LECTURE 4.

2- FUNDAMENTAL RIGHTS (RIGHTS OF EQUALITY) (Lecture 4 + 5 + 6)

RIGHTS OF EQUALITY (ART 14-18)

(Article 15)
(Article 16) (Article 17)
(Article 14) Prohibition of (Article 18)
Equality of Abolition of
Equality Before Law discrimination on the Abolition of Titiles
Oppotunity in Untouchability &
& Equal Protection basis of Religion, except Military &
matters of Public Prohibition of its
of Laws Race, Caste, Sex or Academic
Employment practice
Place of Birth

➢ Article 14 – Equality before Law & Equal Protection of Laws

o There are two components of Article 14: EBL & EPL

o The state shall not deny to any person (citizens or non-citizens):

• Equality before law (British law concept) &
• Equal protection of Laws (American Law concept) within the territory of India

o Equality before Law

• It is a Negative Concept
• EBL says no discrimination must be made in the eyes of law based upon status & position
• Lady of law is blindfolded. In other words, she is not looking at whether the accused is rich or poor,
powerful or powerless. She is looking everyone with equal perception

o Equal Protection of Law

• It is a Positive Concept
• EPL says, like must be treated like; same must be treated same (25 yo & 25 yo)
• Unlike must not be treated like (25 yo & 7 yo)
• As per USA, there should be reasonable discrimination (i.e. Intelligible Differentia). Sometimes, you
have to provide different treatment, & it is not discrimination

o In India, it is left at the discretion of Judges whether EBL should be followed or EPL should be followed

o If above is not followed, India will not be able to maintain Rule of Law (RULE OF LAW * ANARCHY)

o Rule of Law was proposed by A V Dicey. Rule of Law has following 3 components:
• Supremacy of Law (LEX REX)
• Equality before law (In other words, no class-based legislation should be allowed & No one shall
be punished unless provided by law)
• Predominance of Legal Spirit

o Exceptions to Article 14:

 • Article 361- President or Governor, while discharging official duties, if signs an order or law in
official capacity, then they are not answerable to Court to Law for such official act. They have got
immunity in this regard. Applicable to Official actions only & not personal
• Diplomat or Sovereign of any other country is not answerable to Indian Court of Law & Indian
Diplomat or Sovereign is not answerable to that country’s Court of Law. This is known as Diplomatic
Immunity, which is mutual in nature
• Military Officers have their separate courts (General Court of Enquiry, Military Tribunals, Court
Marshal, Military Police). To certain extent, they are also exception to Article 14

High Commission - Diplomatic Exchange between Commonwealth Countries (Commissioner)

Embassy - Diplomatic Exchange between non commonwealth countries (Ambassador)

➢ Article 15- Prohibition of discrimination on the basis of religion, race, caste, sex or place of birth

o This article is in Negative Terms (i.e., in essence, it is prohibiting)

o It is to be noted that this Article prohibits discrimination only on grounds mentioned above.
Discrimination on certain grounds are allowed. EG: Discrimination in terms of eligibility wrt to height for
recruitment in Army, is allowed

o Article 15 (2)- No citizen shall be subject to any disability, liability, restriction or condition on grounds
only of R/R/C/S/POB wrt to access in shops, public restaurants, public hotels, public places of
entertainment, wells, tanks, bathing Ghats, roads, places of public resort, which are partially or fully
funded by the state (Since FRs provide protection against state only) (not applicable on private properties
like private hotels)

o Article 15 - Prohibits action by state only

Article 15 (2) - Prohibits action by state as well as Private Individuals

o Article 15 (3)- The state is permitted to make any special provision for women & children. This is known
as Different treatment & it is not called as discrimination, as long as it is positive i.e., Affirmative Action.
Negative Discrimination wrt Women & Children is not allowed, positive discrimination can be allowed.
EG: Women officers not allowed at border posts; is not discrimination. It is just different treatment with
a view to extend protection, & it is allowed
o Discrimination talked about wrt EBL & EPL of Article 14 deals with matters in court of law. It has nothing
to do with Article 15. In case of article 15, it is related to general discrimination

Directive Principles of State Policy (DPSP)

DPSP means directions to the state from the COI for the welfare of the people

DPSPs are not Justiciable (can’t be enforceable by law; since not under the guarantee of the
Constitution) (vs FR which are justiciable)

Article 46 of DPSP- The state shall deal with special care (i.e. different care), the social &
economic status of the SC/ST & other weaker section of the society

Article 46 (DPSP) vs Article 15 (1) (FR), which states no discrimination on the basis of
R/R/C/S/POB
CHAMPAKAM DORAIRAJAN CASE

Champakam Dorairajan was a lady who had applied for MBBS course at a college in Madras
Presidency

The College stated that there are no vacant seats despite few seats were vacant

Those vacant seats were sighted by them as reserved seats for a particular community as per
Governmental Order of 1927

