Constitution Demands That We Dismantle Structures That Produce Inequality: Ex-CJI BR Gavai

Former Chief Justice of India Justice BR Gavai stated that the Constitution does not treat equality as a mere formal guarantee but requires the State and institutions to actively address and dismantle structural conditions that perpetuate inequality.

Delivering the inaugural Dr. Ambedkar Memorial Lecture titled “Sustainable Development & Substantive Equality: A Constitutional Dialogue” at NALSAR University of Law, Hyderabad, Justice Gavai emphasised that substantive equality lies at the heart of the constitutional vision and must guide policy-making, governance, and development models.

"The Constitution does not envision equality as a mere formal assurance. It demands that we confront and dismantle the underlying structures that produce inequality," he said.

Justice Gavai observed that the constitutional promise of equality goes beyond formal recognition of rights. According to him, substantive equality requires acknowledging unequal starting points and adopting stronger measures for those historically excluded from opportunities and resources.

He explained that structural discrimination often manifests as layered disadvantages affecting access to education, healthcare, employment, and institutional support. These disadvantages, he noted, are not isolated incidents but systemic outcomes that persist across generations.

Development extracts a cost that is invisibly borne by the most vulnerable 

He spoke of how there is an invisible cost to development, the brunt of which is faced by the most marginalised sections of society. He stated that in Maharashtra, several reports show a deeply disturbing pattern of women engaged in sugarcane harvesting having undergone hysterectomies at a young age. 

"Many of these women have undergone hysterectomies at a very young age, not out of medical necessity, but because the labour system effectively penalises menstruation, pregnancy, or any interruption in work. What we see here is the body itself becoming a site where structural inequality and economic compulsion intersect. Development, in such contexts, extracts a cost that is invisibly borne by the most vulnerable."

Justice Gavai added that similarly, it is the Adivasi communities that suffer the most during drought or the farmers who commit suicide because of excessive rainfalls that destroy crops. He added that water scarcity in the tribal region most disproportionately affected women, who are already dealing with malnutrition, limited access to healthcare, and long hours of manual labour.

"Marginalised communities, because of structural discrimination, are often unable to access institutions on equal terms. So, the disadvantage operates at multiple levels. There is a lack of access to information and resources on what to do in a crisis, itself becomes uncertain. There is institutional apathy or inaccessibility, where systems that are meant to provide relief or protection do not reach them effectively." 

The former Chief Justice also spoke about how climate change and environmental degradation do not affect everyone equally. He said that while many of us, who are privileged, can use air-conditioning to protect ourselves from extreme heat. But no such protection is available to those engaged in manual or outdoor labour.

"They are exposed to extreme heatwaves, to harsh winters, to floods and droughts, without any buffer. So, whether it is 48-degree heat, extreme cold, or erratic rainfall, the experience of these conditions is fundamentally unequal."

Justice Gavai stated that in order to deal with these instances, it is necessary to connect the idea of sustainable development with substantive equality. He stated that while Courts have recognised various aspects of sustainable development, it must be seen as a constitutional vision that ensures that development doesn't deepen existing hierarchies. Instead, it works to dismantle them. 

"Therefore, when we think of sustainable development, we must ask more fundamental questions: development for whom, and at what cost? If development results in the displacement of marginalised communities, if it intensifies existing inequalities, or if it places disproportionate environmental burdens on those who are already vulnerable, then can it be said to be sustainable?"

He further averred that, in shaping environmental futures, the idea of substantive equality should pave the way by not just preserving resources, but also by transforming the conditions under which those resources are accessed and distributed.

"The disparities that we see today, rooted in caste, class, gender, and geography, must not be reproduced in the environmental futures we are seeking to build."

Model of Governance Needs A Rethink

Justice Gavai suggested that the policy approach in such cases should not be adopting a "one-size-fits-all" approach because this will end up enforcing existing hierarchies, as it ignores the unequal starting points of different communities. 

"Substantive equality requires that we identify who is most affected, who is systematically excluded, and who is least able to absorb shocks, whether economic, environmental, or social."

He stated that the current model of governance requires a fundamental rethink. For instance, he said, gated housing rarely has any policy as to where the workers who sustain these spaces will live. 

"The construction worker, the sanitation worker, the domestic worker, the security guard, each of them is essential to the functioning of these urban ecosystems. Yet, they are expected to commute long distances or to live in informal settlements, often without access to basic amenities. Why is housing for workers treated as an afterthought, rather than as an integral component of development? The reality therefore is that we use their labour, but exclude them from the spaces that their labour sustain."

Universities Must Become Laboratories Of Constitutional Governance

Justice Gavai pointed out the obvious inequality in how daily wage and contractual workers employed by the universities have no access to protected spaces during the summer, while students and faculty stay in air-conditioned hostels. 

He said that a university committed to substantive equality must ensure that the workers have adequate access to shaded areas, resting spaces, and clean drinking water. He suggested that universities must also take effort to have collective or group health insurance for outsourced and contractual workers.

"Universities can take the lead by creating pooled insurance mechanisms, ensuring access to primary healthcare, periodic health camps, and emergency support systems. The fact that workers are “outsourced” should not become a justification for excluding them from institutional care structures."

He added that universities can also create pathways for the children of campus workers, such as access to schooling support, scholarships, or even bridge programs.

Justice Gavai also serves as the Chair Professor on Constitution Law and Social Inclusion of NALSAR's Dr Ambedkar Centre. In his inaugural lecture, he stated that he accepted the offer of Chair Professorship on condition that he would not take any remuneration. 

"I felt that no monetary consideration can equal the value of being associated, even in a small way, with the legacy of Dr. Ambedkar."