EQUALITY RIGHTS

Art. 14
• The said Article is clearly in two parts while it commands the State
not to deny to any person equality before law, it also commands the
State not to deny the equal protection of the laws.
• Equality before law prohibits discrimination. It is a negative concept.
The concept of equal protection of the laws requires the State to give
special treatment to persons in different situations in order to
establish equality amongst all.
• It is positive in character. Therefore, the necessary corollary to this
would be that equals would be treated equally, whilst un-equals
would have to be treated unequally
Equals and Unequals
• In St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558- The
‘Creamy Layer’ in the Backward Class is to be treated ‘on par’ with the
forward classes and is not entitled to benefits of reservation. If the
‘creamy layer’ is not excluded, there will be discrimination and
violation of art. 14 in as much as equals can not be treated unequally.
• Non exclusion of Creamy Layer will also be violative of Art. 14 as
Creamy layers (Unequals to that of Backward Class) can not be
treated equally – Indra Sawhney v. Union of India, AIR 2000 SC 498.
• Equal treatment of unequals is nothing but inequality.
The Doctrine of Legitimate Expectation

• The doctrine of ‘Legitimate Expectations’ is one amongst several tools

incorporated by the Court to review administrative action.
• This doctrine pertains to the relationship between an individual and a
public authority.
• According to this doctrine, the public authority can be made
accountable in lieu of a ‘legitimate expectation’.
• A person may have a reasonable or legitimate expectation of being
treated in a certain way by the administrative authorities owing to
some consistent practice in the past or an express promise made by
the concerned authority.
Contd..
• The first time, an attempt was made to establish the principles of the
doctrine were in the case of Council of Civil Service Unions and
Others v. Minister for the Civil Service ([1985] AC 374):
• His rights or obligations are altered, which are enforceable by or
against him
• He is deprived of some benefit or advantage which he had been
permitted by the authorizing body in the past and which he could
have legitimately expected to enjoy.
• Until a valid ground for withdrawal of the same was communicated to
him and until him being given an opportunity of contending reasons
as to why they were withdrawn
Intelligible Differentia
• According to this doctrine "equal protection of laws" prohibits class
legislation but permits reasonable classification of persons or things
• Hence, from the very beginning the Indian Supreme Court has had no
hesitation in applying the theory of classification while testing the
Constitutional vires of legislations and State actions impugned on the
basis of their being violative of Article 14.
• The classic nexus test was enunciated by S.R. Das, J. in the Anwar Ali
Sarkar v. State of West Bengal, AIR 1952 SC 75
Brief Facts of Anwar Ali
• The respondent, who was convicted by a Special Court which tried his
case under a notification issued by the Government under section 5,
contended that the said section was unconstitutional and void
inasmuch as it contravened Art. 14 of the Constitution.
• he Act did not classify, or lay down any basis for classification, of the
cases which may be directed to be tried by the Special Court
Contd…
• In order to pass the test of permissible classification two conditions
must be fulfilled viz.
• (i) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from
others left out of the group, and
• (ii) that the differentia must have a rational relation to the objects
sought to be achieved by the Act. The differentia which is the basis of
the classification and the object of the Act are distinct and what is
necessary is that there must be nexus between them.
The Manifest Arbitrariness Test
• The traditional “classification” test used to determine Article 14-
compatibility was the one that dominated judicial interpretation,
initially. As laid down in Anwar Ali Sarkar.
• the content of Article 14 was sought to be expanded by J. Bhagwati in
the Royappa case, 1974 AIR 555 where he observed “From a
positivistic point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to the rule
of law in a republic while the other, to the whim and caprice of an
absolute monarch.
Art. 15. Art. 16
• Article 15 secures the citizens from every sort of discrimination by the
State, on the grounds of religion, race, caste, sex or place of birth or
any of them.
• However, this Article does not prevent the State from making any
special provisions for women or children.
• Further, it also allows the State to extend special provisions for
socially and economically backward classes for their advancement.
• It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as
well.
Contd…
• Article 16 assures equality of opportunity in matters of public
employment and prevents the State from any sort of discrimination
on the grounds of religion, race, caste, sex, descent, place of birth,
residence or any of them.
• This Article also provides the autonomy to the State to grant special
provisions for the backward classes, under-represented States, SC &
ST for posts under the State.
• Local candidates may also be given preference is certain posts.
Reservation of posts for people of a certain religion or denomination
in a religious or denominational institution will not be deemed illegal.
Exceptions in 15 and 16
• Articles 14, 15 and 16 form part of a scheme of the Constitutional
Right to Equality. Article 15 and 16 are incidents of guarantees of
Equality, and give effect to Article 14. However, initially, Articles 15(4)
and 16(4) were considered exceptions to Articles 15(1) and 16(1).
• The Hon􏰄 ble Supreme Court, in G.M. Southern Railways v.
Rangachari, AIR 1962 SC 36 held Article 15(4) of the Constitution of
India to be an exception to Article 15(1).
• This view, that Articles 15(4) and 16(4) were exceptions to Articles
15(1) and 16(1), was again reiterated in Triloki Nath v. State of
Jammu and Kashmir, AIR 1969 SC 1, and in State of A.P. v. U.S.V.
Balram, (1972) 1 SCC 660.
Change is concept
• State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, introduced a
change in the concept of equality.
• It held that Articles 14, 15, and 16 are all equality rights, and that the
scheme of equality sought to achieve real equality.
• Article 16(4) clarifies and explains that classification on the basis of
backwardness does not fall within Article 16(2) and is legitimate for
the purposes of Article 16(1).
• In Indra Sawhney v. Union of India, 1992 (Supp) 3 SCC 217, where
the majority upheld the principle laid down in Thomas􏰄 case that
Articles 15(4) and 16(4) were not exceptions to Articles 15(1) and
16(1), but were an emphatic statement of equality.
Contd…
• Once this is established, that Article 15(4) and 16(4) are not
exceptions to the mandate of equality but are concrete measures to
bring about the mandate of equality enshrined in Article 14.
• The effect of this is that the State is obliged to remove inequalities
and backwardness. This obligation of the State has its source in the
mandate of equality itself under Article 14.
• In Indira Sawhney’s case, Sawant, J concurring with the majority
observed that to bring about equality between the unequals, it was
necessary to adopt positive measures to abolish inequality.
Contd..
• Therefore, the equality contemplated by Article 14 and other cognate
Articles like 15(1), 16(1), 29(2), and 38(2) are secured not only by
treating equals equally, but also by treating un-equals unequally.
• This empowers positive discrimination in favour of the
disadvantaged, particularly the SCs and STs.
• In E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, it was held that a
legislation may not be amenable to challenge on the ground of
violation of Article 14 if its intention is to give effect to Articles 15 and
16 or when the differentiation is not unreasonable or arbitrary.
Article 17
Abolition of Untouchability
• Untouchability is abolished and its practice in any form is forbidden
The enforcement of any disability arising out of Untouchability shall
be an offence punishable in accordance with law.
• The Untouchability Offences Act of 1955 (renamed to Protection of
Civil Rights Act in 1976) provided penalties for preventing a person
from entering a place of worship or from taking water from a tank or
well. This act lays down that whatever is open to general public (or
Hindus) should be open to the members of the scheduled castes.
Contd…
• The ostensible objective was to put an end to humiliation and
harassment faced by the dalits and backward classes and ensure that
their fundamental rights are preserved.
• As per the Act, the offender “shall be punishable with imprisonment
for a term of not less than one month and not more than six months.”
• In P. Gounder v. State of Madras AIR 1973 Mad 458 a curious
question was raised- Allotment of special housing schemes for
untouchable would lead to segregation of such people, and it would
not be in conformity with Art. 17.
Contd…
• The RELIGIOUS FREEDOM is subject to public order, healt, morality
and other provisions of Part III of the constitution, A.Adithyan v.
Travancore Deaswom AIR 2002 SC 3538.
Article 18

