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This article is written by Aditi Singh of CLC. The article discusses the fundamental right to equality under the Indian Constitution. 

Right to equality is embodied in a series of articles from Article 14 to 18 of the Constitution of India. Article 14 contains the principle of rule of law and Articles 15, 16, 17 and 18 contain the application of this principle. The Preamble to the Constitution of India provides for equality of status and opportunity. Equality forms part of the basic structure of the Constitution of India.

Article 14

Article 14 reads as, ‘the State shall not deny to any person equality before the law and equal protection of laws within the territory of India’. This Article is the embodiment the principle of Rule of Law. Situations not expressly or impliedly covered under Articles 15 to 18 are examined in the light of Article 14. There are two expressions used in Article 14-

  • equality before the law, and
  • equal protection of the laws.

Both these expressions sound similar but have different connotations. The expression ‘equality before law’ has its origin in the English Common Law. It means that amongst equals law shall be equal and shall be equally administered. The expression ‘equal protection of laws’ has its source in Section 1 of the 14th Amendment of the U.S. Constitution. Equality before the law is a negative concept and equal protection of the laws is a positive concept.[1] The doctrine of ‘equality before the law‘ is equally operative against the legislature itself. If the legislature dares to enact an enactment inconsistent with any provisions of fundamental rights, the courts are competent enough to pronounce it unconstitutional.[2] The principle of equality before the law owes its origin to the doctrine of Rule of Law propounded by Prof. Dicey in his book The Law of the Constitution (1885). Prof. Dicey gave three implications of the doctrine of Rule of Law-

  • Supremacy of Law/Absence of Arbitrary Power – it means that no man should be punished except for the breach of the law.
  • Equality Before The Law – it implies equal subjugation of all citizens to the ordinary law of the land administered by the ordinary courts of law.
  • Primacy of The Rights of The Individual – constitution is the result of the rights of the individuals rather than being the source of them.

Equal protection of the laws means the right to equal treatment in similar circumstances, both in privileges conferred and liabilities imposed. 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 law.[3] Both the rule of procedure and the substantive law come under the purview of Article 14. Equal protection requires affirmative action by the State towards unequals by providing them facilities and opportunities. Article 14 applies to ‘any person’ including any company, association, citizen, non-citizens, natural persons as well as legal persons.

Exception to The Rule of Law

The rule does not prevent certain classes of persons from being subject to special rules. For example, Article 361 is an exception to the rule of law. It provides that the President or the Governors or the Rajpramukhs shall not be answerable to any court for the exercise and performance of the powers and duties of office. This is because of the reason that Article 14 does not imply that the same laws should apply to all persons or that every law must have universal application because all persons are not, by nature, attainment or circumstances, in the same position. This article prohibits class legislation which makes improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected but it permits reasonable classification for the purpose of achieving specific ends. For classification to be reasonable, two conditions must be fulfilled:

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  • The classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.
  • The differentia must have rational relation with the object sought to be achieved by the act.

It means that there must be some nexus between the differentia and the object so that the classification does not appear arbitrary or discriminatory.[4] What Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not a paraphrase of Article 14 nor is it the objective or end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constitutional denial of equality. Wherever therefore there is arbitrariness in State action whether it be of legislature or of the executive or of the authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.[5] In Maneka Gandhi’s case [6], the court had opined that Article 14 was not to be equated with the principle of classification. It was primarily a guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary rule for testing or determining whether a particular State action was arbitrary or not.

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Article 15

Article 15 prohibits the State from discriminating against citizens on the grounds of religion, race, caste, sex or place of birth. On the other hand, it empowers the State to make special provision for women and children and for socially and educationally backward classes of citizens (hereinafter referred to as SEBCs), Scheduled Classes (SCs) or Scheduled Tribes (STs). Originally the Article had only three clauses. Later on, clauses (4) and (5) were added by way of the First Constitutional Amendment Act, 1951 and the Ninety Third Constitutional Amendment Act, 2005 respectively.

Article 15(4) empowered the State to make special provision for the advancement of any SEBCs or for the SCs or the STs. It was added as a proviso or exception to Article 15(1) and Article 29 to override the effect of the judgment of the Supreme Court in the State of Madras v Smt. Champakam Dorairajan[7]. In that case the government of Madras was acting on the impugned Communal G.O. (passed before the coming into force of the Constitution) even after coming into force of the Constitution, reserving seats in Engineering and Medical Colleges of the State based on caste. The impugned order was declared by the court as violative of the rights guaranteed under Article 29 and therefore void under Article 13. The word ‘class’ used in the Article is not used in reference to any caste. The provision does not lay down the criteria to designate the backward classes, it leaves it to the State to lay down the criteria. However, the court can go into the question as to whether the criteria are relevant or not.

