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RIGHT AGAINST DISCRIMINATION UNDER THE CONSTITUTION OF INDIA- AN ANALYSIS
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Article Details
RIGHT AGAINST DISCRIMINATION UNDER
THE CONSTITUTION OF INDIA- AN ANALYSIS
AUTHORED BY -
ABHISHEK KUMAR
An LL.M Student of
Chanakya National Law University, Patna
Email Id: dradvabhishek@gmail.com
Abstract
This paper undertakes a
comprehensive examination of the right against discrimination within the
constitutional framework of India. Discrimination, a pervasive issue in
societies worldwide, finds particular resonance in India's complex
socio-cultural landscape. The Constitution of India, as the supreme law of the
land, serves as a beacon for upholding fundamental rights, including the right
to equality and non-discrimination. This analysis delves into the historical, philosophical,
and legal dimensions of this crucial right, aiming to elucidate its
significance and implications in contemporary Indian society.
The historical context
provides a backdrop for understanding the genesis of anti-discrimination
principles in India. From the colonial legacy of discrimination to the struggle
for independence and the subsequent framing of the Constitution, the trajectory
of India's journey towards equality is marked by both progress and challenges.
The philosophical underpinnings of equality, rooted in the principles of
justice, fairness, and dignity, form the moral foundation upon which legal
provisions are constructed.
Central to this analysis are
the constitutional provisions explicitly addressing equality and the right
against discrimination. Articles 14, 15, and 16, among others, serve as
bulwarks against arbitrary discrimination by the state and individuals alike.
Through an examination of judicial interpretations and landmark cases, the
evolving jurisprudence surrounding these provisions is elucidated, shedding
light on the complexities of applying abstract constitutional principles to
concrete situations.
Moreover, the paper explores
the contemporary relevance of the right against discrimination in India's
rapidly changing social, economic, and political landscape. It interrogates
persistent forms of discrimination based on caste, gender, religion, ethnicity,
and other intersecting identities, emphasizing the need for targeted
interventions and systemic reforms. Additionally, comparative insights from
legal systems worldwide offer valuable perspectives on effective strategies for
combating discrimination and promoting inclusivity.
In conclusion, this analysis
underscores the imperative of upholding the right against discrimination as a
cornerstone of Indian democracy and social justice. By unpacking its historical
roots, philosophical foundations, legal provisions, and contemporary
challenges, this paper seeks to contribute to ongoing discourse and efforts
aimed at realizing the constitutional promise of equality for all citizens of
India.
Keywords: Right Against
Discrimination, Constitution of India, Equality, Legal Provisions, Contemporary
Relevance
“As long as
poverty, injustice and gross inequality persist in the world, none of us can
truly rest” – Nelson Mandela
Introduction
Discrimination is a word that we have been studying for many years.
Discrimination means unjust or preferential treatment on the grounds of caste
class gender religion country etc. The rights and interests of a person are
violated due to discrimination. It occurs when a person is deprived of their
common rights. Discrimination is treating a person or group of people
differently and not in a good way. It means to consider a group of communities
as inferior. Discrimination always occurs with different minorities (gender,
class, etc.). So many forms of discrimination exist in this world. The people
belonging to the different communities are treated so harshly and in a very bad
way. Some so-called majority social groups decide opportunities for them.
Discrimination can also be aimed at people of various cultural, linguistic, or
religious backgrounds. People may also face discrimination based on their
sexual orientation or preferences. Despite the progress made in many countries,
gender discrimination is still prevalent. Women's rights to represent
matrimonial property, the ability to inherit on an equal footing with men, and
the freedom to work and travel without their husbands' permission are still
denied by law. Women are also more vulnerable to violent and abusive practices,
which persist unabated in many countries, and they frequently face double
discrimination as a result of their race or ethnicity as well as their gender.
