RIGHT TO EQUALITY – Introduction
- The Constitution of India guarantees the Right to Equality through Articles 14 to 18. “Equality is one of the magnificent corner-stones of Indian democracy.” (Indra Sawhney v. Union of India, 1993)
- The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the Indian Constitution.(Ashutosh Gupta v. State of Rajasthan, 2002)
- Article 14 outlaws discrimination in a general way and guarantees equality before 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.
- Thus, the Supreme Court has said that the Constitution lays down provisions both for protective discrimination as also affirmative action.
- In this series of constitutional provisions, Art. 14 is the most significant. It has been given a highly activist magnitude in recent years by the courts and, thus, it generates a large number of court cases.
- In recent days, Art. 16 has also assumed great significance because of the problems of reservation in public services.
- Art. 14 is the genus while Arts. 15 and 16 are the species. Arts. 14, 15 and 16 are constituents of a single code of constitutional guarantees supplementing each other.
- It may be worthwhile to note that Art. 7 of the Universal Declaration of Human Rights, 1948, declares that all are equal before the law and are entitled without any discrimination to the equal protection of laws. By and large the same concept of equality inheres in Art. 14 of the Indian Constitution.
- It may be noted that the right to equality has been declared by the Supreme Court as a basic feature of the Constitution. 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.
- Equality before law and equal protection of laws is the quintessence of Right of Equality, a fundamental right guaranteed under Part III. Equals cannot be treated unequally. Right to such equality cannot be arbitrarily denied to the equals in the absence of valid classification. (Virendra Kumar Mishra v. UOI, 2015)
- Article 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”.
- Articles 14 and 15 read in the light of the preamble to the Constitution reflect the thinking of our Constitution makers and prevent any discrimination based on religion or origin in the matter of equal treatment or employment and to apply the same even in respect of a cooperative society.
- All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.(John Vallamattom v. UOI, 2003)
- But equality cannot be applied when it arises out of illegality e.g. when Art. 14 is sought to be involved in aid of compassionate appointment wrongly made earlier.
- It has been held that non application of mind is a facet of arbitrary exercise of power. (Onkar Lal Balaji v. UOI, 2003)
- It is now firmly established that Art. 14 strikes at arbitrary state action, both administrative and legislative.
- There has been a significant shift towards equating arbitrary or unreasonableness as the yardstick by which administrative as well as legislative actions are to be judged.
- A basic and obvious test to be applied in cases where administrative action is attacked as arbitrary is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
- It is now considered that non-compliance with the rules of natural justice amounts to arbitrariness violating Art. 14. (Rajasthan State Transport Corp. v. Bal Mukund Bairwa, 2009)
- Two concepts are involved in Art. 14:
- ‘equality before law’ and
- ‘equal protection of laws’.
- The first is a 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 the Rule of Law in Britain.
- This, however, is not an absolute rule and there are a number of exceptions to it, e.g., foreign diplomats enjoy immunity from the country’s judicial process; Art. 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 privileges by law.
- The second concept, ‘equal protection of laws’, is positive in content. It does not mean that identically the same law should apply to all persons, or that every law must have a universal application within the country irrespective of differences of circumstances.
- Equal Protection of the laws does not postulate equal treatment of all persons without distinction. What it postulates is the application of the same laws alike and without discrimination to all persons similarly situated.
- It denotes equality of treatment in equal circumstances. It implies that among equals the law should be equal and equally administered, that the like should be treated alike without distinction of race, religion, wealth, social status or political influence.
- The Supreme Court has explained in Sri Srinivasa Theatre v. Govt. of Tamil Nadu, that the two expressions ‘equality before law’ and ‘equal protection of law’ 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 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… For, equality before law can be predicated meaningfully only in an equal society….”
- Article 14 provides positive and not negative equality. Hence any action or order contrary to law does not confer any right upon any person for similar treatment. Thus unauthorized additional construction and change of user of land cannot be claimed on the basis that the same had been granted in other cases in contravention of law.
