THE NEW DIMENSION OF ARTICLE 14 OF THE

CONSTITUTION TOWARDS STRENGTHENING THE RULE OF

LAW IN INDIA

6.2. Administrative Law

SUBMITTED BY:

SAHARSH DUBEY

UID-SM0117044

3rd year, 6th semester

BA.LLB (Hons.)

Faculty in Charge

Dr. Diptimoni Boruah

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM.

i
 TABLE OF CONTENTS

Chapters and Sub-Chapters Page No.

Table of Cases iii-iv
Table of Statutes iv
Table of Abbreviations iv
Introduction v
Aims vi
Objectives vi
Scope and Limitations vi
Research Methodology vi
Literature Review vii
Research Questions vii
Article 14 and its statutory provisions 1-2
Rule of Law: its ambit and dimensions 3-4
Correlation of the concept of Equality with Rule of Law 5
New Dimension of Article 14 strengthening the Rule of Law 6-12
Conclusion 13
Bibliography viii

TABLE OF CASES

SL.No. Name of the Case Citation

1. A.K. Gopalan v. State of Madras [1950] SCR 88.

2. M.G. Badappanavar v. State of Karnataka AIR 2001 SC 260

ii
 3. M. Nagaraj v. Union of India SCC 2006 Vol 8,p248.

4. Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR

(2) 621.
5. State of W. Bengal v. Anwar Ali Sarkar [1952] AC 210.

6. P K Ghosh v. J G Rajput, AIR1996 SC 513.

7. Central Board of Secondary Education v. Nikhil AIR1988 SC1205

Gulati
8. Gauri Shankar v. UOI AIR 1995 SC 55
9. State of Haryana v. Jai Singh AIR 2003 SC 1696.

10. PUCL v. UOI, AIR 2004 SC 1442

11. State of Gujarat v. Ambica Mills, AIR 1974 SC 1300

12. Directorate of Film Festivals v. Gaurav Ashwin , (2007) 4 SCC 737.

Jain
13. Ram Krishna Dalmia v. Justice S.R. Tendulkar AIR 1958 SC 45

14. In Re Special Courts Bill, 1978 AIR 1978 SC 597

15. Centre for PIL v. UOI AIR 1990 SC 1480

16. Charan Lal Singh v. UOI (2018) 10 SCC 1

17. Navtej Johar v. Union of India (2019) 3 SCC 39

18. Deepak Sibbal v. Punjab University (1989) 2 SCC 145

19. Subramaniam Swamy v. Union of India (2014) 8 SCC 682

20. Shayara Bano v. Union of India (2017) 9 SCC 1

21. Ahmedabad St. Xavier’s College v. State of Gujarat (1974) 1 SCC 717

TABLE OF STATUTES

SL.No. Name of the Statute Year

1. Constitution of India 1949

iii
 TABLE OF ABBREVIATIONS

SL.No. Abbreviation Explanation

1. & And
2. A.D.M. Additional District Magistrate
3. AIR All India Reporter
4. Art. Article
5. Const. Constitution
6. Hon’ble Honorable
7. J. Justice
8. MISA Maintenance of Internal Security Act
9. No. Number
10. SCC Supreme Court Cases
11. SCR Supreme Court Reporter
12. Sec. Section
13. U.P. Uttar Pradesh
14. v. Versus

1. INTRODUCTION

The advisory committee on Fundamental Rights provided only for the ‘equal treatment of the
laws’ and combined it with the ‘ due process’ clause regarding the Right to life and liberty.1 The
Drafting Committee, replaced the words ‘the Equality before the law’ and added a new clause
namely ‘equal protection of the laws’. But even in the Draft Constitution, the Right to Equality
before the law and the Right to personal liberty were combined in one article. However, after the
second reading stage, it was decided to incorporate the Right to Equality before law in a separate
article. The members unanimously approved this provision which has been incorporated in
article 14. Article 14 embodies the principle rule of Equality which prohibits the state from
denying to all persons, whether citizens or foreigners, Equality before the law or the equal

iv
protection of the laws. ‘Equality before the law’ is an expression of English Common Law and
according to Dicey, “as the equal subjection of all persons to the ordinary law of the land
administered by the ordinary law courts”.2 The concept of Rule of Law is that the state is
governed, not by the ruler or the nominated representatives of the people but by the law. A
county that enshrines the rule of law would be one wherein the Grundnorm of the country, or the
basic and core law from which all other law derives its authority is the supreme authority of the
state. The monarch or the representatives of the republic are governed by the laws derived out of
the Grundnorm and their powers are limited by the law. The King is not the law but the law is
king. The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French
phase ‘la principe de legalite’ which means the principle of legality. The firm basis for the Rule
of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most
popular. So, this paper basically highlights the new dimensions of Article 14 of the Constitution
of India in strengthening the Rule of Law in India.

