Article 14- Right to Equality by - Jayati Khatter
Article 14-
Right to Equality
Authored by - Jayati Khatter
Fundamental
Rights
The Constitution of India, the
lengthiest constitution in the world, provides six fundamental rights namely, Right
to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of
Religion, Cultural and Educational Rights and, Right to Constitutional Remedies
in its Part III. While some are applicable to citizens only, a few could be
availed by non-citizens as well.
As the name suggests, these rights
are so crucial that, in their absence, protection of human integrity and
dignity, which majorly contributes towards the societal development would not
be possible. Fundamental Rights are justiciable rights, which means that, they
are enforceable in the court of law. Our constitution makers believed that
fundamental rights are vital for the welfare of the people, and so, provided constitutional
remedies. Therefore, if a person’s fundamental rights get infringed when
administrative authorities are exercising their power, he can seek the help of
the five writs mentioned in the constitution and approach the Supreme Court
under article 32 and the High Court under article 226.
These rights are also referred to, as
the Magna Carta of the Indian constitution. It is so, because, Magna Carta was
the first ever document to put into writing the principle that the King and his
government was not above the law. It aimed at preventing the King from abusing
his power, and placed limits of royal authority by establishing law as the most
supreme power in itself. Therefore, it could be said that Magna carta is
similar to Equality before Law, which is based on the well-known maxim, “However
high you may be, Law is above you” and “All are equal before the law”.
Right to
Equality
Article 14 as enshrined in the Indian
Constitution states “The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.” This
article promises to every person, including non-citizens and transgenders, the
right to equality before the law or the equal protection before the laws. Right
to Equality has also been mentioned in Article 7 of Universal Declaration of
Human Rights (UDHR). The two keywords which could be grasped from the aforementioned
article, are “equality before the law” and “equal protection” which are taken
from the English Common Law and US Constitution respectively.
Rule of Law
Sir Edward Coke, Chief Justice in
James I’s reign, gave the concept of “Rule of Law”. But it was A.V. Dicey who
developed the theory of Coke CJ in his book “An introduction to the Study of
the Law of Constitution” which got published in the year 1815. Dicey declared
rule of law as one of the fundamental principles of the English legal system. In
the aforesaid book, he laid down three principles which gave away the basic
meaning of rule of law. The three principles were, Supremacy of Law, Equality
before Law and, Judge-made Constitution.
i.
Supremacy
of Law
In the words of Dicey, rule of law
means the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power or wide discretionary power. It disbars existence
of arbitrariness, of prerogative or even wide discretionary power on the part
of the government.
In a nutshell, no man can be
arrested, punished or be lawfully made to suffer in body or goods except by due
process of law and for a breach of law established in the ordinary legal manner
before the courts of land. This principle was described as “the central and
most characteristic feature” of common law.
ii.
Equality
before Law
The second principle of Rule of Law
states that there must be equality before the law or that all the classes be
subjected to the ordinary law of the land administered by the ordinary law
courts equally. According to Dicey, all persons in England were subject to one
and the same law, and there were no separate tribunals or special courts for
officers of the government and other authorities.
He was totally against the French
legal system of droit administratif since there were separate
administrative tribunals for deciding cases between the officials of the state
and the citizens of the state. As per Dicey, exemption of the civil servants from
the jurisdiction of the ordinary courts of the law and providing them with the special
tribunals was the negation of equality.
iii.
Judge-made constitution
In many countries, rights such as
right to personal liberty, right to education, right against exploitation are
guaranteed by a written constitution, however, in England it was not the case.
Such rights are the result of judicial decisions in concrete cases which have
usually arisen out of conflicts between the two parties.
Therefore, Dicey emphasised that rile
of courts of law as guarantors of liberty and proposed that the rights would be
secured more adequately if they were enforceable in the courts of law than by
mere declaration of those rights in a document, as in the latter case they can
be ignored, curtailed or trampled upon.
