THE CONSTITUTION OF INDIA

RIGHT TO EQUALITY

Liberty and equality are two words which were introduced by French Revolution.
Abraham Lincoln had in his famous speech at Gettysburg stated:- “.... a new nation
conceived in liberty and dedicated to the proposition that all men are created equal”.

Thus, equality is a cherished ideal of humanity. The famous author A. V. Dicey, an

authority on the British Constitution, had propounded his principles of Rule of Law.
Equality before the law is part of that enduring concept.

Right to equality in the Indian Constitution

The constitution of India guarantees the right to equality through articles 14-18.
Article 14 outlaws discrimination in a general way and guarantees equality before

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law to all persons. In view of a certain amount of indefiniteness attached to the
general principle of equality enunciated in Article 14, separate provisions to cover
specific discriminatory situations have been made by subsequent Articles. Thus, Art.
15 prohibits discrimination against citizens on such specific grounds as religion, race,
caste, sex or place of birth. Art. 16 guarantees to the citizens of India equality of
opportunity in matters of public employment. Art. 17 abolishes untouchability, and
Art. 18 abolishes titles, other than a military or academic distinction.

It may be noted that the right to equality has been declared by the Supreme Court as
a basic feature of the Constitution. It was held in Kesavananda Bharati v. State of
Kerala, AIR 1973 SC 1461 that “The Constitution is wedded to the concept of
equality. The Preamble to the Constitution emphasizes upon the principle of
equality as basic to the Constitution. This means that even a constitutional
amendment offending the right to equality will be declared invalid. Neither
parliament or any state legislature can transgress the principle of equality. In the
Indra Sawhney II v Union of India (2000) 1 SCC 168, it has also been held that the
principle of equality enshrined in Article 14 is a basic feature of the Constitution.

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In M. Nagaraj v. Union of India, (2006) 8 SCC 212 A constitution bench of the
Supreme Court has declared in no uncertain terms that equality is a basic feature of
the constitution and although the emphasis in the earlier decisions evolved around
discrimination and classification, the content of Article 14 got expanded
conceptually and has recognized the principles to comprehend the doctrine of
promissory estoppel non arbitrariness, compliance with rules of natural justice
eschewing irrationality etc.

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

This provision corresponds to the equal protection clause of the 14 th Amendment of

the U.S. Constitution which declares – “No state shall deny to any person within its
jurisdiction the equal protection of the laws”. Prima facie, the expression 'equality
before law' and 'equal protection of laws' may seem to be identical, but, in fact, they
mean different things.

Article 14 uses two expressions:

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i.
ii.
equality before law and
equal protection of laws.

EQUALITY BEFORE LAW

The first is negative concept which ensures that there is no special privilege in
favour of any one, that all are equally subject to the ordinary law of the land and that
no person, whatever be his rank or condition, is above the law. This is equivalent to
the second corollary of the DICEAN concept of Rule of law in Britain. This, however,
is not an absolute rule and there are number of exceptions to it, e.g. foreign
diplomats enjoys immunity from the country's judicial process, Article 361 extends
immunity to the President of India and the State Governors, public officers and
judges also enjoy some protection, and some special groups and interests, like the
trade unions, have been accorded special privilege by law.

The above immunities, however, shall not bar- (I) impeachment proceedings against
the President. (II) suits or other appropriate proceedings against the Government of
India or the Government of a State.

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In Hiral P. Harsora & Ors. Vs Kusum Narottamdas Harsora 2016 SC, it was held by
the supreme court that “Equality before law” is negative aspect of equality which
means that No one can claim special privileges and that all classes are equally
subjected to the ordinary law of the land. “Equal protection of the laws” is the
positive aspect, postulating an equal protection of all alike in the same situation and
under like circumstances.

In University of Delhi v Union of India 2019 SC, it was held by the apex court that
the doctrine of equality before law demands that all litigants, including the State as a
litigant, are accorded the same treatment and the law is administered in an even-
handed manner.

