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“Right to Equality”
Prof. Santosh D Bhosale 38
(..7..)
RIGHT TO EQUALITY
QUESTION BANK
Q.1. Distinguish between the terms ‘Equality before law’ or ‘Equal protection of
laws.
Q.2. Explain the new dimensions of the Right to Equality before the law’
and ‘Equal protection of the laws.
Q.3. “It is now well established that Art. 14 forbids class legislation; it does not
forbid reasonable classification” Explain. State the conditions to be
fulfilled for a reasonable classification with the help of Case Law.
Q.4. Explain the concept of equality by bringing out its exceptions with the
decided cases.
Q.5. Examine the scope of the Right of Equality of opportunity in public
employment within the territory of India.
Q.6 Justice to the weaker section of society.
SHORT NOTE
1. Abolition of Title
2. Reasonable Classification
3. Indira Sawhney V/s Union of India
4. Untouchability
5. General justice
6.
Equality before the Law
TABLE OF CONTENT.
A) ‘Equality before Law’:-..........................................................................................40
B) ‘Equal Protection of Laws’:- ..................................................................................41
State of W.B. V/s A. A. Sarkar .......................................................................41
Reasonable classification: - ..................................................................................41
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1) No discrimination against citizens (Art. 15 (1)):- ..................................................43
In Nainsupdasa V/s State of U.P.....................................................................43
....................................................................................................................................44
(ART. 16):- ......................................................................................................................44
Exception to the above rule:-.........................................................................................44
In Union of India V/s S. N. Maity...................................................................45
In State V/s Banvari ........................................................................................45
VI] ABOLITION OF TITLES (S. 18):-..................................................................45
Exception:-.....................................................................................................................46
I] ORIGIN AND DEVELOPMENT OF FUNDAMENTAL RIGHTS:-
In 1215, English people got assurance in writing, known as ‘Megna Charta’,
from King Jhon that they would respect their ancient liberties. This is described as
the first document relating to the fundamental rights of citizens. Therefore, the
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“Right to Equality”
Prof. Santosh D Bhosale 40
King acceded several rights to his subjects from time to time. Eventually, in 1689,
the Bill of Rights was written, consolidating the English people's important rights
and liberties.
After that, in 1789, a revolution took place in France. It made the “Declaration
of Rights of Man and the Citizen, "which declared and protected the natural,
inalienable, and sacred rights of man. The above declaration was inspired by the
philosopher John Locke. It declares that ‘all political association aims to conserve
man's natural and inalienable rights.
After that, taking inspiration from the above trend, Americans incorporated
the Bill of Rights into their constitution. In this way, Americans gave
Constitutional status to fundamental rights for the first time.
Our Constitutional framers have taken inspiration from the above trend and
drafted fundamental rights in Indian Constriction on American lines.
II] INTRODUCTION TO FUNDAMENTAL RIGHTS:-
Chapter III of the Constitution, from Art. 12 to 35, incorporates the
fundamental rights of all citizens. These fundamental rights are guaranteed in
favour of citizens or the general public. These rights are against State action. For
violation of these rights, a person can approach the Supreme Court (Under Art. 32)
or the High Court (Under Art. 226) for remedy through a writ petition against State
Officials. Art. 14 to 18 of the Constitution guarantees the right to equality for
every citizen of India. Art. 14 embodies the general principle of ‘equality before
the law’ and prohibits a State from making unreasonable discrimination between
two persons. Art. 14 embodies the general idea of equality expressed in the
preamble. Subsequent Articles, i.e. Articles 15 to 18, lay down the specific
application of the general rule in Art. 14 and 15, prohibit discrimination on the
grounds of religion, race, caste, sex or place of birth. Art. 16 guarantees equality
of opportunity in matters of public employment. Art. 17 also abolishes
‘untouchability.’, and Art. 18 abolishes titles.
