The term ‘Equality’ 

Equality is regarded as the basis of Democracy. The concept of equality is

also closely associated with the theory of natural rights. The beginning of the
principle of equality may be traced to the theory of natural equality because it
was said by Thomas Jefferson “all men are born equal and it is the man
himself who creates differences between individuals.” Equality implies
treatment and opportunities of all people alike. Equality presumes that there
must not be any discrimination when it comes to opportunities. Therefore,
right to Equality is essential for all individuals for their development.  However,
equality is a broad term and contains many exceptions in our Constitution.

Today, I Pranita vailaya, will be explaining the Right to equality, article 14 to

18.

What is Right to equality?

“As long as poverty, injustice and gross inequality persist in the world, none of
us can truly rest” – Nelson Mandela

Democracy can only thrive and flourish where the individuals in the society are
treated equally and without discrimination. Thus, it was felt by the framers of
the Constitution to incorporate such provision to remove the hurdle of existing
social and economical inequalities and enable the diverse communities of the
country to enjoy the rights and liberties guaranteed under the constitution. It
was believed to be essential to remove inequalities based on religion, social
norms, age-old traditions practiced in parts of India, like untouchability,
casteism, race discrimination, etc. 

 The Right to equality means the absence of legal discrimination only on

grounds of caste, race, religion, sex, and place of birth and ensures
equal rights to all citizens. 
 It is considered basic feature of the Indian Constitution.

The Right to equality is both a positive equality as well as a negative right.

 Positive Right        ⇔      Negative Right
(demands to be treated equally)                                           (prohibits unequal
treatment)                                                                            treatment)                      

Under the Indian Constitution, Right to equality is divided under the following
subheadings:

1. Equality before law (Article 14)

2. Prohibition of discrimination on grounds of religion, caste, race, sex or
place of birth (Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)

In general sense, everybody here is capable of understanding Article 14 of the

Indian Constitution i.e. “Right to Equality”. Even after 74 years of
independence, our country is not able to gain actual independence. Evils like
discrimination are still prevailing in our country. Even now there are some
places where people are not treated equally and they are discriminated on
different basis like religion, race, sex, caste, place of origin, etc.

By knowing the scenario of India our Constitution-makers added Article 14 in

Indian Constitution as the fundamental right to citizens as well as those who are
not a citizen of our territory. 
Article 14 basically 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”

To treat all citizens equally is the basic concept of liberalism and Article 14
ensures the same to our citizens. The liberty of any person is directly connected
to the equality he/she is getting in society.

Further I will be dividing article 14 into 3 parts.

Equality before law, Equal protection of the laws, Rule of law.

Equality before law

 It is taken from English Common law.

 This implies the absence of any special privileges in any person.
 Implies no discrimination before the law on inapposite grounds like
rank, office, etc.
 It means that “the law should be equal and should be equally
administered, that like should be treated alike.” (JENNINGS)
 States that every individual is subject to the jurisdiction of ordinary
courts irrespective of their rank or position.

Equal protection of the laws

 It is similar from equality before the law.

 It is based on the last clause of the first section of the 14th
Amendment of the US Constitution.
 It directs that equal protection should be secured to all persons within
the territorial jurisdiction.
 This implies that such protection should be without any favor and
discrimination.
  This implies equal treatment in similar circumstances, both in the
privileges and liabilities imposed by the law.
 It is a positive obligation of the state which it should achieve by
bringing about necessary social and economic changes, to ensure
every person enjoys such equal protection.

Rule of law

The principle of Article 14, ‘equality before the law’ to a large extent based on
the concept of Rule of law as coined by A. V. Dicey. It states that all
individuals, government and other institutions should obey and be governed by
law and not by any arbitrary action by an individual or group of individuals.
Whatever be the rank or position of a person, he should come under the
jurisdiction of ordinary courts and not of any special courts. It also states that
governmental decisions should be based on legal and moral principles
embedded in the supreme law, in the case of India, the Indian Constitution.
This theory of Dicey has three pillars, they are:

1. Supremacy of law

There should be an absence of arbitrary power and that no person should be

punished except for a breach of law. An offense should be proved by the
authorities of the country before the ordinary courts to punish him according to
legal procedure.

2. Equality before law

All individuals, irrespective of their rank or position (poor or rich, officials or

non-officials, etc.) should be subjected to ordinary law of land which is
administered by ordinary courts. It seeks to ensure that law is administered and
enforced in a just and fair manner. It has also been embedded in Preamble and
Article 7 of the Universal Declaration of Human Rights. It implies ‘law gives
equal justice to all’.
 3. The Predominance of legal spirit

Dicey believed that there should be an enforcing authority to enforce effectively

the above two principles. According to him, such enforcing authority should be
‘courts’.

Difference between equality before law and equal protection of law.

 (Equality before law means that no one is above the law of the land. Thus it has
slightly negative connotation. It means that law does not discriminate on the basis of
birth, position, gender or other personal attributes. Thus, privileged, underprivileged and
unprivileged are equal before law.
 Equal protection of law means that law provides equal opportunities to all those
who are in similar circumstances or situations. This concept is slightly positive in
connotation.
Both Equality before law and Equal protection of law aim to establish the “Equality of
Status and Opportunity” as embodied in the Preamble of the Constitution. Further,
because all persons are not, by nature, attainment or circumstances in the same
positions; article 14 provides that state can treat different persons in differently if
circumstances justify such treatment. This is called Doctrine of Reasonable
classification and it says that protective discrimination is also a facet of equality.)