CD refuted the claim citing that new constitution had been adopted in 1950 & according to
Article 15 (1) & (2) of the COI, reservation is unconstitutional. Accordingly, she approached
University, which denied her plea; & subsequently she approached Madras HC, where it was
again denied

CD finally approached Supreme Court in this regard, & the case came to be known as
Champakam Dorairajan vs Union of India case

State argued that such a reservation is in line with Article 46 of DPSP, that provides for special
care to SC/ST & other weaker sections of the society

SC Verdict- Since, the case is a conflict between FR & DPSP, FRs shall prevail because FR are
guaranteed rights; & henceforth, whenever there will be a conflict between FR & DPSP, FR
will dominate. The state cannot violate Article 15, which is a part of FR. As a result,
reservation policy became unconstitutional after this judgement (reservation is
unconstitutional as long as A 15 (1) & (2) are in place)

Immediately after the judgement, the Central Government decided to amend the COI, in order to
include the provision for reservation constitutionally. So, accordingly, through 1st CA, 1951, an
amendment clause was inserted into COI known as Article 15 (4)- The state is permitted to make
provision for SC, ST, & other Backward Classes*** (replaced the term weaker section** as per A-46).
Constitutionally Reservation came into existence as a result of this amendment

**Weaker Section- Different treatment of women in different areas of habitation (city/town/tribal

area). In City, she is not under weaker section, whereas in Tribal areas, they are weaker. Weaker
section not limited to demography only; it can be wrt to anything

***Backward Class- Backward class is on the basis of caste. Backward class is permanent irrespective
of demography. Hence, this is a permanent feature. Reservation can be given only when you are be
in permanent fixture, i.e., backward caste

Article 15(1) = No Discrimination Although prima facie A 15 (4) seems an exception

Article 15 (2) = No Discrimination to A 15 (1) & (2). Essentially, all 3 of them aims at

Article 15 (4) = Discrimination allowed providing Equality only (part of Right to Equality)
➢ Article 16- Equality of opportunity in matters of Public Employment
o There shall be equal opportunity

o Article 16 (2)- No person shall be discriminated on the basis of R, R, C, S, Residence, Descent, POB (vs
A15, which provides for only R, R, C, S, POB)

o In COI, concept of Equality is not literal equality, it is Equity in essence (Refer Height example). Equity
has more to do with ‘Level Playing Field’. Dr Ambedkar justified Equity through the fact that 22.5% Indians
(about 1/4th) are SC & ST, who were at a social disadvantage. In order to make a level playing field for
them, equity is required, not equality

o Article 16 is positive in nature (vs Article 15 is an intent; i.e., intent of no discrimination). This positivity
is implemented through Reservation Policy. So, essentially, Article 16 is a policy

o In order to minimize the flipside of reservation policy (i.e. slowdown in growth due to reservation), Dr
Ambedkar, through Article 335 mentioned himself, that the claim of SC & ST wrt reservation, shall not
be done at the cost of administrative efficiency
o M R Balaji Vs state of Mysore, 1962- SC interpreted Article 335 wrt administrative efficiency.
Administrative Efficiency means that maximum reservation can be only 50%. So, ceiling of 50% came
from this case

BACKGROUND OF BACKWARD CLASS (Who are Backward Class?)

1st Backward Class Commission, 1955 (JLN era) was formulated to determine the basis of Backward Class
(Backward Class commission is created under Article 340 by the President of India)

Also known as Kaka Kallelkar Commission

This commission suggested the basis as Caste & accordingly Reservation Policy was formulated

In 1978, first Non- Congress Govt under the Prime Minister ship of Morarji Desai appointed, 2nd
Backward Class Commission under B P Mandal; to determine Socially & Educationally backward classes
which are not SC & ST (i.e. details of OBC)

Report came in around 1980, during which time Congress was back in power & the report was
not referred to until under the Prime Minister ship of Mr. V P Singh in 1990
V P Singh implemented the recommendations of the Mandal Commission
Recommendations:
→ SC & ST account for approximately 22.5% of the total population (Reservation available to
them on Pro Rata basis)
→ Among the remaining population of Hindus, 44% are socially & educationally backward
Hindus
→ The remaining 16% is non-Hindu population; among which 50% are socially & educationally
backward (Effectively 8%; i.e. 50% of 16%)
→ Total Backward class = 44% + 8% => 52%
→ Accordingly, provide 27% additional reservation to those 52% backward population on pro
rata basis
→ So, 22.5% + 27% < 50% ceiling (defined as per MR Balaji Case)
→ In 1993, PV Narasimha Rao provided for preference to poorer among OBC for reservation
& further reservation of 10% to economically backward sections of Higher caste
→ This created huge backlash
INDIRA SAWHNEY VS UNION OF INDIA CASE (1993)

