This article is written by Shruti Goel, a 5th-year student of B.L.S LLB in Government Law College, Mumbai. This article is about the Right to equality under the Indian Constitution.
Part III of the Indian Constitution guarantees certain basic rights to all the citizens of India irrespective of their caste, race, birthplace, religion or gender. These basic rights are known as Fundamental Rights which are justifiable. Dr. B. R. Ambedkar referred these as the most citizen part of the constitution. These are deemed an essential part of the constitution as they protect the rights and liberties of the citizens of the country against any misuse or intrusion by the government with the power delegated to them in a democracy. These are the negative obligations of the state and citizens. These rights try to achieve the goals set out in the Preamble, of justice, liberty, equality, fraternity, and dignity.
To know more about the Right to Equality Article 16, 17, and 18 under the Indian Constitution in brief, please refer to the video below:
The fundamental rights are classified under six heads under the constitution:
- Right to equality (Art. 14 – Art 18)
- Right to freedom (Art. 19 – Art 22)
- Right against exploitation (Art.23- Art. 24)
- Right to freedom of religion (Art 25- Art.28)
- Right to minorities (Cultural and educational rights) (Art 29- Art 30)
- Right to constitutional remedies (Art. 32 – Art. 35)
Here, we are going to discuss in detail the provision of the Right to equality embedded in Article 14 to Article 18.
What is Right to equality?
“As long as poverty, injustice and gross inequality persist in the world, none of us can truly rest” – Nelson Mandela
Democracy can only thrive and flourish where the individuals in the society are treated equally and without discrimination. Thus, it was felt by the framers of the Constitution to incorporate such provision to remove the hurdle of existing social and economical inequalities and enable the diverse communities of the country to enjoy the rights and liberties guaranteed under the constitution. It was believed to be essential to remove inequalities based on religion, social norms, age-old traditions practiced in parts of India, like untouchability, casteism, race discrimination, etc.
- The Right to equality means the absence of legal discrimination only on grounds of caste, race, religion, sex, and place of birth and ensures equal rights to all citizens.
- It is considered basic feature of the Indian Constitution.
- The Right to equality is both a positive equality as well as a negative right.
RIGHT TO EQUALITY Positive Right ⇔ Negative Right
(demands to be treated equally) (prohibits unequal treatment) treatment)
Under the Indian Constitution, Right to equality is divided under the following subheadings:
- Equality before law (Article 14)
- Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth (Article 15)
- Equality of opportunity in matters of public employment (Article 16)
- Abolition of untouchability (Article 17)
- Abolition of titles (Article 18)
Under the Right to Equality, Article 14 provides a general application whereas Art. 15, Art. 16, Art. 17 and Art. 18 have a specific application.
‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’
- Article 14 tries to achieve ‘equality of status’ for all people.
- It aims at establishing the ‘rule of law’ in India.
- This guarantee available to both citizens and non- citizens.
- It applies to all persons, natural as well as juristic.
Right to equality (Article 14)
Equality before the law ⇔ Equality protection of laws
Equality before law
- It is taken from English Common law.
- This implies the absence of any special privileges in any person.
- Implies no discrimination before the law on inapposite grounds like rank, office, etc.
- It means that “the law should be equal and should be equally administered, that like should be treated alike.” (JENNINGS)
- States that every individual is subject to the jurisdiction of ordinary courts irrespective of their rank or position.
Equal protection of the laws
- It is corollary from equality before the law.
- It is based on the last clause of the first section of the 14th Amendment of the US Constitution.
- It directs that equal protection should be secured to all persons within the territorial jurisdiction.
- This implies that such protection should be without any favor and discrimination.
- This implies equal treatment in similar circumstances, both in the privileges and liabilities imposed by the law.
- It is a positive obligation of the state which it should achieve by bringing about necessary social and economic changes, to ensure every person enjoys such equal protection.
Rule of law
The principle of Article 14, ‘equality before the law’ to a large extent based on the concept of Rule of law as coined by A. V. Dicey. It states that all individuals, government and other institutions should obey and be governed by law and not by any arbitrary action by an individual or group of individuals. Whatever be the rank or position of a person, he should come under the jurisdiction of ordinary courts and not of any special courts. It also states that governmental decisions should be based on legal and moral principles embedded in the supreme law, in the case of India, the Indian Constitution. This theory of Dicey has three pillars, they are:
- Supremacy of law
There should be an absence of arbitrary power and that no person should be punished except for a breach of law. An offense should be proved by the authorities of the country before the ordinary courts to punish him according to legal procedure.
