Equality Before The Law: Right To Equality [Articles 14-18

What are rights to equality?

Right to equality is a reflection of the high aspirations as enshrined in the Preamble of the Indian Constitution. The words “…JUSTICE, social, economic and political; EQUALITY of status and of opportunity…” in the Preamble of the Indian Constitution gives the very backing to this essential human right i.e. Right to equality.

What does right to equality article 14 18 say about equality?

Right to Equality Article 14 18 guarantees the right to equality to every citizen of India. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. The succeeding Articles 15, 16, 17 and 18 lay down specific application of the general rules laid down in Article 14.

Article 14
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The words “shall not” puts a mandatory duty upon the State not to discriminate on any ground. The words ‘any person’ denote that the guarantee of the equal protection of the laws is available to any person, which includes any company or association or body of individuals. The protection extends to both citizens and non-citizens and to natural persons as well as legal persons.

Article 14 uses two expressions

• Equality before the law
• Equal protection of the law

The phrase “equality before the law“ occurs in almost all written Constitutions that guarantee fundamental rights. The first expression “Equality before the law” is of English origin while “equal protection of law” owes its origin to the American Constitution. Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution.

Equality before the law is somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law. Equal protection of law is a more positive concept employing equality of treatment under equal circumstances.

Thus, India has taken best aspects of both systems Unitary and federal; i.e. from England we have taken equality before the law which means supremacy of the Parliament and from America we have taken the equal protection of the laws which means supremacy of the Courts and the law. Therefore, in India, the administration is based on a compromise between Judicial and Parliamentary Supremacy. This way Indian constitution aims towards establishing a rule of law.

As Dr.Jennings puts it-
“Equality before the law” means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence.
It only means that all persons similarly circumstanced shall be treated alike, both in the privileges conferred and liabilities imposed by the laws. Equal laws should be applied to all in the same situation, and there should be no discrimination between one person and another.
Thus the rule is that the like should be treated alike and not that unlike should be treated alike

The guarantee of equality before the law is an aspect of what Dicey calls the rule of the law in England. It means that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts. Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order.

PROFESSOR DICEY GAVE THREE MEANINGS OF THE RULE OF LAW
Absence of Arbitrary Power or Supremacy of the law
A man may be punished for a breach of law, but he can be punished for nothing else.

Equality before the law: It means subjection of all classes to the ordinary law of land administered by ordinary law courts. This means that no one is above law.

The Constitution is the result of the ordinary law of the land: It means that the source of the right of individual is not the written Constitution but the rules as defined and enforced by the courts.

EXCEPTIONS TO RULE OF LAW

The rule of equality is not an absolute rule and there are number of exceptions to it-

1. “Equality before the law” does not mean the “powers of the private citizens are the same as the powers of the public officials”. For example- A police officer has a power to arrest whereas no private individual has that power generally. But, the rule of law does require that these powers should be clearly defined by law and that abuse of authority by public officers must be punished by ordinary courts in the same manner as illegal acts committed by private persons. The rule of law does not prevent certain classes of persons being subject to special rules. Thus, members of the armed forces are controlled by military laws. Similarly, medical practitioners are subjected to the regulation framed by the Medical council of India.
2. Article 361 of the Indian Constitution affords immunity to the President of India and State Governors. According to the said provision, the President, or the governor or rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those power and duties. Provided that the conduct of the president may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61.
   • Article 361 Clause (2) provides that- “No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.”
   • Article 361 Clause (3) provides that- “No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.”
   • Article 361 Clause (4) provides that- “No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.”
3. Besides above, under international law, the foreign sovereigns and ambassadors are also exempted from the jurisdiction of the Indian courts and they enjoy full immunity from any judicial process. This is also available to enemy aliens for acts of war.

ART. 14 PERMITS REASONABLE CLASSIFICATION BUT IT PROHIBITS CLASS LEGISLATION

What Article 14 forbids is class legislation and it does not forbid reasonable classification. The classification must not be “arbitrary, artificial or evasive” but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.

Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and that no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.

From the very nature of society there should be different laws in different places and the legislature controls the policy and enacts laws in the best interest of the safety and security of the state. In fact identical treatment in unequal circumstances would amount to inequality. So, a reasonable classification is not only permitted but it is necessary if society is to progress.

Classification to be reasonable must fulfil the following two conditions:-

• Firstly, the classification must be founded on the intelligible differentia.
• Secondly, the differentia must have a rational relation to the object sought or to be achieved by the act.

The differentia which is the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the Act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory and violative of Article 14.

What are some examples of equality before law article 14?