1.1. AIMS:

The thrust of the paper is to highlight the different facets and dimensions of Rule of Law in India
and then to understand its relation with the concept of Equality under the Constitution of India to
highlights the new dimensions of Article 14 in strengthening the Rule of Law in India.

1.2. OBJECTIVES:

The researcher has followed the following objectives to achieve the aim-
i. To understand the provisions of Article 14 of the Constitution of India.
ii. To understand the facets of Rule of Law.
iii. To examine the relation of Concept of Equality with Rule of Law.

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iv. To analyze the new dimensions of Article 14 of the Constitution in strengthening the Rule of
Law in India.

1.3. SCOPE AND LIMITATIONS:

The project will make its fullest attempt at illuminating the project topic i.e. The New
Dimension Of Article 14 Of The Constitution Towards Strengthening The Rule Of Law In
India. This project shall analyze the provisions of Article 14 of the Constitution of India and
further it discusses the scope and ambit of Rule of Law in India. Further, it correlates the concept
of equality with Rule of Law in India and finally analyses the various new dimensions of Article
14 in strengthening the Rule of Law in India.

1.4. RESEARCH METHODOLOGY:

1. Method of Research: The researcher has followed secondary data collection. This is a
doctrinal study.
2. Nature of Research: The nature of research is explanatory as well as comparative.
3. Sources of Data Collection: Data has been collected from both primary and secondary sources
likewise. The researcher has also put to use of commentaries, books, articles, notes, comments
and other writings to incorporate the various views of the multitude of jurists, with the intention
of presenting a holistic view. The researcher has made extensive use of case laws in this paper,
so as to discern a trend in the judicial pronouncements.
4. Citation Style: The Bluebook 19th edition has been followed for citation in the research paper.

1.5. LITERATURE REVIEW:

Mr. Dicey1 in his book has elaborately discussed about the facets of Rule of Law in India. Thus,
this book has immensely helped the researcher in understanding the scope and ambit of Rule Of
Law in India. Further, it has helped in understanding and examining how the concept of Rule of
Law is related with the concept of Equality under the Constitution of India.

Mr. Jain2 in his book has helped the researcher in understanding the real scope and dimension of
Article 14 under the Constitution of India. Also it has immensely helped the researcher in
1
Dicey A.V, An Introduction To The Study Of The Law of the Constitution, Universal Law Publishing Co. Delhi,
Fifth Ed. 2008, p.xcviii.
2
M.P.Jain, “Indian Constitutional Law”, Fifth Edition 2008, Wadhwa and Company, Nagpur.

vi
examining the facets of Article 14 of the Constitution and how it has developed over the years
with different judgements, where the new dimensions of the Article 14 came on to the surface.

1.6. RESEARCH QUESTIONS:

1. What are the provisions of Article 14 of the Constitution of India?

2. What are the facets of Rule of Law?

3. How is the concept of Equality related with Rule of Law?

4. What are the new dimensions of Article 14 in strengthening the Rule of Law in India?

vii
 2. ARTICLE 14 AND ITS STATUTORY PROVISIONS

Article 14 reads as under: The State shall not deny to any person Equality before the law or the
equal protection oflaws within the territory of India. If this term is closely looked then it appears
that in essence both terms mean ‘Equal Justice’. Everybody from the President downwards to the
poorest citizens or person in India, is subject to the Rule of Law which is enshrined in our
Constitution. The Right to Equality is conferred on every person and not merely on citizens. It
was held in State of W. Bengal v. Anwar Ali Sarkar3 that ‘law’ in article 14 is not confined to the
law enacted by legislature but includes any order or notification. Such an interpretation makes
the protection provided in article 14 complete available to every person. Article 14 does not
mean that all laws must be uniform and must universally be applicable. It only prohibits
improper and individual distinctions created by conferring Rights or privileges upon a particular
group to the exclusion of other group without any valid reason. Thus under this article, there
cannot be unfair discrimination between one group of citizens and another in relation to the same
matter or between citizens and foreigners. Since all persons are not by nature, attainment or
circumstances equal and the varying needs of different classes of persons often require separate
treatment and therefore, the protecting clause has been construed as a guarantee against
discrimination amongst equals only and not as taking away from the state the power to classify
persons for the purpose of legislation. Seervai says,

