This article is written by Mariya Paliwala of seventh semester, student at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan.
Article 14 to 18 of Part III of the Constitution confers the right to equality to every person irrespective of the fact that he is a citizen of India or not. As a matter of fact, in no other constitution of the world right to equality is elaborated as in Indian constitution. This right is classified as a negative right of an individual i.e. not to be discriminated in the access to public offices or place or in public matters. India being a land of diversity, and the culture consisted of discrimination amonst different classes. So in order to overcome these differences our constitution makers inserted expressed provisions from Article 15 to18 to prohibit discrimination.
Article 14: Equality Before Law
In the ancient Indian context, equality did not prevailed, with the religious point of view all the humans were categorized as various body parts of the god and were distinguished on this basis, however in the present context every human being is a product of god.
Equality before the law or equal protection of law does not mean that every one must be treated in the same manner. As two human beings are not equal in all respects so the same treatment to them in every respect would result in unequal treatment. For instance the same treatment in respect to a child who is physically challenged as to a healthy child will lead to unequal treatment or the treatment which will be justified by no one. Therefore, equals must be treated equally and unequals must be treated differently.
For the legislative classification to be valid, it must be reasonable. The legislature has the power to make laws pertaining to different classes of people or group of people and that legislation stands valid only when two conditions are fulfilled namely:
This means that the legislation must be classified on the reasonable and intelligent differentiation between the persons or things that are grouped together and others left out of the group.
Reasonable objective to be achieved
This means that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
For Example: In the Contract Act 1872, the position of minor is mentioned wherein it is said that a minor can not enter into a contract. So this Act classifies a person into 2 categories i.e. minors and adults which is classified on the basis of age. Therefore the objective of the legislation is to elaborate on the capacity to make contract, which is fulfilled. However, if the classification is based on the colour of the skin of a person that people having dark colour can not contract. This case does not fulfill the second condition that the objective of the Act/ legislation must be fulfilled.
Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41
Facts: The petitioner in this case was an ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. The company through its directors had been managing and running a textile mill for the same name. In 1949 mismanagement and neglect of the affairs of the company led to the closure of the mill. The action of the company prejudicially affected the production of an essential commodity apart from causing unrest and unemployment amongst the workers. Responding to this the central government thereupon issued an ordinance which was later on replaced by the Sholapur Spinning and Weaving Co. (Emergency Provisions) Act, 1950. The Act placed the management and administration of the assets of the company under the control of the government appointed directors. The old directors were dismissed and the assets of the company, including the textile mill, were handed over to the custody of the new management. The Act also declared that the shareholders could neither appoint a new director nor could they take proceeding for the winding up of the company. The petitioner contended that the impugned Act infringed Article 14 because a single company and its shareholders were subjected to the disabilities as compared to other companies and their shareholders. Therefore, in this case the petitioner knocked on the doors of the SC for the protection of the fundamental rights under Article 14 and 31 of the constitution against the enforcement of Sholapur Spinning and Weaving Co. (Emergency Provisions) Act, 1950.
Decision: The supreme court dismissed the petition and held that the legislation was valid. Further, it laid down that a law may be constitutional even though it applies to a single individual if, on account of some special circumstances or reasons applicable to him or not applicable to others, that single individual may be treated as a class by itself and that unless it was shown that there were other companies similarly circumstanced, the legislation could be presumed to be constitutional. The Sholapur company formed a class by itself because the mismanagement of the company’s affairs prejudicially affected the production of an essential commodity and had caused serious unemployment in the section of the community.
Therefore, time and again the supreme court affirmed that the legislation affecting even specified individuals is valid.
Keeping in mind the general principles of Article 14 the court has evolved some general principle of fair procedure. In the case of Erusian Equipment & Chemicals Ltd. v. State of West Bengal 1975(2) SCR 674 at 677, the SC quashed the order of black listing the petitioner whose name appeared on the approved list of D.G.S & D without giving any notice, as it had the effect of depriving a person of equality of opportunities in the matter of public employment. While delivering a judgement the chief justice emphasised that it is true that a citizen has no right to enter into a contract with the government but he is entitled to equal treatment with others offering tender and quotations. The activities of the government has public element and therefore fairness and equality must be observed in their exercise.
Tax Laws and Equalities
The power of the state to classify for the purpose of taxation is of wide range and flexibility. The power to impose and collect taxes is considered one of the most important sovereign power and function of the state. It may select the person or object to be taxed. A statute is not open to attack on the ground that it taxes some persons or objects and not others.