NEW CONCEPT OF EQUALITY

• E.P. Royappa v. State of Tamil Nadu [AIR 1974 SC 555]{Imp}
  Supreme Court challenges the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. The Honourable Judges who gave the decision were of the opinion that “Equality is a dynamic concept with many aspects and dimensions and it cannot be cabined or confined within traditional limits”.
  
• D.S Nakara v. union of India [AIR 1983 SC 130]
  In this case, Supreme Court struck down Rule 34 of the Central Services (Pension) Rules, 1972 as unconstitutional on the ground that the classification made by it between pensioners retiring before a certain date and retiring after that date was not based on the any rational principle and it was arbitrary and violative of Article 14 of Indian Constitution.
  
• Mithu v. State of Punjab [AIR 1983 SC 473]{Imp}
  The Supreme Court struck down Section 303 of Indian Penal Code as unconstitutional on the ground that the classification between persons who commits murders whilst under the sentence of imprisonment and those who commit murders whilst they were not under the sentence of life imprisonment for the purposes of making the sentence of death mandatory in the case of the former class and optional in the latter class was not based on any rational principle and was somehow violative of Article 14.
  
• K.A. Abbas v. Union of India [AIR 1971 SC 481]{Imp}
  Validity of Cinematograph Act, 1952 was challenged on the ground that it makes unreasonable classification of cinema films in “U” films and “A” films. Supreme Court held the classification to be logical and a reasonable one as also not being violative of Article 14 in any manner.
  
• Air India v. Nargesh Meerza [AIR 1981 SC 1829]{Imp}
  Supreme Court struck down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar on services of air hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary. Regulation 46 of Indian Airlines Regulations provided that an air hostess would retire from the service upon attaining the age of 35 years or on marriage, if it took place within 4 years of service or on first pregnancy, whichever occur earlier. Such rules for the termination of service on pregnancy were manifestly unreasonable and arbitrary as it was in violation of Article 14 of Indian Constitution.
  
• Randhir Singh v. Union of India [AIR 1982 SC 879]{Imp}
  Supreme Court held that although the principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right, but it is certainly a Constitutional goal under Article 14. This right can, therefore, be enforced in cases of unequal scales of pay based on irrational classification.
  
• Javed v. State of Haryana [AIR 2003 SC 3057]{Imp}
  Petitioners challenged the validity of Section 175 (1) (g) of the Haryana Panchayati Raj Act, 1994 on the ground that it was violative of Article 14 as the said provision disqualified a person having more than two children from contesting elections for Sarpanch or Panch in Gram Panchayats. Supreme Court upheld the constitutionality of the said provision and held that it is not violating Article 14 in any manner.

Article 15 of Indian Constitution : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
   • access to shops, public restaurants, hotels and places of public entertainment; or
   • the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
3. Nothing in this article shall prevent the State from making any special provision for women and children.
4. Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
5. Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Article 15 of Indian Constitution provides for a particular application of the general principle embodied under Article The guarantee under Article 15 of Indian Constitution is available to citizens only. The state cannot discriminate only on the above mentioned grounds but can discriminate on grounds other than these. The rights under 15 (2) are not only available against a State but also against other citizens.

Article 15 (1) of Indian Constitution states that no citizen shall be discriminated only on the grounds of religion, race, caste, sex, place of birth or any of them. But there are special considerations for women and children, SC/ST, OBC. Exceptions for these categories are mentioned in Clause (2) and (3) of Article 15.

Article 15 (2) of Indian Constitution is a specific application of the general prohibition contained in Article 15 (1). While Clause (1) prohibits discrimination by the State; clause (2) prohibits both the State and private individuals from making any discrimination.

Women and children require special treatment on account of their very nature and therefore Article 15 (3) of Indian Constitution empowers the State to make special provisions for women and children. The reason is that “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well-being. Thus, under Article 42, women workers can be given special maternity relief and a law to this effect will not infringe Article 15 (1). Also, if an educational institution is established by the State exclusively for women or if reservation of seats is made for women in a college, it does not offend Article 15 (1).

Article 15 of Indian Constitution Case Laws

Article 15 Clause (4) of Indian Constitution is another exception to clause (1) and (2) of Article 15. Article 15(4) has been inserted by the constitution ( first amendment ) Act, 1951. It was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan[AIR 1951 SC 226].

The provision made in clause (4) is only an enabling provision and does not impose any obligation on the State to take any special action under it. It merely confers discretion to act if necessary by way of making special provision for backward classes. A writ cannot be issued to the State to make reservation. The basic principle underlying this clause is that a preferential treatment can be given validly where socially and educationally backward classes need it.

