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Right To Equality: New Dimension and New Version - Part One

Four Score & Seven Years ago our founding fathers brought forth to this continent a New Nation conceived in Liberty and dedicated to the Proposition that all men are created equal. We are engaged in a civil war, testing whether that nation so conceived and so dedicated , can long endure- Abraham Lincoln :Gettysburg address[1]

Liberty and equality are words of passion and power. They were the watchwords of French revolution, they inspired the unforgettable words of Abraham Lincoln and US congress gave them practical effect in 13th amendment which abolished slavery and 14th amendment which provided that- the state shall not deny to any person within its jurisdiction, the equal protection of laws. [2]

Our founding fathers knowing of this history, not only put liberty & equality in preamble but gave them practical effect in article 17 which abolished untouchability & article 14 which provides state shall not deny equality before law and equal protection of laws.

Article 7 of Universal declaration of human rights, 1948 declares that all are equal before law and are entitled without any discrimination to equal protection of laws. By & large, the same concept of equality inhered in article 14 of Indian constitution.[3]

The Constitution of India guarantees the Right to equality through article 14 to 18. Equality is one of magnificent corners of Indian democracy.[4] The Doctrine of equality before law is a corollary of rule of law which pervades the Indian constitution.[5]

Article 14 restrict discrimination in a general way whereas subsequent articles such as article 15,16,17 &18 covers specific discrimination. Article 14 is a genus while Article 15&16 are species. Article 14,15 &16 are single thread of constitutional guarantee which supplement each other. If a situation is not covered by Article 15 to 18, the general principle of equality embodied in Article 14 would be attracted whenever there is an allegation of discrimination.

Article 14 raised many problems but principles well settled by 1960. Article 17 has vital impact on doctrine of equality. Article 18 is application of theory of equality in another direction. Article 18 appears to have been framed under mistaken belief that US Precedent was being followed. The Difference between US (Article 1) and Article 18 of Indian constitution is that whereas US Constitution forbids the grant of title of nobility , article 18 forbids the grant of any title except military or academic. It is important to note that a title of nobility is hereditary and has no necessary connection to merit whereas article 18 recognizes title of merit.

What is obvious is not always known and what is known is not always present

In ER Royappa v. State of Tamil Nadu (1974), where for the very first time court added a new dimension of article 14 and pointed out that article 14 has highly activist magnitude and it embodies a guarantee against arbitrariness. Thus, we cannot countenance any attempt to truncate its all embracing scope and meaning, as for doing that would be a violation of its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined & confined within traditional doctrine limits.[6]

From a positivistic point of view, Equality if antithetic to arbitrariness. Equality and arbitrariness are sworn enemies . One belong to rule of law and other to whims & caprice of an absolute monarch.

In Ajay Hasia case(1981), It is sufficient to state that article 14 must not be confused with doctrine of classification. In earlier cases, article 14 came to be identified with doctrine of classification because view taken was that article 14 forbids discrimination where classification making differentia fulfilling 2 conditions:
  1. Classification is found on an intelligible differentia
  2. The Differentia has a rational relation to the object sought to be achieved by impugned legislative or executive action. [7]

Law violating Article 14 and Arbitrariness

When a law is based on impressible classification is struck down for violating equal protection of laws that does not mean that law is per se arbitrary. There is difference between arbitrariness and discretion. It is been said that a discretion unguided by any rule or guidelines behind is essence of arbitrariness. However, this ingredient to covert discretion as arbitrariness cannot be an absolute principle.

E.g. Indian Penal code lays down the maximum punishment by way of fine and/or imprisonment which can be inflicted upon persons found guilty of committing specified offences. A Discretion conferred on judges and magistrates which ranges from a small fine to a substantial fine together with maximum term of imprisonment prescribed by law can only be described as arbitrary , for no rules and guidelines can be given for exercise of discretionary power and important factor is that circumstances on which crimes are committed , matter of extenuation are to be taken into account for deciding the punishment. Such power is arbitrary in essence but same must be conferred on judges if justice are to be done.

There as many cases where discretionary power have been upheld by court because they were not capable of being governed by further rules.

Article 14 in The Constitution Of India

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

Article 14 interpreted by judiciary

The state shall not deny to any person equality before law or equal protection of laws within the territory of India provided that nothing contained herein shall prevent the state from making a law based on a classification founded on intelligible differentia having a rational relation to the object sought to be achieved by the law

The Prohibition contained in article 14 is directed against state (as widely defined by article 12).

Is the state is a Person protected by article 14?

If there was only one state in India then there would be a different view but there are several states in India & Union itself is a state. The question is thus whether State –A enacts a law can deny to State-B, State-C, & State-D equality before the law or equal protection of laws.