“If all men were created equal and remained throughout their lives, then the same laws
would apply to all men”.4

But we know that men are unequal, consequently a Right conferred on persons that they should
not be denied the equal protection of the Laws cannot mean the protection of the same laws for
all. It is here that the doctrine of classification steps in, and gives content and significance to the
guarantee of the equal protection of laws. Equal protection of the laws must mean the protection
of equal laws for all persons similarly situated. The Constitution emphasis upon the principle of
Equality as basis to the Constitution. This means that even a Constitutional amendment
offending the Right to Equality will be declare invalid. Neither parliament nor any state

3
State of W. Bengal v. Anwar Ali Sarkar, AIR 1952 SCR 284.
4
H. M. Seervai, Constitutional Law of India, Pp. 1090-1119(1 Ed. Tripathi, 1967).

1
legislature can transgress the principle of Equality, which has also been observed by Supreme
Court in Keshavanand Bharti’s case.5 This principle has been reiterated by the Supreme Court in
M. G. Badappanavar’s case in the following words

“Equality is a basic feature of the Constitution of India and any treatment of equals unequally or
unequal as equal will be violation of the basic structure of the Constitution of India”.6

The Right to Equality has been declared by the Supreme Court as the basic feature of the
Constitution. It is rightly observed by the Supreme Court in relation to Right to Equality in M.
Nagaraj,7“there can be no justice without the equality”. The Constitution is wedded to the
concept of Equality. The Preamble to the Constitution emphasizes upon the principle of Equality
of basic to the Constitution. This means that even a Constitutional amendment offending the
Right to Equality will be declared invalid. Neither Parliament nor any State Legislature can
transgress the principle of Equality. Over the last several years the courts have been unfolded the
vast potentialities of Art. 14 as a restraint on the legislative power of the Legislature as well as
administrative power of the Administration. Art. 14 bars discrimination and prohibits
discriminatory laws. Art. 14 is now proving as a bulwark against any arbitrary or discriminatory
state action. The horizons of Equality as embodied in Art. 14 have been expanding as a result of
the judicial pronouncements and Art. 14 has now come to have a highly activist magnitude. Art.
14 has revealed its many facets in course of time. There are also certain limitations of the
concept of Equality.

5
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461.
6
M.G. Badappanavar v. State of Karnataka AIR 2001 SC 260.
7
M. Nagaraj v. Union of India SCC 2006 Vol 8,p248.

2
 3. RULE OF LAW: ITS AMBIT AND DIMENSION

The supremacy of the law of the land was not a novel doctrine in nineteenth century where A.V. Dicey
invented the „Rule of Law‟ which means the recognition of certain fundamental obligations which are
binding upon states in their own dealings with one another. He scrutinized the principle of the Rule of
law, which he observed throughout all civilized societies and no State can repudiate this perception. 8 The
connotation made by Dicey is that individuals ought not to be subjected to the power of officials wielding
wide discretionary powers. Fundamental to Rule of Law is the notion that all powers need to be
authorized.9 Dicey‟s concept was that no person should be condemned unheard, there should no
punishment without a trial. The ambit of the Rule of Law diversified in Gopalan’s case 10 where the
judiciary as per the constituent assembly dropped the 11 use of the expression „due process of law‟ and
instead adopted the expression „procedures established by law‟ in Article 21 of the Constitution of India,
thus the concept of „due process of law‟ could not be imported, an ipso facto violation to the Rule of
Law.12 The Rule of Law is a signal virtue of civilized societies. The Rule of Law is a possible condition to
be achieved under human governments by which the humans of the community are therefore greatly
enriched by it.He discussed certain elements of the Rule of Law where there is absence of arbitrary power
on the part of the Government, equality of all persons in the eyes of law and rules of Constitutional Law
are the results of the ordinary law of land.