These situations may push individuals to migrate, and they have aided in the
rise in human trafficking, particularly among women and children, who are
routinely subjected to physical restraint, assault, and intimidation. Equality
ensures that all people are born free and equal. Equality presupposes that all
people have the same rights and deserve the same respect. Everyone has the
right to be treated equally. This means that the laws, policies and programs
must not be discriminatory and that government agencies must not apply or
enforce the laws, policies and programs in a discriminatory or arbitrary
manner. There are two types of discrimination.
Direct Discrimination
Direct discrimination means that a person or groups of people are
treated in an unfair way or a prejudiced way. It is the system of restricting
an individual or group of individuals from using the services available to
society or not providing them enough opportunities based on the fact that they
belong to different religions, caste, classes, or gender. It occurs when the
opportunities are available for everyone in the society but a person belonging
to a different caste or gender is neglected even though they are capable enough
of that opportunity and have qualified all the criteria required.
Indirect Discrimination
Indirect discrimination stipulates that when there are some rules and
regulations that apply to every person living in the society but it creates
some problems and disadvantages for specific individuals or groups of
individuals based on the fact they are different in a certain way. Indirect
discrimination is unlawful if it comes under the criteria where the person is
treated unfairly on the attributes like caste, sex, gender, race, nationalism,
etc. for example- In a company, where promotion is to be held for the position
of general manager and for this position one male and a female employee were
considered as their qualities fulfil the requirements. The female employee had
more experience in the field. The male employee got the promotion and the head
of the company when asked for the reason for the disqualification of the female
employee said that we needed a person who can work full time and can travel
whenever the company requires. This case is nothing but a typical example of
indirect discrimination that females face in their careers because they are
considered less than men and also sometimes the company assumes her family won’t let her do this much work.[1]
There is no comprehensive anti-discrimination law covering the entire
country. The constitutional provisions generally view discrimination from a
state citizen perspective. But this approach does not take into account the
discriminatory actions of private individuals. Also, the existing legal
framework falls short of ensuring justice to the survivors of discrimination as
seen during the Covid 19 pandemic. In mid-2021, many state governments brought
draft anti-discriminatory bills to deal with the problems of discrimination
faced by people. In this context, the write-up analyses the need for pan-Indian
anti-discriminatory legislation.
Concept of Equality: Meaning and Definition
When we talk about India, even after so many years of
independence, it still cannot be called completely independent in many aspects.
Evils such as discrimination, inequality and untouchability are still
prevailing in our country. The same was felt by the makers of the Indian
constitution. Such evils prevailed then also and are even more prevalent today.
There are a large number of places even today where people are not treated
equally and face discrimination on the basis of gender, religion, caste, race,
sex etc.
In order to improve this scenario, Article 14 was added
in Part III of the Constitution of India as a Fundamental Right, by the
drafting committee of the Constitution. This right is available to every
person, be it a citizen or non-citizen of India. Article 14 states that every
person should be treated equally without any discrimination. The State shall
not deny equality before law and equal protection of laws to any person within
the territory of India. Article 14 ensures the basic requirement of citizens
that is to be treated equally and as liberty is directly connected to equality,
Article 14 ensures liberty as well as equality to citizens.[2]
Article 14 to 18 of the Constitution provides for
equality among the people. They were inserted by the constitution makers as an
effort to scrap off discrimination from our country. In the case of National
Legal Services Authority v. Union of India[3] Supreme Court
held that article 14 does not restrict the word ‘person’ and its
application only to male or female and Hijras/ transgender persons who are
neither male nor female fall within the expression ‘person’. They are entitled
to legal protection of laws in all spheres of state activity including
employment, healthcare, education as well as equal civil citizenship rights, as enjoyed by any
other citizen of this country.
Evolution of
the Concept of Equality
The concept of equality has an ancient history.
