Right to Equality
The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution. The first concept connotes: (a) the absence of any special privileges in favour of any person, (b) the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.
The second concept, on the other hand, connotes: (a) the equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws, (b) the similar application of the same laws to all persons who are similarly situated, and (c) the like should be treated alike without any discrimination. Thus, the former is a negative concept while the latter is a positive concept. However, both of them aim at establishing equality of legal status, opportunity and justice.
The Supreme Court held that where equals and unequals are treated differently, Article 14 does not apply. While Article 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law. But the classification should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible differential and substantial distinction.
Rule of Law The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects:
(i) Absence of arbitrary power, that is, no man can be punished except for a breach of law.
(ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts3.
(iii) The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights.
The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights.
The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.
Exceptions to Equality The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are mentioned below:
1. The President of India and the Governor of States enjoy the following immunities (Article 361):
(i) The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
(ii) No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
(iii) No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
(iv) No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him.
2. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).
3. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).
4. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194).
5. Article 31-C is an exception to Article 14. It provides that the laws made
by the state for implementing the Directive Principles contained in clause
(b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.
6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
7. The UNO and its agencies enjoy the diplomatic immunity.
2. Prohibition of Discrimination on Certain Grounds
Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are ‘discrimination’ and ‘only’. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.
There are three exceptions to this general rule of non-discrimination:
(a) The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.
(b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes4. For example, reservation of seats or fee concessions in public educational institutions.
(c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their
admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs). In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the ‘creamy layer’ (advanced sections) among the OBCs while implementing the law.
Creamy Layer The children of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota benefit :
Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
There are three exceptions to this general rule of equality of opportunity in public employment:
(a) Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh5 and Telangana5a
(b) The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
(c) A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.
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