The equal protection of the laws

The second concept, 'equal protection of laws', is a positive content. It does not mean
that identically the same law should apply to all persons, or that every law must

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have a universal application within the country irrespective of differences of
circumstances. Equal protection requires affirmative action by the state towards
unequals by providing facilities and opportunities. Mean “that among equals, the
law should be equal and equally administered, and likes should be treated alike
without distinction of race, religion, wealth, social status or political influence.

In Dega Venkata Harsha Vardhan vs Akula Ventaka Harshavardhan 2018 SC it

was held that the Constitution of India envisages equality before
the law and equal protection of the laws. The concept of equality inter alia under
Articles 14 to 16 of the Constitution of India contemplates elimination of inequalities
of status.

In State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75), the court rightly
observed that the second expression is the corollary of the first and it is difficult to
imagine a situation in which violation of equal protection of laws will not be the
violation of the equality before law. Thus, in substance the two expression mean one
and the same thing. The Supreme Court explained in Srinivasa Theatre v Govt. of
Tamil Nadu (AIR 1992 SC 1004), that the two expression do not mean the same
thing even if there may be much in common between them. “Equality before law” is
a dynamic concept having many facets. One facet is that there shall be no privileged

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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, a more equal society.....
The guarantee of 'equal protection', thus, is a guarantee of equal treatment of
persons in 'equal circumstances', permitting differentiation in different
circumstances.

Article 14 permits Reasonable classification but prohibits Class legislation

Article 14 does not lay down that all laws must be of universal application. The state
can treat different persons differently if circumstances justify such treatment. Article
14 prescribes equality before law, but the fact that all persons are not equal by
nature, attainment or circumstances, and, therefore, a mechanical equality before the
law may result in injustice. The principle of equality of laws thus means not that the
same law should apply to everyone but that a law should deal alike with all in one
class, that there should be an equality of treatment under equal circumstances.

Article 14 thus, forbids class legislation; it does not forbid reasonable classification of
persons, objects and transactions by the Legislature for the purpose of achieving

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specific ends.

In STATE OF UTTARAKHAND & ORS. vs  S.K. SINGH & ORS 2019 SC the very
idea of classification is that of inequality”, it was recognised that the Court had
tackled the paradox over the years while neither abandoning the demand for
equality, nor denying the legislature the right to classify. Thus, a middle course of
realistic reconciliation was adopted, i.e., the doctrine of reasonable classification.

In State of West Bengal v Anwar Ali Sarkar ( AIR 1952 SC 75), the court have
uniformly stated that reasonable classification is not prohibited. A classification to be
reasonable must fulfil two conditions:-

1. The classification must be based on an intelligible differentia which

distinguishes those who are grouped together from those left out of the
group.
2. The differentia must have a rational relation to the object sought to be
achieved by the Act.

In more simple words, the reasonable classification should qualify the following:

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 1) It should not be arbitrary, artificial or evasive. It should be based on an
intelligible differentia, some real and substantial distinction, which
distinguishes persons or things grouped together in the class from others left
out of it.
2) The differentia adopted as the basis of classification must have a rational or
reasonable nexus with the object sought to be achieved by the statute in
question.

In Jagdish Pandey v Chancellor, Bihar University (AIR 1968 SC 353), held that it is
not necessary that for a classification to be valid, its basis must always appear on the
face of the law. To find out reasons and the justification for the classification, the
court may refer to relevant material, e.g. objects and reasons appended to a Bill,
parliamentary debates, affidavits of the parties, matters of common knowledge, the
background circumstances leading to the passage of the Act, etc.

The leading case on this point is Ramkrishna Dalmia v Justice Tendolkar (AIR 1958

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SC 538), from that and other cases (R K Garg v Union of India and D. S. Nakara v
Union of India) the following principles emerge:-

1. A law may be Constitutional even though it relates to a single individual who

is in class by himself.
2. There is always a presumption in favour of the Constitutionality of an Act.
3. The presumption may be rebutted by showing that the Act does not show any
classification or no characteristics peculiar to an individual or group.
4. In order to sustain the presumption of Constitutionality the court may take
into consideration matters of common knowledge, matters of common report,
the history of times and assume every state of facts which can be conceived.
5. It must be presumed that the legislature understands and correctly
appreciates the needs of its own people.
6. The legislature is free to recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest.
7. The classification must be founded in different bases e.g. geographical,
occupational, difference in time etc.
8. Classification based on language without anything more is ex facie arbitrary.
Aashirvad Films v Union of India (2007) 6 SCC 624
9. Classification need not be scientifically perfect. Mathematical nicety or perfect
equality are not required.