Aristotle analysing the concept of justice emphasised the close relationship
between justice and equality. Accordingly, he divided justice into two parts,
namely, general justice and particular justice. In the general sense, it meant
equality. He made a further division of particular justice into two, namely,
corrective justice and distributive justice. While corrective justice aims at
redressing an equality which has been interfered with, distributive justice, on
the other hand, aims at an equal distribution of the social good among persons
equal before the law.[4] Prof. C.G. Weeramanthry states that despite the 23
centuries that have elapsed since Aristotle wrote his Nichomachean Ethics, his
formulation still remains, perhaps the most influential single piece of writing
on the concept of justice, which strongly emphasises the close relationship
between justice and the concept of equality.[5] How equality is determined is a matter for which
philosophical speculation can give no answer by itself.6 Rousseau[6] is a key proponent who discussed the nature
-convention distinction with regard to rights. Engels viewed the modern demand
for equality as something different from its ancient idea: that is all men as
men have something in common and to the extent are also equal.[7] As Engels emphasised "the equality of nations is
just as essential as the equality of individual".9 Laski[8] emphasizes that equality does not mean identity of
treatment. This is because there can be no identity of treatment as long as
people are different in words and capacity and need. He viewed equality as
having two aspects, namely, the absence of privilege and adequate opportunities
are opened to all. He noted inequalities of wealth as a source of inequality.
He further added that without virtual economic equality, the attainment of
freedom is impossible and political equality is never real.
Marx and Engels[9] considered that inequality is the result of class
divisions which are unjust but historically necessary. They are finally
alterable in a classless society. According to them, the idea of equality is a
historical product as much as inequality was historically necessary. Marx saw
class equalization as "impracticable nonsense" and called for
abolition of classes to achieve social equality.[10]
Provisions
Related to Equality and Right against Discrimination
The Indian Constitution forbids the practice of discrimination
through its various fundamental rights:-
•
Article 14[11] of the Indian Constitution states that every
individual shall not be denied equality before the law regardless of belonging
to any community. The said Article is clearly in two parts – while it commands
the State not to deny to any person ‘equality before
law’, it also commands the State not to
deny the ‘equal
protection of the laws’. Equality
before law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons
in different situations in order to establish equality amongst all. It is
positive in character. Therefore, the necessary corollary to this would be that
equals would be treated equally, whilst un-equals would have to be treated
unequally.
•
Article 15[12] of the Indian Constitution prohibits discrimination on
the grounds of religion, race, caste, sex, or place of birth. This article
states that no individual shall be prevented from using any public place, like
shops, restaurants, etc. It further states that no one should be restricted to
use the public services created for the welfare of all the society like wells,
tanks, etc. The state governments are allowed to make special law provisions in
the favour of women and children.
•
Article 16[13] of the Indian Constitution promotes giving equal
opportunities to all the people in the area of public employment. “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.” This Article also
provides the autonomy to the State to grant special provisions for the backward
classes, under-represented States,
SC & ST for posts under the State. Local candidates
may also be given preference is certain posts. Reservation of posts for people
of a certain religion or denomination in a religious or denominational
institution will not be deemed illegal.
• Articles 14, 15 and 16 form part of a scheme of the
Constitutional Right to Equality. Article 15 and 16 are incidents of guarantees
of Equality, and give effect to Article 14. However, initially, Articles 15(4)
and 16(4) were considered exceptions to Articles 15(1) and 16(1).
The Hon’ble Supreme
Court, in G.M. Southern Railways v. Rangachari[14], held Article
15(4) of the Constitution of India to be an exception to Article 15(1). The
relevant portion is reproduced hereunder:
“Article 15(4)
which provides, inter alia, for an exception to the prohibition of
discrimination on grounds specified in Article 15(1) lays down that nothing
contained in the said Article 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” In M.R.
Balaji v. State of Mysore[15], this view was followed, and it was held that: “Thus, there is
no doubt that Article 15(4) has to be read as a proviso or an exception to
Articles 15(1) and 29(2).”
This view, that Articles 15(4) and 16(4) were
exceptions to Articles 15(1) and 16(1), was again reiterated in Triloki Nath
v. State of Jammu and Kashmir[16], and in State of A.P. v. U.S.V. Balram[17].
The majority of a 7-Judge Bench of the Hon’ble Supreme Court, in State of Kerala v. N.M.
