Right to Equality (Article 14-18)
The constitution classifies the Fundamental Rights into following six categories:-
(1) Right to Equality (Article 14-18)
(2) Right to Freedom (Article 19-22)
(3) Right against Exploitation (Article 23-24)
(4) Right to Freedom of Religion (Article 25-28)
(5) Cultural and Educational Rights (Article 29 and 30)
(6) Right to constitutional Remedies (Article 32)
In this section the first set of Fundamental Rights i.e. Right to Equality would be covered
Right to Equality (Article 14 to 18)
It is the core article under Right to Equality. It deals with two kinds of rights. It states that the State shall not deny to any person
(a) Right to equality before the law.
(b) Right to Equal Protection before the law.
(A) Right to Equality before the law
It is a negative concept because it means that no man is above the law or in other words all individuals are subject to the Law of the land. Rule of law means the absolute supremacy of ordinary law of land as opposed to the influence of arbitrary power of the ruler.
The three principles which govern the Rule of law are:
(I) No man shall be punished either in body or goods (material) except for the violation of law in force. Further, the violation of law shall be established in an ordinary court of land in an ordinary legal manner.
(II) All individuals irrespective of their social or economic understanding are subject to ordinary law of land. Further, all the individuals are subject to the jurisdiction of the court. I.e. all individuals can be sued before the court. A person can appear before the court in form of attorney or himself.
(III) The constitution is the result of ordinary Law of land.
However the third rule had been modified in its application under the Indian constitution where the third law reads as the Constitution is Supreme law of Land and all laws passed by the legislature shall conform to it to be legally valid.
Significance of Rule of law
(i) It is the adoption of rule of law that has changed the constitution from Rex Lex (king is law) to Lex Rex (Law is king)
(ii) The rule of law is essential to maintain an individual’s liberty. Therefore Rule of law is an essential feature of democracy.
Protection of Rule of Law
The constitution under article 32 and 226 confers the power on Supreme Court and the High Court’s respectively to safeguard the Rule of law by exercising the writ jurisdictions. Further the constitution emphasizes that the Rule of Law is an immutable Principle of Governance of the Country.
In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that the Rule of Law is a part of basic structure of the constitution and cannot be destroyed.
Exceptions to the Rule of Law
(1) Article 361- The President or the Governor of State is not answerable to a court of law with regard to exercise of its executive functions.
(2) No criminal proceedings whatsoever can be instituted against the President and Governor of State during his/her term of office. He should be first remove impeached to continue the proceedings against him.
(3) No civil proceedings in which relief is claimed can be instituted against the President or the Governor of State in a court, except of the expiry under a 2 month notice served on the President and Governor.
(4) According to the International Laws- The visiting subject to the jurisdiction of local court.
(B) Equiprotection before Law
(1) It originated as a concept in USA.
(2) It is a positive concept.
(3) It means equality of treatment in equal circumstances. Among equals the law shall be equal and equally administered. “The like should be treated alike”. All the persons placed in equal circumstances shall be treated similarly. Therefore, it ensures equality among equals. It does not mean inequality among equals.
(4) It allows State to classify individuals on a reasonable basis into similar groups. Once such a classification is made, the law shall apply equally among all the people within a group. Then no person within a group shall be treated differently. However, the State is free to discriminate people between the groups.
(5) The concept of equal protection before law is also called “Positive Discrimination” on the Part of the State and the policy of reservation is legally justified under it.
(6) This concept is based on the Aristotelian Principle that ‘Equality can exist only among the equals and equality cannot exist among unequals.
Thus the Legislative may:
(i) Exempt certain classes of property from taxation such as charities, libraries etc.
(ii) Impose different specific takes upon different trades and professions.
(iii)Tax income and property of individuals in different manner etc.
Article 15: Right against Discrimination
This right is available only to citizens. Article 15(1) states that the State shall not discriminate its citizen on grounds of religion, race, caste, sex, place of birth or any of them.
It means that on other grounds citizens can be discriminated e.g. state domicile. It also means that these cannot be the sole ground of discrimination. There can be additional grounds e.g. preference of men in Armed Forces and females are preferred to be recruited as nurses or in departments like Gynecology in Medical Colleges.
The crucial word in Article 15(1) is ‘only’ which means that race, religion, caste; sex or place of birth cannot be the sole ground for discrimination. If there is any other valid ground on which discrimination can be shown then Article 15(1) does not prohibit race, religion, caste etc. being additional ground for discrimination.
It states that no citizen shall be denied:
(a) Access to public places such as Shops, Public Restaurants, Hotels and places of public entertainment.
(b) The use of wells, tanks, bathing Ghats, roads or places of public resort.
It applies to both to the State as well as individual. It prohibits both the State and individuals from practicing discrimination. Therefore it also helps in eradication of untouchability.