Exceptions to the Rule of Law

The rule of equality given in the Constitution of India is not a straitjacketed rule
without any exceptions. There are a number of special exceptions to it: Firstly,
‘equality before the law’ does not imply that the powers that are given to the
public authorities will be the same as the powers given to the private citizens of
the nation. To explain this better, we know that, a cop has the ability to arrest
while, generally, no private individual possesses this power. This isn’t the
infringement of the rule of law. In any case, the rule of law requires that these
forces ought to be unmistakably characterized by the law and the maltreatment
of power by public officials must be punished by common courts in a similar way
as unlawful acts committed by private people.

Furthermore, the rule of law does not stop certain classes of people being liable
to extraordinary rules. Along these lines, individuals from the military are
constrained by military laws. Likewise, medical professionals are exposed to the
guidelines confined by the Medical Council of India, a statutory body, and the
jurisdiction of ordinary courts does not apply to them. The President of India
and the State Governors are afforded immunity under Article 361 of the Indian
Constitution. Article 361 gives that the President or the Governors of the State
will not be liable to any Court for the activity and execution of the powers and
obligations of the office. No criminal proceeding will be founded or proceeded
against the President or the Governor of a State in any Court during his term of
office. No procedure for the capture or detainment of the President or the
Governor of State will be issued from any Court during his term of office.

Thirdly, Statutory Bodies in India confer really wide discretionary powers in the
name of the ministers and other executive bodies. A minister is giving full
autonomy to act like he wants to but with this autonomy, we also see that such
power conferred is grossly misused. Today, countless enactments are passed as
delegated legislations, i.e., principles, requests or statutory instruments made
by ministers and different bodies and not straightforwardly by the Parliament.
These standards did not exist in Dicey’s time. 

Fourthly, conduct of certain individuals of the society is administered by unique

guidelines which are laid out by their professions i.e., legal counsellors,
specialists, medical attendants, individuals from military and police. Such
classes of individuals are dealt with uniquely in contrast to common residents.
Further moving towards article 15 which is divided into 5 sub
clause.
Article 15 (1) of the constitution prohibits the state from discrimination on the
basis of religion, race, caste, sex, place of birth or any of them.

Protection under this provision can be taken by any citizen when he is subjected
to discrimination in relation to any rights, liabilities or privileges conferred to it
by the constitution.

 In the case of Nain Sukh Das v State of U.P,

Supreme Court REJECTED a State law that approved elections on the
basis of separate electorates for members of different religious
communities as such discrimination was based on religion.

Article 15 (2)
Article 15(2) elaborates that no Indian citizen can be discriminated against on basis of
religion, race, caste, sex, place of birth. It states that no citizen shall be denied access
to shops, public restaurants, hotels and palaces of public entertainment. It also
adds that no citizen shall be subject to any disability, liability, restriction or condition with
the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.

Special Provisions and Reservation Under Article 15

While the first two clauses of Article 15 protect against discrimination on the said
grounds, clause (3) is an exception to the general rule laid down in the first two
clauses of the article. This clause empowers the State to make special provisions
for women and children.

For instance, maternity relief, although it ostensibly discriminates on the basis of

gender, does not violate Article 15(1) because it is a special provision for their
benefit.
ARTICLE 15(3) Special provisions for women and children

‘Nothing in this article shall prevent the State from making any special provision
for women and children.’

 It implies that the Parliament has the right to make special provision.
 This article is an exception to the rule against discrimination.
 The intention of the framers of the constitution was to protect the
interests of children and women because these sections were
considered comparatively weaker sections of the society and the need
for such provision was felt for their upliftment.
 The language of the clause is in absolute terms and gives the power to
State to make any special provisions and laws for the protection of
their interest. Such special provisions are not restricted in any sense
and need not be measures that are beneficial in a strict sense.

Similarly, Article 15 clause (4) is also an exception to clauses (1) and (2) – this
empowers the State to make special provisions to promote the interests and
ensure the welfare of socially and educationally backward classes of the society,
or SCs and STs.
The background to this comes from a case where the Madras government had
reserved seats on the basis of religion, race and caste. However, the Supreme
Court held the law void because it discriminated on the basis of caste and religion
irrespective of merit. Clause (4) was added after Article 15 was amended by the
Constitution (1st Amendment) Act, 1951 to make this special provision possible.

Article 15 Clause (5), which was added later, allowing the State to make special
provisions with regard to admissions into educational institutions, including
private educational institutions, whether aided or unaided by the State.
Article 15 (6) A sixth clause was added in 2019, which opens the road for the
State to make special provisions for the Economically Weaker Sections (EWS).
This clause allows the State to make special provisions for Economic Weaker
section other than those mentioned in clauses (4) and (5) with regard to
admission into educational institutions including private educational institutions,
whether aided or unaided by the State. It provides for reservation for these
sections of society which will be in addition to existing reservation but capped at a
maximum of ten percent.

(29. Protection of interests of minorities)

Article 16.

Article 16 (1) states There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State

Article 16.2

While giving employment in an office under the state, the government

cannot differentiate its citizen on the basis of Religion, Caste, Birth, Gender
or descent. And no candidate will be called ineligible on the basis of these
five criteria.

Equal opportunity doesn’t mean negligence of merit or ability of a person.

It means physical and mental soundness is necessary for holding any
office. 

Article 16.3

No one can stop the parliament from making a residence requirement for
any employment or appointment in an office controlled by the state.
It seems legit because India is a country with 22 official languages. And there
are so many jobs in which employees have to deal with the local people
every day. For such jobs, it is necessary for the employee to be of the same
state so that he can relate to the language. That’s why our constitution
allows the parliament to make the residence related conditions in
appointment in an office controlled by the state.

Article 16. (4)

Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State.