Thomas,[18]introduced a change in the concept of equality. It held
that Articles 14, 15, and 16 are all equality rights, and that the scheme of
equality sought to achieve real equality. It was held that Articles 15(4) and
Article 16(4) are not exceptions to Articles 15(1) and 16(1) respectively. The
relevant portions of the majority judgments are reproduced hereunder:- Ray,
C.J.
37. Article 16(4) clarifies and explains that
classification on the basis of backwardness does not fall within Article 16(2)
and is legitimate for the purposes of Article 16(1). If preference shall be
given to a particular underrepresented community other than a backward class or
underrepresented State in an all-India service such a rule will contravene
Article 16(2). A similar rule giving preference to an under-represented
backward community is valid and will not contravene Articles 14, 16(1) and
16(2). Article 16(4) removes any doubt in this respect.
Mathew, J
78. I agree that Article 16(4) is capable of being
interpreted as an exception to Article 16(1) if the equality of opportunity
visualised in Article 16(1) is a sterile one, geared to the concept of
numerical equality which takes no account of the social, economic, educational
background of the members of Scheduled Castes and scheduled tribes. If equality
of opportunity guaranteed under Article 16(1) means effective material
equality, then Article 16(4) is not an exception to Article 16(1). It is only
an emphatic way of putting the extent to which equality of opportunity could be
carried viz., even up to the point of making reservation. Krishna Iyer, J
“136. The next
hurdle in the appellant’s path relates
to Article 16(4). To my mind, this sub-article serves not as an exception but
as an emphatic statement, one mode of reconciling the claims of backward people
and the opportunity for free competition the forward sections are ordinarily
entitled to… Fazal Ali, J
184. … Clause (4) of Article 16 of the Constitution
cannot be read in isolation but has to be read as part and parcel of Article
16(1) and (2). ...
That is to say clause (4) of Article 16 is not an
exception to Article 14 in the sense that whatever classification can be made
can be done only through clause (4) of Article 16. Clause (4) of Article 16,
however, is an explanation containing an exhaustive and exclusive provision
regarding reservation which is one of the forms of classification.
It is true that there are some authorities of this
Court that clause (4) is an exception to Article 16(1) but with due respect I
am not in a position to subscribe to this view for the reasons that I shall
give hereafter.
A 9-Judge Bench of the Hon’ble Supreme Court settled this issue in Indra
Sawhney v. Union of India,[19] where the majority upheld the principle laid down in
Thomas’ case that Articles 15(4) and 16(4)
were not exceptions to Articles 15(1) and 16(1), but were an emphatic statement
of equality.
Therefore, equality, as guaranteed in our Constitution,
not only conceives of providing formal equality but also to provide for real
and absolute equality. Articles 14 and 15(1) enable and contemplate
classification to achieve the
Constitutional Objective of real equality. Articles
15(4) and 16(4) flow out of
Articles 15(1) and 16(1) respectively, and can never be
considered as exceptions to Article 15(1) and Article 16(1).
Therefore, equality, as guaranteed in our Constitution,
not only conceives of providing formal equality but also to provide for real
and absolute equality. Articles 14 and 15(1) enable and contemplate
classification to achieve the
Constitutional Objective of real equality. Articles
15(4) and 16(4) flow out of Articles 15(1) and 16(1) respectively, and can
never be considered as exceptions to Article 15(1) and Article 16(1).
In Thomas’ case, it was held that Government has an affirmative duty
to eliminate inequalities and to provide opportunities for the exercise of
human rights and claims Fundamental rights as enacted in Part III of the
Constitution are, by and large, essentially negative in character. In Indira
Sawhney’s case, Sawant,
J concurring with the majority
observed that to bring about equality between the unequals, it was necessary to
adopt positive measures to abolish inequality. The equalising measures would
have to use the same tools by which inequality was introduced and perpetuated.
Otherwise, equalisation will not be of the unequals. These equalising measures
would be validated by Article 14 which guarantees equality before law.