In legal theory- A Person is any being whom the law regard as capable of rights or duties[8]. A Person could be natural person or artificial person. Part-III of constitution, DPSP, Article 32, Article 226, Article 298, Article 300, Article 285 shows that Union and State governments have rights and obligations which can be enforced against one another and against private individuals. The Existence of a monarch in England which has prevented the state from being recognized as a juristic person have lost some of its force in self-govt. dominion like Australia.

The Question whether the state is a person within meaning of article 14 has been considered in Moti Lal v. State of U.p but none of them have raised the question whether one state can claim protection under Article 14 against another state. The court merely made a distinction that with regard to trading activities of a state , State is a person but with regard to govt. activities of a state, State is not a person. It was also held that the word State used in special sense in article 12 which took it out of category of a person.

In author opinion, one view is that the difference between govt. and trading activities of a state should be irrelevant to decide question of state being a person whereas other opinion is that there is no need to read state within meaning of word person because article 131 is already in existence to solve such dispute. However, the question is already in dispute that whether the controversy of Fundamental rights disputes between two states can be squarely be answered under Article 131.

Equality before law & Equal protection of laws

The Equality before the law is a negative concept which ensures that there is no special privilege in favor of anyone that all are equally subject to ordinary law of land and that no person, whatever be his rank is above the law. Article 14 confers a right by enacting a prohibition.

Thus, is an absolute. In this respect, Article 14 is different from Article 19 where reasonable restrictions are given. But though on face of it, it appears an absolute right but since the doctrine of classification has been incorporated by judicial decisions. The Equal protection of laws is a positive concept .

It states that like should be treated alike without distinction. The Principle of Equality doesn’t mean that same law should be apply to everyone but that a law should deal alike with all in one class and unlikes should not be treated alike. Likes should be treated alike.[9]

Article 14 forbids class legislation but it does not forbids reasonable classification of persons.
Classification is reasonable when:
  • It is not arbitrary, artificial or evasive. It is based on intelligible differentia, some real and substantial distinction which distinguishes the persons or things grouped together in one class from other who left out of it.
  • The Differentia adopted on basis of classification has a rational or reasonable nexus with object sought to be achieved by statute in question.[10]
Though there is always a presumption in favor of constitutionality of enactment and burden is on person who attacks it to show that there has been a clear transgression of constitutional principles. Whereas If the discrimination is large on face of legislation, the onus may shift to the state.[11]

Differential treatment per se is not violation of Article 14 and it violates Article 14 only when there is no reasonable basis. Classification with regard to microscopic differences is not god. To override classification is to undo equality. The Classification need not to be made with mathematical precision but if there is little or no difference between persons or things which have grouped together and those who left out of group, then classification cannot be regard as reasonable.

At times, even administrative necessity or good corporate governance (Proviso section 167 of companies act, 2013) has been upheld as a basis of classification. This is especially in matter of taxation, economic regulation, because of complexity involved in cases.[12]

Interference with executive policy

The Supreme court has reiterated that courts cannot act as an appellate authority and examine the correctness , sustainability and appropriateness of policy nor the courts are advisors to executive on matter of policy which the executive is entitled to formulate. Judicial review in this area is confined to examination as to whether any of fundamental rights have been violated or is manifest arbitrary.

It is through manifest arbitrary door that challenges are likely to be made to formulation of policies and in such a case court cannot examine provisions of policy to come up with conclusion that if it is manifestly arbitrary and in this limited context, court can act as a appellate authority. Arbitrariness on mere possibility that a power may be abused (despite the guidelines) in provisions of act, cannot be held to be arbitrary and unreasonable.[13]

In Ram Krishna Dalmia v. Justice S.R. Tendolkar[14], Principles framed with regard to scope of permissible classification:
  • A Law may be constitutional even though it relates to single Individual if on account of some special circumstances or reasons applicable to him and not to others, that single individual may be treated as class by itself but such laws are seen with suspicion, especially when they affect private rights of an individual.
  • There is always a presumption of constitutionality and burden is on one who attacks it.
  • A Classification need not to be scientifically perfect or logically complete
  • While considering the basis of classification, court must look into matter of common knowledge, History of Bill, etc.
  • The Court must look beyond the old doctrine and apply the test of palpable arbitrariness in context.
  • There is no right to equality in illegal acts.
  • The Right to equality is available in grant of favor as well as imposition of burdens.

Single person laws:

Single person laws are prima facie violative of article 14 because they do not make a classification on basis of some general or particular characteristics which is found in class of individuals rather target one individual or person.[15]

Single person laws can be justified as ones involving public rights rather than private rights. Also, these laws can be justified in case of juristic persons but not in case of natural persons[16].