• Article 18 of the Indian Constitution i.e- “Abolition of titles” prohibits

the State to confer titles on anybody whether a citizen or a non
citizen.
• Military and academic distinctions are however exempted from the
prohibition for they are incentive to further efforts in the perfection
of the military power of the State.
• Clause (2) prohibits a citizen of India from accepting any title from any
foreign State.
• Clause (3) provides that a foreigner holding any office of profit or
trust under the State cannot accept any title from any foreign State
without the consent of the President.
National Awards
• In Balaji Raghavan v Union of India (1996) 1 SCC 361-
• The petitioners challenged the validity of these National Awards and
requested the Court to prevent the Government of India from
conferring these Awards.
• It was contended that the National Awards are titles within the
meaning of Article 18 of the Indian Constitution. I
• It was also argued that these awards are being grossly misused and
the purpose for which they were instituted has been diluted and they
are granted to persons who are undeserving of them.
• The Supreme Court held that the National Awards such as Bharat
Ratna, Padma Bhushan and the Padma Shri are not violative of the
principle of equality as guaranteed by the provisions of the Indian
Constitution.
• These National Awards do not amount to “titles” within the meaning
of Article 18 and, therefore, not violative of Article 18 of the
Constitution.
• The theory of equality does not mandate that merit should not be
recognised.
• Article 51-A of the Constitution speaks of the fundamental duties of
every citizen of India.
• In view of clause (f) of Article 51-A it is necessary that there should be
a system of award and decorations to recognise excellence in
performance of the duties.
• It is also to be noted that there is absolutely no penalty for
infringement of the above prohibition of titles.
• Article 18 is merely directory. However, it is iron to the Parliament to
make laws for dealing with such persons who accept a title in
violation of the prohibition prescribed in the Article 18.
Art. 19
• • All citizen shall have the right
(a) to freedom of speech and expression
(b) to assemble peaceably and without arms
• (c) to form association or unions
• (d) to move freely throughout the territory of India
• (e) to reside and settle in any part of the territory of India
• (g) to practice any profession, or to carry on any occupation , trade or
business.
• (f) To acquire, hold and dispose of property [omitted by 44th
Amendment, 1978]
Contd…
• Guarantees basic and natural rights.
• These rights liable to control, curtail and
regulate to some extent by Legislature.
• • Not applicable to non citizens and Corporations.
Reasonable Restrictions -Art 19 (2) – 19 (6)