Articles 15 and 16 prohibit discriminatory treatment,
but not preferential treatment of women, which is a positive measure in their
favour. Affirmative action including by way of reservation is enabled by the
equality clause in the Constitution.
•
Article 17[20] 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. This is a self-operating Article, and read with Article
39(a) (ii), it becomes clear that untouchability has been abolished and its
practice forbidden. This Article is levelled more against private conduct, than
against conduct of the State. The chances of the State promoting or supporting
untouchability is rare.
•
Article 21[21] of the Constitution states that no person shall be
deprived of their life and they will have the personal liberty to live their life
on their terms. When someone faces discrimination the first right that is taken
away from the people is this right. Discrimination forces a person or the
community to live their life according to the people belonging to the majority
groups.
From the wording of the Article, it is obvious that the
language is negative. However, Article 21 confers on every person the
fundamental right to life and personal liberty. It is the most fundamental of
human rights, and recognises the sanctity of human life.
• Article 46[22] of the Constitution helps to promote the education and
economic interest of the people belonging to the Scheduled Caste, Scheduled
Tribes, and the Other Backward Classes. To protect them from social injustice.
• Article 330- Reservation of
seats for Scheduled Castes and Scheduled Tribes in the House of the People Need
of Anti-discriminatory law
Not only has the Indian Constitution protected the
rights against discrimination rather there are various other legislations also
that protects the rights of the people against discrimination-
1. Indian Penal Code, 1860 (Section 153 A[23]) - Criminalises
the use of language that promotes discrimination or violence against people on
the basis of race, caste, sex, place of birth, religion, gender identity,
sexual orientation or any other category.
2. The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, of 1989 also
protects the rights of the SC and ST against discrimination.
3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also
protects the rights of the women at the workplace.
Legislations of Other Legal System
Article 24 of ICCPR [24] 1. Every child
shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.
2. Every child shall be registered immediately after birth
and shall have a name.
3. Every child has the right to acquire a nationality.
Article 26 of ICCPR[25]- All persons
are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
In USA also there are various legislations that provides
rights against discrimination-
?
The Civil
Rights Act 1964-
It is a landmark piece of legislation for civil rights
and labor laws in the US. It prohibits discrimination based on race, color,
religion, sex, or national origin. Additionally, it also prohibits unequal
application of voter registration requirements, and racial segregation in
schools, employment, and public accommodations. However, this act was further
amended in the year 1991 and expanded the remedies available to victims of
discrimination.
?
Voting Rights
Act of 1965-
The Voting Rights Act is another landmark piece of
federal legislation that prohibits racial discrimination in voting. Notably,
the Civil Rights Act, 1964 and the Voting Rights Act, 1965 together removed
barriers to black enfranchisement in the South, banning poll taxes, literacy
tests, and other measures that prevented African Americans from casting their
votes.
?
Fair Housing
Act of 1968-
This Act prohibits discrimination in the buying,
selling, renting, advertising or financing of housing based on race, skin
color, sex, nationality, religion, disability, and children or any other
characteristics from a protected class. The enforcement of this act,
especially, helps limit discriminatory practices related to landlords, tenants,
and housing.
?
Americans with
Disabilities Act of 1990-
ADA is a civil rights law that prohibits discrimination
based on disability. Naturally, it has similar protections to citizens as
included in the Civil Rights Act, 1964 that prohibits discrimination based on
race, color, religion, sex, or national origin. However, the Act includes both
mental and physical medical conditions. The Act recognises the following
physical conditions as disability:
• Deafness
• Blindness
• An intellectual disability
• Partially or completely missing limbs
• Mobility impairments that require the use of a
wheelchair
• Autism
• Cancer
•
Cerebral Palsy
• Diabetes
• Epilepsy
In United Kingdom also there is a legislation to protects the rights of the people against
discrimination-
1. Equality Act of 2010-
It prohibits conduct and creates duties in relation to ‘protected characteristics’. There are nine protected characteristics, listed in section 4 of the Act, ranging from age
through to sexual orientation. The Act prohibits direct and indirect
discrimination, and harassment and victimisation. It also prohibits
discrimination in relation to something arising from a person’s disability, and creates a duty to make reasonable adjustments for
disabled people. The Act applies in various scenarios, including at work, in
education and in relation to services and public functions.[26]
Conclusion and
Suggestion
India is unique among democracies in
that a constitutional right to equality is not backed by comprehensive
legislation. Presently, there is no comprehensive anti-discrimination
legislation in India. There are some scattered laws which protect the citizens,
but those are only available against the state and not private organisations or
individuals. The constitution of India also does not have any specific
provision and remains silent on this issue.