FACETS OF RULE OF LAW

The Rule of Law is a signal virtue of the civilized societies which is a possible condition to be achieved
under human governments by which the humans of the community are therefore greatly enriched by it. 13
The rules of law, according to Hart are valid because some competent institution enacted them. Some are
created by a legislature and some were created by judges who formulate them to decide particular cases
by establishing them as precedents for the future. 14 Professor Dworkin in “Political Judges and the Rule of
8
Dicey A.V, An Introduction To The Study Of The Law of the Constitution, Universal Law Publishing Co. Delhi,
Fifth Ed. 2008, p.xcviii.
9
Jowell Jeffrey And Oliver Dawn, The Changing Constitution, Oxford University. New York, Seventh Edition,
2011 P. 13.
10
AIR 1950 SCR 88.
11
Rhetoric Maccormick Neil, Rule Of Law, A Theory Of Legal Reasoning, Law, State And Practical Reasonoxford
University Press, First Publication 2005, P 12.
12
Basu D.D Dr. Comparative Constitutional Law, Wadwa And Co. Publishers, Second Edition, 2008, P.220.
13
Rhetoric Maccormick Neil, Rule Of Law, A Theory Of Legal Reasoning, Law, State And Practical Reasonoxford
University Press, First Publication 2005. P. 16.
14
Kavanagh Aileen And Oberdick John, Arguing About Law, Routledge (Taylor And Francis Group) London And
New York, First Edition 2009.

3
Law” considers that “a government of wise and just officers will protect rights... on its own initiative,
without procedure whereby citizens can dispute, as individuals what these rights are." 15 The general idea
of the Rule of Law was defended by Prof. Dworkin in Law‟s Empire by “Law insists that force not be
used or withheld, no matter how beneficial... but collective force is to be justified.” 16 The architects of
basic structure sought to deduce it from the wider principle of „Rule of Law‟, an expression unknown to
the text of the Indian Constitution. The framers of Indian Constitution was framed by taking into account
of the experience of procedure laid down by the “law of the land” dating from Magna Carta, which had
been adopted in the various Government of India Acts. Universal Declarations of Human Rights states in
its preamble, it is widely thought to be “essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppressions, that human rights should be protected by the rule of
law.17

15
Tripathi P.K Professor, Comprative Constitutional Law, Festschrift In Honour By Singh P. Mahendra, Eastern
Book Company, Second Edition.
16
Law‟S Empire, Ronald Dworkin, Second Indian Reprint 2008, Universal Law Publishing Co. Pvt. Ltd., New
Delhi.
17
Universal Declaration of Human Rights (1948). PREAMBLE. PARA 3.

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 4. CORELATION OF THE CONCEPT OF EQUALITY WITH RULE OF LAW

Equality before law is co-relative to the concept of rule of law for all round evaluation of healthy
social order and to provide justice in the society. A basic postulate of the rule of law is that
“Justice should not only be done but it must also be seen to be done.” If there be a basis which
cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a
particular Judge and there is no compelling necessity, such as the absence of an alternative, it is
appropriate that the learned Judge should rescue himself from the Bench hearing that matter.
This step is required to be taken by him not because he is likely to be influenced in any manner
in doing Justice in the case, but because his hearing the matter is likely to give rise to a
reasonable apprehension in the mind of the litigant that his mind may be subconsciously has
been influenced by some extraneous factor in making the decision, particularly if it happens to be
in favour of the opposite party. In a case of P K Ghosh 18 it is held by Supreme Court that in
Credibility in the functioning of Justice delivery system and the reasonable perception of the
affected parties are the relevant considerations to ensure the continuance of public confidence in
the creditability and impartially of the judiciary. Judicial review of administrative action is an
essential part of rule of law and so is independence of judiciary. Non-arbitrariness is a necessary
component of the rule of law. It has been held by the Supreme Court in case of Central Board of
Secondary Education19 that when the High Court itself became conscious that the decision
regarding admission of an ineligible student was wrong and the precedent was not worth
repeating, still it was repeated time and again, it amounted to a mockery of “ Rule of Law” and
promotes rather the “Rule of Man”

5. NEW DIMENSION OF ARTICLE 14 STRENGTHENING THE RULE OF LAW

18
P K Ghosh v. J G Rajput, AIR1996 SC 513.
19
Central Board of Secondary Education v. Nikhil Gulati, AIR1988 SC1205.

5
Article 14 in The Constitution Of India states 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.

Article 14 interpreted by judiciary:

The state shall not deny to any person equality before law or equal protection of laws within the
territory of India provided that nothing contained herein shall prevent the state from making a
law based on a classification founded on intelligible differentia having a rational relation to the
object sought to be achieved by the law .

The Prohibition contained in article 14 is directed against state (as widely defined by article 12).