2. Equality before law
All individuals, irrespective of their rank or position (poor or rich, officials or non-officials, etc.) should be subjected to ordinary law of land which is administered by ordinary courts. It seeks to ensure that law is administered and enforced in a just and fair manner. It has also been embedded in Preamble and Article 7 of the Universal Declaration of Human Rights. It implies ‘law gives equal justice to all’.
3. The Predominance of legal spirit
Dicey believed that there should be an enforcing authority to enforce effectively the above two principles. According to him, such enforcing authority should be ‘courts’.
Exceptions to Rule of law
- Delegated Legislation
Parliament neither have the time to go into minute details of every law, nor the diverse technical expertise which is needed for complicated and specific laws. Thus, parliament designs the framework and outline principles and objectives of the bill and extensive details and rules are afterward added by the cabinet and the executive.
- Administrative adjudication
Parliament has established certain tribunals and department which are equipped with some judicial and quasi judicial powers to decrease the burden of traditional courts and also to provide with technical knowledge required to adjudicate such cases. Establishment of such tribunals and departments are a departure from the traditional notion of rule of law.
The framers of the Constitution intended that India should be governed by the rule of law. Thus, traces of rule of law can be found in the Preamble, fundamental rights and other articles of the constitution.
The underlying principle behind the right to equality is not the same treatment to all but the equal treatment to the aspects which are similar and different treatment to the aspects which are different because not all humans are similar in every aspect.
To remove inequalities, there needs to be some reasonable classification of humans so that policies can be formulated accordingly which can help diminish inequalities as far as possible. It is the duty of the State to diminish inequalities by making certain socio-economic policies in favor of those who according to State need such benefits for their upliftment. But, it should be noted that all humans should be treated humanely and there should not be any classification on the basis of the humane aspect of the individuals. To achieve the objectives behind the provisions of Article 14, equals should be treated equally and unequal should be treated differently and for that reason, legislative classification is necessary.
For effective implementation of laws, it is necessary for legislation to group individuals according to their equal and unequal aspects. Such classification is necessary because not every law has universal application to all persons, the reason being the differences in social, cultural and economical conditions. Varying needs of different individuals require to be differently approached by the law. For public welfare, property, person, and occupations require appropriate legislation to make certain that different needs are dealt with differently. In fact, general treatment of unequal conditions might lead to inequalities in society. Thus, such special classification by the legislature on reasonable grounds becomes necessary to reduce inequalities in society. There are many instances of such special laws applying only to a particular class or classes of people like Delhi Special Police Act 1946 (applying particularly to the occupation of police), Minimum Wages Act 1948 (applying to minimum wage system of certain employments), etc. Article 14 permits reasonable classification but prohibits class classification.
Test of valid classification
- The classification must be just and reasonable and should be in relation to the need and purpose of law in respect of which classification is made.
- The object of classification should be lawful. In the case of Subramanian Swamy v.CBI, it was held that ”if the object itself is discriminatory, then the explanation that classification is reasonable having a rational relation to the object sought to be achieved is immaterial.”
- When certain classes of individuals are not included in the ambit of a particular law, there must be a reasonable basis for such exclusion.
- A test was formulated to ensure that the classification is valid and is not arbitrary or against the right to equality. Following two conditions should be fulfilled for a valid classification:
- Intelligible differentia (Intelligent reason for classification)
- Intelligible differentia means difference which is apparent and capable of being understood.
- Classification distinguishing persons or things that are grouped together from others left out of the group should be based on an intelligent reason.
- Classification must be based on a just objective to be achieved.
(2) Rational Nexus (Relationship between classification and desired result)
- The differentia must have a rational relation to the object of the statute in question.
Application of article 14
Certain important principles have been laid down in some landmark judgments to further explain the concept of Article 14 and legislative classification. Some of which are mentioned below.
