The term ‘equality’ as a strong aspiration has contributed much more than raising reformative actions and revolutionary movements. It has remarked on epochs of the social, political, and economic revolutions with the transformation of millions of lives in and around the world. Today, the reflections of these historical movements can be seen in countries like India and South Africa, which as progressive democracies enumerate equality as a medium to curb Caste discrimination and Apartheid in the respective countries. In India, the caste system, which can be defined as the construction of social classification traditionally based on occupation hierarchy, has led to multifarious inequalities. The caste pyramid led to the intergenerational social exploitation and exclusion of the population constituting the lowest strata (Dalit) by the dominant caste in society. Parallelly, Apartheid was another form of discriminatory relation between whites and non-whites in colonial Africa. The discriminatory practices in this relationship were fundamentally based on the political and economic sphere but eventually constructed social segregation in Africa. After the Independence, both countries in their respective Constitutions envisaged a covenant of abolishing Apartheid and Caste Discrimination. A more important scrutiny is the ability of Constitutional aspirations to
incorporate change in the lives of Dalit and Apartheid women.
Historical Struggle – Caste And Apartheid System
A long history of inequality, discrimination, and exploitation is evident in the sufferings of Indian and African women. In the Indian subcontinent, the caste system has an in-depth linkage with gender and occupational hierarchy. The occupational classes turned into a caste due to the compulsion of women to marry within their caste group. Over a while, the system became regularized by imposing punishment for violation of caste norms and the secondary factor of power became primary and formed a caste pyramid. However, the abuse of the caste system became more stringent for women of lower caste. The peak of discrimination gained control over the social status, rights, and sexuality of Dalit women. Unlike the Caste system, the Apartheid was more of a result of colonisation which meant segregation of resources on the basis of race and skin colour. In 1948, Apartheid was established through a policy to continue white supremacy. Racial segregation divided the residential area of white and non- white, introduced forced labour, and deprived blacks of basic facilities. The women belonging to the lowest place in the racial hierarchy faced social and economic subordination. The system of migrant labour segregated families with no legal protection. The Apartheid women were denied the right to move freely, secure employment, or own land cementing their position as poor and vulnerable.
The struggle of South African women against discrimination shares similar stories with Indian women of domestic violence, illiteracy, no political participation, etc. These narratives are not as simple as they seem. In India the caste system is structured on the foundation of ‘purity and pollution’ which is extensively practiced through marriage, sexuality, and reproduction. In the patriarchal society of South Africa, black women suffered continuous exploitation in the ‘Apartheid’ system and were restricted to domestic affairs, childbearing, or unequal employment opportunities. In both countries, women faced layered discrimination on the grounds of sex and caste or race.
The article aims to analyse the transformation of the conditions of India and South Africa on two major parameters – discrimination and inequality. However, it cannot be denied that integrated and multilayered discrimination against women left imprints on future generations in both countries, because of which attainment of substantial equality is still questionable. Therefore, it has to be seen whether the constitutionalism in these two countries has fulfilled the spirits of the glorious past and transformed the relationship between the individual (Dalits and Apartheids) and the state or not.
A Reality Check Of Aspirations
In the view of social thinker Rousseau there exist two types of inequalities i.e., Natural and Moral wherein, the former refers to preexisting natural inequalities. Moral inequality means the distinctions constructed by man, established on the basis of the distribution of resources, class, religion, disability, etc. The existence of artificial inequalities gives rise to the practice of discrimination. Inequality and discrimination are interlinked and perpetuate each other. The parameters of inequality and discrimination may occur in different incidents but have crucial effects on society. The discriminatory social structure generates huge gaps in individuals impacting overall social development. Furthermore, the experiences of an individual (women and transgenders) worsen when this social structure culminates in a patriarchal or conservative society. Innumerable endurances of such injustice have been suffered by Apartheid and Dalit women in Africa and India in an inherently male-dominated society.
The post-constitutional Era in South Africa may have abolished Apartheid and established principles of gender equality but the ground rooting of these principles is still lacking behind. The book of Edith Phaswana – Women, Gender and Race in Post-Apartheid South Africa finds multiple challenges that persist as in the Apartheid period. Women in South Africa face violence in family, workplace, and society. There has been a huge surge of sexual and gender-based violence against black women in recent years. The imprints of Apartheid are still left in low-income households where women experience domestic violence. Black women who are identified as LGBTQI+ go through the worst experience of inhumane treatments like corrective rape. Additionally, the economic opportunities for black women are consistently denied equal opportunities at the workplace, improper educational attainment, and health gaps.
Trapped in a highly patriarchal society, Dalit women in India face severe discrimination, targeted violence, and compromised societal position. It is difficult for them to fight against the day-to-day discrimination by the upper caste people. In most cases of sexual violence, a Dalit victim is forced into extra-legal settlements or refrained from filing cases due to threats by the accused belonging to the dominant class. Concerning reproductive health, educational status, social relationships, political participation, etc Dalit women are deprived of the basic human necessities in the post-Constitutional era. The status quo in both countries shows a minimal change in the lives of stakeholders (disadvantaged women) who have been in dire need of attaining the Constitutional notion of equality and non-discrimination.
Judiciary As Cynosure Of Transformation
The judiciary as an important pillar of a democratic country accelerates the progress toward the Constitutional endeavours of substantive equality, social transformation, and justice. The process of adjudication to bring social changes is also known as transformative constitutionalism, which if seen in the context of India and South Africa, has in ways contributed towards gender equality and justice.
In Africa, adjudication has played an important role in inducing large-scale social change which can be captured somewhere between reform and revolution. The Equality courts crucially made Constitutional provisions more accessible to counter the violation of the right to equality. Along with this, Constitutional courts have also contributed to the South African Jurisprudence of gender equality. The law-making through adjudication in South Africa has been progressive enough in consonance with the Constitutional aspirations of equality. In the case of Shilubana v. Nwamitwa the Constitutional Court observed that customary law cannot be contrary to the Constitution, thereby the traditional appointment of Hosi (leader of the Valoyi community) cannot be barred based on discriminatory customary practices.
On the other hand, Indian adjudication has taken the road of multiple approaches towards gender equality which included safe working conditions, rights related to succession, the right to marry, etc. One of the most celebrated judgments of Vishaka v. State of Rajasthan led to the invocation of guidelines for the protection of women in the workplace. Hence, both the countries subjected to this analysis have a stronghold of judicial pronouncement in developing the social and economic rights of women.
This comparative analysis of two countries (India and South Africa) entailed two major parameters – Equality and Discrimination to scrutinize the grassrooting of Constitutional ethos in both societies. The reason for considering equality as the main focus of these Constitutions must have been to attain social transformation and protection of vulnerable sections. In this journey of transformation, the judiciary might have played an important role in giving life to the Constitutional aspiration of a just and equal society. However, the idea of constitutionalism is still struggling to find an end to the black hole of gender, caste, and race constantly producing the nebulas of social stigmas, exclusion, and inferiority to ‘Dalit’ and ‘Black’ women. This comparative analysis has approached the holistic understanding of gender equality and discrimination in India and South Africa as the actions still lie in the middle way. Hence, in both countries, there is a need to pace up the administration of social and economic equality to set an example of a just and equitable society in the global south.