Right to Equality is the first fundamental right assured to the people of India. Article 14-18 of the Constitution guarantees this right to every citizen of India. Equality is one of the magnificent corner-stones of the Indian democracy.
“ This right was considered to be a negative right of an individual not to be discriminated in access to public offices or places or in public matters generally. It did not take account of the existing inequalities arising even from public policies and exercise of public powers. The makers of Indian Constitution were not satisfied with such type of undertaking. They knew of the widespread social and economic inequalities in the country sanctioned for thousands of years by public policies and exercise of public power supported by religion and other social norms and practices.”
They were of the opinion that only Article 14 would not be sufficient enough to deal with these inequalities so they introduced Articles 15-18 in the Constitution along with Article 14 which deals specifically in and expressly abolished and prohibited some of the existing inequalities. “Thus, the right to equality in the Constitution of India is not merely a negative right not to be discriminated against but also a positive right to be treated as an equal. Under the later aspect of the right, which is the essence and core of the right to equality, the State is under the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being.”
Article 14 embodies the idea of equality expressed in the preamble. It lays down the general principles of equality before the law and prohibits unreasonable discrimination between the persons. The Succeeding Articles 15, 16, 17 and 18 lays down specific applications of the general rules laid down in Article 14. Article 14 is the equality clause because of its wide ambit and applicability. It applies to all persons while Article 15 and others cover only citizens. Article 15 relates to prohibition of discrimination on grounds of Religion, race, caste, sex or place of birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17 abolishes untouchability and Article 18 abolishes title.
ARTICLE 14: EQUALITY BEFORE LAW
“The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (Art. 14)
Article 14 guarantees to every person the right to equality before the law or the equal protection of laws. The first expression ‘equality before the Law’ which is taken from English Common Law, is somewhat a negative concept. It is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. Every person, whatever be his rank or position, is subject to the jurisdiction of the ordinary courts. It means no man is above law and that every person, high or low, is subject to the ordinary law of the land. Prof. Dicey in explaining the concept of legal equality, as operating in England, said: “With us, every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every Act done without any legal justification as any other citizen.”
The second expression, “equal protection of laws”, which is rather a corollary (Something that results from something else flows from the other) of the first expression, and is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution, directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. It is a more positive concept (as it expects a positive action from the state) implying equality of treatment in the equal circumstances. In other words, all persons who are in the same circumstances will be governed by the same set of rules. It is a guarantee of equal treatment. An equal law should be applied with an equal hand to all persons who are the equals. The rule is that the like should be treated alike and not that unlike should be treated alike. The same or uniform treatment of unequal is as bad as unequal treatment of equals. It has been said that the equal protection of the law is a pledge of protection or guarantee of equal laws.
Thus, the two expressions in Article 14 make the concept of equal treatment a binding principle of State Action. In Sri Srinivasa Theatre v. Govt. of Tamil Nadu, (1992) 2 SCC 643, the Supreme Court explained that the two expressions equality before the law and equal protection of law do not mean the same thing even if there may be much in common between them. Equality before the law is a dynamic concept having many facets. One facet is that there shall be no privileged person or class and that none shall be above law. Another facet is the obligation upon the State to bring about, through the machinery of law, an equal society or, equality before the law can be predicated meaningfully only in equal society.
Article 14 uses the term ‘any person’, natural or artificial, whether he is a citizen or alien, is entitled to the protection under the provision. (Chiranjit Lal Chawdhary v. Union of India, AIR 1951)
EQUALITY BEFORE LAW
According to Dr. Jennings, “Equality before the law means that among equals the law should be equal and should be equally administered, that the like should be treated alike. The right to sue and be sued, to prosecute and to 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.
In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the Court rightly observed that the second expression is the corollary of the first and it is difficult to imagine a situation in which the violation of equal protection of laws will not be the violation of the equality before the law. Thus, in substance, the two expressions mean one and the same thing.
In Re Special Courts Bill, 1978, AIR 1979 SC 478, Chandrachud, J., observed: “The underlying principle of the guarantee of Art. 14 was that all persons similarly circumstanced should be treated alike both in privileges conferred and liabilities imposed.”
Rule of law- the guarantee of equality before the law is an aspect of what Dicey calls the rule of Law in England. 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.
Prof. Dicey, (UK) gave three meanings to Rule of Law, they are –
1. The absence of Arbitrary Power or Supremacy of Law.
2. Equality before the Law.
3. The Constitution is the result of the ordinary law of the land/ Absence of individual liberty. Rule of Law In India
Supremacy of Law
Equality before Law
Individual Liberty
The first and second aspects apply to the Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian system as the source of rights of individuals is the Constitution of India. The Constitution is the supreme Law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution.