- Article 14 prescribes equality before law. But the fact remains that all persons are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality before the law may result in injustice. Thus, the guarantee against the denial of equal protection of the law does not mean that identically the same rules of law should be made applicable to all persons in spite of difference in circumstances or conditions.
- The varying needs of different classes or sections of people require differential and separate treatment. The Legislature is required to deal with diverse problems arising out of an infinite variety of human relations. It must, therefore, necessarily have the power of making laws to attain particular objects and, for that purpose, of distinguishing, selecting and classifying persons and things upon which its laws are to operate.
- Art. 14 thus means that ‘equals should be treated alike’; it does not mean that ‘unequals ought to be treated equally’. Persons who are in the like circumstances should be treated equally. On the other hand, where persons or groups of persons are not situated equally, to treat them as equals would itself be violative of Art. 14 as this would itself result in inequality.
- As all persons are not equal by nature or circumstances, the varying needs of different classes or sections of people require differential treatment. This leads to classification among different groups of persons and differentiation between such classes.
- Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in question is based on rational classification it is not regarded as discriminatory.
- The clubbing of those dealers against whom there was no allegation with the handful of those against whom there were allegations of political connection and patronage, results in treating unequals as equals. (Onkar Lal Balaji v. UOI, 2003)
- Equality of opportunity embraces two different and distinct concepts. There is a conceptual distinction between a non discrimination principle and affirmative action under which the State is obliged to provide a level playing field to the oppressed classes.
- Affirmative action in the above sense seeks to move beyond the concept of non discrimination towards equalising results with respect to various groups. Both the conceptions constitute ‘equality of opportunity’.
ARTICLE 15 – Prohibition of Discrimination on the Basis of Religion, Race, Caste, Sex or Place of Birth
- Article 15(1) specifically bars the state from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth, or any of them.
- Article 15(2) prohibits subjection of a citizen to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth with regard to—
(a) access to shops, public restaurants, hotels and places of entertainment, or,
(b) 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 general public.
- Under Art. 15(3), the state is not prevented from making any special provision for women and children.
- Article 15(4) or Art. 29(2) does not prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
- Provisions contained in Arts. 15 and 16 are merely enabling provisions. No citizen of India can claim reservation as a matter of right and accordingly no writ of mandamus can be issued. (AP Public Service Commission v. Baloji Badhavath, 2009)
a) ART. 15(1)
- Article 15(1) prohibits differentiation on certain grounds mentioned above. Commenting on Art. 15(1), the Supreme Court has observed in Valsamma Paul v. Cochin University, 1996:
” Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it”.
- Article 15(1) is an extension of Art. 14. Art 15(1) expresses a particular application of the general principle of equality embodied in Art. 14.
- Just as the principle of classification applies to Art. 14 so it does to Art. 15(1) as well. The combined effect of Arts. 14 and 15 is not that the state cannot pass unequal laws, but if it does pass unequal laws, the inequality must be based on some reasonable ground (Art. 14), and that, due to Art. 15(1), religion, race, caste, sex, or place of birth alone is not, and cannot be, a reasonable ground for discrimination.
- Under Art. 15(4), the State can make special provisions for certain sections of the society as stated above. But for any section of population not falling under Art. 15(4), special provisions can be made if there is reasonable classification.
- The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias. The use of the word ‘only’ in the Arts. 15(1) and 15(2) connotes that what is discountenanced is discrimination purely and solely on account of any of the grounds mentioned.
- A discrimination based on any of these grounds and also on other grounds is not hit by Arts. 15(1) and 15(2) though it may be hit by Art. 14. If religion, sex, caste, race or place of birth is merely one of the factors which the Legislature has taken into consideration, then, it would not be discrimination only on the ground of that fact. But, if the Legislature has discriminated only on one of these grounds, and no other factor could possibly have been present, then, undoubtedly, the law would offend against Art. 15(1).
- Article 15(2), mentioned above, contains a prohibition of a general nature and is not confined to the state only.
