Ambedkar’s Emancipatory Constitutionalism

USA).The lecture brought to the forefront insights on the complex issue of the historical wrongs faced by the excluded caste of Untouchables in India and Dr. Ambedkar's role in providing safeguards in the Indian constitution for their upliftment.Justice Chandrachud elaborates on the nature of emancipatory constitutionalism embedded in the Indian Constitution and Dr. Ambedkar's role in its articulation for social justice to the Untouchables and transforming an unequal caste-ridden society towards the goals of equality and liberty to all citizens.The CJI indicated the outcome of the reformatory provisions in the Indian Constitution in the form of legal safeguards against caste discrimination and affirmative action policies.At the same time he also pointed towards the limited impact of reformatory measures due to persisting contradictions between what he termed the "social life and constitution life", the gap that persists in the values of equality, liberty and fraternity enshrined in the Constitution and the traditional values and customs that govern the actual social relations of Hindus towards low caste Untouchables.The CJI referred to the systematic discrimination and structural inequalities in resources and education as a root cause of the persistence of the problem of Untouchability, and proposed solutions outside the courtroom by civil society against caste discrimination and untouchability, particularly by the oppressed castes.On several points, he draws a parallel between the Untouchables in India and the African Americans in USA.The canvas of enquiry is comprehensive and inclusive of crucial legal and constitutional issues.In the brief comments below, I elaborate on the main propositions laid down by Justice Chandrachud in his speech. How Harmful are the Historical Wrongs?Justice Chandrachud began by arguing that "the annals of history are stained with instances of profound injustice.What sets these wrongs apart is that they deny individuals their right to participate and reap the benefits of living together in society based on the identity of the individual.…Thus, when I say 'historical wrongs', it is social systems and arrangements of identity-based exclusion that go against the grain and idea of human equality and what may be considered a just and fair society."Justice Chandrachud goes on to add that, "Unfortunately, the legal system has often played a pivotal role in perpetuating historical wrongs against marginalized social groups in ancient India (BCE 1500-BCE 600), medieval (CE 700-CE 1756) and colonial British India .Law as an institution was practiced to maintain existing power structures, and to institutionalize discrimination, leaving a lasting legacy of injustice that continues to shape the lives of these groups."What is the nature of this historical wrong to which Justice Chandrachud referred to?The historical wrong has its origin in a period sometime between BCE 1000-BCE 600 in the later Rigvedic time of ancient India.The first definite indication of the social organization of the caste system shaped by graded inequality is mentioned in the Purusha Sukta of the Rigveda (BCE 1000-BCE 600).The Purusha Sukta ordained that, "For the prosperity of the world, He (the creator) from his mouth, arms, thighs and feet created the Brahmin, Kshatriya, Vaishya and Shudra respectively" (Ambedkar 1987).By the end of the later Vedic period (about BCE 600), the Varnas gradually become hereditary, endogamous and birth-based and emerged in its full form with some of its essential features: clear separation of people in groups or castes, crystalized by the practice of endogamy or marriage within caste, restrictions on inter-caste dining and social relations, and residential segregation, which evolved in stages.The caste system involved four castes, but later the fifth caste, namely, Untouchables emerged and was integrated into it.Untouchability had taken a firm and definite shape around CE 200, although its early signs go back to around BCE 600 (Jha 2018).The practice of caste and untouchability, although it began as taboo, was made legal, the credit of which goes to Manu, the author of the Manusmriti codified sometime around BCE 200 (Buhler 1886).The Manusmriti comprised the culmination of all the stands in early legal literature and gave it a definite legal shape.Reference to some legal provisions in the Manusmriti provides an idea about the harm done to the Shudras/Untouchables:The legal restrictions related to ownership of property (Buhler 1886: 401) "No superfluous collection of wealth must be made by a Shudra, even though he has power to make it, since a servile man, who has amassed riches, becomes proud, and, by his insolence or neglect, gives pain even to Brahmins.""No collection of wealth must be made by a Shudra even though he be able to do it, for a Shudra who has acquired wealth gives pain to Brahmins."