EXCEPTION TO THE RULE OF EQUALITY
Under Art. 359, when the proclamation of emergency is in operation, the enforcement of Art. 14 may be suspended during that period. Art. 361 provides that president and governors shall not be answerable to any Court for the exercise and performance of the powers and duties of the office. They also enjoy immunity from criminal and civil proceedings until certain conditions are fulfilled. A certain class of people being subject to some special rules are not prevented by the rule of law.
Example- Armed forces members are controlled by their military rules; the medical council of India controls the medical practitioners.
Special rules in the professions govern those specific members of society. These people are treated differently from other citizens.
Example- Doctors, police, lawyers, nurses, members of the armed forces, etc.
Members of Parliament and of State Legislature are not liable in respect of anything done or said within the House (Arts. 105 and 194). Foreign Diplomats are immune from the jurisdiction of Courts. Art. 31 C forms an exception by excluding some laws [for implementing any of the directive principles specified in Art. 39(b) or (c)- Not concentration of wealth but its distribution for common good] from the purview of Art. 14.
EQUAL PROTECTION OF LAWS
It is a guarantee of equal treatment. An equal law should be applied with an equal hand to all persons who are the equals. The rule is that the like should be treated alike and not that unlike should be treated alike. The same or uniform treatment of unequal is as bad as unequal treatment of equals. It has been said that the equal protection of the law is a pledge of protection or guarantee of equal laws. The phrase “equal protection of laws” means that people in similar circumstances should be treated equally. Which also means, those who are not equal circumstances should not be treated equally.
For example, a poor man cannot be expected to pay the same income tax as a rich man. But persons with the same income bracket, being in similar circumstances, will pay the same tax.
All adults are equal and are punished equally. But a child/ mentally unsound/ who commits murder cannot be punished like an adult who commits the same crime. Since the adult and the child are not equal and should be treated unequally.
When persons in similar circumstances/equals are treated equally, and those in different circumstances/unequal are treated in an unequal manner, we strive to attain EQUITY, which is an objective much higher than equality. The rule of law imposes a duty upon the state to take special measure to prevent and punish brutality by police methodology.
The Rule of Law embodied in Article 14 is the ‘basic feature’ of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution, (Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299)
ARTICLE 14 PERMITS REASONABLE CLASSIFICATION BUT PROHIBITS CLASS LEGISLATION
Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons or that every law must have universal application, for, all persons are not, by nature, attainment or circumstances, in the same positions. The State can treat different persons differently if circumstances justify such treatment. In fact, identical treatment in unequal circumstances would amount to inequality. The legislature must possess the power to group persons, objects and transactions with a view to attaining specific aims. So, a reasonable classification is not permitted but necessary if society is to progress.
By the process of classification, the State had the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. Classification meant segregation in classes which had a systematic relation, usually found in common properties and characteristics. It postulated a rational basis and did not mean herding together of certain persons and classes arbitrarily. (Re Special Courts Bill, 1978 AIR 1979 SC 478)
The legislature can treat two sets of persons differently if their classification is made on a reasonable basis. A reasonable classification must be founded on intelligible differentia. Which means that persons or things that are grouped together make a well-defined, distinct class and can be distinguished from those that are left out of the group. Further, this basis of classification should have a rational nexus to the object sought to be achieved by the legislation in question.
For example, the maternity benefit law applies to working women on the way to maternity, not others. Because the object of the maternity benefit law is to give certain privileges only to women who become mothers at the time of their need. Hence, the classification of women and men is based on an intelligible differentia.
Another illustration is of tax laws. Classifications may be made for the purpose of taxing or not taxing certain classes of property. Charities, libraries are exempted from certain tax whereas other properties are not.
The class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected. And no reasonable distinction can be found justifying the inclusion of one and exclusion of other from such privilege. While Art. 14 forbids class legislation, it permits reasonable classifications of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. In other words, what Art. 14 prohibits is class legislation and not a classification for the purpose of the legislation.
In Chiranjit Lal Chawdhary V. Union of India[AIR 1950 SC 41], the petitioner approached the Supreme Court for the protection against the enforcement of a Central Act, the Sholapur Spinning and Weaving Co. (Emergency Provisions) Act, 1950. The petitioner was an ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. On Account of mismanagement and neglect of the affairs of the Company, a situation had arisen that brought about the closing down of the mill. The action of the company prejudicially affected the production of an essential commodity, apart from causing serious unemployment amongst certain sections of the community. The Central Government thereupon issued an Ordinance which was later replaced by the above-mentioned Act. By this Act, the management and administration of the assets of the Company were placed under the control of the directors appointed by the government. As regards the shareholders, the Act declared that they could neither appoint a new director not could they take proceedings for the winding up of the Company. The contention of the petitioner was that the impugned Act infringed the rule of equal protection of the laws embodied in Article 14 because a single company and its shareholders were being subjected to disabilities vis-à-vis other companies and held the legislation valid.