Equal Protection
Article 14 of our Indian
constitution, which was derived from Section 1 of the United States
Constitution's 14th Amendment Act, guarantees "equal protection of the
law."
In contrast to 'equality before the
law,' the phrase 'equal protection of the law' is a positive one. It simply
means that all people in similar situations have the same rights and
obligations. It essentially means that all people should be treated equally and
that no one should be discriminated against. Equals and unequal cannot be
placed on the same level and treated in the same way.
The phrase "equality before the
law" has a negative connotation because it indicates that no special
privileges are granted to any individual. On the other side, the phrase
"equal protection of the law" is a positive idea, implying that
individuals in similar circumstances should be treated equally.
The phrases "equality before the
law" and "equal protection of the law" come from the English
Common Law and the American Constitution, respectively.
The concept of 'equality before the
law' emphasises that all people must be subjected to the usual law of the land,
which is administered by ordinary law courts. It suggests that no one is exempt
from the law. The concept of 'equal protection of the laws,' on the other hand,
indicates that all people in similar situations must face the same legal
treatment. The emphasis is on treating like persons in the same way.
In a couple of cases, this
distinction was also clarified. In Sri Srinivasa Theatre v. Government of
Tamil Nadu[1],
it was decided that the terms "equality before the law" and
"equal protection of the law" do not have the same meaning, despite
the fact that they have a lot in common. In the first expression, the term
'law' had a more general meaning, whereas in the second expression, it had a
more specific meaning. It was also noted that 'equality before the law' is a
multifaceted term with many elements. And, as envisaged in the Preamble and
Part IV of the Indian Constitution, one of the features implies the lack of any
privileged class or person who was above the law, while the other denotes the
state's commitment to make society more equal. The concept of equal protection
of the law is merely a part of the concept of equality before the law,
according to the case of State of West Bengal v. Anwar Ali Sarkar[2].
It's impossible to picture 'equality before the law' being maintained when the
'equal protection of the law' is breached.
Exception
to Equality before Law in India
Article 361 of the Indian
constitution protects the President and Governors and Rajpramukhs from the
doctrine of Equality before law. According to this article,
i.
The
President, the Governor, or the Rajpramukh of a State shall not be held liable
in any court for the exercise and execution of their powers and
responsibilities, or for any act done or purported to be done by them:
Provided, however, that any court, tribunal, or body created or authorised by
either House of Parliament for the investigation of a charge under Article 61
may evaluate the President's conduct: Furthermore, nothing in this section
should be regarded as limiting anyone's right to pursue appropriate proceedings
against the Governor of India or a State's government.
ii.
During
the President's tenure of office, no criminal actions against him or the
Governor of a State shall be commenced or continued in any court.
iii.
During
the President's time of office, no process for the arrest or incarceration of
the President or the Governor of a State shall be issued by any court.
iv.
Any
civil proceeding in which relief is sought against the President or the
Governor of a State may be brought in any court during his term of office in
respect of any act done or purported to be done by him in his personal
capacity, whether before or after he assumed office as President or Governor of
such State, until the expiration of two months after notice in writing has been
delivered to the President or Governor, as the case may be, or until the
expiration of two months after notice in writing has been delivered to the
President or the Governor, as he claims.
Article 14
Permits Classification but Prohibits Class Legislation
Article 14 which clearly states that
there should be equal subjection of all the classes of people to the laws and
that they should be protected under the eyes of law, paves way for this
doctrine of reasonable classification. It is sometimes, also known as
Reasonable Classification. In a nutshell, article 14 says that equals must be
treated equally while unequally must be treated differently, and for that the
state must not only not treat people unequally but it must also take positive
steps to eradicate already existing inequalities, especially the ones which
treat human beings as less than one, and that is when reasonable classification
comes into picture.
The principal of equality, does not necessarily
mean, that every law must have a universal application upon all those persons
who are definitely not the same, do not have the same needs and definitely not
same circumstances and opportunities. The varying needs and situations demand
different treatment.