- On the basis of this provision, it has been held that if a section of the public puts forward a claim for an exclusive use of a public well, it must establish that the well was dedicated to the exclusive use of that particular section of the public and not to the use of the general public.15
- A custom to that effect cannot be held to be reasonable, or in accordance with enlightened modern notions of utility of public wells because of the force of Art. 15.
- In Art. 15(2) occurs the expression ‘a place of public resort’. There is difference of opinion on the exact significance of this phrase. One view holds that a place is a ‘place of public resort’ only if the public have access to it as a matter of legal right.
- A broader view, however, regards a place of public resort as one to which members of the public are allowed access and where they habitually resort to.
- The latter view appears to be more in accord with the tenor and purpose of the constitutional provision as it would bar discrimination on a wider front.
B. ART. 15(3) : WOMEN AND CHILDREN
- Articles 15(3) and 15(4) constitute exceptions to Arts. 15(1) and 15(2).
- According to Art. 15(3), the state is not prevented from making any “special provision” for women and children.
- Articles 15(1) and 15(2) prevent the state from making any discriminatory law on the ground of gender alone. The Constitution is thus characterised by gender equality.
- The Constitution insists on equality of status and it negates gender bias. Nevertheless, by virtue of Art. 15(3), the state is permitted, despite Art. 15(1), to make any special provision for women, thus carving out a permissible departure from the rigours of Art. 15(1).
- Articles 15 and 16 do not prohibit special treatment of women. The constitutional mandate is infringed only where the females would have received same treatment with males but for their sex. In English law ‘but-for-sex” test has been developed to mean that no less favourable treatment is to be given to women on gender based criterion which would favour the opposite sex and women will not be deliberately selected for less favourable treatment because of their sex.
- The Constitution does not prohibit the employer to consider sex in making the employment decisions where this is done pursuant to a properly or legally charted affirmative action plan.
- Article 15(3) recognises the fact that the women in India have been socially and economically handicapped for centuries and, as a result thereof, they cannot fully participate in the socio-economic activities of the nation on a footing of equality.
- The purpose of Art. 15(3) is to eliminate this socio-economic backwardness of women and to empower them in such a manner as to bring about effective equality between men and women.
- The object of Art. 15(3) is to strengthen and improve the status of women. Art. 15(3) thus relieves the state from the bondage of Art. 15(1) and enables it to make special provisions to accord socio-economic equality to women.
- The scope of Art. 15(3) is wide enough to cover the entire range of state activity including that of employment. Art. 15(3) is a special provision in the nature of a proviso qualifying the general guarantees contained in Arts. 14, 15(1), 15(2), 16(1) and 16(2).
C. ARTICLE 15(4) : BACKWARD CLASSES
- Article 15(1) would have come in the way of making favourable provisions for backward sections of society. This can be illustrated by referring to two cases.
- In State of Madras v. Champaka Dorairajan, The Madras Government issued an order [popularly known as the Communal G.O] allotting seats in the State medical colleges community-wise as follows: Non-Brahmin (Hindus) 6; Backward Hindus, 2; Brahmins, 2; Harijans, 2; Anglo-Indians and Indian Christians, 1; Muslims, 1.
- This G.O. was declared invalid because it classified students merely on the basis of ‘caste’ and ‘religion’ irrespective of their merit.53 A seven Judge Bench of the Supreme Court struck down the classification as being based on caste, race and religion for the purpose of admission to educational institutions on the ground that Art. 15 did not contain a clause such as Art. 16(4).
- In another case, Jagwant Kaur v. State of Maharashtra, 1952, a government order requisitioning land for construction of a colony for harijans was held to be discriminatory under Art. 15(1) because the facilities were being given to them as a ‘community’ as such when other members of the public were equally in need of similar facilities.
- To tide over the difficulties created by such decisions in the way of helping backward classes by making discriminatory provisions in their favour, Art. 15(4) was added to the Constitution in 1951. Art. 15(4) says that the state is not prevented from making any special provisions for “the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.