Article 14 Permits Reasonable Classification
All persons are not equal by their nature, attainment or circumstances. The varying needs of different classes of persons often require separate treatment. As a consequence the legislature must have power to make laws distinguishing, selecting and classifying persons and things upon which its laws are to operate.
TEST OF REASONABLE CLASSIFICATION
Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects, and transactions by the Legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfil the following two tests: (F.N. Balsara v State of Bombay, 1951)
It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from another left out of it.
The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.
The true meaning and scope of Article 14 have been explained in a number of cases by the supreme court. In view of this the propositions laid down in R.K.Dalmia v Justice S.R.Tendolkar (AIR 1958 SC 538) case still hold good governing a valid classification and are as follows. [[Appointment of Commission of Inquiry under the Commission of inquiry Act, 1952, with Justice S.R. Tendolkar as its Chairman, against one of the Dalmia concerns, on the ground of mismanagement in the said concern, apprehending considerable loss to the investing public. Contended that the Commission of inquiry Act, 1952 gave wide and unregulated discretion to the Government which could result in the denial of equality.
The Court upheld the action taken against the petitioner and laid down that while Article 14 forbids class legislation, it did not forbid reasonable classification for the purposes of legislation.]]
1.A law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by itself.
2. There is always presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.
3.The presumption may be rebutted in certain cases by showing that on the fact of the statue, there is no classification and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
4. It must be assumed that Legislature correctly understand and appreciates the need of its own people that its law are directed to problem made manifest by experience and that its discrimination are based on adequate grounds.
5. In order to sustain the presumption of constitutionality the court may take into consideration maters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonable be regarded as based, the presumption of constitutionality cannot be carried to extent always that there must be some undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile or discriminating legislation.
8.The classification may be made on different bases e.g. geographical or according to object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically complete. Mathematical nicety and perfect equality are not required.
Equality before the law does not require mathematical equality of all persons in all circumstances. Equal treatment does not mean identical treatment. Similarly, not identity of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural law.
Article 14 applies to both.
If the classification satisfies the test laid down in the above propositions, the law will be declared constitutional. The question whether a classification is reasonable and proper and not must however, be judged more on common sense than on legal subtitles.
D.S. Nakara v. Union of India, 1982 : The Government issued an office memorandum announcing a liberalized pension scheme for retired government servants but made it applicable to those who had retired after 31 March 1979. The supreme court held that the fixing of the cut-off date to be discriminatory as violating Article 14. The division of pensioners into two classes on the basis of the date of retirement was not based on any rational principle because a difference of two days in the matter of retirement could have a traumatic effect on the pensioner. Such a classification held to be arbitrary and unprincipled as there was no acceptable or persuasive reason in its favour. The said classification had no rational nexus with the object sought to achieved.
Madhu Limaye v. Supdt. Tihar Jail Delhi, 1975: There were Indian and European Prisoners. Both were treated differently. European gets better diet. Court held that difference between Indian and European prisoners in the matter of treatment and diet violates right to equality under Article 14 of Indian prisoners. They all are prisoners they must treat equally.
In Re Special Courts Bill [1978 (AIR 1979 SC 478)], the Supreme Court has however warned against over-emphasis on classification. The Court has explained that ‘the doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, over-emphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equity enshrined in Art. 14 of the Constitution. The over-emphasis of classification would inevitably result in the substitution of the doctrine of classification for the doctrine of equality.
In Maganlal Chhagganlal V. Greater Municipality (AIR 1974 SC 2009), the validity of certain provisions of Bombay Municipal Corporation Act, which conferred powers on the authorities to initiate special eviction proceedings against unauthorized occupants of Corporation and government premises was challenged.
The Court observed that it was inevitable that when a special procedure is prescribed for a defined class of persons, such as occupiers of municipal or government premises, discretion which is guided and controlled by the underlying policy and purpose of the legislation has necessarily to be vested in the administrative authority to select occupiers of municipal or government premises for bringing them within the operation of the special procedure.
In State of West Bengal V. Anwar Ali Sarkar [AIR 1952 SC 75], was involved a Bengal law permitting setting up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of offences’ or ‘cases’, or ‘classes of cases’, as the State Government might direct by a general or special order. These courts were to follow a procedure less advantageous to the accused in defending himself than the procedure followed by the ordinary criminal courts.
