Rights Without Access: The Hidden Architecture of Inequality in Indian Law

The contemporary Indian legal landscape in recent times is marked by a deep and quite visible tension between constitutional promises and institutional realities. It is marked by a staggering gap in theory and in practice. While the Constitution envisions a transformative framework grounded in the principles of liberty, equality and dignity, recent developments make us ponder upon the same. In recent times, we see a pattern of selective realization on the basis of identity, class, ideology and political context. This blog advances a critical thesis; that Indian law is increasingly drifting from the constitution guaranteed and affirmed norms to a site of negotiated constitutionalism where doctrinal commitments are mediated by the imperatives of selective governance, security and social hierarchy.  The themes of identity-based atrocities, environmental rights of indigenous peoples, criminalisation of poverty, non-human legal personhood, reproductive autonomy, shrinking dissent, and bail jurisprudence are analysed not descriptively but through their structural implications.

Caste based violence and atrocities caused thereof, though cease to exist on paper but however the ground reality is in stark contrast to this notion. Articles 14, 19 and 21^[1] of the Indian Constitution is inherently challenged by the persistence of caste-based violence and hierarchy. Legislative responses like the Karnataka government’s law on honour killings and several judicial pronouncements on the said issue, indicate a shift towards recognition of such problems as structurally embedded rather than episodic.^[2]

However, the analytical concern lies in the paradox of over criminalization if such crimes without proper attributes to the sociological causes for such events. The need is not penalisation of such crimes but structural reforms addressing such crimes. The persistence of such crimes can be best understood through Johan Galtung’s theory of structural violence^[3], where harm is embedded in social systems rather than isolated and episodic events. Similarly, Pierre Bourdieu’s concept of symbolic violence^[4] also points to the end that caste violence and honour killing are not mere aberrations but outcomes of institutionalised hierarchies, where domination is normalised through cultural practices. The existence of Khap Panchayats as extra judicial adjudicatory bodies in various parts of India is an excellent example of the same.

Therefore, mere criminalisation of the symptoms of a social phenomenon will not result in any significant improvement in the omission of such crimes, unless and until the reforms are accompanied by legal reforms to dismantle the caste based social-capital. The very reason hy criminal law fails often in addressing the problems of caste inequality because it is a graded inequality^[5] and criminal law targets individual offenders, whereas caste operates as a collective social order.

Judicial recognition of environmental rights has increased significantly under Article 21’s expansion, yet indigenous communities struggle to keep up with the disproportionate dispossession faced under the guise of development. This highlights a conflict between development and indigenous autonomy, which in turn exposes a pattern of political ecology, particularly the work of Arturo Escobar^[6], which recognises development at the cost of indigenous communities and their tradition to be a sort of epistemic injustice, prioritising modern knowhow over Indigenous Knowledge Systems.

Legislations like the Forest Rights Act, 2006, ostensibly empowers tribal communities with matters concerning their native forestlands, however, constant bureaucratic interventions and corporate interests often undermine such rights. Environmental Impact Assessments (EIAs) are often prejudiced and biased, adopting shortcut approached and bereft of opinions and participation of members of such Indigenous Communities, reflecting a shift from rights-based governance to regulatory managerialism.

This can be best explained by Michael Hechter’s theory of internal colonialism^[7] which explains how peripheral communities (in this case the tribals) are exploited by the dominant state structures for resource and material extraction without proper safeguard mechanisms. In the Indian context, Ramachandra Guha distinguishes between environmentalism of the poor and the conservationism of the elites^[8]; with the courts and the system often privileging the elites and the state system, often sidelining the livelihood based ecological claims especially from communities possessing first hand knowledge. Thus, environmental jurisprudence, while rights oriented in doctrine, functions as a state run source of resource extraction from the marginalised communities, thereby indirectly curbing community autonomy to a considerable extent.

Furthermore, the criminal justice system disproportionately targets people belonging to lower income groups, particularly the poor, evident in laws targeting vagrancy, begging and certain informal sector jobs and informal labour. Indian jails are filled with undertrials, many of them being incarcerated for minor offences, unable to arrange bond money necessary in facilitating bail, thus demonstrating how poverty in itself is criminalized by the State as a institution. Empirical studies indicate that over 75% of India’s prison population is comprised of undertrials, many of whom are unable to secure bail due to financial constraints.

The issue here is not merely inequality but structural criminalisation and systemic deprivation of life and liberty to a person accused of minor offences that he may not even have committed. Laws may appear to be neutral and equal on the face of it, superficially, but in application produce class-based outcomes due to differential access to legal and economic resources. Bail money, monetary surety, legal representatives like lawyers and advocates transform dignity and liberty into a purchasable commodity and not a readily available social remedy. This in itself raises an important socio-legal question, can Article 21 really exist meaningfully in an unequal socio-economic society. This phenomenon can be most closely attributed to Michel Focault’s theory of governmentalism^[9], wherein he argues that instead of using overt force, the State uses certain subtle techniques of control to regulate the population. Similarly, laws targeting and criminalising begging and vagrancy transforms poverty into a form of deviance, aligning with Loic Wacquant’s theory of penalisation of poverty, where the state uses criminal law to manage and maintain the existing socio-economic hierarchies.