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 10. Substantive law and procedure law both subject to the mandate of Article 14.

In All Manipur Pensioners Association by its Secretary vs The State of Manipur

and others 2019 SC it was held that classification must be based on a just objective.
Result to be achieved by just objective presupposes choice of some for differential
consideration/treatment over others.

There can be discrimination both in procedural and substantive law as well, Article
14 applies to both. The above principles of Article 14 which embodies the equal
protection clause of the Constitution has been invoked in a large number of cases
before the Supreme Court. If the classification satisfies the test laid down in the
above proposition, the law will be declared Constitutional.

Article 14 thus means that 'equals should be treated alike', it does not mean that
'unequals ought to be treated equally'. A legislature is entitled to make reasonable
classification for purposes of legislation and treat all in one class on equal footing.
The Supreme Court has underlined this principle thus:- “ Article 14 of the

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Constitution ensures equality among equals, its aim is to protect persons similarly
placed against discriminatory treatment. It does not however operate against
rational classification”.

Antithesis to Arbitrariness

Since the mid-1970s, equality in Article 14 has gained new and significant
dimensions. Up to that point, as we have noted in the above paragraphs, the
necessities of Article 14 were met if a law or authoritative activity fulfilled the
reasonable classification test. In the latter half of 1973, In E.P Royappa v. State of
Tamil Nadu, AIR 1974 SC 555 the Supreme Court challenged the traditional
concept of equality which was based on reasonable classification and has laid down
the new concept “ Equality is a dynamic concept with many aspects and dimensions
and it cannot be cribbed, cabined and confined with in traditional doctrinaire limits”.

In Menaka Gandhi vs. Union of India AIR 1978 SC , Bhagwati J. again quoted
while approving the new concept of equality propounded by him in E.P Royappa

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case. He 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.

In International Airport Authority case AIR 1978 SC 59 Bhagwati J reiterated the

same principle in the following words: "It must be therefore now being taken to be
well established that Article 14 strikes at is arbitrariness because an action that it
arbitrary, must necessarily involve negation of equality.

In Ajay Hasia vs. Khalid Mujib AIR 1980 SC. 1975, the Court held that the
allocation of one third of total marks for the oral interview was plain arbitrary and
unreasonable and thus violation of Article 14 of the Constitution.

In D.S. Nakara vs. Union of India 1981 SC the Supreme Court struck down the rule
34 of the central services (Pension) Rule, 1972 as unconstitutional on the ground that
the classification made by it between pensions retiring before a particular date and
retiring after that date as not based on any rational principle and was arbitrary and
violation of Article 14 of the Constitution.

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Justice Bhagwati in Bachan Singh v State of Punjab (AIR 1982 SC 1325), observed “
every state action must be non-arbitrary and reasonable. Otherwise, the court would
strike it down as invalid”. In A L Kalra v P & E Corporation of India ( AIR 1984 SC
1361), held Article 14 is no longer to be equated with the principle of classification. It
is primarily a guarantee against arbitrariness in state action and the doctrine of
classification has been evolved only as a subsidiary rule for testing whether a
particular state action is arbitrary or not.

In Air India v Nargesh Meerza ( AIR 1981 SC 1829), held that the termination of
service on pregnancy was manifestly unreasonable and arbitrary and was, therefore,
clearly violative of Article 14. Similarly in Mithu v State of Punjab (AIR 1983 SC
473), the court struk down section 303 of IPC as unconstitutional on the ground that
the classification between persons who commit murders whilst under the sentence
of life imprisonment and those who commit murders whilst under no imprisonment,
for the purpose of making death sentence mandatory in case of former class and
optional in latter class, was not based on any rational principle.

The conclusion is that if the action of state arbitrary, it cannot be justified even on
the basis of doctrine of classification. The court observed that the doctrine of
classification is merely a judicial formula for determining whether the legislative or
executive action is arbitrary and so constitutes a denial of equality.

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