It confers the power on State to make special provisions for welfare of women and children since they are the most vulnerable section of society.
For example 33% of seats in Panchyats Posts are reserved for women.
It was introduced by the constitution (1st constitution Amendment) Act, 1951. It empowers the State to provide by law Special provisions for advancement of socially and educationally backward classes of citizens including Schedule Castes, Schedule Tribes and Backward Classes.
It was introduced by the constitution (93rd constitution Amendment) Act, 2005. It confers the power on State to make laws for advancement of any socially and educationally backward classes for admissions into educational institutions including private educational institutions referred to Article 30(1).
Article 16 (Right to Equality of Opportunity)
This right is available only to citizens. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
No citizen shall be discriminated in respect of public employment by State only on the basis of religion, race, caste, sex, descent, place of birth and residence or any of them.
It authorizes the Parliament to provide special favors in case of certain classes of public.
Example: The Mizo Accord (1985) grants special privilege to Mizo people.
Even if certain reservations are made by the State, the relevant law shall be passed by Parliament. Any such reservation provided cannot be valid permanently; they can be valid only for a particular period.
It empowers the State to provide by law reserving seats in public employment in favor of socially and economically backward classes of citizens if in the opinion of the State, the said class of citizens are not adequately represented in public employment.
It is an enabling clause as it confers the power on State to provide for reservation in favor of backward classes.
Article 16(4) does not confer a Fundamental Right on the backward classes to get seat reserved in Public employment. Therefore, if the State fails to provide reservation for backward classes, they do not enjoy legal remedy before the court of Law.
The Supreme Court in Indira Sawhney Vs Union of India 1992 (Mandal Case) upheld the validity of the reservation of 27% of seats in Public employment in favor of the OBCs.
The Supreme Court held that under Article 16(4) the State can provide reservation only at the entry level (at the time of recruitment). The reservation provided in favor of Schedule Castes and Schedule Tribes in the promotion is unconstitutional and void. The Supreme Court also laid down 5 constitutional requirements which are to be satisfied by reservation policy in order to be legally valid. These are as:
(1) Reservation shall be based only on social and educational backwardness.
(2) The said classes of citizens are not adequately represented in public employment.
(3) The concept of “creamy layer” shall be applicable in the case of OBCs under which the socially and educationally uplifted sections of OBCs shall be removed from the benefit of reservation.
(4) The overall reservation in favor of OBCs ordinarily should not exceed 50%.
(5) The efficiency in the administration should be given due consideration while implementing reservation.
Article 16 (4 B)
It was introduced by the 81st Amendment Act, 2001. It provides that the carry forward Rule in favor of Schedule Castes and Schedule Tribes shall be valid even if the overall reservation for the backward classes exceeds 50%.
It is the third exception to the general rule laid down in Article 16(1) and 16(2) which forbid discrimination in public employment on the ground of religion.
It says that a law which provides that a person holding an office in connection with the affairs of a religious or denominational institutions etc., shall be a person professing the same religion or belonging to a particular denomination shall not be treated to be repugnant to this Article.
Article 17 (Abolition of Untouchability)
It abolishes Untouchability and forbids its practice in any form. If it is so practiced it shall be dealt with as an offence punishable in accordance with the law.
Article 35 confers power to the Parliament to enact the laws for abolition of Untouchability. The Parliament has enacted the untouchability (offence) Act. The act prescribes punishment for the practice of untouchability. This act has been amended by the Untouchability (offences) Amendment Act, 1976 in order to make laws more stringent to remove untouchability from the society.
Further the name of the original act has been changed to Civil Rights (Protection) Act. Article 15(2) also helps in eradication of untouchability. The Constitution, nowhere defines “What is Untouchability”, nor do any Acts passed by the Parliament. However, the judiciary has held that untouchability means any social practice among the Hindus which looks down upon a certain class.
Article 18 (Abolition of Titles)
The State shall not confer any title on anybody whether a citizen or a non-citizen except the recognition of academic and military distinctions. Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded as titles in terms of Article 18(1) of the constitution. The Supreme Court in Balaji Raghavan Vs Union of India 1996 case stated that these are meritorious awards based on excellence in the respective fields. The theory of equality does not mean that the State should not recognize the excellence.
It states that no citizen shall receive any title from a foreign State. For example Sunil Gavaskar was invited to get Knighthood but he was not allowed.
It prohibits a foreigner who is in the service of the government of India or that of a State, from accepting any title from any foreign State without the consent of the President.
No person holding any office of profit or trust under the State shall without the consent of the President, accept any present, emolument or office of any kind from or under any foreign State.
The following two points must be considered:
(1) There is no penalty prescribed for the infringement of the above prohibition.
(2) Article 18 is merely a directory. It is open to Parliament to make a law for dealing with such persons who accepts a little in violation of the prohibition prescribed in Article 18.