Open Access Research Article
RIGHT TO EQUALITY & RULE OF LAW: A CONCEPTUAL STUDY FOR ADMINISTRATION OF DUE JUSTICE
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RIGHT TO EQUALITY & RULE OF
LAW: A CONCEPTUAL STUDY FOR ADMINISTRATION OF DUE JUSTICE
AUTHORED BY - ABHISHEK KARAN[1]
ABHISHEKKARAN040196@GMAIL.COM
AUTHORED BY - DR. A.K. SINGHAL[2]
ASHISH.SINGHAL@IUDEHRADUN.EDU.IN
ABSTRACT
Indian Constitution is supreme as we are not having a secular based religion like other
countries as it simply means that India welcomes every religion in its equal
aspect as known by the Due Interpretation of Preamble that India is a
Secular Country. Thus, we can say
that we are not having any sponsored religion in our country. For protecting
person’s belief, faith and worship,
the religious freedom has been granted under the Indian Constitution provided
that this freedom is subject to
reasonable restrictions on the ground of public order, morality, and health.
When we speak about democracy it includes fundamental rights, fundamental
duties, equality before law,
secularism etc.
Administration of Justice is indispensable as it is the paramount
consideration for the wholesome benefit of the citizens of India. Right to
Equality under Article 14 of the Indian Constitution is the wider
interpretation of due administration of justice as it includes multiple
factors, doctrines and provisions which is for the gross benefit of the
citizens whether educationally, financially, and, socio-economically.
Under this Research Article, the Author has fruitfully endeavored to
summarize about meaning and nature of Right to Equality, Global Scenario of
Right to Equality, Concept of Rule of Law. The Author has used an extensive
research skill to write this Research Article and has maintained the absolute
due analyzation and interpretation for covering the socio-legal analysis
respectively.
Keywords: Indian Constitution, Right to Equality, Rule of Law,
Justice, Preamble, Fundamental Rights, Fundamental Duties.
1.
INTRODUCTION ON RIGHT TO EQUALITY UNDER
THE CONSTITUTION OF INDIA
When talking about Indian Constitution and right to equality we can notice
that in our preamble the idea of equality has been stated
expressly as well as impliedly
which includes natural,
social, civil, political, economic, and legal
equality.
·
Article 14 is for giving protection to everybody equally
and all people
are equal in the eyes of law.
·
Article
15 is for prohibiting discrimination on the ground of religion, race, caste,
place of birth, sex, or any of them
but this Article provides special provisions for women, children and backward
classes of people.
·
Article
16, is for providing equality of opportunity in the matters of public
employment whereas special provisions are made for backward classes.
·
Article 17, is
for forbidding the practice of untouchability in all forms.
·
Article 18, is for abolition of accepting titles
except those which are for academic or military title from
a foreign land.
2.
GLOBAL SCENARIO
OF RIGHT TO EQUALITY
Right to Equality comes as a savior in a society when discrimination
comes in the way of civil society in
general. It popped up in a multifaceted way be it a politics enforcement of
law, administration of justice, education, employment and like.
There are different reasons why people
are being discriminated; some of
the reasons are as follows:
·
Racial origin.
·
Ethnic origin.
·
National origin.
·
Religious origin.
·
Cultural origin.
·
Linguistic origin.
·
Social origin such as aborigines, indigenous people, communities of African or Asian origin etc.
·
Discrimination against
persons with disabilities.
·
Discrimination with the persons
affected by AIDS and the like.
·
Discrimination on the ground
of gender.
In combating discrimination, the role of Judges, lawyers
and prosecutor is immense as their task to check whether the existing laws and
regulations prohibiting discrimination is going on as per the norms of
the land or not.