II] EQUALITY BEFORE LAW (Art. 14):-
Art. 14 declares that ‘the state shall not deny to any person ‘equality before
the law’ or the ‘equal protection of the laws’ within the territory of India. Thus,
Art. 14 uses two expressions: ‘equality before the law’ and ‘equal protection of
the laws. Both these expressions aim to establish ‘equality of status; in the
preamble’. Though both expressions seem identical, as they do not convey the
same meaning, the underlying idea between them is equal justice.
A)
‘Equality before Law’:-
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“Right to Equality”
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This expression is of English origin. The expression ‘equality before the
law’ is a somewhat negative concept that ensures that there is no special privilege
in favour of any person; all are equally subject to the ordinary law of the land, and
no one is above the law. Dicey called it the ‘Rule of Law’; the rule of law means
‘all are equal before the law and no one is above the law’.
This, however, is not an absolute rule, and there are a number of exceptions
to it; e.g. foreign diplomats, presidents, governors, public officers, and judges
enjoy some protections.
B) ‘Equal Protection of Laws’:-
This expression is derived from the American Constitution. It is a positive
concept implying equality of treatment in similar circumstances. In other words,
the expression ‘equal protection of laws’ means that the law treats all individuals
equally without any discrimination, from the Prime Minister to the constable. All
persons are treated equally in equal (identical) circumstances, e.g., equal pay for
equal work, etc.
Justice Patanjali Shastri of the Supreme Court observed that ‘equality before law’
and ‘equal protection of laws’, though they seem different, are the same. We cannot
imagine a situation where a violation of one thing (i.e., ‘Equality before law’ or
‘equal protection of laws') is not a violation of another.
In Ravi Kumar v. the State of U.P (Laws (All) 2021-2-114)
Facts:- The petitioner made a bid to get a fishery lease. He had deposited the
minimum requisite amount. He got a lease in his favour but couldn’t deposit the
remaining lease amount without a prescribed or extended period.
The Authority sent notice of forfeiture of the deposited amount. The petitioner
challenged the forfeiture notice, even on the grounds of violating the petitioner's
equality with other contesting bidders.
The Allahabad High Court observed that- Art. 14 only means that all people in
similar circumstances shall be treated equally in privileges and liabilities imposed.
Equal laws would be applied to all in the same situation, and there should be no
discrimination between one person and another if they are in the same position.
Thus, those in the same circumstances should be treated equally.
C)
Reasonable classification: -
‘Equal protection of laws’ guaranteed by Art. 14 does not mean that the same
1
AIR 1952 SC 75
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law should apply to everyone. It only means ‘an equality of treatment under
equal circumstances. Therefore, Art.14 ensures equality among equals; it aims to
protect persons similarly placed against discriminatory treatment. In other
words, rational (reasonable) classification among persons is permitted. Therefore,
legislatures are permitted to make reasonable classifications among persons for the
purpose of the legislation and to ensure equality of law among equals. To treat like
as alike and not unlike as like is the purpose of permission of classification.
Such classification, to be reasonable, must fulfil the following two tests: –
1) It should not be arbitrary, artificial or evasive but must be based on some real
and substantial discretions
.
2) There should be a nexus between the basis of classification and the object
sought to be achieved by the proposed law.
Supreme Court held:- that the classification of voters based on the religious
Facts—The Bar Council of India prescribed a certain period of practice to be a
candidate in the Bar Council’s election. The condition of some years of practice
was challenged as arbitrary against candidates who did not have that much
practice.
Madras High Court held that the Bar Council has an immense responsibility to
maintain the highest standard of discipline, integrity, etc. The experience of
members counts in this respect. Therefore, the number of years of practice required
to become a member of the Bar Council is not arbitrary.
III] NO DISCRIMINATION ON GROUNDS OF RELIGION, RACE,
CASTE, ETC (ART.15):-
Art.15 provides a particular application of the general principle of equality
2
AIR 1953 SC 384 In –BALCO Employees union vs. union of India. (AIR2002 SC 350).
