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Equality before law and equal protection of law

March 21, 2022

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This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to explore the meaning of the expressions “equality before law” and “equal protection of law” and the scope of Article 14 of the Indian Constitution, which carries these expressions.

It has been published by Rachit Garg.

Table of Contents

Introduction

A fair and just system of judiciary is a characteristic of every modern democratic state. In such a state, the law of the land must be enforced in a manner that puts all citizens on the same footing. If the law favours any citizen on any unreasonable ground such as class, status, gender, etc., the law is unfair and fails to perform its purpose, which is to uphold justice. Every subject of a state must be considered an equal before law and no subject must be treated with some special consideration on an unreasonable ground such as gender, race, class, religion, etc. This concept can be summed up in the phrases “equality before law” and “equal protection of law”. This idea forms a core part of the concept of rule of law according to A.V. Dicey. The phrases ‘equality before law’ and ‘equal protection of law’ can be found in Article 14 of the Indian Constitution, which ensures every citizen that they shall not be discriminated against in any application or enforcement of law on any unreasonable ground. It is also provided in Article 7 of the Universal Declaration of Human Rights.

Rule of Law

The expression rule of law derives its origin from the French phrase ‘la principe de legalite’ which means the principle of legality. It was first propounded by Sir Edward Coke. This principle implies a government that is run by the principles of law and not by the arbitrariness of men who rule. The concept was further expanded by A.V. Dicey in his book ‘The Constitution of England’. According to him, the concept of rule of law consists of three principles, which are the following:

Supremacy of law
Equality before law
The predominance of legal spirit

According to Dicey, equality before law and equal subjection of all people to the ordinary jurisdiction is necessary to fulfil the concept of rule of law. As per A.V. Dicey, no class of persons must be subject to a separate or special jurisdiction. He criticised the French legal system of Droit Administrative which established separate tribunals for deciding disputes between public officials and citizens.

The rule of law forms the basis of the Indian Constitution. The Indian Constitution is regarded as supreme and no one can go against it.

This concept can also be found in Article 7 of the Universal Declaration of Human Rights, of which India was a signatory. This provision states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.

Article 14 of the Indian Constitution : equality before law’ and ‘equal protection of law’

Article 14 of the Indian Constitution guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India. This is a right that can be claimed by any person, whether a citizen or a non-citizen, on Indian soil. Here, we can find that Article 14 comprises two expressions, which are ‘equality before law’ and ‘equal protection of law’. The first expression ‘equality before law’ is borrowed from the English common law. The expression ‘equal protection of law’ is borrowed from the Constitution of the United States of America. Section 4 of the 14th Amendment to the American Constitution states that no person shall be denied the equal protection of law by any state within its jurisdiction. Additionally, the concept of equality of law forms a part of the concept of equality of status as laid down in the preamble of the Indian Constitution. As quoted by Justice Bhagwati in Maneka Gandhi v. the Union of India (1978), equality is a dynamic concept that cannot be limited to our traditional understanding and knowledge. Article 14 curbs the arbitrariness of state actions and ensures that there is justice and equality in the treatment of all subjects.

Meaning of ‘equality before law’

According to Dr. Jennings, the concept of equality before law simply means that law must be enforced and administered equally among those who are equals. The right to sue and to be sued for the same action must be the same for all subjects of the age of majority and maturity without any distinction on the grounds of race, religion, caste, social status, wealth, influence, etc. Article 14 guarantees similarity of treatment and not identical treatment through the phrase ‘equality of law’. It simply means that there is an absence of special privilege on the basis of birth or class or any such grounds that favours any subject. It also implies that everyone shall be subjected to the same jurisdiction.

Exceptions to equality before law

However, this concept is not absolute as it has several exceptions.

Some of these exceptions are laid out in Article 361 of the Indian Constitution, which are the following:

The President or a Governor of any state is not answerable to any Court for the exercise of their duties or powers.
The President or a Governor of a state shall be immune from having any criminal proceedings instituted against them.
No Court shall issue a process for arrest or imprisonment to the President or the Governor of a state during their term.
No civil proceedings in which relief is claimed can be initiated against the President or the Governor of a state during their term without giving a prior notice of 2 months.

Additionally, as per Article 361 A, no member of Parliament or State Legislature is obliged to appear before the Court in any case of criminal or civil while the session is ongoing.
As per Articles 105 and 194, no member of Parliament or State Legislature is answerable to any court for the speeches, opinions or votes given in the House.
Additionally, foreign sovereigns, diplomates, and ambassadors cannot have any civil or criminal proceedings instituted against them. This is something that is accepted on a global level.

Meaning of ‘equal protection of law’

The expression ‘equal protection of law’ is a positive one unlike ‘equality before law’. It simply means that all persons in similar circumstances shall be given the same rights and liabilities. It essentially means that equals are to be treated equally and there must be no discrimination amongst them. Equals and unequals cannot be put in the same footing and be treated without discrimination.

Distinction between equality before law and equal protection of law

The following are the differences between the expressions ‘equality before law’ and ‘equal protection of law’:

The expression ‘equality before law’ is a negative concept as it implies an absence of special privileges that favour any individual. However, the expression ‘equal protection of law’ on the other hand, is a positive concept as it simply means that there should be equality of treatment of individuals in similar circumstances.
The expression ‘equality before law’ stems from the English Common Law and the expression ‘equal protection of law’ stems from the American Constitution.
The concept of ‘equality before law’ lays more emphasis on subjecting all persons to the ordinary law of the land administered by ordinary law courts. It implies that no person is above the law. However, the concept of ‘equal protection of laws’ implies that all persons who are in similar circumstances must be subjected to a similar application of the law.The emphasis is more on treating the like people alike.

