NAME- AMIR SUBHANI KHAN

COURSE- BA LLB (Hons.)

SEMESTER- IV
ROLL NO- 10
TOPIC- RIGHT TO EQUALITY (ARTICLE 14)
SUBMITTED TO- DR. MOHD. ASAD MALIK
INTRODUCTION
Right to Equality is the first fundamental right assured to the people of India. Article 14-18 of the
Constitution guarantees this right to every citizen of India.

The constitution makers were of the opinion that only Article 14 would not be sufficient enough
to deal with the inequalities prevalent in Indian society so they introduced Articles 15-18 in the
Constitution along with Article 14 which deals specifically in and expressly abolished and
prohibited some of the existing inequalities1.

Thus, the right to equality in the Constitution of India is not merely a negative right not to be
discriminated against but also a positive right to be treated as an equal. Under the later aspect of
the right, which is the essence and core of the right to equality, the State is under the obligation
to take necessary steps so that every individual is given equal respect and concern which he is
entitled to as a human being.2

Article 14 embodies the idea of equality expressed in the preamble. It lays down the general
principles of equality before the law and prohibits unreasonable discrimination between the
persons. The Succeeding Articles 15, 16, 17 and 18 lays down specific applications of the
general rules laid down in Article 14. Article 14 is the equality clause because of its wide ambit
and applicability. It applies to all persons while Article 15 and others cover only citizens. Article
15 relates to prohibition of discrimination on grounds of Religion, race, caste, sex or place of
birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17
abolishes untouchability and Article 18 abolishes title.

Article 14 - The state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.

The first expression ‘equality before the Law’ which is taken from English Common Law, is
somewhat a negative concept. It is a declaration of equality of all persons within the territory of
India, implying thereby the absence of any special privilege in favor of any individual. Every
person, whatever be his rank or position, is subject to the jurisdiction of the ordinary courts. It
means no man is above law and that every person, high or low, is subject to the ordinary law of
the land. Prof. Dicey in explaining the concept of legal equality, as operating in England, said:
“With us, every official, from the Prime Minister down to a constable or collector of taxes, is
under the same responsibility for every Act done without any legal justification as any other
citizen.3

1
JN Pandey, The Constitutional Law of India
2
VN SHUKLA
3
Dicey: Law of Constitution, 10th Edn. , p. 193
The second expression, “equal protection of laws”, which is rather an extension of the first
expression and is taken from American Constitution. It directs that equal protection shall be
secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their
rights and privileges without favouritism or discrimination. It is a more positive concept (as it
expects a positive action from the state) implying equality of treatment in the equal
circumstances. In other words, all persons who are in the same circumstances will be governed
by the same set of rules. It is a guarantee of equal treatment. An equal law should be applied with
an equal hand to all persons who are the equals. The rule is that the like should be treated alike.
The same or uniform treatment of unequals is as bad as unequal treatment of equals.4 It has been
said that the equal protection of the law is a pledge of protection or guarantee of equal laws.

Article 14 uses the term ‘any person’, natural or artificial, whether he is a citizen or alien, is
entitled to the protection under the provision.

The two expressions in Article 14 make the concept of equal treatment a binding principle of
State Action. In Sri Srinivasa Theatre v. Govt. of Tamil Nadu , the Supreme Court explained
that the two expressions equality before the law and equal protection of law do not mean the
same thing even if there may be much in common between them. Equality before the law is a
dynamic concept having many facets. One facet is that there shall be no privileged person or
class and that none shall be above law. Another facet is the obligation upon the State to bring
about, through the machinery of law, an equal society or, equality before the law can be
predicated meaningfully only in equal society.5

EQUALITY BEFORE LAW

According to Dr. Jennings, “Equality before the law means that among equals the law should be
equal and should be equally administered, that the like should be treated alike. The right to sue
and be sued, to prosecute and to be prosecuted for the same kind of action should be same for all
citizens of full age and understanding without distinctions of race, religion, wealth, social status
or political influence.

Equality before the law is a concept implying absence of any special privilege by reason of birth,
creed or the like in favour of any individual, and also the equal subject of all individuals and
classes to the ordinary law of the land.Equality before law means that no one is above the law of
the land. It means that law does not discriminate on the basis of birth, position, gender or other
personal attributes.6

4
All India Sainik Schools Employees’ Assn. v. Sainik Schools Society, 1989 Supp (1) SCC 205,212
5
(1992) 2 SCC 643
6
M P Jain,Indian Constitutional Law
In State of West Bengal v. Anwar Ali Sarkar, the Court observed that 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 the law. Thus, in substance, the
two expressions mean one and the same thing.