This case is aka Mandal Case

This case was filed as a PIL challenging the recommendations of Mandal Commission
The Constitutional Bench of SC struck down 10% additional reservation citing it as
unconstitutional
SC further went ahead & fixed certain things:
→ 50% limit cannot be crossed under any circumstances
→ Reservation can be used only for initial appointment, not for promotion. Existing
reservations on promotion can continue for 5 years only
→ Only for Govt Employment; not for non-govt & aided institutions
→ Advanced section among OBC (creamy layer) should be excluded from reservations
→ Backlog vacancies which are carried over, should not violate 50% ceiling rule
→ Equality is a part of Basic Structure Doctrine of COI (so reservation is not only a policy,
but also a right)

SC provided clarification on why Caste based reservation (for OBCs) instead of Economic based
reservation?
→ SC provided that the main consensus for reservation is on Social backwardness, not on
economic backwardness; because economic status is dependent upon the person, and
it can change (Since, it is a variable component)

Concept of Class
→ Mandal Commission searched for people from forward class instead of searching for
backward class, and enquired from them about who is backward. Whoever were
indicated, as a result, by forward class as backward classes, were categorized into
backward classes ultimately
→ Economy class in dependent upon person (rich may be economical in approach), but
backwardness is dependent on others. It is not defined by self, it is defined by others
→ EC is temporary; but backward class is permanent (even if a person becomes rich,
others will still consider me backward class)
→ So, SC said ‘Caste is a Class’, and therefore reservation cannot be given on Economic
basis, which is temporary in nature
→ SC further added that Equality is a part of Basic Structure doctrine of COI (hence,
reservation is required)
→ So Socially & educationally backward class means socially & educationally backward
caste

Further action by Parliament wrt Ruling of Supreme Court:

In 77th CA, 1995, the Judgement of Supreme Court was bye- passed & a clause was inserted
i.e., Article 16 (4)(a) to extend reservation for Promotions as well
In 81st CA, 2000, additional clause was inserted i.e., Article 16 (4) (b), which stated that the
carried over backlog vacancies will not be subject to next year’s 50% reservation quota. This
will be another category altogether
In 93rd CA 2005, Article 15 (5) was inserted which allowed reservation in Pvt Edu institutes/
State aided & State unaided educational institutions too
 M NAGRAJ VS UNION OF INDIA CASE (2006)

All amendments were challenged as unconstitutional

SC denied the challenge & refused to interfere
SC held that they cannot interfere as long as the case does not violate Basic Structure Doctrine
Further Parliament has the power provided by founding fathers to decide upon the reservation
issue
The main aim behind reservation was to provide a level playing field, & as such unless sufficient
representation is achieved by the reserved classed, reservation shall continue
Also, only Parliament has the authority to decide upon whether sufficient representation is
achieved or not
Reservation is not only a policy; it is also a right (as per Article 16; equity is to be provided
through reservation until sufficient representation is achieved)

➢ Article 17- Abolition of Untouchability

o No exceptions in this article (vs some exceptions in Article 14, 15, & 16); i.e. all forms of untouchability will
be abolished

o Not allowed to:

▪ Take any action
▪ Make any law
▪ Make any joke which amounts to Untouchability
▪ Pass any gestures
▪ Do any type of discrimination; at all

i.e. cannot touch the issue of untouchability at all

o FRs, by very definition, are enforceable against the State. If untouchability is practiced by:
▪ State- Appeal in SC (Article 32)
▪ Individual- In case of Individual, since state is not involved, it has to be primarily dealt with the help
of Local Police. So, in order to make discrimination as per Article 17 enforceable against Individuals,
a parliamentary law is required. As such, parliament passed Protection of Civil Rights Act, 1955.
PoCRA is the one through which Untouchability in all its forms, is made a punishable offence
▪ SC/ST Prevention of Atrocities Act, 1989 was also formulated in this regard

There are 2 unique features of Article 17:

1) No exceptions in Article 17

2) Article 17 is an example of a Constitutional Article which is useless, unless it is associated with

a Statutory Law (because against state it is manageable, but against individual, Statutory law
is req)
➢ Article 18- Abolition of Titles
o Throughout Article 14- Article 17; the aim has been to save disadvantaged sections
▪ Article 14, 15, 16- Protection against Negative Discrimination
▪ Article 17- Protection against Untouchability

o However, certain sections are unequal because they have exceptional advantages, like Titles etc. Such titles
are Dynastic Titles (Nawab, Nizam, Maharaja, Queen). Dynastic means an individual has not earned it; this
nature makes it highly unequal

o So, as per Article 18, only Military Titles & Academic Titles are allowed, which are earned; & dynastic titles
are abolished

o Article 18 (2)- Any citizen of India will also not accept the foreign title

o So, Article 18 abolished all types of Titles, whether Indian or Foreign

o Under Article 18, there is no punishment; only a Notice is issued by Govt of India