Is the state is a Person protected by article 14?

If there was only one state in India then there would be a different view but there are several
states in India & Union itself is a state. The question is thus whether State –A enacts a law can
deny to State-B, State-C, & State-D equality before the law or equal protection of laws.

In legal theory- A Person is any being whom the law regard as capable of rights or duties 20. A
Person could be natural person or artificial person. Part-III of constitution, DPSP, Article 32,
Article 226, Article 298, Article 300, Article 285 shows that Union and State governments have
rights and obligations which can be enforced against one another and against private individuals.
The Existence of a monarch in England which has prevented the state from being recognized as a
juristic person have lost some of its force in self-govt. dominion like Australia.

The Question whether the state is a person within meaning of article 14 has been considered in
Moti Lal v. State of U.p but none of them have raised the question whether one state can claim
protection under Article 14 against another state. The court merely made a distinction that with
regard to trading activities of a state , State is a person but with regard to govt. activities of a
state, State is not a person. It was also held that the word State used in special sense in article 12
which took it out of category of a person. In author opinion, one view is that the difference

20
Sorabjee J. Soli , Law And Justice, An Anthology, Universal Law Publishing Co. Pvt Ltd. New Delhi 2003.P.
370.

6
between govt. and trading activities of a state should be irrelevant to decide question of state
being a person whereas other opinion is that there is no need to read state within meaning of
word person because article 131 is already in existence to solve such dispute. However, the
question is already in dispute that whether the controversy of Fundamental rights disputes
between two states can be squarely be answered under Article 131.

Equality before law & Equal protection of laws:

The Equality before the law is a negative concept which ensures that there is no special privilege
in favor of anyone that all are equally subject to ordinary law of land and that no person,
whatever be his rank is above the law. Article 14 confers a right by enacting a prohibition.

Thus, is an absolute. In this respect, Article 14 is different from Article 19 where reasonable
restrictions are given. But though on face of it, it appears an absolute right but since the doctrine
of classification has been incorporated by judicial decisions. The Equal protection of laws is a
positive concept. It states that like should be treated alike without distinction. The Principle of
Equality doesn’t mean that same law should be apply to everyone but that a law should deal alike
with all in one class and unlikes should not be treated alike. Likes should be treated alike. 21

Article 14 forbids class legislation but it does not forbids reasonable classification of persons.
Classification is reasonable when:

 It is not arbitrary, artificial or evasive. It is based on intelligible differentia, some real and
substantial distinction which distinguishes the persons or things grouped together in one
class from other who left out of it.

 The Differentia adopted on basis of classification has a rational or reasonable nexus with
object sought to be achieved by statute in question.22

Though there is always a presumption in favor of constitutionality of enactment and burden is on

person who attacks it to show that there has been a clear transgression of constitutional

21
Gauri Shankar v. UOI, AIR 1995 SC 55.
22
State of Haryana v. Jai Singh, AIR 2003 SC 1696.

7
principles. Whereas If the discrimination is large on face of legislation, the onus may shift to the
state.23

Differential treatment per se is not violation of Article 14 and it violates Article 14 only when
there is no reasonable basis. Classification with regard to microscopic differences is not god. To
override classification is to undo equality. The Classification need not to be made with
mathematical precision but if there is little or no difference between persons or things which
have grouped together and those who left out of group, then classification cannot be regard as
reasonable.

At times, even administrative necessity or good corporate governance (Proviso section 167 of
companies act, 2013) has been upheld as a basis of classification. This is especially in matter of
taxation, economic regulation, because of complexity involved in cases.24

Interference with executive policy:

The Supreme Court has reiterated that courts cannot act as an appellate authority and examine
the correctness, sustainability and appropriateness of policy nor the courts are advisors to
executive on matter of policy which the executive is entitled to formulate. Judicial review in this
area is confined to examination as to whether any of fundamental rights have been violated or is
manifest arbitrary.
It is through manifest arbitrary door that challenges are likely to be made to formulation of
policies and in such a case court cannot examine provisions of policy to come up with conclusion
that if it is manifestly arbitrary and in this limited context, court can act as a appellate authority.
Arbitrariness on mere possibility that a power may be abused (despite the guidelines) in
provisions of act, cannot be held to be arbitrary and unreasonable.25

23
PUCL v. UOI, AIR 2004 SC 1442.
24
State of Gujarat v. Ambica Mills, AIR 1974 SC 1300.
25
Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737.