The Supreme Court of India in Kedar
Nath Bajoria v. State of W.B.[3],
held that “The equal protection of the laws guaranteed by the article 14 of the
constitution does not mean that all the laws must be general in character and
universal in application and the state is no longer to have the power of distinguishing
and classifying persons or things for the purposes of legislation.”
Doctrine of
Legislative Classification
A legislative classification in order
to be valid must be reasonable. For a classification to be considered
permissible, two indispensable conditions must be fulfilled, namely,
i.
The
classification must be founded on intelligible differentia, distinguishing
grouped together persons or goods from the left-out ones of the group.
ii.
The
differential must be in a rational relation with the sought object that is to
be achieved by the act.[4]
Thus, the object of classification cannot
be any object, it must be lawful.
The Honourable Supreme Court of India
has established certain important principles which illuminate the scope of permissible
classification.[5]
1. A legislation may be constitutional
even if it applies to a single individual if that single individual is treated
as a class by himself due to exceptional circumstances or reasons that apply to
him but not to others. However, such laws are viewed with scepticism,
particularly when they affect an individual's private rights.
2. There is always a presumption in
favour of an enactment's constitutionality, and the burden of proof is on those
who challenge it to establish that it violates constitutional principles. The
individual who claims that article 14 has been violated must show that not only
has he been treated differently from others, but that he has also been treated
differently from those in similar situations without any justification, and
that such differential treatment has been made unjustifiably.[6]
3. It must be assumed that the
legislature recognises and understands the needs of its own people, that its
laws are geared at problems that have been identified through experience, and
that its discriminatory treatment is justified.
4. The legislature is permitted to
distinguish between different degrees of harm and to limit its restrictions to
those circumstances where the need is regarded to be the most obvious.
5. In order to uphold the presumption of
constitutionality, the court may consider items of common knowledge, matters of
common report, historical context, and any condition of facts that might be
imagined existing at the time of legislation.[7]
6. While the legislature's good faith
and knowledge of the situation must be assumed, the presumption of
constitutionality cannot be used to hold that there must be some undisclosed
and unknown reasons for subjecting certain individuals or corporations to
hostile or discriminatory legislation at all times.
7. It is not necessary for a
categorization to be scientifically correct or logically complete.[8]
8. The legitimacy of a rule must be
determined by considering its overall impact rather than focusing on
exceptional circumstances. The court must determine whether the classification
is correct after taking all factors into account.[9]
9. To evaluate the feasibleness of
classification, the court must look beyond the ostensible classification and to
the law's objective, applying the test of "palpable arbitrariness" in
the context of the times' felt requirements and societal necessities informed
by experience.[10]
10. In illegal conduct, there is no
entitlement to equality. Discrimination cannot be claimed on the basis of
someone obtaining an illicit benefit or advantage that he was not entitled to.[11]
11. The right to equality applies to both
the giving of favours and the imposing of duties.[12]
Affirmative Action
Affirmative actions help
a State in the development and progress of an individual, since these are
positive actions taken by a state, they help the people in developing and
progressing. The Indian Constitution expressly provides for affirmative actions
which extends till reservation policy.
Reservation is a policy
aimed at redressing previous prejudice against lower-income and minority groups
by improving their economic and educational prospects. Reservations are a means
of promoting equality of opportunity. It is frequently implemented in
government and educational contexts to guarantee that minorities are
represented in all programmes. Reservation is justified to compensate for
historical discrimination, oppression, or exploitation by a culture's ruling
class, or to alleviate current discrimination. The objective of affirmative
action is to achieve social equality by giving socio-economically disadvantaged
persons preferential treatment. Furthermore, the primary goal of reserve is to
achieve social equality.