I. Single person laws
- Charanjit Lal Chowdhury v. Union of India
- Facts- Central Government issued an ordinance which later became an Act named ‘The Sholapur Spinning and Weaving Co. (Emergency provision) Act 1950’ when due to mismanagement and neglect of the company a mill was closed. The action of the company led to the scarcity of essential commodities in the country apart from unemployment and unrest.
- Argument- it was augmented by the petitioner that the Act was violative of Article 14 because a single company was subjected to disabilities.
- Supreme court dismissed the petition and held that a law can 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 can be treated as a class by himself.
II. Classification without a difference
- P. Rajendran v. State of Madras
- Facts- There is a provision relating to district-wise seat distribution in the State Medical colleges according to the proportion of population in a district to the total population of the state.
- The Court struck down the provision and held that any scheme of admission should be devised to select the best available talent for admission as it is discriminatory to select a less talented candidate against a talented candidate just on a population basis. The district-wise seat distribution doesn’t meet the objective.
III. Special courts and procedural inequalities
- Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. Of Greater Bombay
- Facts- Validity of certain provisions of amended Bombay Municipal Corporation Act 1888 and of Government Premises (Eviction) Act 1955, was questioned as certain powers were conferred by the said acts on the authorities to proceed with special eviction proceedings against the unauthorized occupants of the governmental and corporation premises.
- Argument – Availability of two procedures, one under CPC and one under the above two acts, with no guidelines as to which to follow. Thus, in violation of Art 14.
- SC held that when the statute authorizes the executive to make classification, some guidance should be provided by such statue whether in form of Preamble or objectives or other analogous provisions. When sufficient guidance is provided by the act, it is sufficient indication for authorities to proceed under the special procedure according to objective of the Act and not according to procedure of the ordinary civil court. Thus, the act cannot be struck down only because it provides for special procedure.
IV. Procedural fairness
- Maneka Gandhi v. UOI’1978
- Facts- Maneka Gandhi was issued a passport under the Passport Act 1967. The regional passport officer, New Delhi, issued a letter addressed to Maneka Gandhi, in which she was asked to surrender her passport under section 10(3)(c) of the Act in public interest, within 7 days from the date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional Passport Officer, New Delhi seeking in return a copy of the statement of reasons for such order. However, the Ministry of External Affairs refused to produce any such reason in the interest of the general public.
- SC held that Article 14 requires observance of principles of natural justice and the requirement of reasoned decisions.
V. Administrative discretion
- When classification is left to the discretion of the executive in a statue, certain guidelines or policies should be there as to how to exercise such discretion in the statue.
- If no guidelines are given such an act will be held violative of Article 14 and such legislation would be struck down by the court.
- It is not necessary for the legislation to expressly lay down such guidance, it can be inferred from its Preamble, objectives and other analogous provisions.
VI. Basis of Classification
- Classification can be based on geographical or territorial grounds, historical considerations, nature and position of a person, nature of the business, reference of time, object of the law, etc.
- Provided that the classification has a nexus with the object of the legislation.
- Case Law- P. Rajendran v. State of Madras as discussed above.
VII. Expanding horizons of equality
- According to recent trends in the judgments of the Supreme Court, the reasonableness of the State action is required to meet the demands of Article 14. It is the duty of the State to make policies and laws which try to diminish inequalities and make equal opportunities available to those who are equal and different for those who are unequal.
Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth (Article 15)
Discrimination on the grounds of religion,race,etc.
‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’
- It is available against State
- Protection under this provision can be taken by any citizen when he is subjected to discrimination in relation to any rights, liabilities or privileges conferred to it by the constitution.
- Nain Sukh Das v. State of U.P
Supreme Court quashed a State law that approved elections on the basis of separate electorates for members of different religious communities as such discrimination was based on religion.
- A cause of action is available only when such discrimination is on the above-mentioned grounds, and when discrimination is not based on the above mentioned ground, the law is considered to be valid.
Religious or racial disabilities in connection with access to shops, tanks ,etc.
‘No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.’
- Word ‘shop’ is construed in a generic sense and will include every place where goods are sold or services are rendered.
- It should be noted that under Art. 15(2)(b), a cause of action arises only when such facilities are maintained wholly or partly by State funds or dedicated to the use of the general public.
- This guarantee is available only when such discrimination is on above-mentioned grounds only and if such grounds are not the basis of discrimination law will be considered valid.
