Ambedkar and law

Ambedkar’s idea of law

One idea of law which is pervasively present in Dr. Ambedkar’s work is the
notion that the law is a command which must be obeyed. At first glance this is
similar to what every jurisprudence student is familiar with, namely the
Austinian theory of law. This theory has at least these three characteristics:
• Law as a command;
• Such a command, which is issued by a political superior to a political inferior;
• A political superior is one who is obeyed 'by and large'.
• The innovation in Dr. Ambedkar’s theory of law is that this notion of law as a
command is not limited to the state, but moves beyond what is legitimized by the
state to what society sanctions. In effect there is another origin other than the
determinate sovereign for the birth of law. This wider understanding of law
emerges from Dr. Ambedkar’s understanding of how Indian society operates in
accordance with the rules of caste.

• Custom is no small thing as compared to law. It is true that law is enforced by the
state through its police power, and custom, unless it is valid, is not. But in practice
this difference is of no consequence. Custom is enforced by people far more
effectively than law is by the state. This is because the compelling force of an
organized people is far greater than the compelling force of the state.
• Dr. Ambedkar challenges us to re-think what law in the Indian context is. Is it
limited to the notion of state law or even custom which has the validity of law, or
does it go beyond these two notions to encompass other rules which can compel
behaviour, sometimes even more effectively than the law of the state?

• He presents a detailed discussion of this idea of law beyond state law in his germinal
essay The Annhilation of Caste. In Dr. Ambedkar’s analysis, ‘what is called religion by
the Hindus is nothing but a multitude of commands and prohibitions.’ Hinduism
according to him cannot qualify as a religion as ‘the essence of religion is that it is
based upon principle and not upon rules. The moment it degenerates into rules, it
ceases to be a religion as it kills responsibility which is the essence of a truly religious
act.’
Dr. Ambedkar concludes that ‘what the Hindus call religion is really law or at
best legalized class ethics.’ 'The first evil of such a code of ordinances,
misrepresented to the people as religion, is that it tends to deprive moral life
of freedom and spontaneity and to reduce it to a more or less anxious and
servile conformity to externally imposed rules. Under it, there is no loyalty to
ideals, there is only conformity to commands.’

Thus, force and command are the basis of the law of caste.
• The fact that the rules of caste enjoy the status of law in Indian society contains the inverse
implication that laws prohibiting caste based behaviour suffer from a lack of social
legitimacy. Hence the rules of caste enjoy greater sanction than any state based law. In this
context, Dr. Ambedkar doubts whether rights which guarantee ‘untouchables’ freedom
from discrimination have the character of rights at all:
• Law guarantees the untouchables the right to fetch water in metal pots... Hindu society
does not allow them to exercise these rights... In short, that which is permitted by society
to be exercised can alone be called a right. The right which is grounded by law, but is
opposed by society is of no use at all. 4
• In a paradoxical sense, when it comes to the question of caste, the caste based rules of
society enjoy the status of law, with the law of the state being consigned to being nothing
more than an ineffectual commandment.
Law as a Counter Majoritarian Instrument
• The law as discussed in the previous section is a deeply weakened instrument
when it comes to the question of dealing with the problem of caste. Dr.
Ambedkar asks the question as to how the law can be mobilized to serve the
interests of a geographically scattered and weak minority, when there is a
deep rooted majoritarian bias against the minority in question.
Making Untouchablity a Criminal Offence in the Constitution

In a speech in 1930 at the Round Table Conference, Dr. Ambedkar first articulated the idea
that untouchability was a criminal offence.

• Within the Constituent Assembly, there was widespread agreement on the need to
criminalize the practise of untouchability and Article 17 of the Indian Constitution was
formally approved. Article 17 reads:

Abolition of Untouchability:

Untouchability is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of Untouchability shall be an offence punishable in accordance with law.
Limitations of a Counter-majoritarian Approach

• However Dr. Ambedkar is also very clear that it might be difficult if not impossible to
implement such a law, when the offenders are not a few persons, but the entire society.

• Rights are protected not by law, but by the social and moral conscience of society...But if the
Fundamental Rights are opposed by the community, no law, no parliament, no judiciary can
guarantee them in the real sense of the word. What is the use of the fundamental rights to
the Negroes in America, to the Jews in Germany and to the Untouchables in India? As Burke
said, there is no method found for punishing the multitude. Law can punish a single, solitary
recalcitrant criminal. It can never operate against a whole body of people who are
determined to defy it. Social conscience is the only safeguard of all rights- fundamental or
non-fundamental.
• The post-independence history of the implementation of laws meant to

protect Dalits (SC/ ST Prevention of Atrocities Act, 1989, Civil Rights Act

1955, Prohibition of Employment of Manual Scavengers and their

Rehabilitation Act, 2013, supports Dr. Ambedkar's opinion. However the

purpose of narrating the failures of a counter majoritarian legislation is not

to disavow or reject such efforts, but rather to say that a counter

majoritarian legislative effort must be supplemented by other efforts to

change the very structure of Indian society.