Supreme Court held,- Classification of public companies on specific criteria such as its profit making etc, for dis-investment (privatization)
by the government is not unreasonable classification.
3
Commissioner of Police v. Acharya 1Jagadishwarananda Avadhuta. (2004 AIR SCW 1887 (C))
Facts- ‘Anand Margis’ were not allowed by the West Bengal State to perform ‘Tandava Nritya’ on public road while other sects allowed to carry
out similar religious practice.
Supreme Court held- that it is an unreasonable discrimination against Anand Margais.
In Ulhas Somwanshi V. State of Maharashtra. 2008 (2) All MR 536
Held: -When equals are treated unequally, that amounts discrimination similarly, when unequal are treated equally, even that is also
discrimination
4 (AIR 2018 Mad 155)
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laid down in Art.14, If the law passed by the legislator comes within the prohibition
of Art. 15 (i.e. discrimination on the grounds of religion, race, caste, etc.), it cannot
be validated by Art. 14, justifying that there is a reasonable classification. In other
words, the citizens' classification for making law under Art.14 is not reasonable if
it is made on any grounds prohibited under Art. 15, i.e. religion, race, caste, sex,
or place of birth.
The guarantee under Art. 15 is available to the citizens only and not to the
aliens.
1) No discrimination against citizens (Art. 15 (1)):-
The State is prohibited from discriminating between citizens on grounds only
of religion, race, caste, sex and place of birth, or any of them. The word
‘discrimination’ means ‘to make an adverse distinction or to distinguish
unfavourably from others’. If the law makes discrimination on any of the grounds
mentioned above, it can be declared invalid.
In the Nainsupdasa V/s State of U.P.
The law, which provided for elections based on separate electorates for
members of different religious communities, was considered unconstitutional.
The word ‘only’ used in Art. 15 (1) indicates that discrimination cannot
be made merely on the ground that one belongs to a particular caste, sex, etc. Still,
discrimination on any other grounds than the above-mentioned is permitted (such
as education, physical fitness, etc.).
2) No Discrimination as to use or Access to Public places (Art.15
(2)):-
Art. 15 (2) is a specific application of the general prohibition contained in
Art.15 (1). Art.15 (2) declares that ‘no citizen shall be subjected to any disability,
restriction or condition on grounds only of religion, race, caste, sex, place of birth,
or any of them’. This right is available regarding access to shops, public
restaurants, hotels and places of public entertainment; or (b) the use of wells,
tanks, bathing ghats, roads, and places of public resort that are maintained wholly
or partly out of state funds or dedicated to the use of the general public. Places of
‘public resort’ are places frequented by the public, like a public park, a public
road, public buses, etc.
Exceptions- Clauses (3) and (4) of Art.15 provide exceptions to the above two
clauses, viz.
a) Special provision for women and children (Art. 15 (3)):-
Art. 15(3) provides that nothing in Art.15 shall prevent the State from making
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any special provision for women and children because they require special
treatment because of their very nature. Therefore, women workers are given
special maternity benefits; special schools for women are established; moreover,
men are only punished and not women even though she is equally guilty of abettor
b) Special provision for the advancement of Backward classes
(Art. 15(4)):-
Art.15 (4) enables the State to make any special provision for advancing any
socially and educationally backward class of citizens or for Scheduled Tribes.
c) Special provision of economically backward sections (Art. 15
(6):-
This article was inserted in the 103 amendments in 2019. It enabled the State
to make any provision for the advancement of economically weaker sections of
citizens other than the sections mentioned above.
IV] EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT
(ART. 16):-
Like Art. 15, Art. 16 embodies the particular application of the general rule
of equality laid down in Art.14 with special reference to appointment and
employment. In other words, classification under Art.14 is not reasonable if made
on any of the grounds prohibited under Art.16, such as religion, race, caste, sex,
descent, place of birth, residence or any of them; in the matters of employment or
appointment to any office under the state. In Art.16, ‘descent’ and “residence” are
The exception to the above rule:-
1.
