgotten legacy

He deserves to be remembered for overseeing the drafting of a Constitution that *not only* guaranteed individual freedom against overwhelming State power, *but* by framing Article 15(2), also aimed at tackling abuses of private societal power.

 |  4-minute read |   14-04-2015
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"Revolutions", wrote Hannah Arendt, "confront us directly and inevitably with the problem of beginning". If the framing of India's Constitution was the culmination of a long political revolution, perhaps no one understood the "problem of beginning" better than its chief architect, Dr BR Ambedkar. Over more than five decades, the nationalist movement had demanded - and ultimately won - political independence, the rule of law, freedom from arbitrary force, and basic civil liberties such as the freedom of expression and association. Each of these victories was painstakingly written into the new Constitution.

For overseeing the drafting of a Constitution that enshrined collective self-determination and guaranteed individual freedom against overwhelming State power, Dr Ambedkar would deserve to be remembered and celebrated. Such an achievement, however, would have remained a replication of other successful revolutions, and their constitutional culminations: the American and the French, for example.

But Ambedkar's vision was deeper and more profound than that. Drawing upon lived experience, he understood how deeply riven and divided our society was. Unlike Western absolutist monarchies, the targets of the French and American Revolutions, he understood that political and social power in India had never been located within the single figure of a monarch, but had always been distributed along various axes of the body politic. He understood that for a majority of Indian citizens, oppression stemmed not from the acts of the State, but from everyday exclusion, and marginalisation. The prohibition upon lower castes from drawing water from public wells, from entering temples, from residing within village boundaries, and in a myriad different ways, from participating in the economic and social life of the community: these issues could be resolved neither by simply political independence, nor by guaranteeing civil liberties against State power.

Ambedkar's response was to ensure that the Indian Constitution departed from the traditional understanding, that fundamental rights were about ensuring private and individual freedom against the State. Part III of our Constitution - our fundamental rights chapter - prohibits the practices of untouchability and bonded labour, guaranteeing a bulwark not just against public tyranny, but against private oppression as well. However, Ambedkar's legacy is much more far-reaching than ensuring a ban on two of the most pernicious practices of social discrimination in India. That legacy resides in a nearly forgotten provision of the Indian Constitution: Article 15(2).

Article 15(2)(a) of the Constitution states:

"No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment…"

The revolutionary potential of this provision lies hidden in the seemingly innocuous word: "shops". At one level, we may think of a "shop" in a narrow, literal way: a physical space, where a man behind a counter sells us a good for which we pay money - what the Merriam-Webster dictionary defines as a "building or room stocked with merchandise for sale." But if we read the Constituent Assembly Debates over the framing of this provision, a very different picture emerges. While defending the Article, and explaining its meaning, Ambedkar stated:

To define the word 'shop' in the most generic term one can think of is to state that `shop' is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service…. Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word 'shop' used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to.

Or, in other words, Ambedkar's idea of a "shop" was not limited to its narrow, dictionary meaning, but a convenient shorthand for the impersonal, abstract market of the modern liberal-capitalist economy. Ambedkar's intention was to ensure that an individual's caste, religion, sex etc. could not be used as a pretext to exclude her from participation in the daily economic life of a community, and thus become a weapon for ensuring the continued subordination of groups even after their formal emancipation. Later in the debates, Ambedkar himself was to go on and say that "shop" would include doctors, lawyers, and anybody who offered his service for a fee.

In the decades after independence, Article 15(2) has rarely been invoked by the courts, and its transformative potential has remained largely untapped. In 2011, a Supreme Court judgement did invoke this unremembered history to bring private schools within the ambit of Article 15(2), but that judgment was and remains an outlier. On the occasion of Ambedkar's 124th birth anniversary, in an age where social discrimination remains as pernicious as it did in his time, when news of housing discrimination jostles for space with news of continued denial of access to public goods on caste lines, perhaps our best tribute to Ambedkar can be our remembrance and recovery of his radical constitutional legacy.

Writer

Gautam Bhatia Gautam Bhatia @gautambhatia88

The writer is a lawyer who blogs on free speech, civil liberties and Indian constitutional law.

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