There is also a century
long history in the international parlance regarding establishment of right to equality in the land of discrimination and practically got the start
of acceptance in some form or the other
from the First World War. There are numerous Universal Legal provisions which
guarantees right to equality before the law. Some of these are mentioned here under:
·
Universal Declaration of Human
Rights, 1948:
According to this declaration equal dignity
and right has been provided to all human beings and it has been stated that
they are born free. [1]
Moreover equal protection of law has been provided and discrimination of any kind will
be considered as violative under this declaration. [2]
·
Convention on the Prevention and Punishment
of the Crime of Genocide, 1948: According to this convention no
matter whether genocide is committed at the time of war or at the time of peace it will be consider as equal and will be
punished and preventive measures
would be taken. [3]
·
International Covenant on Civil
and Political Rights,
1966: Under various provisions of this
International Covenant on Civil and Political Rights protection against
discrimination is provided also it declares all people to be equal
before the court [4] and tribunal. [5]
·
Moreover, this covenant states
about the equal participation of every citizen
without any discrimination in public life. [6]
·
Protection to the ethnic, religious, and linguistic minorities is expressly stated
in this covenant. [7]
·
International Covenant on Economic,
Social and Cultural rights, 1966: This Covenant focuses
on the social, economic, and cultural rights so that no person can be
discriminated on the ground of equal wage and work. [8]
·
International Convention on the
Elimination of All Forms of Racial Discrimination, 1965: This
convention focuses on the issue of discrimination against race, color,
national or ethnic
origin. [9]
·
Convention on the Rights of the
Child, 1989: This
convention focuses on the issue of disability
among child and focuses on the child’s education and providing protection to them. [10]
·
Convention on the Elimination of All
Forms of Discrimination against Women, 1979:
This
Convention focuses on the Racial Discrimination against women and it covers
within its ambit the private sphere too. [11]
·
Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based
on Religion or Belief, 1981: This Declaration gave due preference to the freedom of thought, conscience and religion and
these rights shall not be curtailed as these are the basic rights one could
have and no discrimination can
be made on these grounds. [12]
·
Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and
Linguistic Minorities, 1992: Under this Declaration the protection would be given to the existing national or ethnic, cultural,
religious, and linguistic identity of minorities. Within their respective territories. [13]
·
African Charter on Human and Peoples’
Rights, 1981: This
Charter focuses on the concept of equality
before law and equal protection
of law. [14]
·
African Charter on the Rights and
Welfare of the Child, 1990: This Charter prohibits discrimination
on a specific ground and focus on the rights and welfare of the child in general. [15]
·
American Convention on Human Rights,
1969: The motto
behind this Convention is to give due respect
to the rights and freedom recognized in the
treaty. [16]
·
Additional Protocol to the American
Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, 1988: The motive behind bringing this Protocol into force is to give due focus
on the Economic, Social and Cultural
Rights. [17]
·
Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, 1994: The
motto behind this convention is to eliminate
gender based violence in both public and private spheres. [18]
·
Inter-American Convention on the Elimination of All Forms
of Discrimination Against
Persons with Disabilities, 1999: The major issue regarding the existence of the vary Convention is to provide protection to the
disable persons and promotion of their full integration
into the society. [19]
·
European Convention on Human Rights,
1950: This
Convention is differing from the other general
human right treaties
as according to this convention the allegations of discrimination fall outside the ambit of this Convention which has no connection with rights and freedoms. [20]
·
European Social Charter, 1961, and
European Social Charter (revised), 1996: As per this revised
Charter certain modification has been made relating to the previous
charter and protection against poverty has
been included. [21]
·
Framework Convention for the Protection of National Minorities, 1994: This
framework Convention is unique in its own term as it focuses on the
protection of national minorities
in general. [22]
3.
EQUALITY BEFORE
LAW
When
we say ‘Equality before law’ it
means that law should be equal among the equals and all should be treated alike. The law is same for all its citizens irrespective of their social
status, race, religion, sex, political background and the like.
Article 14 of the Constitution of India states
about classification and permits that too and gave due preference
to reasonable classification but it prohibits class legislation which might be
bias and gave privilege to a particular class of people
and enhance improper
discrimination and the same has been stated in one of the leading cases
of Anwar Ali. [23]
4.
EQUAL PROTECTION OF LAWS
Focusing on the scenario of India the maker of our Constitution gave due importance towards right to equality and made it a fundamental
right not only for the citizens but also for the persons who are not the citizens of our land.
The basic idea behind this Article 4 to promote
liberalization so that all should
be treated equally
before the law as in any society
liberty is directly
related with equality,
so due preference given on this
ground was the need of the hour then as well as for now
itself.
5.
CONCEPT OF EQUAL
PROTECTION OF LAW
Equal protection of the laws has been adopted from Article 1 of the 14th Amendment
Act of the US Constitution. According to which
guarantees equal protection to all the people within a territory and could not discriminate on that ground
or the law of the territory would deny the same as equal protection of law falls within
the ambit of Article 14, i.e., Right to Equality
before the law and equal
protection of law.
The
idea behind this right is to bring socio-economic changes in the society and
put a positive obligation to give a
check on the violation of rights and the same has been stated in one of the famous case of Stephens College. [24]
6.
ANALYSIS OF
RULE OF LAW
Rule of Law is derived from a French phrase ‘La Principe de legality’
which means principle of legality. The concept of the rule of Law is not of any recent origin
it is in practice from Greek times
around 350 BC when Plato and Aristotle dealt with the concept. One of
the basic principles of Constitution
is rule of law and it is at equal parlance with that of American Constitution.
The idea of the Rule of law is grounded
on the concept of Justice,
fairness and inclusiveness which is entirely
the basis of Administration. In simple words we can say that Rule of Law means
no person is above law and everybody
is under obligation to maintain the rule of law and abide by it irrespective of their status and position
in society all are equal before the law and no one can be above law.
In 1885, Prof. A.V Dicey developed the concept of Coke and gave three
principles to the rule of law for achieving
supremacy of law in his
book Law and the Constitution. The principles are:
·
Supremacy of Law: It states that every person should be governed by law.
·
Equality before Law: It states about equality before
law and equal subjection of all classes
by the ordinary law courts of the land and the rank and position of
anybody will not come in rescue
as all are equal before law.
·
Predominance of Legal Spirit: It states about the dominant role of
the law and every person is bound by
the law and the whole administration system would be regulated by the law and
every action would be done in accordance with the law.
·
Rule of law would be in the stage of overarching source of security
when the liberals who focuses
on the protection of liberty averts.