2.
3.
5
Clause (3) empowers Parliament to make laws prescribing residence within
the state, a qualification for appointment under the state.
Clause (4) empowers the State to make provisions favouring the backward
citizen
.
Clause. (4 A) empowers the State to make any reservation in the matter of
Y.A. Aziz v. State of Bombay AIR 1954 SC 321
6 In M. P. Agriculture Officers Asst. V. State of M.P ( 2004 AIR SCW 2180)
Facts- Two sets of employees were performing similar duties and functions. Their posts were also
interchangeable. However, State made classification for the purpose of payment on the ground of
educational classification. Those, who were not graduate, were not equally getting paid with graduate
employees.0020
Held- the principle of ‘equal pay for equal work’ does not apply and State can make discrimination on the
ground of educational qualification for filling up of the particular post.
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promotion for scheduled casts and scheduled tribes.
4.
C1ause (5) provides that the law is valid if it provides for the appointment of
a person professing a particular religion or denomination as an incumbent or
a manager of such religious or denominational institution.
5. The 2019 Amendment inserted Cl. (6), which enables the State to make any
provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than those mentioned above.
Supreme Court held: - that reservation to backward classes shall not exceed
50% of total seats.
Facts:- The employee appointed on deputation, was arbitrarily repatriated on his
original post.
The Supreme Court observed that- “For an appointment in services of the
State, the provisions of Art. 14 and 16 are to be followed. No person can be
discriminated nor is it open to the appointing authority to act arbitrarily or to pass
any order in violation of Art. 14. A person who applies for the appointment has an
indefectible right to be treated fairly and equally. Once such person is selected and
offered with the letter of appointment, the same cannot be cancelled except on the
grounds of non-suitability or unsatisfactory work.”
V] ABOLITION OF UNTOUCHABILITY (ART. 17):-
Art.17 abolishes ‘untouchability’; its practice in any form is punishable under
the law. No article in the constitution was adopted with such unanimity, great
acclamation and enthusiasm as this article. It is an excellent fundamental right, a
character of deliverance to one-sixth of the Indian population from perpetual
subjugation and despair, perpetual humiliation and disgrace. This right is available
against persons and not against the State.
Allahabad High Court held that the appellant (caste Dhobies) had no right to
refuse their services of washing cloths, etc., merely because the persons demanding
services belonged to a scheduled caste. It is one form of untouchability practice
forbidden by Art. 17.
VI] ABOLITION OF TITLES (S. 18):-
7
AIR 1993 SC 477.
8 (Laws (SC) 2015-1-71)
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The object of this Article is to abolish titles given to the Indians before
independence by the British, like Diwan Bahadur, Knight, Rao Bahadur, etc., for
the favour given by them to British rule (Art. 18).
(1)The article prohibits the State from conferring such titles on anybody,
whether a citizen or non-citizen. Thus, the object of the article is to
bring equality enshrined under the preamble and under Art. 14.
Classification under Art. 14 is not reasonable if it is made for
conferring titles on people and thereby practising inequality.
(2) Clause (2) Prohibits Citizens of India from accepting any title from
foreign State.
(3) Clause (3) provides that a foreigner holding any office of profit or trust
under the State cannot accept any title from any foreign state without
the consent of the President.
(4) Clause (4) provides that no person (Citizen) holding any office of
profit or trust under the State shall accept, without the consent of the
President, any present, emolument or office of any kind from or under
any foreign state.
I.
Exception:-
(i) The titles of a military or academic nature can be conferred, e.g.
Paramvir Chakra or LL.B etc.
(ii) Recent conferring of titles of “Bharat Ratna”, “Padma Vibhushana”,
“Padma Shri”, etc. are not prohibited under Art. 18 as they merely
denote State recognition of good work by the citizens in the various
fields of activity.
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