Special courts & Procedural Inequality:

The Constitutionality for creating the special courts to try persons holding high public offices for offences committed by them during period of emergency (1975-77) came up before a 7 judge bench In Re: Special courts bill,1978.[17]
The Supreme court under Article 143 gave its advisory opinion as to whether the bill violates article 14.

Following principles laid down with regard to scope of article 14:

  • If the legislative policy is clear and definite and is an effective method of carrying out that policy, a discretion is vested by statute upon a body of administration to make selective application of law to a certain class of persons, the statute itself cannot be condemn as a piece of discriminatory legislation.
  • The Discretionary power is not necessarily a discriminatory power.
  • Whether an enactment which cast for special procedure for trial of certain offences is discriminatory or not , depends on each case and no general principle applicable to all cases can be laid down.
  • A Rule of procedure laid down by law comes as much within purview of article 14 as of any rule of substantive law.
Hence, court observed that classification is valid and offence committed during emergency are class by itself. The Court observed that procedure to be fair and just within article 21 context.

Procedural fairness:

In Center for PIL v. UOI, the court invalidated allocation of 2G spectrum on first cum first served basis on ground that allocation or disposal of natural resources to be done by auction.[18]

In Natural resource allocation, Re: Special reference No.1 of 2012, Though reasonableness and rationality must be observed in distribution of natural resources but clarified that auction is not the only mode of disposal.[19]

In Maneka Gandhi, Article 14 requires the observance of principles of natural justice, including requirement of reasoned decisions.[20]

But it is not very clear that whether a law would violate article 14 if it expressly excludes the application of principles of natural justice?

In charan lal singh v. UOI, The supreme court upheld the Bhopal gas disaster act, 1985 which gave the exclusive right to Gov. of India to enforce the claims of victims of disaster and under which a settlement was reached in supreme court between Union of India and culprits of disaster without hearing or consulting the victims of disaster.[21]

Substantive equality:

In Navtej Johar v Union of India,[22]
Chandrachud J. noted that:
Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

Malhotra J. observed:
Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.

In Joseph Shine v Union of India,[23]

Chandrachud J. observed that:
Justness postulates equality. In consonance with constitutional morality, substantive equality is directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.

To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals.

In State of West Bengal v Anwar Ali Sarkar, [1952] SCR 284,

Justice Vivian Bose observed:
What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be.

Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it.

In Deepak Sibal v Punjab University,[24]; Subramaniam Swamy v Union of India,[25]

In addition to intelligible differentia and rational nexus, Article 14 also requires the existence of a legitimate purpose

In Shayara Bano v Union of India, [26]
manifest arbitrariness is a ground for striking down legislation under Article 14 of the Constitution (Manifest arbitrariness is defined as something done capriciously, irrationally and/or without adequate determining principle.

In Ahmedabad St Xavier’s College v State of Gujarat[27], this Hon’ble Court explained the concept of unconstitutional conditions as follows:
The doctrine of unconstitutional condition means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the Petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right to talk politics.

The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution... though the state may have privileges within its control which it may withhold, it cannot use a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.

In the words of the scholar Etienne Mureinik:

The Constitution must lead to a culture of justification-a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.

  4. Thomas J, in Indra Sawhney v UOI, AIR 1993 SC477
  5. Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34
  6. (1974) 4SCC 3.
  7. (1981) 1 SCC 722
  8. Salmond, Jurisprudence IInd edition
  9. Gauri Shankar v UOI, AIR 1995 SC55
  10. Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 873, : (1981), 2 SCC 600, Test for valid classification restated. State of Haryana v Jai Singh , (2003) 9 SCC 114 : AIR 2003 SC 1696
  11. People’s Union for civil liberties v UOI, (2004) 2 SCC 476 : AIR 2004 SC 1442
  12. State of Gujarat v Ambica Mills, AIR 1974 SC 1300
  13. Directorate of Film Festivals v Gaurav Ashwin Jain, (2007) 4 SCC 737
  14. AIR 1958 SC 538
  15. (2008) 5 SCC 1
  16. This argument was also taken in Venugopal case above
  17. (1979) 1 SCC 380 : AIR 1979 SC 478
  18. (2012) 3 SCC 1: AIR 2012 SC 3725
  19. (2012) 10 SCC 1
  20. (1978) 1 SCC 248: AIR 1978 SC 597
  21. (1990) 1 SCC 613 : AIR 1990 SC 1480
  22. (2018) 10 SCC 1
  23. (2019) 3 SCC 39
  24. (1989) 2 SCC 145
  25. (2014) 8 SCC 682
  26. (2017) 9 SCC 1
  27. (1974) 1 SCC 717

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