RIGHT TO EQUALITY

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RIGHT TO EQUALITY[1]

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.

I]    ORIGIN AND DEVELOPMENT OF FUNDAMENTAL RIGHTS:-…………… 42

II]   INTRODUCTION TO FUNDAMENTAL RIGHTS:-……………………………… 42

II]   EQUALITY BEFORE LAW (Art. 14):-……………………………………………….. 43

  1. A) ‘Equality before Law’:-…………………………………………………………………. 43
  2. B) ‘Equal Protection of Laws’:-………………………………………………………….. 44

State of W.B. V/s A. A. Sarkar………………………………………………… 44

In Ravi Kumar v. State of U.P (Laws (All) 2021-2-114)…………………. 44

  1. C) Reasonable classification: -………………………………………………………….. 44

In Nainsupdas V/s State of U. P………………………………………………… 45

In G Selvakumar v. Bar Council of India…………………………………….. 45

III]         NO DISCRIMINATION ON GROUNDS OF RELIGION, RACE,………… 45

1)    No discrimination against citizens (Art. 15 (1)):-………………………………… 46

In Nainsupdasa V/s State of U.P……………………………………………….. 46

2)    No Discrimination as to use or Access to Public places (Art.15 (2)):-……… 46

  1. a) Special provision for women and children (Art. 15 (3)):-…………………… 46
  2. b) Special provision for the advancement of Backward classes (Art. 15(4)):- 47
  3. c) Special provision of economically backward sections (Art. 15 (6):-……….. 47

IV] EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT           (ART. 16):-………………………………………………………………………………………………….. 47

Exception to the above rule:-……………………………………………………………….. 47

In Indra Sawhney V/s union of India- (Popularly known as Mandal case)…………………………………………………………………………………………. 48

In Union of India V/s S. N. Maity……………………………………………… 48

V]   ABOLITION OF UNTOUCHABILITY (ART. 17):-………………………………. 48

In State V/s Banvari……………………………………………………………….. 48

VI]      ABOLITION OF TITLES (S. 18):-………………………………………………….. 49

Exception:-………………………………………………………………………………………. 49

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 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[2]. Art. 16 guarantees equality of opportunity in matters of public employment[3]. Art. 17 also abolishes ‘untouchability.[4]’, and Art. 18 abolishes titles[5].

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[6]; in the preamble’. Though both expressions seem identical, as they do not convey the same meaning, the underlying idea between them is equal justice[7].

  1. A) ‘Equality before Law’[8]:-

            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.

  1. B) ‘Equal Protection of Laws’[9]:-

       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.

State of W.B. V/s A. A. Sarkar[10]

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.

  1. C) Reasonable classification[11]: –

         ‘Equal protection of laws’ guaranteed by Art. 14 does not mean that the same 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.

In Nainsupdas V/s State of U. P.[12]

Supreme Court held:- that the classification of voters based on the religious community is an unreasonable classification[13].

In G Selvakumar v. Bar Council of India[14]

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 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[15] (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[16], 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[17] (Art. 15 (3)):-

       Art. 15(3) provides that nothing in Art.15 shall prevent the State from making 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 for adultery.[18]

b)   Special provision for the advancement of Backward classes[19] (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 two additional grounds inserted in Art.15. This right is available to citizens only[20].

The exception to the above rule:-

  1. Clause (3) empowers Parliament to make laws prescribing residence within the state, a qualification for appointment under the state.
  2. Clause (4) empowers the State to make provisions favouring the backward citizen.
  3. (4 A) empowers the State to make any reservation in the matter of 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.
In Indra Sawhney V/s Union of India[21] (Popularly known as Mandal case)

Supreme Court held: – that reservation to backward classes shall not exceed

                                     50% of total seats.

                      In Union of India V/s S. N. Maity[22]

 Facts:- The employee appointed on deputation[23], was arbitrarily repatriated[24] 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[25] (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.

In State V/s Banvari4

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):-

           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.

*****

[1] समानतेचा अधिकार

[2] धर्म, वंष, जात, स्त्री-पुरुष, जन्मस्थान

[3] सरकारी नोकरीत समान संधी

[4]   अस्पृष्यता

[5]  पदव्यांची समाप्ती

[6] समान दर्जा

[7] समान न्याय

[8] कायदयापुढे समानता

[9] कायदयाचे समान संरक्षण

[10] AIR 1952 SC 75

[11] योग्य/न्याय्य भेदभाव

[12] 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.

[13] 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

[14] (AIR 2018 Mad 155)

[15] सार्वजनिक वापराचे ठिकाणी भेदभाव करता येणार नाही

[16] स्नानगृहे

[17] स्त्रीया-लहान मुले यांच्या उद्धारासाठी विषेश तरतुदी

[18] Y.A. Aziz v. State of Bombay AIR 1954 SC 321

[19] मागासवर्गीय समाजाच्या उद्धारासाठी विषेश तरतुदी

[20] 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.

[21] AIR 1993 SC 477.

[22] (Laws (SC) 2015-1-71)

[23]  प्रतिनिधि म्हणुन नियुक्त करने

[24] परत मुळ पदावर बोलाविने

[25] अस्पृष्यता निवारण

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