Additionally, this distinction was also elucidated in a few cases. In the case of Sri Srinivasa Theatre v. Government of Tamil Nadu (1992), it was held that the expressions ‘equality before law’ and ‘equal protection of law’ do not carry the same meaning though there is a lot in common between them. The word ‘law’ in the first expression was more general in sense and in the second expression it was more specific. It was also observed that ‘equality before the law’ is a dynamic concept having multiple facets. And, one of the facets denotes the absence of any privileged class or person who was above the law and the other denotes the obligation of the state to make the society more equal as envisaged in the Preamble and Part IV of the Indian Constitution. In the case of State of West Bengal v. Anwar Ali Sarkar (1952), it was held that the concept of equal protection of law is simply a part of the concept of equality before law. When the ‘equal protection of law’ is violated, it is difficult to imagine the ‘equality before law’ being maintained in such a situation.

Reasonable classification – an exception to Article 14

The word ‘class’ means a homogenous group of people who are grouped together because they share some characteristics. Though Article 14 does not allow any legislation that provides for a classification, sometimes it is permissible for reasonable objects. The following are the criteria laid down in the cases of Budhan Chaudhary v. the State of Bihar (1955) and Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition (1965) for class legislation to be considered reasonable or rational:

The classification must not be arbitrary. There has to be some rational or substantial reasoning behind the distinction drawn between the people who fall into the class and the people who do not.
There has to be some rational object behind the classification that the legislation seeks to achieve. The classification can be on the basis of various factors like geography, age, or occupation. It is only required for the object of the legislation to match with the classification.

Grounds of reasonable classification

The following are some of the grounds that are deemed to be reasonable in many class legislations:

Geography

Sometimes geographical or territorial boundaries can be found to be the basis of classification in many reasonable class legislations. In the case of Clarence Pais v. the Union of India (2001), the Supreme Court held that “historical reasons may justify differential treatment of separate geographical regions provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long drawn process”.

In the Arms Act, 1878, it is necessary to seek the permission of the Central Government to try an offence under the Act. However, this is not a requirement for trying an offence committed in the North of the Ganga and Yamuna rivers. This differentiation is a result of the political situation existing in 1857. But in the case of Jia Lal v. Delhi Administration (1962), it was held that such differentiation is not sustainable in the present scenario.

Age

The Indian Contract Act, 1872 for instance, does not permit individuals below the age of eighteen to enter into contracts. This is to protect minors from being bound by contractual obligations which they may not have the capacity to understand.

In the case of Gautam Kapoor v. the State of Rajasthan (1987), the Court held that the criteria that a candidate must be at least 17 years old to get entry into medical colleges are reasonable as a certain amount of maturity is necessary.

Sex

The State is allowed to make provisions that discriminate between men and women for reasonable purposes. For instance, Section 497 of the Indian Penal Code, 1860 criminalises adultery and only men were punished for it and not women. In the case of Yusuf v. the State of Bombay (1954), the constitutional validity of this section was challenged. The provision was held to be valid as it was based on a valid classification. However, the provision of adultery was later decriminalised in the case of Joseph Shine v. the Union of India (2018) on the reasoning that it assumes the husband to be in control of his wife’s sexuality. The Court further stated that women have their own identities and stand on the same footing as men. As a result, it was held that the classification made by this provision is arbitrary and unreasonable and hence violates Article 14.

Single body or individual

In the case of P.V. Sastri v. the Union of India (1974), it was held that the position of the Prime Minister is a class in itself. Hence, it was observed that permitting the Prime Minister to use the aircraft of the Indian Air Force for non-official purposes as well such as elections is not violative of Article 14.

Nature of occupation

Sometimes the government can enact laws that put some restriction on certain businesses or occupations for rational causes. This also includes laws that confer the government with the monopoly of some businesses. In the case of Amarchandra v. Excise Collection (1972), the law that imposed some restrictions on liquor business was held to be valid.

Tax laws

The legislature can classify people for the purpose of taxing and not taxing, prescribing incentives, benefits, etc. Thus, they can exempt some properties from being taxed, or impose special taxes on certain properties, etc. In the case of Western India Theatres v. Cantonment Board (1959), it was held that imposing higher taxes on bigger cinema halls in well-off localities is a valid classification and not violative of Article 14.

Other grounds

Apart from the grounds mentioned above, there are some other reasonable classifications as well such as citizens and non-citizens, juvenile offenders and other offenders, ordinary suits and suits on negotiable instruments, etc.

Conclusion

The expressions ‘equality before law’ and ‘equal protection of law’ are found in Article 14 of the Indian Constitution. The concepts of equality before law and equal protection of law are slightly different. However, the latter forms a part of the former. Wherever there is no equal protection of law, there is no equality before law. It is also noteworthy that this concept is not absolute as we can only apply it among those who are equal and not among the unequals. The Constitution also permits the State to enact laws that apply to only certain classes of people for achieving certain reasonable objects.

References

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