Ambedkar's constitution: Promoting inclusion, opposing majority tyranny

doi:10.1017/CBO9781316651018.011

11 - Ambedkar's constitution: Promoting inclusion, opposing majority tyranny

from PART III - CASE STUDIES

Published online by Cambridge University Press: 05 August 2016

Martha C. Nussbaum

Edited by

Tom Ginsburg and

Aziz Huq

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Martha C. Nussbaum: Affiliation:
University of Chicago
Tom Ginsburg: Affiliation:
University of Chicago
Aziz Huq: Affiliation:
University of Chicago

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Summary

So rigorous is the enforcement of the Social Code against the Depressed Classes that any attempt on the part of the Depressed Classes to exercise their elementary rights of citizenship only ends in provoking the majority, to practice the worst form of social tyranny known to history. It will be admitted that when society is itself a tyrant, its means of tyrannizing are not restricted to the acts which it may do by the hands of its functionaries and it leaves fewer means of escape penetrating much more deeply into the details of life, and enslaving the soul itself.

B. R. Ambedkar, 1928

Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Supreme Court of India, National Legal Services Foundation v. Union of India, 2014

CURBING MAJORITY TYRANNY, PROMOTING SOCIAL INCLUSION

India's Constitution, like others the world over, was ratified by a constitutional assembly. Unlike many or even most, however, it is to a considerable extent the creation of one dominant legal intellect, B. R. Ambedkar (1891–1956), who, as Nehru's law minister, had considerable latitude in drafting it and who has told history a great deal about what he wanted to achieve and at times had to fight to achieve. He argued extensively for a particular conception of the Constitution, one in which a central purpose was protecting vulnerable minorities from majority tyranny and promoting their full social inclusion. He focused centrally on the evils of the Hindu caste hierarchy, but he was also passionately concerned with the situation of India's women and its religious minorities. Although he did not address the problems faced by sexual minorities and transgender people, his name and his principles have been central to recent legal activism in these areas. In a very general way, Ambedkar saw the practice of stigmatizing and excluding groups of people as a major obstacle to India's success as a nation, and one that law could productively address.

Type: Chapter
Information: Assessing Constitutional Performance , pp. 295 - 336

DOI: https://doi.org/10.1017/CBO9781316651018.011 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

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References

Agarwal, Bina. 2004. A Field of One's Own: Gender and Land Rights in South Asia. Cambridge: Cambridge University Press.

Ambedkar, B. R. 1948. Speech delivered in Constituent Assembly, November 5. http://164.100.47.132/LssNew/constituent/vol7p1.html.

Ambedkar, B. R. 1949. Speech delivered in Constituent Assembly, November 28. http://parliamentofindia.nic.in/ls/debates/vol11p11.htm.

Ambedkar, B. R. 1993. Dr. Babasaheb Ambedkar: Writings and Speeches. Vol. 12. Bombay: Education Department, Government of Maharashtra.

Ambedkar, B. R. 2014. Annihilation of Caste (undelivered speech, 1936). With Introduction by Roy, Arundhati. Delhi: Navayana Publishing and London and New York: Verso.

Anand, Mulk Raj. 1936. Coolie. Delhi: Penguin.

Buch, Nirmala. 2010. From Oppression to Assertion: Women and Panchayats in India. Delhi: Routledge India.

Drèze, Jean and Sen, Amartya. 2002. India: Development and Participation. Oxford: Oxford University Press.

Drèze, Jean and Sen, Amartya. 2013. An Uncertain Glory: India and Its Contradictions. Princeton and Oxford: Princeton University Press.

Ghosh, Jayati. 2012. Towards a New Paradigm for Ensuring Universal Access to Quality Education. In Equalizing Access: Affirmative Action in India, United States, and South Africa, edited by Hasan, Z. and Nussbaum, M.. Delhi: Oxford University Press: 202–38.

Hasan, Zoya. 2009. Politics of Inclusion: Castes, Minorities, and Affirmative Action. Delhi: Oxford University Press.

Hasan, Zoya. 2012. Trapped in an Invisible Present: Muslims and Disparities in Higher Education. In Equalizing Access: Affirmative Action in India, United States, and South Africa, edited by Hasan, Z. and Nussbaum, M.,. Delhi: Oxford University Press: 239–55.

Hasan, Zoya and Nussbaum, Martha, editors. 2012. Equalizing Access: Affirmative Action in Higher Education in India, United States, and South Africa. Delhi: Oxford University Press.

Hasan, Zoya and Menon, Ritu. 2004. Unequal Citizens: A Study of Muslim Women in India. Delhi: Oxford University Press.

Jaffrelot, Christophe. 2005. Dr. Ambedkar and Untouchability: Analysing and Fighting Caste. Delhi: Permanent Black.

Jayal, Niraja. 2000. Gender and Decentralization. Unpublished manuscript. Jawaharlal Nehru University, Delhi.

Khaitan, Tarunabh. 2015. A Theory of Discrimination Law. Oxford: Oxford University Press.

Mehta, Pratap Bhanu. 2010. What Is Constitutional Morality? Seminar. www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm.

Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge and New York: Cambridge University Press.

Nussbaum, Martha C. 2002. Sex Equality, Liberty, and Privacy: A Comparative Approach to the Feminist Critique. In India's Living Constitution: Ideas, Practices, Controversies, edited by Sridharan, E., Hasan, Zoya, and Sudarshan, R.. Delhi: Permanent Black: 242–83.

A shortened version published as What's Privacy Got to Do with It? A Comparative Approach to the Feminist Critique. In Women and the United States Constitution: History, Interpretation, Practice, edited by Schwarzenbach, Sibyl A. and Smith, Patricia. New York: Columbia University Press, 2003: 153–75.

Nussbaum, Martha C. 2004a. India, Sex Equality, and Constitutional Law. In Constituting Women: The Gender of Constitutional Jurisprudence, edited by Baines, Beverly and Rubio-Marin, Rut. Cambridge and New York: Cambridge University Press: 174–204.

Nussbaum, Martha C. 2004b. The Modesty of Mrs. Bajaj: India's Problematic Route to Sexual Harassment Law. In Directions in Sexual Harassment Law, edited by MacKinnon, Catharine A. and Siegel, Reva B.. New Haven: Yale University Press: 633–71.

Nussbaum, Martha C. 2007. The Clash Within: Democracy, Religious Violence, and India's Future. Cambridge, MA: Harvard University Press.

Nussbaum, Martha C. 2008. Violence on the Left: Nandigram and the Communists of West Bengal. Dissent (Spring): 27–33.

Nussbaum, Martha C. 2009. Land of My Dreams: Islamic Liberalism under Fire in India. The Boston Review 34: 10–14.Google Scholar

Nussbaum, Martha C. 2012a. Personal Laws and Equality: The Case of India. In Comparative Constitutional Design, edited by Ginsburg, Tom. Cambridge: Cambridge University Press: 266–93.

Nussbaum, Martha C. 2012b. When is Forgiveness Right? The Indian Express, October 9. www.indianexpress.com/news/when-is-forgiveness-right-/1013768/0/.

Nussbaum, Martha C. 2014. Law for Bad Behaviour. The Indian Express, February 22. http://indianexpress.com/article/opinion/columns/law-for-bad-behaviour/.

Nussbaum, Martha C. 2015. Untouchable. Review of Ambedkar, Annihilation of Caste: The Annotated Critical Edition, edited by Anand, S.. The New Rambler Review, August 19.

Nussbaum, Martha C. Forthcoming 2016a. Disgust or Equality? Sexual Orientation and Indian Law. Journal of Indian Law and Society (Kolkata).

Nussbaum, Martha C. 2016b. Women's Progress and Women's Human Rights. Human Rights Quarterly. Summer issue.

Parthasarathy, D. 2012. After Reservations: Caste, Institutional Isomorphism, and Affirmative Action in the IIT's. In Equalizing Access: Affirmative Action in India, United States, and South Africa, edited by Hasan, Z. and Nussbaum, M.. Delhi: Oxford University Press: 256–71.

Patnaik, Prabhat. 2012. Affirmative Action and the “Efficiency Argument.” In Equalizing Access: Affirmative Action in India, United States, and South Africa, edited by Hasan, Z. and Nussbaum, M.. Delhi: Oxford University Press: 89–99.

Rao, Anupama. 2009. The Caste Question: Dalits and the Politics of Modern India. Berkeley and Los Angeles: University of California Press.

Rawls, John. 1986. Political Liberalism, expanded paper edition. New York: Columbia University Press.

Robinson, Nick. 2013a. The Indian Supreme Court and Its Benches. Seminar. http://india-seminar.com/2013/642/642_nick_robinson.htm.

Robinson, Nick. 2013b. “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts.” American Journal of Comparative Law 61: 101–36.Google Scholar

Robinson, Nick. 2016. India's Judicial Architecture. In Oxford Handbook on the Indian Constitution, edited by Choudry, Sujit, Khosla, Madhav, and Mehta, Pratap Bhanu. Delhi: Oxford University Press.

Rutledge, Jennifer Geist. 2012. Courts as Entrepreneurs: The Case of the Indian Mid-Day Meal Programme. Asian Politics and Policy 4: 527–47.Google Scholar

Sachar Commission. 2006. www.prsindia.org/administrator/uploads/general/1242304423~~Summary%20of%20Sachar%20Committee%20Report.pdf.

Sen, Amartya. 2015. India: The Stormy Revival of an International University. The New York Review of Books 52(13): 69–71.Google Scholar

Seth, Leila. 2003. On Balance. Delhi: Penguin.

Thorat, Sukadeo. 2006. B. R. Ambedkar: Perspectives on Social Exclusion and Inclusive Policies. Delhi: Oxford University Press.

Weisskopf, Thomas. 2012. Rethinking Affirmative Action in Admissions to Higher Educational Institutions. In Equalizing Access: Affirmative Action in India, United States, and South Africa, edited by Hasan, Z. and Nussbaum, M.. Delhi: Oxford University Press: 44–70.