The criminal law system in the aforementioned ways is weaponised and instrumentalised by the State and the system as a tool for maintaining status quo of the society and not merely law enforcement. Poverty, within this framework, is not treated as a socio-economic condition requiring redistribution, but as a problem of governance requiring control^[10]. This shift marks a transition from a welfare state to what many scholars have described as a regulatory or disciplinary state, where the visibility of poverty in public spaces become a threat to order, thereby legitimising state intervention. This causes poverty and allied issues like unemployment, homelessness etcetera to be individualised detaching it from structural economic processes, making it more comfortable and suitable for the states. 

Judicial recognition of reproductive autonomy under Article 21 of the Indian constitution marks a significant expansion of the concepts^[11] of life and liberty into privacy and dignity. However, recent jurisprudential and judicial pronouncement patterns a system of conditional autonomy, particularly in abortion rights and other instances of bodily autonomy.

The Medical Termination of Pregnancy (MTP) Act as amended in 2021, while progressive than the previous legislations, still subjects women and their reproductive choices to medical and judicial scrutiny. This reflects the idea of biopolitics^[12] as put forward by Michel Focault, where the state regulates the bodies and the population through medical and legal frameworks. This can be effectively illustrated by the fact that the courts and other state run institutions perform the role of decision makers with respect to issues concerning the reproductive and bodily autonomy of the women, thereby significantly reducing and hampering bodily autonomy of women in matters pertaining to their own body and will, transferring decision making from women to institutions.

Feminist theorists like Judith Butler argue that autonomy is shaped significantly by social norms^[13] and legal rights lose their authority in the face of collective social will.

Thus, the mere presence of laws, like MTP (Amendment) Act, 2021^[14] is rendered toothless by patriarchy, morality and institutional gatekeeping. Reproductive autonomy in India does not therefore guarantee absolute freedom rather it takes the form of a regulated autonomy. Autonomy thus becomes contingent and not absolute, dependent on the decisions of medical boards, courts and timelines. This idea aligns with Giorgio Agamben’s idea of sovereign exception wherein there is autonomy superficially on personal affairs but the final decisions regarding life and body rests with the state with the state run institutions like courts and medical boards becoming the arbiters of reproductive choice, transforming rights to a case-by-case concession.

Formal recognition of reproductive rights is often assumed to be an autonomous and rational agency, however, this assumption is essentially challenged by arguing that this agency in itself is socially constructed and controlled. Reproductive decisions are still figured by patriarchal family structures, societal stigma (especially for young unmarried women) who are tormented and ostracised by the society, often accompanied with objectifying notions of chastity, morality and family pride and honour. Thus, even where legal rights exist, the practical applicability of the same is limited and restricted by the society and the silence of the state proves to be a tacit approval of the same. For instance, unmarried young women have been historically restricted the access to abortion facilities not due to legal barriers but due to moral gatekeeping within the medical institutions.

While legal doctrines emphasise choice, Amartya Sen’s capability approach^[15] highlights that rights are meaningful when they can be meaningfully accessed by people from all strata of the society. This is true especially in the Global South context. In India, disparities in the access to reproductive autonomy are stark, with a staggering rural and urban divide in the same matter, similarly infrastructure of medical facilities are miles apart when compared between private and government clinics. Marginalised women, especially from tribal, Dalits or from the economically weaker backgrounds face compounded barriers, like geographical disparity, financial constraints and lack of awareness to name a few. Thus, in practice reproductive autonomy become stratified, available to only a select class of women, thus converting bodily autonomy from a right into a privilege for a select class. It thus fails to realise its goal of universal entitlement.

In conclusion a consolidated reading of the aforementioned themes, reveals a deeper and disturbing structural truth; India’s constitutionalism and legal rights is increasingly and deeply characterised by mediated and stratified rights rather than universal guarantees. Across these domains, law does not work as a emancipatory tool rather it functions as a site of negotiation between liberty and control, between autonomy and regulation, where access to rights is filtered by social hierarchy, institutional discretion and state priorities.

The implication therefore is clear, the Constitutions transformative potential is not merely self-executing, without addressal of redistribution of power and resources rights risk becoming procedural entitlements devoid of substantive equality, a meaningful shift therefore requires reimagination of law not as a instrument for regulation but as a vehicle for social transformation grounded in material justice.

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This blog has been authored by Mayukh Dyuti Dhar, student at NHidyatullah National Law University, Raipur (4th Runner Up of 1st RGNUL National Socio-Legal Blog Writing Competition)

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REFERENCES

[1] Constitution of India 1950, art 21

[2] Karnataka Freedom of Choice in Marriage and Prevention and Prohibition of Crimes in the Name of Honour and Tradition Act 2026

[3] Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6(3) Journal of Peace Research <https://www.jstor.org/stable/422690> accessed 21 May 2026

[4] Pierre Bourdieu, Language and Symbolic Power (Harvard University Press 1991)

[5] Bhimrao Ramji Ambedkar, Annihilation of Caste (first published 1936, Digital Fire 2022)

[6] Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press 1995)

[7] Michael Hechter, Internal Colonialism: The Celtic Fringe in British National Development (Transaction Publishers 1975)

[8] Ramachandra Guha and Joan Martínez-Alier, Varieties of Environmentalism: Essays North and South (Earthscan 1997)

[9] Michel Foucault, Discipline and Punish: The Birth of the Prison (Pantheon Books 1977)

[10] Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke University Press 2009)

[11] Constitution of India 1950, art 21

[12] Michel Foucault, The History of Sexuality, Vol 1: An Introduction (Éditions Gallimard  1976)

[13] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990)

[14] The Medical Termination of Pregnancy Amendment Act 2021

[15] Amartya Sen, Development as Freedom (Oxford University Press 1999)