Expanding Areas of Equality
Since the early 1970s, equality under Article 14 acquired new and important dimensions. The new developments in equality include increasing emphasis on positive equality and affirmative action includes most of the people and weaker sections are benefited from it. In several decisions, the court has emphasised that equality is a positive right and requires the state to minimise the existing inequalities and to treat unequals or unprivileged with special care as envisaged in the constitution. Article 14 has also been invoked to prohibit sexual harassment of working women on the grounds of violation of the right of gender equality, which on consistent pursuance of the court has finally become an Act of Parliament.
Article 15: Forbidding any kind of discrimination
Article 15 (1) of the constitution prohibits the state from discrimination on the basis of religion, race, caste, sex, place of birth or any of them. The expression discrimination means “without any prejudice”.
Clause (2) of Article 15 says that the state must not subject any person to disability, liability, restriction or condition on the ground of religion, race, caste, sex, place of birth or any of them. Firstly, every one must have equal access to shops, public restaurants, hotels and places of public employment. Secondly, access to wells, tanks, bathing ghats, roads and places of public resort, which is maintained wholly or partly out of State funds or dedicated to the use of the general public.
Clause (3) of Article 15 empowers the state to make special provisions for women and children. However, from reading of the clause (1), (2) and (3) of Article 15 together follows that while discriminating on the grounds of sex is impermissible, but special provisions for women and children are permissible.
For instance, various regulations are enacted by the state to protect the position of women such Section 125 of the Code of Criminal Procedure which puts obligation on the husband to provide maintenance to his wife; Section 14 of Hindu Succession Act, 1956 converting women’s limited ownership of property into full ownership was found appropriate with Article 15 of the constitution.
Clause (4) was added by the Constitutional (1st Amendment) Act, 1951, which was the result of the decision of the Apex Court in the case of State of Madras v. Champakam Dorairajan, AIR 1951 SC 226. This clause is read as an enabling provision under which the state may make special provisions, however it is not obligated to make such special provisions.
The Constitutional (93rd Amendment) Act, 2006 added clause (5) in Article 15. This amendment is significant as it was held by the SC that neither the policy of reservation can be enforced by the state nor any quota or percentage of admissions can be carved out to be appropriate by the state in a minority or non-minority unaided educational institution.
Article 16: Equality in the opportunity pertaining to public employment
Article 16 is the yet another instance of the application of general rule of equality before law laid down in Article 14 and the prohibition of discrimination in Article 15(1) in respect of public opportunity for employment or appointment to any office under the state.
Article 17: Abolition of Untouchability
This Article enacts 2 declarations:
- It announces that “untouchability” was abolished and its practice in any form is forbidden.
- It declares that the enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.
The word untouchability is not used here in its literal or grammatical sense but the practice which has developed historically in this country.
Article18: Abolition of Titles
Clause (1) prohibits the conferment of titles, however military and academic distinctions are exempted from the prohibitions.
Clause (2) prohibits the citizen of India from accepting any title from a foreign State.
Clause (3) provides a non-citizen who holds any office of profit or trust under the State shall not accept, without the consent of the President any title from any Foreign State.
Clause (4) provides the no person (citizen or non-citizen) holding any office of profit or trust under the state, shall without the consent of the President, any present or emolument or office of any kind from or under any foriegn state.
In 1954, the Government of India introduced four awards namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri for exceptional and distinguished service in any field including public service. These awards were challenged and on the basis of this they were abolished in 1977 and then again reinstated in 1980. Their validity was challenged in the court under Article 18 on the grounds of their inconsistency with that Article. After pursuing the constitutional history and the intent behind these awards the court came to a conclusion that they did not conflict with Article 18 because they did not amount to titles within the meaning of that article. Further it was also held that they could not be added as a prefix or suffix to the names of their awardees and if so added they could be forfeited. The court also noted indiscriminate conferment of these awards. Therefore, it was advised that a committee under Prime Minister consisting among other speakers of Lok Sabha, the Chief Justice of India and the leader of opposition in consultation with the President of India should nominate persons for these awards.
Wherefore, Maternity Benefit (Amendment) Act, 2017 (“Maternity Amendment”), Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016 (Decriminalization of Section 377), Shayara Bano v. Union of India & Others, Writ Petition (C) No. 118 of 2016 (Triple Talaq), Dr S. Ganapathy v. State of Kerala, 2018 SCC OnLine Ker 5802 (Sabarimala Issue), the Constitution (108th Amendment) Bill, and many more are the changes are structured in society making equality as a basis of every change. Moreover, changes/ amendments such as these all the more engrave deep trust in the constitution of India.
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