- R. C. Poudyal v. Union of India
The court upheld the reservation of one seat in State Legislative Assembly in favor of Sangha contending that it is not just a religious community but also a cultural and historical community. It was asserted that it was the effect and operation of the law which is important to find out if there are any grounds of discrimination rather than its purpose or motive.
Special provisions for women and children
‘Nothing in this article shall prevent the State from making any special provision for women and children.’
- It implies that the Parliament has the right to make special provision.
- This article is an exception to the rule against discrimination.
- The intention of the framers of the constitution was to protect the interests of children and women because these sections were considered comparatively weaker sections of the society and the need for such provision was felt for their upliftment.
- The language of the clause is in absolute terms and gives the power to State to make any special provisions and laws for the protection of their interest. Such special provisions are not restricted in any sense and need not be measures that are beneficial in a strict sense.
- Rajesh Kumar Gupta v. State of U.P
In the selection of primary school teachers, reservations of up to 50 percent for women was upheld by the court.
- Reservation- Widest possible interpretation should be given to these provisions for the upliftment of women and children, provided that such reservation doesn’t exceed 50 percent of the total.
Special provisions for socially and economically backward classes
‘Nothing in this article or in clause (2) of Article 29 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.’
- Added by the Constitution (1st Amendment) Act 1951 as a result of the judgment of Supreme Court in State of Madras v. Champakam Dorairajan
- It doesn’t force the State to take any specific action for its fulfillment. It is just an enabling section.
- This guarantee is available only to citizens of India.
- For the application of this provision following two issues should be taken into consideration first:
- Determination of Backward classes
- The definition of ‘backward classes’ is not given anywhere in the Indian Constitution.
- However, Art. 340 in the constitution empowers the President to constitute a commission to look into the matters and conditions of socially and economically backward classes
- It was held time and again by the Supreme Court that caste cannot be the only criterion in the determination of the class. Caste can be one of the factors of determination of class of SEBC’s but not the sole dominant factor.
- Poverty also cannot be the sole factor for the determination of the class of SEBC’s. All other factors should be taken into consideration while determining such class.
2) Quantum of reservation of such classes
It was held in the given case that reservation of 68 percent made by the impugned order is inconsistent with Article 15(4) as it only enables the government to make special provisions and not exclusive provisions.
It was contended that national interest would suffer if competent and talented students are excluded from taking admissions in higher education.
‘Carrying forward’ rule of unfulfilled quota to the next two succeeding year was adopted by the Central Government in the Central services for SC’s and ST’s, if suitable candidates were not available. It was invalidated because the accumulation of the unfilled quota resulted in 64 percent in the present case. It was construed that an exception cannot substantially dilute the general rule as Article 15(4) is considered an exception to Article 15(1).
The exemption was given to SC’s and ST’s from passing a departmental test for some years for the purpose of their promotion in the department. In a particular year, the reservation for them was 68 percent.
The court upheld the exception stating that Article 15(4) is not an exemption to Article 15(1). Rather, Article 15(4) is a direction to the State to enforce the concept of equality in society. The State could make adequate reservations for the upliftment of its citizens.
It was held in this case that except for any extraordinary circumstances, total reservation should not exceed 50 percent. Moreover, such quota will not include those SEBC’s who get selected on merit and will be adjusted towards the open category.
Such limit only applies to the reservation and not to concessions, exemptions, and relaxation.
‘Carry forward’ rule is permissible as long as the limit is observed.
Reservation to educational institutions
‘Nothing in this article or in sub-clause G of clause 1 of Article 19 shall prevent the state from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens and scheduled castes or tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause 1 of Article 30.’
- It was added by the Constitution (93rd Amendment) Act’ 2006
- Special provisions can be made after this amendment only by law and not by executive action.
- Central Educational Institutions (Reservation in Admission) Act 2006 was introduced after this amendment. A petition was filed challenging the validity of the act and of the amendment stating that such provision is violative of Art. 15(4). It was held by the court that such provision and act doesn’t invalidate Article 15(4) of the constitution.
- The court suggested review of the reservation after every 10 years and negated the notion of application of the provision of time limit to the Act of reservation.
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) 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.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]
[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent . reservation on the total number of vacancies of that year.]
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.’