Social equality refers to
a social situation in which all members of a society or isolated group have the
same status in a certain area. At a bare minimum, social equality entails equal
legal rights, such as security, voting rights, freedom of expression and
assembly, and the scope of property rights. It does, however, cover access to
education, health care, and other social benefits. It also encompasses equal
chances and responsibilities, implying that it affects the entire society. In
contrast to economic or income equality, social equality refers to social
equality.
Mandal Commission Report
The Mandal Commission was
founded in India in 1979 by Prime Minister Morarji Desai's Janata Party
government with the purpose of "identifying the socially or educationally
disadvantaged." It was chaired by Indian lawmaker Bindheshwari Prasad Mandal
and employed eleven social, economic, and educational indices to assess
backwardness. The commission's report from 1980 affirmed Indian law's
affirmative action practise, in which members of lower castes (known as Other
Backward Classes (OBC) and Scheduled Castes and Tribes) were given exclusive
access to a certain percentage of government jobs and slots in public
universities, and recommended changes to these quotas, increasing them by 27
percent to 49.5 percent. Article 340 established this commission for the
purposes of articles 15 and 16.
Mandal Commission’s recommendations regarding Reservation
According to Mandal
Commission recommendations on reservations for Scheduled Castes and Scheduled
Tribes, India's SC and ST population is 22.5 percent, so 22.5 percent
reservation has been made for them in all services and public sector under the
Central Government, and reservation in states should be based on their
population.
Other Backward Classes
are recommended for reservation because they account for 52 percent of India's
total population. As a result, 52 percent of all Central Government posts
should be reserved for them, but due to Supreme Court rulings, the total amount
of reservation should be less than 50 percent. As a result, recommended
reservations for OBC, ST, and SC combined should be less than 50%. As a result,
the commission has set aside 27% of the seats for them.
Indian Judiciary’s approach concerning Reservation
The Indian Judiciary has
issued rulings sustaining reservations and others fine-tuning their
implementations. A number of reservations-related decisions have since been
changed by the Indian parliament through constitutional amendments. State and
federal governments have disregarded some Indian judicial decisions. The main
judgments issued by Indian courts that indicate the constitutional status of
reservations are:
Ajay Hasia v. Khalid
Mujib
The regional engineering
college in Ajay Hasia v. Khalid Mujib [13]admitted
candidates after a written test on the basis of an oral interview. The oral
interview test was contested on the grounds that it was arbitrary and
unreasonable because it was given a high percentage of the marks although
candidates were only interviewed for 2-3 minutes. The court ruled that the
provision requiring a high proportion of points for oral test reallocation of
one-third of total marks was arbitrary and unreasonable, and so violated
Article 14 of the constitution. The oral interview exam, it is claimed, cannot
be considered a very satisfactory test for addressing and assessing the calibre
of candidates because it is subjective and dependent on first impressions, and
its outcome is impacted by numerous unclear elements and is vulnerable to
exploitation. It cannot be the sole criterion. It should only be used as a backup
or supplementary exam, and it should be carried out by people of high
integrity, calibre, and qualification.
The court recommended
that the interview be taped so that it could be judged on whether it was
performed arbitrarily. In
this case, a large number of candidates were admitted based on strong interview
scores despite low written exam scores, but the court rejected to overturn
admissions due to the lag of 18 months, when the students had almost finished
three semesters. A mere hunch that certain candidates had received high marks
in the interview but very low marks in the written test did not prove that the
selectors were being dishonest.
D.V. Bakshi v. Union of
India
In D.V.
Bakshi v. Union of India[14],
the petitioners argued that the rule allocating 100 marks with 50 pass marks
for oral tests is invalid since it provides the authorities arbitrary power to
pick and choose candidates. The court separated the case of Ajay Hasia from the
current one, holding that allocating maximum marks for oral tests is not
arbitrary, particularly in professional selections. When it comes to selection
for public service employment, the test that may be valid for competitive tests
or admittance to educational institutions may not be valid. The test that was
used to help Ajay Hasia cannot be used to grant a licence as a Custom House
Agent. There is no hard and fast rule in this regard, as much depends on the
sort of performance required for the responsibility that the candidate will
handle after his selection. A Custom House Agent's tasks, responsibilities, and
functions are unique, requiring not only a high level of probity and honesty,
but also intellectual skills, adaptability, judgement, and the ability to make
quick choices in accordance with the law, rules, and regulations. As a result,
there is justification for selecting such people using an oral test with a
passing score of 50%.