• Freedoms are not absolute in nature

• The restrictions can be imposed only by Authority of law and not by

executives alone.

• A restriction must be relate to purpose mentioned in Article.

• Each restriction must be reasonable.
Test of Reasonableness (Which will be dealt again
at the end of slides)
• Papnasam Labour Union v/s Madhura Coats Ltd AIR 1995 SC 2200
• Not be arbitrary or excessive
• Nexus between restriction imposed and object No universal
application
• Public welfare
• Directive Principal taken into consideration while applying
restrictions.
Art 19 (1) (a) & 19 (2)

• Art 19 (1) (a) - Basis of liberty.

• It includes
• Right to express in any medium (oral, writing, movie, etc )
• Freedom of communication
• Right to propagate
• Right to receive information
• Freedom of press
Freedom of press

• No provision ensuring Freedom of Press unlike American Constitution

(1st Amnd)
• No distinct privileges from the citizen u/A 19
Contd…
• Sakal Paper v/s UOI AIR 1962 SC 305, (the Newspaper (Price and
Page) Act, 1956 and the Daily Newspapers (Price and Page) Order,
1960 regulated the prices publishers could charge for newspapers
based on page count and the amount of content, with Sakal Papers
alleging that this was an unconstitutional violation of free speech). SC
HELD–
• Violation of Art 19 (1) (a) because the right to publish and circulate
the publication is inherent in Article.
• The right can not be taken away with the object of placing restriction
on the business activities
• It is not related to any of the purpose mentioned in Art 19 (2).
Contd..
• Bennett Coleman & Co Ltd v/s Union of India AIR 1973 SC 106
Under Import Control Order 1955 and the Newsprint Policy of 1972-73 placed further
restrictions based on four features:
1. first, no new newspapers may be started by establishments owning more than two
newspapers if at least one of which is a daily;
2. second, the total number of pages may not exceed ten;
3. third, the increase in number of pages may not be more than 20% for newspapers that
are under ten pages;
4. and, finally, no-interchangeability of newsprint may permitted between different
newspapers of the same establishment or between different editions of the same
paper.
5. Therefore, the petitioners were not allowed to make adjustments in circulation, etc.,
under these newsprint policies even within the quota limit. This was challenged for
violation of Article 19(1)(a) of the Indian Constitution.
• SC held—
• The press has right to free publication and their circulation without
any restrain.
• Freedom of press in both qualitative and quantitative so freedom lies
in both circulation and content.
Right to know

• Freedom of speech involves Freedom of Communication and receipt

of information
• State of Uttar Pradesh v/s Raj Narain AIR 1975 SC 865 -
• ( Facts- Raj Narain filed an election petition before the Allahabad HC,
for misuse of public finances by a political party for the re-election of
the Prime Minister of India. For proving these allegations, he
summoned the State Government of Uttar Pradesh to produce a
document called Blue Book, which contained security guidelines for
the protection of the Prime Minister in times of travel. In response, an
official of the Home Security of Uttar Pradesh was instructed to claim
a non-disclosure privilege under Section 123 of the Evidence Act)
Contd…
• It was held that –
• Secrecy can be legitimately desired
• People are entitled to know public transaction
• Public concern is important.