The Sachar Committee, in 2006, recognised the need for an anti-discrimination
law. This was further reiterated by the Expert Group on Equal opportunity
Commission by Prof. N.R Madhava Menon, but no conclusive solution has been
arrived yet. Equality of opportunity given in the Constitution remains a myth
despite 70 years of independence. This is the context of demand for an
anti-discrimination law. There are committee and commission reports as also
growing public demands for the same. The Parliament and the executive need to
seriously consider enacting a comprehensive anti-discrimination law to further
substantive equality and also to give concrete shape to its international
commitments.
? Suggestions
i.
Set up an Equal
Opportunity Commission to look into grievances of deprived groups like
minorities.
ii.
Create a nomination
procedure to increase participation of minorities in public bodies.
iii.
Union
government can learn from the states how they have made draft bill for
anti-discrimination laws. The Centre can take a leaf out of this and make a
comprehensive law and establish an Equal Opportunity Commission.
iv.
A comprehensive
socio-economic caste census needs to be conducted as it would provide an
empirical basis for lawmaking as there exists a strong link between caste,
discrimination, and privilege in Indian society.
v.
The apex court needs to nudge or persuade the representative
institutions through “judicial dialogue” to facilitate the process of ending discrimination
either overt or covert.
References
1. Rai, U., 2016. Constitutional law.
1st ed. EBC.
2. Jain, M. P. Journal of the Indian
Law Institute 42, no. 2/4 (2000): 474–93.
3.
John Alder,
General principles of Constitutional Law and Administrative Law, (Hampshire:
Palgrave Macmillan, 2002).
4. Deva, S., 2010. Law and (In)
Equalities. 1st ed. EBC.
5. M.P Jain, Indian Constitutional Law
(1994), Wadhwa & Company
6. H.M. Seervai, Constituional Law of
India, (1993)
7. V.N Shukla, Constitution of India,
Eastern Book Company
8. G.P Tripathi, Constitutional Law-
New Challenges, Central Law Publucations.
[1] Shikha Pokhriyal, A
critical analysis of discrimination and various forms of discrimination -
iPleaders (2021),
https://blog.ipleaders.in/critical-analysis-discrimination-various-forms-discrimination/
[2] Aditi Singh, Right
to Equality under the Indian Constitution, IPLEADERS ( September 13, 2022,
11:30 PM) blog.ipleaders.in
[4] Aristotle: The
Nicomachean Ethics, H.Rackham (trans), Loeb Classical Library Harvard. UP;
William Heinemann Ltd., (revised ed) 1934 pp 253,295,315
[5] Weeramantry C.G. An
Invitation to the Law (Lawman (India) Pvt. Ltd. New Delihi 1988) p 121 6
Ibid p 125
[11] Legislative.gov.in
(2022), https://legislative.gov.in/sites/default/files/COI_English.pdf (last visited Sep 13, 2022)
[21] Legislative.gov.in
(2022), https://legislative.gov.in/sites/default/files/COI_English.pdf (last visited Sep 14, 2022)
[26] Pyper, D., 2022. A Short Introduction to Equality Law [online]
Available at:
<https://commonslibrary.parliament.uk/research-briefings/cbp-9448/>
Article Information
RIGHT AGAINST DISCRIMINATION UNDER THE CONSTITUTION OF INDIA- AN ANALYSIS
Authors: ABHISHEK KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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