Accessibility Conditional upon Community Membership – An Idea against the Rule of Equality

Krishna Agarwal

“I am glad that the draft constitution has  … adopted the individual as its unit” B.R. Ambedkar, speech in the Constituent Assembly, November 1948.

Today, there are many community institutions in a religion, they ought to provide the facility of food (Bhojanshala); guest house (Dharamshala), etc. However, to avail these services, there exists a caveat and i.e., one must belong to that respective community to be able to access and avail those services. For example, if a community Bhojanshala, provides for a food facility than to avail that service, one must belong to that community (albeit, these services are chargeable but some tends to provide these services at very minimal price).

Subtle and often hidden hierarchy

Ergo, very subtly, we are continuing with the idea of discrimination – an anecdote can be drawn to understand the situation: earlier, if a person wanted to draw the water directly from the well then the person have to belong from the upper caste to access the well.  Today, we might claim to have got away with this dreadful practice but the very same thing is practiced in some another way and legitimized thereafter.

Albeit, the people who are availing the services of a community, might have never intended to discriminate with other but they are practicing for the better known reason i.e., services at subsidized rates.

I am surely not against any idea of community services but I am against the policy that has accessibility conditional upon the community membership. Further, I shall argue how this is against our constitutional ethos vis-a-vis Article 14-18, Particularly, Article 15(2). It remains undisputed that the fundamental rights can be enforced both vertically and horizontally – the latter (fundamental rights enforced horizontally) been cleared and upheld by Hon’ble Supreme Court in the case of IMA v. Union of India [ (2011) 7 SCC 179]; PUDR v. Union of India, [(1982) 3 SCC 235].

To solve this puzzle and for better understanding a verbatim reading of section 15 is necessary.

Article 15 (2) states, in relevant part:

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 … access to shops, public restaurants, hotels and places of public entertainment.

To prevent the so called upper class from coming into the contact with so called lower class the concept of such policy of accessibility upon class membership and other such things originated. Such policy of accessibility conditional upon class membership to be able to get admission was held unconstitutional by the Hon’ble Supreme Court in the case of State of Madras v. Champakan Dorairaja (1951 SCR 525). Today, we have something called community hostels, the access to those hostels is restricted to a certain community and so is the case with certain Bhojanshala and Dharamshala. The so called educated, claims to be not discriminatory, practices such things very generally.

To reiterate, the problem is not with those who avail the services but with the very policy of access to these community based institutions being conditional upon a certain community membership.

The person who is availing such services might not have intended to discriminate but s/he unknowingly did so. The beneficiaries of such services argues that these things are helpful not only for the reason that they gets services at very subsidized rates but also it is easy for them to communicate/accommodate with the person of same community.

These institution does not explicitly says that the individuals from lower class are not allowed. They very subtly bans the entry by claiming that only individuals those who belongs to our community only shall be allowed, therefore, swallowing up the rule of equality. This very thing is problematic and discriminatory in nature. An anecdote for the enhanced understanding: suppose two brothers live under the same roof but they doesn’t want to. So, to avoid the dispute either of the brother says, either you go or else I’ll go. In the current situation nobody can say you go (For example, nobody can say that a person from lower class should not draw the water from the well) because of explicit constitutional and penal provisions. Instead follows, I will go principle (By creating different community institutions and banning the entry of different (other) community.

This becomes even worse, the scope of discrimination widens here: earlier discrimination was on the basis of Caste but to continue with this discrimination we have brought a polished idea which doesn’t looks discriminatory and thereby legitimized i.e. creating the groups within the caste and banning the entry of other.

It cannot be said that only all religions are practicing the same, today, we have Golden temple; Sai baba temple (these are only few, there are many) where the accessibility is to individual from every caste, class and religion to be able to avail the services. This is something for the help and betterment of the society. And, this should be always endured.

The Author is a Law Student at Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Mumbai. 

Photo by Margaret Bourke-White/The LIFE Picture Collection

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