• Association for Democratic Reforms v/s UOI AIR 2001 Del 126 Right to know about
Electoral candidate.
• The Supreme Court of India upheld a High Court order-
1. mandating the Election Commission to obtain and disclose to the public background
information relating to candidates running for office, including information on
their assets, criminal records, and educational background.
2. The Supreme Court ruled that the right to know about public officials is derived from
the constitutional right to freedom of expression.
Restriction u/A 19 (2)

• State may impose reasonable restrictions “in the interest of” -

• Sovereignty and integrity of Nation, the security of State, friendly
relations with foreign States and public order ----- National Interest
• Decency, morality, contempt of Court, defamation --- Interest of
Society
Art 19 (1) (b) & Art 19 (3)

• Freedom of Assembly
• - The assembly must be peaceable
• - It must be unarmed
• - The State must be impose any reasonable restrictions in the public
order.
• Right to meet peaceably for consultation in respect of Public affairs
• Power to protect itself against unlawful conduct
• Right of public meeting and procession Lawful meeting
Contd…
• Himmat Lal v/s Police Commissioner AIR 1973 SC 87 - The right to
hold meeting in Public places is subject to the control of appropriate
authority regarding place and time.
• Babulal v/s State of Maharashtra AIR 1961 SC 884 -
• Public nuisance
• No right to hold meeting on citizens please.
• Sec. 144 Cr.P.C - empower authorities to put restriction in violation of
public order.
• Sec 126 People’s Representation Act, 1951 – Bans public meetings
within constituency on the date of election.
Art 19 (1) (c) & Art 19 (4)

• Freedom to form association for any lawful purpose. (companies, trade

unions, etc)
• Freedom to choose membership and associate . Also includes Right to
refuse to belong to any association.
• Object is to regulate freedom in profession and business and not to make
collective bargaining.
• All India Bank employee Association v/s National Industrial Tribunal AIR
1962 SC 171 - In All India Bank Employees’ Association v. National
Industrial Tribunal , the Court specifically held that even very liberal
interpretation of sub-clause (c)of clause (1) of Article 19 cannot lead to the
conclusion that trade unions have a guaranteed right to an effective
collective bargaining or to strike, either as part of collective bargaining or
otherwise.
Contd…
• Thus, there is a guaranteed fundamental right to form association or
Labour unions but there is no fundamental right to go on strike.
• Under the Industrial Dispute Act, 1947 the ground and conditions are
laid down for the legal strike and if those provisions and conditions
are not fulfilled then the strike will be illegal.
Art 19 (1) (d) (e) & 19 (5)

• FREEDOM OF MOVEMENT AND RESIDENCE

• To move freely throughout the territory of India
• The right to move from any part the Country to other part
• Freedom from intra State and inter State
• Complementary to Art 5 (single citizenship)
Contd…
• State of M.P v/s Bharat Singh) AIR 1967 SC 1170
• ON April 24, 1963 the State of Madhya Pradesh made as order in exercise
of powers conferred by Section 3 of the Madhya Pradesh Public Security
Act, 1959 -hereinafter called 'the Act' -directing the Respondent Thakur
Bharat Singh -
• (i) that he shall not be in any place in the Raipur District;
• (ii) that he shall reside in the Municipal limits of Jhabua town, District
Jhabua, Madhya Pradesh, and shall proceed there immediately on the
receipt of this order;
• and (iii) that he shall notify his movements and report himself personally
every day at 8 a.m. and 8 p. m. to the Police Station Officer, Jhabua.
Contd…
• It was held –
• To secure Right to move freely
• Expelling person out of India or not to move out of particular area is
also violation of Art 19 (1) (d).
Contd…
• A.K.Gopalan v/s State of Madras AIR 1950 SC 27 –
• A.K.Gopalan(political leader) who was detained in the Madras Jail
under Preventive Detention Act,1950 challenged his detention by
stating that there was a violation of his Fundamental Right which
were Article 19,21 and 22.
• He argued that the right to movement was a fundamental right under
article 19 and hence the defence counsel must prove that the law of
preventive detention was a reasonable restriction as per the five
clauses of article 19(2).
Contd…
• The Supreme Court held that he was detained according to the
procedure established by law and rejected his argument. The
supreme court at that point of time believed that each article was
separate in the Indian constitution.
Art 19 (1) (e) and ART 19 (5)
• ART 19 (5)
In the interest of General Public
• Public Health
Security (protected places) Public order
Public morals
• For the protection of scheduled Tribe
• Art 19 (1) (e)
• Right to reside within Indian territory.
• To remove internal barriers
• The right of shelter is part of Right of Residence. (Art 38)
• Integrity of Nation
Contd…
• Freedom to reside and settle in any part of India by clause (e) of Art.
19 is subject to reasonable restriction in the interest of general public
or for the protection of interest of Scheduled Tribes. In general,
substantive as well as procedural reasonableness would be required.
• This freedom is said to be intended to remove internal barriers in
India between any of its parts, but is limited to citizens. Moreover,
even citizens can be subjected to certain kinds of persons, such as
passport regulations.
• State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170
(1172)
• Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
Art 19 (1) (g) & Art 19 (6)

