Right to Equality: Concept & Explanation (Article 14 - 18)

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Right to Equality: Concept & Explanation (article 14-18)

Introduction: The fundamental rights are guaranteed to protect the basic human rights of all the citizens of India and are put into effect by the courts, subject to some limitations. One of such fundamental rights is the right to equality. Right to equality refers to the equality in the eyes of law, discarding any unfairness on grounds of caste, race, religion, place of birth and sex. It also includes equality of prospects in matters of employment, the abolition of title.

ARTICLE 14 – EQUALITY BEFORE LAW

A.V. Dicey in his book ‘Constitution of India’ developed the concept of rule of law. According to this rule if any person, does any kind of act which is not legally justified, law puts same responsibility on everyone and treat everyone similarly. As per rule of law, there is no supremacy of any person or government but there is always supremacy of law. It may be government or may be persons governed by the government both will be treated equal. This is known as rule of law.

The concept of rule of law in Indian constitution is covered under preamble which talks about equality of status and of opportunity and under article 14 ‘ the state shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India’.

Article 14 is first fundamental right which deals with equality. According to which, we must prohibit unequal treatment, and we must demand certain laws which can afford equal treatment. So equality before law and equal protection of law give positive and negative approach as given under 14(c).

ARTICLE 14(1)

It is an English law concept. Equality before law is being discussed under 14(1) and gives negative approach i.e. we should not afford unequal treatment. Also, the term ‘law’ used in 14(1) is in generic sense.

ARTICLE 14(2)

Equal protection of laws gives positive approach. The term ‘law’ used in article 14(2) is in plural sense. For example: If for protection of women and for their safety if we formulate special laws, will those law violates article 14?

The answer is No. Therefore, same logic is being applied for the protection of laws which says for better public welfare there must be classification for different factors which exists in our country, the moment we start recognizing them, then only we will be able to initiate towards better laws. So, for public welfare, there is need to recognize different factors, caste difference, gender difference, status difference etc. for public welfare differentiation and classification is necessary.

In order to protect the classification from undue advantages, a test was formulated which was developed in case of State of Bomaby v. F.N. Balsara ( AIR 1951 SC 318) this test has two conditions-

Intelligible differentia
Rational nexus

Intelligible differentia – If we are creating two groups then it is necessary to assign a reason that on what basis they are differentiated. There has to be an intelligible differentia. In other words there has to be an intelligent reason to make it clear or justify reason of differentiation.

Rational nexus – It says whatever may be purpose of differentiation and the result they want to achieve, there must be proper ‘nexus’ between them. It means classification and desired end must have a rational relation between them.

Therefore, this all was included under old doctrine from 1970. But as the time passed Supreme Court found it of very negative and restrictive approach.

In case of E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555) the court formulated a new doctrine by reason that ‘equality is a dynamic concept and it cannot be cribbed, cabined or confined with traditional limits’. As per time changes people needs will change, their aspects of living will change.

Therefore the new doctrine was of very dynamic and activist nature. It said equality before law not only means ‘rule of law’ but will also include the principle of natural justice.

And the same view was adopted in case of Maneka Gandhi v. Union of India (AIR 1978 SC 597) and said the soul aim of article 14 is to strike off arbitrariness which will lead to ensure fairness and equality. The court said that if any action is arbitrary then it would be clearly against equality and it’s immaterial if it qualify any test or not. If it is arbitrary then it is against equality.

The test of doctrine which was found in case of Balsara consisting of reasonable classification and rational nexus, if we add reasonableness in it, the new doctrine is formulated. So, the new doctrine target arbitrariness and supports reasonableness. It says if anything is arbitrary is opposed to equality.

ARTICLE 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 says that their shall be no discrimination on basis of-

Religion
Race
Caste
Sex
Place of birth

And if done on basis of these grounds it will be invalid. But at the same time as given under article 14 differentiation is necessary for better treatment. If with these ground if there is any relevant factor, and on basis of that protection or discrimination is taking place, then such kind of discrimination will be held valid.

For example: If for nurses or air hostess job women are given more fair chance, then it will be valid.

If steal industry or heavy industry favor men for job, then it will consider as valid.

It means that if discrimination is made only on these grounds, it will not be valid. But if relevant consideration is added with it and make discrimination according to it, then such discrimination will be valid.

ARTICLE 15(1)

It says that state shall not discriminate on basis of race, religion, sex, caste, place of birth.

ARTICLE 15(2)

It says with the state, citizens shall not discriminate on basis of race, religion, sex, caste, place of birth. So that there shall be no discrimination in public places, under these four grounds.

ARTICLE 15(3)

It says that state has powers to bring specific laws for women and children. The meaning of discrimination is ‘unfavorable distinction’. If any certain kind of law is enacted which trouble any person then it will be called as ‘discrimination’ but ‘positive discrimination’ means to do ‘favorable discrimination’. As article 15(3) talks about positive discrimination, it says for protection of specific laws are necessary. Therefore, keeping in mind the position of women and children, if government take any kind of positive step e.g. reservation in parliament, special sitting arrangements then these will not be considered as discriminatory. Because it has rational factor behind it.

In case of Yusuf v. State of Bombay (AIR 1954 SC 321) section 497 was questioned in this case and women are not punishable under adultery and this provision is discriminatory. Then the Supreme Court said that keeping in mind the existing position of women in society, such kind of immunity is necessary. So the protection given under section 497 it will fall under ambit of article 15(3).