Rule of law- the guarantee of equality before the law is an aspect of what Dicey calls the rule of
Law in England Rule of law requires that no person shall be subjected to harsh, uncivilized or
discriminatory treatment even when the object is the securing of the paramount exigencies of law
and order.

Prof. Dicey gave three meanings to Rule of Law, they are –

1. The absence of Arbitrary Power or Supremacy of Law – in other words, a man may be
punished for a breach of law but he can be punished for nothing else. It means the
absolute supremacy of Law as opposed to the arbitrary power of the Government.
2. Equality before the Law – it means subjection of all classes to the ordinary law of the
land administered by ordinary law courts. This means that no one is above law with the
sole exception of the monarch who can do no wrong.
3. The Constitution is the result of the ordinary law of the land – it means that the source of
the right of individuals is not the written Constitution but the rules as defined and
enforced by the Courts.

The first and second aspects apply to the Indian system but the third aspect of the Dicey’s rule of
law does not apply to Indian system as the source of rights of individuals is the Constitution of
India. The Constitution is the supreme Law of the land and all laws passed by the legislature
must be consistent with the provisions of the Constitution

EXCEPTION TO THE RULE OF EQUALITY

1)The scope of right to equality under Article 14 has been considerably restricted by the 42nd
Amendment Act, 1976. The new Article 31-C added by the Amendment Act 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.

2) Article 359 (1) provides that where a proclamation of emergency is in operation the President
may, by order, declare that the right to move any court for the enforcement of such rights
conferred by Part III (except Arts. 20 and 21) shall remain suspended. Thus, if the president of
India issues an order, where a proclamation of emergency is in operation, enforcement of Article
14 may be suspended for the period during which the proclamation is in force.
3) Article 361 lays down that the President and the Governors are exempted from any criminal
proceeding during the tenure of their office.

4) Under International law, foreign sovereign and ambassadors enjoy full immunity from any
judicial process. This is also available to enemy aliens for acts of war.

EQUAL PROTECTION OF LAWS

Equal protection of Laws is a positive concept. It does not mean that identically the same law
should apply to all persons, or that every law must have a universal application within the
country irrespective of differences of circumstances. What it postulates is the application of the
same laws alike and without discrimination to all persons similarly situated.

It implies that among equals the law should be equal and equally administered, that the like
should be treated alike without distinction of race, religion, wealth, social status or political
influence.

ARTICLE 14 PERMITS REASONABLE CLASSIFICATION BUT

PROHIBITS CLASS LEGISLATION 7
The equal protection of laws guaranteed by Article 14 does not mean that all laws must be
general in character. It does not mean that the same laws should apply to all persons. The State
can treat different persons differently if circumstances justify such treatment. In fact, identical
treatment in unequal circumstances would amount to inequality. The legislature must possess the
power to group persons, with a view to attaining specific aims. So, a reasonable classification is
not only permitted but necessary if society is to progress.

The classification however must not be “arbitrary ,artificial or evasive” but must be based on
some real and substantial bearing a just and reasonable relation to the object sought to be
achieved by the legislation what Article 14 forbids is class-legislation but it does not forbid
reasonable classification as held in the case of RK Garg v Union of India8.

Article 14 applies where equals are treated differently without any reasonable basis. But where
equals and unequals are treated differently, Article 14 does not apply.

7
Budhan Chaudhary v State of Bihar
8
AIR 1981 SC 2138
Class legislation refers to legislation that applies to certain persons or class of persons arbitrarily
selected from large number of people and given some privlages.

TEST OF REASONABLE CLASSIFICATION

Classification to be reasonable must fulfil the following two conditions:

1) The Classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out of the group.

2) The differentia must have a rational relation to the object sought to be achieved by the
Act. The thing which is necessary is that there must be nexus between the basis of classification
and the object of the act which makes the classification. It is only when there is no reasonable
basis for a classification that legislation making such classification may be declared
discriminatory.Act.

State of Bihar v. Bihar 10+2 Lecturers Associations9

Facts:-

Advertisement was issued inviting applications for appointment of lecturers in Secondary

Schools. The qualification prescribed in the Advertisement was Post-Graduate Degree in II
Class. There was no requirement of having training for appointment to the said post. The
controversy raised in the present matter relates to difference of pay scales between lecturers who
are trained and lecturers who are untrained.

Held:-

Since Article 14 does not forbid classification but prohibits discrimination, hence it was held that
there is clear distinction between a trained lecturer and an untrained lecturer. Such a distinction is
valid, rational and reasonable

State of West Bengal V. Anwar Ali Sarkar10

This case was about a Bengal law permitting setting up of special courts for the ‘speedier trial’ of
such ‘offence’, or ‘classes of offences’ or ‘cases’, or ‘classes of cases’, as the State Government
might direct by a general or special order. These courts were to follow a procedure less
advantageous to the accused in defending himself than the procedure followed by the ordinary
criminal courts.