- Thus, an order acquiring land for constructing a colony for harijans is now valid under Art. 15(4).55 Art. 15(4) does not justify grant of special remission to the prisoners of Scheduled Castes and Scheduled Tribes and not to others. The grant of remission of convicted prisoners belonging to these classes can hardly be said to be a measure for the “advancement” of the Scheduled Castes and Scheduled Tribes. (State of MP v. Mohan Singh, 1996)
- Article 15(4) confers a discretion and does not create any constitutional duty or obligation. Hence no mandamus can be issued either to provide for reservation or for relaxation. (UOI v. R Rajeshwaran)
- Under Art. 15(4), in innumerable cases, the reservation of seats for Scheduled Castes, Scheduled Tribes and Backward Classes in engineering, medical and other technological colleges has been upheld. Reservations are possible under Art. 15(4) for the advancement of any backward class of citizens or for Scheduled Castes and Scheduled Tribes. Rejecting the argument that Art. 15(4) envisages “positive action” while Art. 16(4) is a provision warranting programmes of “positive discrimination”, the Supreme Court has observed in Indra Sawhney v. Union of India :
“We are afraid we may not be able to fit these provisions into this kind of compartmentalisation in the context and scheme of our constitutional provisions. By now, it is well settled that reservation in educational institutions and other walks of life can be provided under Art. 15(4) just as reservations can be provided in services under Art. 16(4). If so, it would not be correct to confine Art. 15(4) to programmes of positive action alone. Art. 15(4) is wider than Art. 16(4) is as much as several kinds of positive action programmes can also be evolved and implemented thereunder (in addition to reservations) to improve the conditions of SEBCs (Socially and Educationally Backward Classes), Scheduled Castes and Scheduled Tribes, whereas Art. 16(4) speaks only of one type of remedial measure, namely, reservation of appointments/posts.”
- The scope of Art. 15(4) is wider than Art. 16(4). Art. 15(4) covers within it several kinds of positive action programmes in addition to reservations. However, reservation of posts and appointments must be within reasonable limits, viz., 50% at the maximum. The same limit applies to Art. 15(3). Reservation to a backward class is not a constitutional mandate, but a prerogative of the State. (EV Chinnaiah v. State of AP, 2005).
- Reservation for a backward class is not a constitutional mandate.
SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES
- A major difficulty raised by Art. 15(4) is regarding the determination of who are ‘socially and educationally backward classes.’ This is not a simple matter as sociological and economic considerations come into play in evolving proper criteria for its determination. Art. 15(4) lays down no criteria to designate ‘backward classes’; it leaves the matter to the state to specify backward classes, but the courts can go into the question whether the criteria used by the state for the purpose are relevant or not.
- The question of defining backward classes has been considered by the Supreme Court in a number of cases. On the whole, the Supreme Court’s approach has been that state resources are limited; protection to one group affects the constitutional rights of other citizens to demand equal opportunity, and efficiency and public interest have to be maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person.
- The Court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes.
- From the several judicial pronouncements concerning the definition of backward classes, several propositions emerge. First, the backwardness envisaged by Art. 15(4) is both social and educational and not either social or educational. This means that a class to be identified as backward should be both socially and educationally backward.
- In MR Balaji v. State of Mysore, 1963, the Court equated the “social and educational backwardness” to that of the “Scheduled Castes and Scheduled Tribes”. The Court observed: “It was realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them.”
- Secondly, poverty alone cannot be the test of backwardness in India because by and large people are poor and, therefore, large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated.
- Thirdly, backwardness should be comparable, though not exactly similar, to the Scheduled Castes and Scheduled Tribes.
- Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or even the dominant criterion. If classification for social backwardness were to be based solely on caste, then the caste system would be perpetuated in the Indian society.72 Also this test would break down in relation to those sections of society which do not recognise caste in the conventional sense as known to the Hindu society.
- Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot be ignored.
- Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that ‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.