The Act was held invalid as it made no reasonable classification, laid down “no yardstick or measure for the grouping either of persons or of cases or of offenses” so as to distinguish them from others outside the purviews of the Act. The government had the power to pick out a case of a person and hand it over to the special tribunal while leaving the case of another person similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to the executive ‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague, uncertain and indefinite criterion to form the basis of a valid and reasonable classification.
CASES ON ARBITRARINESS
In E. P. ROYAPPA V STATE OF TAMIL NADU, 1973. It was held that an authority, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution. It was observed that equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits.
In Maneka Gandhi v Union of India, 1975, it was observed that Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment.
In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979 AIR(SC) 1628). It was observed that the expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.
At times a new orientation is being given to Art. 14. As has been explained by Bhagwati, J., in Bachan Singh V. State of Punjab [AIR 1980 SC 898], Rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. “Whenever we find arbitrariness or unreasonableness there is the denial of rule of law”. Art. 14 enacts primarily a guarantee against arbitrariness and inhibits state action, whether legislative or executive, which suffers from the vice of arbitrariness. “Every state action must be non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid.”
This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no longer to be equated with the principle of classification. It is primarily a guarantee against arbitrariness in state action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. It a law is arbitrary or irrational it would fall foul of Art. 14.
A common tendency in modern democracies is to confer a discretionary power on the government or administrative officers. In order to ensure that discretion is properly exercised, it is necessary that the statute in question lays down some norms or principles according to which the administrator has to exercise the discretion. Many a time the statutes do not do this and leave the administrator free to exercise his power according to his judgment. This creates the danger of official arbitrariness which is subversive of the doctrine of equality. To mitigate this danger, the courts have invoked Art. 14. In course of time, Art. 14 has evolved into a very meaningful guarantee against any action of the Administration which may be arbitrary, discriminatory or unequal.
KA Abbas v UOI, 1971- Validity of Cinematograph act, 1962 challanged as unreasonable. Why forms other than movies are not subject to U&A censorship? Why only movies? Held valid, motion picyures stir up more emotions more deeply than any other form. Therefore, more adversely affecting adolescents and hence, reasonable classification.
In Air India V. Nargesh Meerza [1981 SC 1829], a regulation made by Air India International, a statutory corporation, providing for termination of service of an air hostess on her first pregnancy has been held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed the normal age of retirement of air hostess at 35 years but authorized the managing directors to extend the same to 45 years at his option subject to other conditions being satisfied. The regulation was held bad as it armed the managing director with uncanalized and unguided discretion to extend the age of retirement of an air hostess. No guidelines, principles or norms were laid down subject to which the power was to be exercised. Nor were there any procedural safeguards available to an air hostess who was denied the extension.
In Ajay Hasia v Khalid mujib- Examination and viva marks
In J. Jayalalitha V. Union of India, 1999, Section 3 of the Prevention of Corruption Act, 1988, empowers the State Government to appoint as many special Judges as may be necessary “for such case or group of cases” as may be specified in the notification. The validity of this provision was challenged under the Art. 14 on the grounds that confer unfettered, unguided and absolute discretion on the Government and is thus capable of leading to abuse of power by the Government.
The Supreme Court has however upheld the validity of this provision. The court has agreed with the proposition that conferment of discretionary power on the executive which in the absence of any policy or guidelines permits it to pick and choose it unconstitutional. But, in the instant case, the court has ruled that S. 3(1) does not confer unfettered or unguided power because the object of the Act and S. 3 indicate when and under what circumstances, the power conferred by S. 3 has to be exercised. The policy can be gathered from the preamble, the provisions of the enactment and other surrounding circumstances.
In Rajbala v. State of Haryana, 2015 the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015, was upheld.
This Act, introduced by the Bharatiya Janata Party (BJP) government in 2015, amends the Haryana Panchayati Raj Act, 1994 to introduce several prerequisites and disqualifications for contesting in its local government elections. Provisions specifically under challenge are Section 175 (1) (t), (u), (v), and (w). Among them, failure to:
Pay arrears of any kind due to Primary Agricultural Co-operative Society, District; (b) Pay arrears of electricity bills; (c) Pass matriculation examination or its equivalent examination from any recognized institution/board; And the requirement to (d) Submit self-declaration to the effect that he has a functional toilet at his place of residence.
Rajbala judgement relying on PUCL v. Union of India and Javed & Others v. State of Haryana, 2003 holds that the Right to Vote and Right to Contest are neither fundamental rights, nor merely statutory rights, but are Constitutional Rights. Further, the Right to Contest can be regulated and curtailed through laws passed by the appropriate legislature.
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