8
In Ram Krishna Dalmia v. Justice S.R. Tendulkar 26, Principles framed with regard to scope
of permissible classification:

 A Law may be constitutional even though it relates to single Individual if on account of

some special circumstances or reasons applicable to him and not to others, that single
individual may be treated as class by itself but such laws are seen with suspicion,
especially when they affect private rights of an individual.
 There is always a presumption of constitutionality and burden is on one who attacks it.
 A Classification need not to be scientifically perfect or logically complete
 While considering the basis of classification, court must look into matter of common
knowledge, History of Bill, etc.
 The Court must look beyond the old doctrine and apply the test of palpable arbitrariness
in context.
 There is no right to equality in illegal acts.
 The Right to equality is available in grant of favor as well as imposition of burdens.

Single person laws:

Single person laws are prima facie violative of article 14 because they do not make a
classification on basis of some general or particular characteristics which is found in class of
individuals rather target one individual or person.

Special courts & Procedural Inequality:

The Constitutionality for creating the special courts to try persons holding high public offices for
offences committed by them during period of emergency (1975-77) came up before a 7 judge
bench In Re: Special courts bill, 1978. The Supreme Court under Article 143 gave its advisory
opinion as to whether the bill violates article 14.27

Following principles laid down with regard to scope of article 14:

26
Ram Krishna Dalmia v. Justice S.R. Tendulkar, AIR 1958 SC 538.
27
In Re: Special Courts Bill, (2008) 5 SCC 1.

9
  If the legislative policy is clear and definite and is an effective method of carrying out
that policy, a discretion is vested by statute upon a body of administration to make
selective application of law to a certain class of persons, the statute itself cannot be
condemn as a piece of discriminatory legislation.
 The Discretionary power is not necessarily a discriminatory power.
 Whether an enactment which cast for special procedure for trial of certain offences is
discriminatory or not , depends on each case and no general principle applicable to all
cases can be laid down.
 A Rule of procedure laid down by law comes as much within purview of article 14 as of
any rule of substantive law.

Hence, court observed that classification is valid and offence committed during emergency are
class by itself. The Court observed that procedure to be fair and just within article 21 context.

Procedural fairness:

In Center for PIL v. UOI,28 the court invalidated allocation of 2G spectrum on first cum first
served basis on ground that allocation or disposal of natural resources to be done by auction.
In Natural resource allocation, Re: Special Reference No.1 of 201229, Though reasonableness and
rationality must be observed in distribution of natural resources but clarified that auction is not
the only mode of disposal.

In Charan Lal Singh v. UOI30, The Supreme Court upheld the Bhopal gas disaster act, 1985
which gave the exclusive right to Gov. of India to enforce the claims of victims of disaster and
under which a settlement was reached in Supreme Court between Union of India and culprits of
disaster without hearing or consulting the victims of disaster.

Substantive equality:

28
Centre for PIL v. UOI, AIR 1979 SC 478.
29
In Re: Special Reference No 1, (2012) 10 SCC 1.
30
Charan Lal Singh v. UOI, AIR 1990 SC 1480.

10
In Navtej Johar v Union of India,31
Chandrachud J. noted that:
Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the
Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of
the individual in every aspect of human endeavor and in every facet of human existence.

Malhotra J. observed:

Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it
cannot form a reasonable classification based on an intelligible differentia.

In Joseph Shine v Union of India,32

Chandrachud J. observed that:

Justness postulates equality. In consonance with constitutional morality, substantive equality is
directed at eliminating individual, institutional and systemic discrimination against
disadvantaged groups which effectively undermines their full and equal social, economic,
political and cultural participation in society.

To move away from a formalistic notion of equality which disregards social realities, the Court
must take into account the impact of the rule or provision in the lives of citizens. The primary
enquiry to be undertaken by the Court towards the realisation of substantive equality is to
determine whether the provision contributes to the subordination of a disadvantaged group of
individuals.

In State of West Bengal v Anwar Ali Sarkar, [1952] SCR 284, Justice observed,
What I am concerned to see is not whether there is absolute equality in any academical sense of
the term but whether the collective conscience of a sovereign democratic republic can regard the
impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal
treatment which men of resolute minds and unbiased views can regard as right and proper in a
democracy of the kind we have proclaimed ourselves to be.