How can Positive Affirmation and Legislative Classification
help in bringing out equality?
Equality has been
promised by the state under Article 14 of the Indian Constitution, which is
regarded as the soul of the Indian Constitution because no country can be
considered a republic without equality, and it is the need for equality that
has compelled human beings to join the state in order to obtain security, equal
protection of the law, and equality in all aspects. We included the word
equality from the French Revolution in our Preamble, which demonstrates the
goals of our Constitution, and Article 14 is a step toward achieving that goal.
Equality implies that those who are similar should be treated similarly, and
those who are dissimilar should be treated similarly. That is why Article 14
allows for appropriate classification of likes and unlikes, with unlikes
receiving special treatment to bring them on par with likes, despite the fact
that identical treatment under unequal conditions would be inequitable. The
goal of equality will not be considered accomplished until all people are on an
equal footing. As a result of this desire for equality, the concept of
reservation or affirmative action was born. Reservation is a particular
treatment provided to the unlikes in society until they reach parity with the
likes.
Reservation is a notion
that was created with the goal of providing special assistance to the weak so
that they may overcome their disadvantages and compete with the strong. The
Supreme Court has given wonderful judgments in landmark cases such as D.V.
Bakshi v. Union of India[15] and,
Air India v. Nargesh Mirza[16],
which prove that inequality will never be tolerated anywhere, and thus the
judgments in these cases have established new landmarks in the concept of
equality.
Reservation is a potent
remedy for achieving equality, which is a state of total fairness.
Conclusion
The Indian Constitution
is one of the world's best and most comprehensive written constitutions.
Article 14 of our Constitution is the heart of the Indian Constitution, and
Article 21 is a distant second, what is the point of existence if there is no
equality? The Indian reservation system has been a tremendous achievement in
strengthening the situation of the backward classes, and the position of the
backward and oppressed classes in India has improved dramatically in recent
decades. There are also some flaws in the identification of the Backward
Classes because, despite many years of reservation, their position has not
progressed to the extent that it should have. Our current reservation system is
caste-based, and it has been observed that the upper segment of each class,
which is ahead of the others, is developing and taking full advantage of
reservation, and that they have now achieved both economic and social equality
because they are financially sound, whereas the lower segment of the same cast
is still unaware of their reservation rights and remains backward. To equalise
this imbalance within the same caste, reservation policies should be based on
economic conditions, so that each and every individual in our country who is
socially and economically backward has an equal opportunity to progress.
[1] AIR 1992 SC 999
[3] AIR 1953 SC 404
[4] W.B. v. Anwar Ali Sarkar, AIR
1952 SC 75
[5] Ram Krishna Dalmia v. Justice
S.R. Tendolkar AIR 1958 SC 538
[6] Ramchand Jagdish Chand v. Union
of India, AIR 1963 SC 563
[7] Supt. & Remembrancer of
Legal Affairs v. Girish Kumar Navalakha AIR 1975 SC 1030
[8] Kedar Nath Bajoria v. State of
W.B. AIR 1953 SC 404
[9] Mohd. Usman v. State of A.P. AIR
1971 SC 1801
[10] Shashikant Laxman Kale v. Union
of India AIR 1990 SC 2114
[11] Chandigarh Admn.v. Jagjit Singh
AIR 1995 SC 705
[12] State of U.P. v. Mata Tapeshwari
Saraswati Vidya Mandir AIR 2010 SC 402
[13] AIR 1981 SC 487
[14] AIR 1993 SC 2374
[15] AIR 1993 SC 2374
[16] AIR 1981