Equality has meant different things to different people in history. Its meaning has changed accordingly. For example, as Emile Burns says, ‘In the Greek city states, the idea of the equal rights of men did not apply to slaves.’2 Similarly, the slogan of ‘equality’ contained in the French Declaration appropriately meant equality of the rising capitalist class with the lords and the landed gentry. Equality as a principle found its place in the French and American Declarations. This is in the sense that ‘men are created equal’ or ‘are equal in rights’. This equality is based on natural rights theory where inalienable rights and their equal availability to all men are supported. Equality is supported because the rights available naturally are to be equally available to all. Equality is treated here as an endowed value and is supported based on very essence of human beings. Equality is equality of endowed natural rights. Heywood terms this as ‘foundational equality’, which he says, means ‘people are equal by virtue of shared human essence.’3 In other words, each person must be treated equally because of their essence as human beings and as carrier of natural rights. Initially, foundational equality was not understood in terms of equal opportunities. Thus, natural rights assumptions imply that they are available equally to all human beings.
A second meaning of equality in the formal sense, relates to ‘equality before law’. Legal equality of persons/individuals is based on the conception of juristic personality. Bentham used the Utilitarian principle to argue for legal equality—’everyone is to count as one and nobody as more than one’.4 He sought to subject the principle of equality to the criterion of the greatest happiness of the greatest number. Moreover, to judge the greatest number, it requires each individual being treated as having equal worth in terms of utility. Bentham supported legal equality for the purpose of legislation that should be based on the principle of utility. Bentham and other jurists who gave primacy to law as the source of rights and liberty advocated equality in legal terms.
If this were the case, we can also infer that each being counted as one implies that gender or any other social differentiation is immaterial for consideration of equality. Utilitarian principle is easily a ground for gender equality, but probably it was not so vocal. In fact, J. S. Mill in his essay, The Subjection of Women, argued for gender equality and provided a statement of liberal feminism. Mill argued that ‘male and female endowments or natures are uniform, and observed differences between the genders altogether (are) cultural in origin.’5 He gives a clear statement of the need for gender equality. He says, ‘the principle which regulates the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.’6 In Mill, we find a principle of equality, which admits legal equality irrespective of gender. If we take into account the argument of natural rights as equally available to all irrespective of gender, Bentham’s argument of equal worth of each individual and Mill’s argument of gender equality, there is no ambiguity as to why equality amongst genders in terms of voting rights, equal wages, etc. should have taken so long to be realized. Natural rights theory, Utilitarian doctrine and Mill’s liberal feminism, all provide sufficient philosophical and moral foundation for gender equality.
Equality before the law as a principle of formal equality is a legal concept. It admits no distinction amongst individuals on cultural, gender, linguistic, natural, racial, religious, social, other such grounds. Utilitarian, Bentham and analytical jurist, Austin provided a strong ground for legal equality as a concept. The juristic concept of sovereignty as a source of law, rights, liberty and legislation involve that legal equality of individuals should be admitted as the principle for defining the relationship between the state and the individual. In fact, equality before the law provides a legal framework through which equality in distribution of rights (as Charter or Bill of Rights) or Fundamental Rights amongst individuals is ensured. It also helps regulate the conduct of individuals as well as the state and its officials. Rule of law is closely associated with legal equality and it means law should rule. Under rule of law, ‘law establishes a framework to which all conduct and behaviour conform, applying equally to all members of the society, be they private citizens or government officials.’7 Law secures equality of all while dealing with an individual.
The Indian Constitution under Article 14 provides for ‘equality before the law’ or the ‘equal protection of the laws’ to all persons. This is a statement of formal equality and gives meaning to what Preamble seeks to ensure in terms of ‘equality of status and of opportunity’.8 This also means that laws of the land will apply to all equally and there should not be discrimination on grounds of birth, caste, colour, gender, language, race, religion, etc. In fact, Article 15 of the Constitution substantiates Article 14 further by prohibiting any such discrimination. Equality before the law and equal protection of the law have been further strengthened in the Indian Constitution under Article 21. It ensures that ‘No person shall be deprived of his (her) life or personal liberty except according to procedure established by law’. This means that a ‘reasonable, fair and just’ procedure should be followed for depriving a person of his/her personal liberty and life. It admits no arbitrariness, discriminatory procedure or unequal treatment for different individuals.
However, formal equality, though important, does not necessarily translate into either equality of opportunity or equality of outcomes. This may happen due to two main factors. One, many socially, psychologically, behaviourally and culturally institutionalised customs or attitudes would continue to deny such equality, and second, in the absence of economic and material conditions, formal equality may never be translated in outcomes. Despite formal equality in terms of equality before the law, culturally determined attitudes of men towards women in many parts of India, or for that of persons of one religion or language or caste towards that of the other still could be different than desirable. Secondly, lack of material and enabling conditions hampers enjoyment of formal equality, as one cannot translate the opportunities in reality.
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