ARTICLE 15(4)

It was inserted under 1^st Constitution Amendment Act because of case of State of Madras v. Champakan Doraijan (AIR 1951 SC 226) in this case Madras government passed an order under which it was stated that, number of medical college under the state will provide a reservation for every community. Therefore this, order was challenged and Supreme Court said on basis of religion and caste i.e. communal lines reservation cannot be given and the government order was strike out, and because of which 15(4) was added under constitution.

It says that state has special powers to make special provisions for – Socially and Educationally Backward Class (SEBC), SC, ST for their advancement. It can be called as positive discrimination. Though the term ‘backward class’ is not defined anywhere under constitution, so the state decides criteria for backward class.

In case of M.R. Balaji v. State of Mysore the Supreme Court strike out the government order and said during determining backward class, they must consider both social and educational factors not only one. Secondly, for determining backward class only caste cannot be considered, poverty, business and other relevant factors shall be looked. Third, for the very first time in this case 50% limit of reservation was made. Lastly, discrimination only on basis of backward and more backward will not be valid, at the same time during positive discrimination we must not forget society advancement at large.

But in case of Indra Sawney v. Union of India (AIR 1993 SC 477) court said that be considering caste we can define backward class and distinction between backward and more backward class is also valid.

ARTICLE 15(5)

This article deals with the groups of SEBC, SC, ST and the state can make special provisions for their advancement.

ARTICLE 16 – Equality of opportunity in matters of public employment

Article 16 is basically limited in matters of employment and appointment. The clauses given under article 16 deals with very important questions of reservation. E.g. Domicile Quota.

During the debate of article 16 while constituting Dr. B. R. Ambedkar called reservation as ‘compensatory benefits’, and said society consist of some sections which are being discriminated from very long time and in order to establish a welfare state it is necessary to uplift these sections of society. The correct meaning of equality is to remove disabilities and create a new opportunities.

ARTICLE 16(1)

It says the number of posts or opportunities available in state, for their must be equality of opportunity for all.

ARTICLE 16(2)

It talks about seven grounds, religion, caste, sex, descent, place of birth, residence and says that in public employment some criteria can be fixed on basis of which candidate will be approved or disapproved. But on basis of these seven grounds discrimination shall not be promoted.

ARTICLE 16(3)

It says that parliament has powers to provide residence on the basis of reservation. {Exception under 16(2)}. It has two fold reasons-

Accelerated development
Equal opportunity to different areas of state.

ARTICLE 16(4)

Article 16 (4) says that the state has power to reserve some post for disadvantages sections of society or backward classes (SC & ST).

The question arise on whom it will be applicable and on what basis?

The question was answered in case of Balaji v. State of Mysore (AIR 1963 SC 649) the two conditions were given and said after qualifying those two conditions only for qualified people will enjoy application of 16(4)-

He / She must be socially and educationally backward.
No adequate representation in service under state.

Indra Sawney v. Union of India (AIR 1993 SC 477) specifically known as ‘Mandal Commission Case’. 9 judges bench was constituted and in majority of 6:3 upholding –

27% reservation for SEBC is correct
Confined to appointments

Reservation cannot exceed 50% (subject to some extra ordinary situation it can be relaxed)

Then the parliament realize that the judgment was wrong and brought 77^th amendment act and added clause 16(4) (a) which says that there can be reservation in promotions also. Later on 81^st amendment act brought 16 (4) (b) which ended 50% ceiling limit on reservation for SC & ST (backlog vacancy).

ARTICLE 16 (5)

It says that if there is any kind of office under religious institution and for being its member, particular eligibility is provided that he/she must be of that particular religion then it will not be violated under 16(1) or 16(2). E.g. Waqf Board.

ARTICLE 17 – Abolition of untouchability

It says that untouchability is abolished and its practice in any form is forbidden. Untouchability shall be an offence and punishable in accordance with law. ‘Untouchability’ is not defined and its extent is given under constitution of India.

In case of Jai Singh v. Union of India (AIR 1993 Raj 177, 1993 CriLJ 2705) & Deverajiah V. B. Padmana (AIR 1958 Mys 84, 1958) it was said that the word ‘untouchability’ under article 17 is used in inverted commas, which means that we will not derive its literal or grammatical meaning but by its historical developments and practices. In other words, the word untouchability describes the caste based untouchability and caste based discrimination.

ARTICLE 18 – Abolition of titles

The abolition of title is to maintain social equality and the purpose of equality is to avoid harmful generalization. In Balaji Raghavam v. Union of India (AIR 1996 1 SCC 361) the petitioner challenged the validity of these National award and requested the court to prevent the Government of India from conferring these Awards. It was also argued that these awards are being grossly misused and the purpose for which they were instituted has been diluted and they are granted to persons who are undeserving of them.

Conclusion: Right to equality is basically one of the inalienable right of human beings which plays a vital role for uplifting society of various backward classes. It helps them achieving their social and economic needs as they are also equal part of society and must be treated equally. Supreme authority always make sure that right to equality is properly interpreted so as to achieve the ends intended by the framers of the constitution.

Author: Nishchal Kukade,
Dr. Babasaheb Ambedkar College of Law, Nagpur Final Year Student

Right to Equality: Concept & Explanation (Article 14 – 18)