Freedom of practice any profession or occupation, trade or business

• Citizen has right to choose employment
• Art 301 – Freedom of trade , commerce and
• Intercourse through out the country shall be free
• There is right to carry some business which is against public interest
subject to license of the State.
Art 19 (6)
• Interest of general public
• (i) Professional or technical qualification necessary for trade or business
• (ii) State may create monopoly (entry 21 of Concurrent List )
Licenses and Permits for Carrying Trade.
• In the context of licenses and permits required for carrying on a
business or trade, the grant of such license cannot depend upon the
absolute discretion of laid down on which the discretion of an
administrative authority. The policy must be laid down on which the
discretion is to be exercised. Further, in general, the discretion must
be exercised on relevant consideration.
• In short if the law does not set out consideration then the law is void.
• Generally, an existing license can not be revoked without giving the
licensee an opportunity of hearing.
• - Laxmi Narain v. State of UP 1954 SCR 803., Harakchand Rantanchand
v. UOI, AIR 1970 SC 1453
Trade in Liquor
• There is no fundamental right to carry on business of intoxicants
under Art. 19(1)(g). The state has the exclusive right or privilege in
manufacturing and selling, granting license and imposing reasonable
restrictions on liquor.
• Har Shankar v/s I.T.Commissioner AIR 1975 SC 1121 ,

The state can completely prohibit trade or business in protable liquor,

State of Kerela v. Kandath Distilleries, AIR 2013 SC 1812.
Test of Reasonable Restrictions and Conslusion
to be continued
• The Fundamental Rights guaranteed by the Constitution of India are
not absolute. There are certain restrictions which can be imposed by
the state according to the procedure established by law.

• In applying the test of reasonableness (which is the most crucial

consideration), the broad criterion is whether the law strikes a proper
balance between social control on the one hand and the rights of the
individual on the other hand.
Contd…
• The court must take into account the following aspects:
1. Nature of the right infringed;
2. Underlying purpose of the restriction imposed;
3. Evils sought to be remedied by the law, its extent and urgency;
4. How far the restriction is or is not proportionate to the evil; and
5. Prevailing conditions at the time.
6. Directive principle of state Policy [Kehsvananda Bharati v. State of Kerela
AIR 1973 SC 392]
Relevant case laws on above test: Khare v. State of Delhi 1950 SCR 519, Laxmi
v. State of Uttar Pradesh AIR 1981 SC 873
Art. 20
• Protection Against Conviction of Offences:
• Art. 20 of Indian Constitution provides for protection in respect of
conviction of offences. In other words, it lays down certain safeguards
to the person accused of crimes as stated below:
1. Ex post facto law (Art. 20(1)).
2. Double Jeopardy (Art. 20(2); and
3. Self-incrimination (Art. 20(3).
1. Ex Post Facto Law (Art. 20(1).- Article 20(1) of the Indian
Constitution prohibits Ex Post Facto laws. The expression ‘Ex Post
Facto Law’ means “a law, which imposes penalties or convictions on
the acts already done and increases the penalty for such acts”. In
other words, Ex Post Facto Law, imposes penalties retrospectively.
Ex-Post facto Law
• Article 20 (1) says that no person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the Act
charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the
commission of the offence.
• This is called Ex-Post Facto Law. It means that legislature can not make a
law which provides for punishment of acts which were committed prior to
the date when it came into force. This means that a new law can not
punish an old act.
• The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person
guilty of accepting dowry is punishable under the Act after 20.5.1961 and
not before 20.5.1961.
Doctrine of Double Jeopardy
• Article 20(2) says that no person shall be prosecuted and punished for
the same offence more than once- Doctrine of Double Jeopardy.
• The objective of this article is to avoid harassment, which must be
caused for successive criminal proceedings, where the person has
committed only one crime.
• There is a law maxim related to this - nemo debet bis vexari. This
means that no man shall be put twice in peril for the same offence.
• There are two aspects of Doctrine of Jeopardy viz. autrefois convict
and autrefois acquit. Autrefois convict means that the person has
been previously convicted of same offence.
Self Incrimination Law
• Article 20(3) of the constitution says that no person accused of any
offence shall be compelled to be a witness against himself.
• This is based upon a legal maxim which means that No man is bound
to accuse himself.
• The accused is presumed to be innocent till his guilt is proved. It is the
duty of the prosecution to establish his guilt.