Monogamy is essentially a Judeo-Christian principle that was brought to India

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LEGAL AND SOCIAL EQUALITY IN INDIA Sreenivasarao Vepachedu, March 1995 (A paper submitted to Howard University School of Law)

INTRODUCTION Modern democracies such as the Indian Union and the United States of America* provide citizens with greater social and political rights, a higher standard of living, more leisure and better educational opportunities1. The extension of these benefits to more and more citizens during the past hundred years or so has been described as the process of the growth of the citizen or basic human equality- the fundamental rights due to individuals by virtue of their membership in a State. With the increasing democratization of governments, the fundamental problem has been to pull down the barriers of segregation and to offer equal opportunities to all.

The aim of democracy has everywhere been to eliminate "man made, socially fostered, discrimination that has enlarged for some and has restricted for others avenues that lead to education, income and advancement2." However, this doesn’t mean a refusal to recognize the natural differences in character and intellect. Owing to the differences in gifts which nature has bestowed on some and denied to others, natural inequality has been and must continue to be fact in society. Democracy however believes that in a climate of equal opportunities and privileges alone the differences in mental and moral equipment of man can best come out. The chief problems, which every government has to solve, are to reconcile this natural inequality as a fact with principle of Natural Equality Doctrine3. The author attempts to discuss this reconciliation process in India to provide social and legal equality to the citizens.

ANCIENT INDIA So far as the Ancient Indian Culture and Civilization is concerned, the Vedas and Smritis speak highly of equality and brotherhood-'Vasudhaika Kutumbakam (One World One Family)'. "The entire world is a family" was the motto of Vedic civilization4. All had equal opportunity in all walks of life in ancient India. The Vedic age was more liberal in providing equal status to the people. Buddhism, Jainism, Shaivism, Vaishnavism, Sikhism and other indigenous Indian religions also preach the principles of brotherhood and equality.

In Bhagavadgita, Lord Krishna, the philosopher king and the incarnation of the Supreme God, too has preached the equality of all souls. However, the Supreme Lord himself created the four hypothetical classes in the human society on the basis of Guna, i.e., ability or nature of an individual, and the Karma, i.e., deeds or jobs performed by an individual, and not on the basis of birth5. Whereas the membership in a tribe or caste is determined by birth and is different from the membership in these classes. These hypothetical four classes are intellectuals and priests (Brahmana varna), rulers and warriors (Kshatriya varna), agriculturists and business persons (Vaishya varna), and artisans and other workers (Shudra varna) in a given society. These four classes include the thousands of real castes and tribes in this world. Each caste/tribe falls into one of these four hypothetical Vedic classes. The so-called casteism or the tribalism is based on the tribal and religious differences. Naturally, certain groups have monopolized certain trades. The tribalism segregated the society into ghettos of isolation and exclusiveness, sealing the society into insulated social divisions. This has been the case in every nation and society.

Added to this were gifts from a millennium of Islamic rule and occupation, such as the Purdah system among women and the child marriages. Then British rulers created a class of loyalists with an emphasis on communal and feudalistic basis and awarded them with titles, patronage and privileges. This created further discriminatory dimensions in the Indian society.

REFORMATION Since ancient times, there have been efforts by enlightened Indians to bring about equality through social and religious reforms, e.g., Lord Budha (5th century BC), Mahavir (5th century BC), Ashoka (2nd century BC), Shankara (7th century AD) etc. In the beginning of the nineteenth century a new process of social reforms started which received an impetus at the time of independence movement in 20th century. A pioneer among these reformers was Raja Ramamohan Roy. He compiled and edited the Hindu personal law of marriage, inheritance, religious worship, woman's status, woman's property and caste system, by introducing the most liberal principles of justice and equality. He worked out a synthesis of eastern and western social values and postulates against the common background of humanity6. He also started a movement for the emancipation of the oppressed classes and urged a return to the original Vedantas and for a total rejection of all the religious and social impurities that had crept into Indian society7.

Swami Vivekananda strongly condemned the social evil of segregation as a non-Hindu attitude. He said, "It is not in the holy books," and " don't touchism is a mental disease"8. Mahadev Govind Ranade regarded social advancement as the necessary prelude to political emancipation. Under the moral law, all men and women are equal and it is the supreme duty of man to love man and God with devout sincerity and reverent faith9.

Mahatma Gandhi fought against the social evils of racism, imperialism, communalism and segregation (so-called untouchability). He was very much against social injustices, tyrannies and oppressions. According to Mahatma, 'segregation was not a vital art of Hinduism, but was only an excrescence and a plague10...

WOMEN AND RELIGION Discrimination against women in India was prevalent in every sphere of life and most women experience some form of disadvantage just like in the USA even today. Law is an important institution in most contemporary societies as it regulates, controls and, in a way, pervades almost every aspect of people’s lives. For majority of Indian women, family life continues to be an important aspect of their existence. Family law plays a greater role in the lives of Indian women than the laws related to pay maternity benefits, property, etc...

Thus one measure of effectiveness of a law can be a gradual change in social attitudes, may be a partial change in the actual behavior of some- perhaps the elite of the society- who can in turn serve as role models to be emulated. Such transformation in the behavior of people, if widely achieved, can in turn lead to a structural transformation of institutions as well. For example, Hindu marriage has been transformed in the perception of people, from a polygamous union to a monogamous union in less than 40 years.

Although, Lord Rama emphasized on "one wife for life" principle, which is different from Judeo-Christian monogamy which prescribes "one wife at a time" and allows divorce and remarriage, polygamy and polyandry were also acceptable to Indians. The Hindu Marriage Act, 1956 prohibited polygamy. But, the only person entitled to bring charges against a person guilty of polygamy is the affected spouse. It does not need to be mentioned that most Indian women are not in a position to bring a legal action against their husbands. Yet, throughout India, Hindus practice only monogamy12, which is essentially a Judeo-Christian principle that was brought to India. Even extra marital associations such as concubines have disappeared to a large extent.