·
When there is a disagreement among the liberals
regarding what one can count as genuine
application of the rule of
the law.
·
Rule of law is a complex
idea and when we try to realize
the same it becomes more complex.
·
Independency of judiciary would become a problem as the privilege
given to the judiciary might be misused.
·
Giving too much importance to the law and the legal proceeding might shaped as a disadvantaged position in our society.
7.
UNDERLYING PRINCIPLE TO THE RULE OF LAW
In the leading case of Kesavananda Bharati [25] it has been stated that without
hampering the basic structure of the
constitution, amendment can be made and in this vary case the principle of
Basic structure has been propounded.
Moreover, in the case of Indira Nehru Gandhi [26] it has been stated that the rule of the law is also the
part of basic structure. The underlying principles to the rule of law are
as follows:
·
No person is above law and law
is supreme.
·
Each and everything should be done as per the
law and not as per notion.
·
Only in the
case of breach of law the person would suffer
otherwise not.
·
The soul of the rule of the law is
lack of arbitrary.
·
The motto
is equality before the law and equal protection of the law.
·
There should be impartial and
independent judiciary.
·
It includes
speedy trial.
·
One should
conduct fair and just procedure.
8.
CONCLUSION AND
SUGGESTIONS
If we consider a country to be truly secular than there should
be single law prevalent
for all irrespective of religion but in India we are living in a
country where people of different religious background are having their own law and they are governed
by their own personal law. For example, Hindu, Buddhist, Jain,
Sikhs are governed by the Hindu Codes whereas
Muslims are governed by Muslim Personal Laws, Christians are governed by
Christian Personal Laws, and Parsi
are governed by their own personal law and so on. So, in this case where
secularism does stands.
There
is the immediate urgency for the equal administration of justice for the entire
citizens who are living in the Indian Subcontinent in every aspect whether
economically or financially. There must be the righteous implementation of
Right to Equality i.e., “There shall be Equality before Law and it must
simultaneously bring Equal Protection of Law respectively.” The Hon’ble
Courts must play here a pivotal and equal-centric role in endeavoring ‘Due
Administration of Justice to the Citizens of Indian Subcontinent.’
REFERENCES
1.
Article 1, Universal Declaration of Human
Rights, 1948.
2.
Article 7, Universal Declaration of Human
Rights, 1948.
3.
Article I & II (a)-(e),
Convention on the Prevention and Punishment of the Crime of Genocide,
1948.
4.
Article 2 (1), Article
26, International Covenant
on Civil and Political Rights,
1966.
5.
Article 14, Article
20 (2), International Covenant on Civil and Political Rights, 1966.
6.
Article 25, International Covenant
on Civil and Political Rights, 1966.
7.
Article 27, International Covenant on Civil and
Political Rights, 1966.
8.
Article 2 (2), Article 3 & Article
7 (a) (i), International Covenant on Economic,
Social and Cultural
rights, 1966.
9.
Article 1 (1), Article 2 & Article 3, International Convention on the
Elimination of All Forms of Racial Discrimination, 1965.
10.
Article 2 (1), Article 2(2) & Article
3, International Convention on the Elimination of All Forms of Racial
Discrimination, 1965.
11.
Article 1 &
Chapter 11, Convention on the Elimination of All Forms
of Discrimination against
Women, 1979.
12.
Article 1 (1), Article 1(2), Article 1 (3), Article
2 (1) and Article
2(2), Declaration on the Elimination of All Forms
of Intolerance and of Discrimination Based on Religion
or Belief, 1981.
13. Article 1, Article 2, Article 3 &Article 4- 7,
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, 1992.
14. Article 2, Article 3, Article 18(3) and Article 19, African Charter on Human
and Peoples’ Rights,
1981.
15.
Article 3 & Article 21(1), African Charter on the Rights and Welfare of the Child,
1990.
16.
Article 1, Article
8 (2) & Article 24, American Convention on Human Rights,
1969.
17. Article 3, Additional Protocol
to the American Convention on Human Rights
in the Area of Economic, Social
and Cultural Rights, 1988.
18.
Article 7 &
Article 8, Inter-American Convention on the Prevention, Punishment, and Eradication of Violence
against Women, 1994.
20.
Article 14, European
Convention on Human
Rights, 1950.
22.
“Introduction to the Framework Convention for the Protection of National
Minorities” at .http://www.humanrights.coe.int/Minorities/Eng/Presentation/FCNMintro.htm, p.1.
23.
State of West Bengal v. Anwar Ali AIR 1952 SC
75.
24. Stephens College v. The University of Delhi (1992)
1 SCC 558.
25.
Kesavananda Bharati v. The State of Kerela AIR (1973) 4 SCC 225; AIR 1973 SC
1461.
26.
Indira Nehru Gandhi v. Raj Narain AIR 1975 AIR 865, 1975 SCR (3) 333.
Article Information
RIGHT TO EQUALITY & RULE OF LAW: A CONCEPTUAL STUDY FOR ADMINISTRATION OF DUE JUSTICE
Authors: ABHISHEK KARAN, DR. A.K. SINGHAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/22
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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