- Equal opportunity should be there in matters relating to employment and appointment to any office under the State for all citizens.
- It provides only the right to equal ‘opportunity’ which means it confers only a right to be considered for such employment and appointment to any office of the State.
- There is no rule of equality between separate and independent classes of services.
- Requisite conditions and qualifications can be laid down by the State required for a particular designation.
- The selection procedure for such employments and appointments should not be arbitrary and should be based on some reasonable grounds.
- Guarantee of employment in this clause also covers:
- Initial appointments
- Matters relating to salary, gratuity, pensions, etc.
- Guarantee of appointment in this clause also covers: Termination or removal from services.
- Article 16 is a facet of principle of right to equality enshrined in Article 14 as stated in Indra Sawhney v. UOI case by SC. Thus, enables reasonable classification by the State for providing opportunities for the upliftment of backward classes.
- Prohibits discrimination in respect of any appointment under the State on the grounds of
- Place of birth
- It is available only against public employment.
- Private bodies can employ on the basis of grounds prohibited in this section.
- B. Venkataramana v. State of Madras
Reservation of posts in favor of Hindus, Muslims, and Christians was held to be violative of Art. 16(2).
- Parliament is conferred with the power to regulate the extent to which State can depart from the law laid down in clause (2).
- Such power is restricted only to State appointments and not the Union appointments.
- Reservation of appointments or posts for any backward classes which in the opinion of State not adequately represented in the services under the State.
- It can only be exercised to reserve posts for ‘backward class’.
- As there is no definition of backward class in the Constitution, it has been left on the State to determine whether a particular class is backward or not, provided, it is based on some reasonable criteria. If it is based on irrelevant considerations, it can be challenged in court.
Article 16 (4-A)
- It was added by the Constitution (77th Amendment) Act, 1995
- It was added after the Mandal Commission case, to make the judgment inapplicable on SCs and STs.
- It provides reservations with respect to promotions in favor of SCs and STs.
- It is an enabling section and is not a fundamental right and the state should try to balance it with Art. 14 and Art 16(1).
Article 16 (4-B)
- It was added by the Constitution (81st Amendment) Act, 2000.
- It was introduced to overcome the disability of the State to make special recruitment drives after the Mandal Commission case.
- Introduced the exception to 50 percent limit for the purpose of filling the backlog vacancies.
- It is not just confined to SCs and STs.
- Appointments related to posts of religious institutions may be restricted to persons of that particular religion and will not be considered violative of Article 16(1).
‘“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offense punishable in accordance with the law.’
- The word “untouchability” in this clause has been used in inverted commas which indicates that word should not be construed in a literal or grammatical sense but with reference to its historical background in the country.
- Under Art. 35 of the constitution, Parliament has been given the power to make laws prohibiting such acts of untouchability.
- Exercising the powers and duties conferred in Art. 17 and Art. 35, the following acts, were made by Parliament from time to time:
In 1955- Untouchability (Offences) Act’1955
(punishments under the act were felt inadequate)
In 1965, Committee on Untouchability, Economic and Educational Development of SCs
(to recommend amendments to present Act)
In 1976, Act was amended and renamed as “Protection of Civil Rights Act’1955”. (‘Civil Rights’ were defined in the act as any right accruing to a person by reason of abolition of untouchability under Art.17.)
‘(1)No title, not being a military or academic distinction, shall be conferred by the State.
(2)No citizen of India shall accept any title from any foreign State.
(3)No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4)No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.’
The constitutional validity of four awards introduced by Government of India which are, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri was challenged before the court. SC upheld the constitutional validity of these award stating that such awards don’t violate the provisions of Art. 18 as they do not come under the ambit of titles. It held they could not be added as a prefix or suffix to the names of the awardees.
The right to equality is considered basic feature of the Indian Constitution and plays an important role in achieving social and economic justice in our society where upliftment of certain classes is considered necessary for our country to flourish. Its emphasis on the fundamental unity of individuals by providing equal opportunities and treatment to all. All other privileges and liberties follow from the right to equality. It provides every individual of the country with all the elements essential for the development of its personality.
Thus, courts that are considered the guardians of the Constitution make certain that the right to equality is construed in widest connotation so as to achieve the ends intended by the framers of the Constitution.
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