Thus under Article 15 (4) of Indian Constitution, two things are to be determined-

1. Who are socially and educationally backward classes?
2. What is the limit of reservation?

Constitution nowhere defines ‘backward classes’. Article 340, however, empowers the President to appoint a Commission to investigate conditions of socially and educationally backward classes. On the basis of the report of the Commission the president may specify who are to be considered as ‘Backward classes’. In Balaji v. State of Mysore [AIR 1963 SC 649], it was held that ‘backward’ and ‘more backward’ classification is not bad.

In the historic Mandal Commission Case [Indira Sawhney v. Union of India, AIR 2000 SC
498], the Supreme Court by 6-3 majority has held that the sub-classification of backward classes into backward into more backward and backward classes for the purpose of Article 16(4) of Indian Constitution can be done. But as result of sub-classification, the reservation cannot exceed more than 50 percent. Creamy layer must be excluded from the backward classes.

High caste girl marrying a male of Scheduled tribe is not entitled to reservation benefit under Clause (4) of Article 15. Also, a Scheduled Caste or a Scheduled Tribe candidate is entitled to reservation benefit only in the State of his origin and not in other State where he migrates to. Article 15 clause (5)– In order to serve the educationally and socially backward classes, the State asked the private education institutions also to reserve seats for the backward classes. Private institutions objected to it, stating it would amount to violation of right under Article 19 (1) (g).

The Parliament, by amending the Constitution in 2005, added Clause (5) to Article 15. According to this, it is mandatory to reserve seats for backward classes also even in private institutions whether aided or unaided, by the State. The only exception is educational institutions run by minority communities. A law was enacted in this effect called Central Educational Institutions Reservation in Admission Act, This Act was challenged in the Supreme Court, but the Supreme Court upheld the validity of this law.

Landmark cases on Clause (5)-

• T.M. Pai Foundation v. State of Karnataka [AIR 2003 SC 355]
• Islamic Academy v. State of Karnataka [AIR 2003 SC 3724]
• P. A. Inamdar v. State of Maharashtra [AIR 2005 SC 3226]
  

Article 16 of Indian Constitution: Equality of Opportunity in Matters of Public Employment

1. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
   1. (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
   2. (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
5.  Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article 16 (1) and (2) applies only in respect of employment or office under the State. Clause (3), (4), (4-A), (4-B), (5) of Article 16 of Indian Constitution provide four exceptions to this general rule of equality of opportunity.

Clause (4) enables the State to make provision for the reservation of posts in government jobs in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services of the State.

The newly added clause (4-A), added by 77th Amendment, 1955, empowers the State to make any provision for the reservation in matters of promotions of SCs and STs which, in the opinion of the State, are not adequately represented in the services of the State.

The Constitution (81st Amendment) Act, 2000 has added a new clause (4-B) in Article 16 of Indian Constitution which seeks to end the 50% limit for Scheduled Castes and Scheduled Tribes and other Backward Classes in backlog vacancies which could be filled up due to the non availability of eligible candidates of these categories in the previous year or years.
Important Amendments with reference to Article 16 of Indian Constitution are 77th, 81st, 85th Constitutional Amendments.

Article 17 of Indian Constitution: 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. In exercise of the powers conferred by Article 35, Parliament has enacted the Untouchability (Offences) Act, 1955. This Act was amended by the Untouchability (Offences) Amendment Act, 1976, in order to make the law more stringent to remove untouchability from the society. It has now been renamed as ‘The Protection of Civil Rights Act, 1955’. Under the amended Act, any discrimination on the ground of untouchability will be considered as an offence.

ARTICLE 18 of Indian Constitution: Abolition of Titles

1. No title, not being a military or academic distinction, shall be conferred by the State.
2. No citizen of India shall accept any title from any foreign State.
3. No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
4. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Article 18 of Indian Constitution prohibits the State to confer titles on anybody whether a citizen or a non-citizen. Military and academic distinctions are, however, exempted from the prohibition. Clause (3) is there to ensure loyalty to the Government that such person serves for the time being and to shut out all foreign influence in Government affairs or administration.

This is the reason why the conferment of titles of “Bharat Ratna”, “Padma Vibhushan”, “Padma Shri”, etc. is not prohibited under Article 18 Indian Constitution as they merely denote State recognition of good work or exceptional or distinguished services of the high integrity by citizens in any field.

These National Awards were formally instituted in January, 1954 by two Presidential Notifications. The said Notifications also provide that any person without distinction of race, occupation, position or sex, shall be eligible for these awards. It was also made clear that these civilian awards cannot be used as titles and should not be attached as suffixes or prefixes to the name. In 1977, these awards were discontinued but were again revived in 1980. Since then, the National Awards are conferred annually on Republic Day.

References

• Books
  • Constitutional Law of India by  Dr. J.N. Pandey
  • M P Jain Indian Constitutional Law
  • Constitution of India by V. N. Shukla