After the insertion of clause (4) in Article 15, a number of orders were passed by the Mysore government under Article 15(4) reserving seats for admission to State Medical and Engineering Colleges for the ‘backward classes’ and the ‘more backward classes’ in addition to the seats reserved for the SCs and STs. The government had designated the backward classes in these orders on the basis of caste and communities. One such order was challenged before the Supreme Court as being irrational and a fraud on Article 15(4) in the case of M. R. Balaji v State of Mysore [8]. The Supreme court while quashing the impugned order observed-

  • Article 15(4) is a proviso or exception to clause (2) of Article 15 and to clause (2) of Article 29.
  • Further categorisation of backward classes into backward and more backward classes is not envisaged by Article 15(4).
  • For the purpose of Article 15 (4), backwardness must be both social and educational and caste cannot be made the sole or dominant test for determining the backwardness of a class of citizens.
  • And order under Article 15(4) need not be in the form of a legislation, it can also be in the form of an executive order.
  • Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.
  • The court further commented that the interests of weaker sections of society, which are a first charge on the State and the Centre, have to be adjusted with the interests of the community as a whole. Regarding Article 15 (4) the court observed that it is only an enabling provision and does not impose any obligation on the State to take any special action under it.

The Supreme Court in the case of State of U.P. V. Pradeep Tandon [9] while upholding the reservations in favour of persons from hills and Uttarakhand areas on the ground that these areas were instances of socially and educationally backward class citizens, held that the place of habitation and its environment could be a determining factor in judging the social and educational backwardness.

In Dr Preeti Srivastav & Anr v State of MP & Ors [10], the Supreme Court opined that there should be some minimum qualifying marks for the Reserved Category candidates, if not the same as prescribed by for the General Category candidates.

Clause (5) was added in Article 15 in order to make the private educational institutions share the burden of government educational institutions in providing the citizens with greater access to education. It enabled the State to make provisions for the advancement of the SCs, STs or SEBCs of citizens in relation to admission in educational institutions including private aided/unaided educational institutions. The clause, however, was inserted in order to override the effect of the judgment in T. M. A. Pai Foundation v State of Karnataka [11] wherein the court upheld the right of private unaided educational institutions to choose students of their choice. Minority educational institutions referred to in Article 30(1) are exempted from the purview of Article 15(5). In the case of Ashok Kumar Thakur v Union of India [12] the validity of Clause (5) of Article 15 was challenged before the Supreme Court inter alia on following grounds –

  • Whether Clauses (4) and (5) of Article 15 are contradictory to each other?
  • Whether Article 15(5) violates the basic structure of the Constitution?
  • Whether exclusion of minority educational institutions from the purview of Article 15(5) is violative of Article 14 of the Constitution?

The court, in relation to first mentioned issue observed that Clauses (4) and (5) of Article 15 are not mutually contradictory. The second issue was answered by the court in negative so far as it related to the State-maintained and aided educational institutions. In relation to the third issue the court opined that minority educational institutions, by themselves, are a separate class and their rights are protected by other provisions of the Constitution.

Article 16

Article 16 deals with equality of opportunity in the matter of public employment. It mandates the State to provide every citizen with equal opportunity in the matters of employment or appointment to any office under it. However, this does not prevent the State from laying down the requisite qualifications for recruitment in the government services. It also prohibits discrimination by the State in relation to employment or appointment to any office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Clause (4) of Article 16 allows the State to reserve seats in favour of backward classes of citizens which according to State are not adequately represented in the services under the State.

In the case of N M Thomas v State of Kerala Article [13], the Supreme Court held that the preferential treatment of under-represented backward classes so far as such treatment was reasonable and had a rational nexus with the object in view was valid.

In the landmark case of Indra Sawhney v Union of India [14] also known as the Mandal Commission Case, the Supreme Court dealt with various aspects of the complex issue of reservation and gave out a very thoughtful judgment. Some of the key aspects of the judgment are-

  • Creamy layer must be excluded from Backward Classes.
  • Article 16(4) is not exception to Article 16(1), but an independent clause. Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservation for other classes can be made under Article 16(1).
  • Reservation shall not exceed the 50 percent limit. Carry forward rule is valid provided it should not result in the breach of the 50 percent rule.(upheld the judgment in Balaji Case and overruled N M Thomas Case in this respect).
  • Reservation in appointments under Article 16(4) confined to initial appointments only. There shall be no reservation in promotion.
  • Backward classes referred to in Article 16(4) not same as the Socially and Educationally Backward Classes referred to under Article 15(5).
  • Article 16(4) permits classification of Backward Classes into backward and more backward classes (overruled Balaji Case and upheld N M Thomas Case in this respect).