9
AIR 2007 SC 1948
10
AIR 1952 SC 75
The Act was held invalid as it made no reasonable classification, laid down “no yardstick or
measure for the grouping either of persons or of cases or of offenses” so as to distinguish them
from others outside the purviews of the Act. The government had the power to pick out a case of
a person and hand it over to the special tribunal while leaving the case of another person
similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to
the executive ‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague,
uncertain and indefinite criterion to form the basis of a valid and reasonable classification.

NEW DIMENSION OF RIGHT TO EQUALITY

In the case of E. P. Royappa v. State of Tamil Nadu,11, the Supreme Court has challenged the
traditional concept of equality which was based on reasonable classification and has laid down a
new concept of equality.

Justice Bhagwati: “Equality is a dynamic concept with many aspects and dimensions and it
cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness
are sworn enemies; one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal
in both according to political logic and constitutional law and is therefore violative of
Article 14.”

This Judgement was followed in later case of Maneka Gandhi v. Union of India, 12Justice
Bhagwati said: “Equality is a dynamic concept with many aspects and dimensions and it cannot
be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality or non-arbitrariness,
pervades Article 4 like a brooding omnipresence.”

In the case of RD Shetty v International Airport Authority, 13Justice Bhagawati said: “The
doctrine of classification which is involved by the Court is not paraphrase of Article 14 nor is it
the objective and end of that Article. It is merely a judicial formula for determining whether the
legislative or executive action in question is arbitrary and therefore constituting denial of
equality.”

Prior to these decisions, the view was that Article 14 forbade discrimination and not
classification provided the classification fulfilled the two tests:

1) That it was based on intelligible differentia

11
AIR 1974 SC 555
12
AIR 1978 SC 597,
13
AIR 1979 SC 1628
2) That the differentia has a rational nexus with the object which the law seeks to achieve.

However by these decisions it can be concluded that if the action of State is arbitrary it cannot be
justified even on the basis of doctrine of classification.

Where an act is arbitrary, it is implicit in it that it is unequal and therefore violative of

Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment.

In Air India V. Nargesh Meerza ,14 a regulation made by Air India International, a statutory
corporation, providing for termination of service of an air hostess on her first pregnancy has been
held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed
the normal age of retirement of air hostess at 35 years but authorized the managing directors to
extend the same to 45 years at his option subject to other conditions being satisfied. The
regulation was held bad as it armed the managing director with uncanalized and unguided
discretion to extend the age of retirement of an air hostess. No guidelines, principles or norms
were laid down subject to which the power was to be exercised nor was there any procedural
safeguards available to an air hostess who was denied the extension.

D.S. Nakara v. Union Of India

The Government issued an office memorandum announcing a liberalized pension scheme for
retired government servants but made it applicable to those who had retired after 31 March 1979.
Here basically classification was made on the basis of date of retirement.

The supreme court held that the fixing of the cut off date to be discriminatory as violating
Article 14. The devision of pensioners into two classes on the basis of the date of retirement was
not based on any rational principle because a difference of two days in the matter of retiremnt
could have traumatic effect on the pensioner. Such a classification held to be arbitrary and
unprincipled as there was no acceptable or persuasive reason in its favour. The said classification
had no rational nexus with the object sought to achieved.

In case of J Desai it was further held that Article 14 forbids class legislation but permits
reasonable classification for the purpose of legislation. The classification must satisfy the twin
tests of classification being founded on

1. Intelligible Differentia – which distinguishes things or persons that are grouped together
from those that are left out of the group.
2. That differentiation must have a rational nexus to the object sought to be achieved by
the statue

14
AIR 1981 SC 1829
CONCLUSION
What article 14 forbids is discrimination by law that is treating persons similarly circumstanced
differently and treating those not similarly circumstanced in the same way or as has been pithily
put treating equals as unequals and unequals as equals. Article 14 prohibits hostile classification
by law and is directed against discriminatory class legislation.

A legislature for the purpose of dealing with the complex problem that arise out of an infinite
variety of human relations cannot but proceed on some sort of selection or classification of
persons upon whom the legislation is to operate.

Its is well settled that Article 14 frobid classification for the purpose of legislation. Its is equally
well settled that in order to meet the test of Article 14 (i) classification must be based on
intelligible differentia which distinguishes persons or things that are grouped together from those
that are left out of group and (ii) the differentia must have a rational nexus to the objects sought
to be achieved by the executive or legislative action under challenge.

Article 14 contains a guarantee of equality before law to all persons and protection to them
against discrimination by law. It forbids class legislation.