31
Navtej Johar v. Union of India, (2018) 10 SCC 1.
32
Joseph Shine v. Union of India, (2019) 3 SCC 39.

11
Such views must take into consideration the practical necessities of government, the right to alter
the laws and many other facts, but in the forefront must remain the freedom of the individual
from unjust and unequal treatment, unequal in the broad sense in which a democracy would view
it.

In Shayara Bano v. Union Of India,33 it was held that : Manifest arbitrariness is a ground for
striking down legislation under Article 14 of the Constitution (Manifest arbitrariness is defined
as something done capriciously, irrationally and/or without adequate determining principle.

In Ahmedabad St Xavier’s College v State of Gujarat 34, this Hon’ble Court explained:
The doctrine of unconstitutional condition means any stipulation imposed upon the grant of a
governmental privilege which in effect requires the recipient of the privilege to relinquish some
constitutional right. This doctrine takes for granted that ‘the Petitioner has no right to be a
policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit
provision of the Constitution, namely, his right to talk politics.

The major requirement of the doctrine is that the person complaining of the condition must
demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise
of a right protected by an explicit provision of the Constitution... though the state may have
privileges within its control which it may withhold, it cannot use a grant of those privileges to
secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its
constitutional power.

In the words of the scholar Etienne Mureinik:

The Constitution must lead to a culture of justification-a culture in which every exercise of
power is expected to be justified; in which the leadership given by government rests on the
cogency of the case offered in defence of its decisions, not the fear inspired by the force at its
command.

33
Shayara Bano v. Union of India, (2017) 9 SCC 1.
34
Ahmedabad St. Xavier’s College v. State of Gujarat, (1974) 1 SCC 717.

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 6. CONCLUSION

The founding fathers of India accomplished what the rest of the world though impossible-
establish a country that would follow the letter of the law and implement the Rule of Law. In all
matters such as the protection of the rights of the people, equal treatment before the law,
protection against excessive arbitrariness, the Constitution of India has provided enough
mechanisms to ensure that the Rule of Law is followed.

Through its decisions, the Courts have strived to reinforce these mechanisms and ensure smooth
justice delivery to all citizens. Problems such as outdated legislation and overcrowded courts are
but small hindrances and bodies such as the Law Commission of India work towards ironing out
these problems with the aim of achieving a system where there are no barriers to the smooth
operation of the Rule of Law.

Rule of Law should establish a uniform pattern for harmonious existence in a society where
every individual should exercise his own rights to his best advantage to achieve excellence,
subject to the protective discrimination. The best advantage of one person could be the worst
disadvantage to another. Law stepped in to iron out such creases and ensures equality of
protection to individuals as well as group of liberty. Therefore, law is the foundation on which
the potential of the society stands. Hence it can be assumed that where the rule of law prevails,
there is nothing like unfettered discretion or unaccountable action. Judicial activism has
advanced the cause of justice by realizing the hopes and aspirations of the people and to
strengthen the foundation of Rule of Law which is the bedrock. It may be conclude quoting the
words of N.A Palkhiwala:

“The danger to our democracy is that the noise created by a few politicians is misunderstood as
the voice of masses and the well-thought out advice tendered by experts and persons of maturity
are ignored as the voice of reactionaries”.

Those words of a sage-cum-jurist shall not be ignored. Let the sacrifices made by our great
leaders in the past generation inspire the new generation to preserve the Rule of Law adumbrated
in the constitution of India.

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BIBLIOGRAPHY:

Books referred:

1) M.P.Jain, “Indian Constitutional Law”, Fifth Edition 2008, Wadhwa and Company, Nagpur.

2) J.N.Pandey, “The Constitution Law of India”, Forty Fifth Edition 2008, Central Law Agency,
Allahabad.

Articles referred:
1) Vikram Nagpal, ADM Jabalpur V. Shivkant Shukla : Case Comment, Journal Of Indian Legal
Solution, 20th February 2019.
2) 4 Seervai, Constitutional Law Of India, Pp. 1090-1119(1 Ed. Tripathi, 1967).
3) Tripathi, P.K. “Golaknath: A Critique‟ In Some Insights Into Fundamental Rights, P.1.
(University Of Bombay, 1972).

4) Jain, M.P., Indian Constitutional Law, Pp. 707-10 (3ed Tripathi, 1978)

5) Rhetoric Maccormick Neil, Rule Of Law, A Theory Of Legal Reasoning, Law, State And
Practical Reasonoxford University Press, First Publication 2005.P. 25.

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