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In the aftermath of the Mandal Commission Judgment, Clause (4A) was added in Article 16 by way of Seventy Seventh Amendment Act, 1995 providing for reservation in the matters of promotion. This was further amended by Eighty Fifth Amendment Act, 2001 adding the words ‘in the matters of promotion with consequential seniority’ retrospectively from 17-06-1995 in order to nullify the judgment in Ajit Singh and Ors v State of Punjab [15]which discarded the concept of consequential seniority. The amendment allowed the reservations to be made in favour of SCs and STs with consequential seniority. Another Clause (4B) was inserted in Article 16 through Eighty First Amendment Act, 2000 to overcome the 50 percent limitation on the ‘carry forward rule’ to fill the backlog of unfilled vacancies reserved in favour of SCs and STs.

The amendments made in Article 16 by inserting Clauses (4A) and (4B) were challenged before the Supreme Court in the case of M Nagraj and Ors v Union of India [16] on the ground that these amendments were made to reverse the judgments in the above mentioned cases and that the Parliament has arrogated to itself the judicial powers thus violating the basic structure of the Constitution. The court upholding the Constitutional validity of these amendment acts held that Clause (4A) of Article 16 is an enabling provision and it will be governed by two compelling reasons, ‘backwardness’ and ‘inadequacy of representation’ as mentioned Article 16(4). If the State wished to exercise its discretion and make a provision for reservation in promotion for SCs and STs, it has to collect quantifiable data to show backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 355.

Article 17

Article 17 exhibits the progressive and reformative vision of the Constitution makers. It abolishes untouchability and makes the practice of untouchability a penal offence. It can be termed as one of the earliest efforts made in the direction of social reforms. Since the Article contemplates the practice of untouchability to be a punishable offence, the legislature enacted the Protection of Civil Liberties Act, 1955 previously known as the Untouchability (Offences) Act, 1955 to prescribe punishment for untouchability and other practices connected with it. The word untouchability has not been defined either under Article 17 or the Protection of Civil Liberties Act, 1955. The term has not been used in the Article in a literal or grammatical sense. It actually refers to the social disabilities historically imposed on certain classes of people by reason of their birth in certain castes and would not include an instigation of social boycott by reason of the conduct of certain persons. The word “Harijan ” prime facie refers to an untouchable. Untouchability is an integral part of caste system and is not based on mens rea.[17]

Article 18

Article 18 abolishes titles. Clause (2) prohibits a citizen from accepting any title from a foreign State with the exception of academic and military distinctions. Conferring of titles by the State on the citizens without merit violates the principle of equality creating a divide in the society. Under the British rule there was a practice of conferring titles on the well wishers and supporters of the British regime. This resulted in creating a class of nobility which was loyal to the foreign rulers. Dr.Bhimrao Ambedkar while explaining the import of Article 18 in the Constituent Assembly said that the Article does not provide a right, instead it confers a duty on a citizen not to accept any titles not only from the Indian State but also from any foreign State. The prohibition extends to the acceptance of any presents, emoluments from a foreign State while holding any office of profit or trust under the Indian State.

Conclusion

The principle of equality embodied in the Constitution forms the bedrock of our democratic setup. In an incredibly diverse society like India, the values like social justice, equality, liberty and fraternity cherished by the Constitution act as the binding force. The Indian judiciary has been and continues to uphold these core values for the collective advancement of the society and ensuring justice for every individual. Our visionary forefathers effortlessly gave us what other societies in the world had to fight and shed blood for. For example, the Indian Constitution gives us the right to vote equally regardless of gender unlike many progressive western countries where women had to fight to get this right. They made sure that the new India is free from the dark shadows of past.

References

[1] State of U.P. v Deomam Shukla  (1961) 1 SCR 14

[2] Lachman Das v State of Punjab A. 1963 S.C. 222 (240) (minority view by Subba Rao J)

[3] State of W.B. v Anwar Ali Sarkar AIR 1952 SC 75

[4] R K Garg v UOI

[5] Ajay Hasia v Khalid Mujib Sehravardi, (1981) 1 SCC 722.

[6] AIR 1978 SC 597

[7]1951 SCR 525

[8]1963 AIR 649, 1962 SCR (1) 439

[9] (1975) 1 SCC 267: AIR 1975 SC 563

[10]1999 AIR 2894 SC

[11](2002) 8 SCC 481

[12] 2008 (5) SCALE 1, (2008) 6 SCC 1

[13] 1976 AIR 490, 1976 SCR (1) 906

[14] AIR 1993 SC 477

[15] 1999 AIR 3471 SC

[16] AIR 2007 SC 71

[17] Deverajia v Padmanna AIR 1961 Mad 35 (39)

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