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INTRODUCTION
The makers of India’s Cons�tu�on were not sa�sfied with that kind of understanding of the right to equality. They knew that even though inequality in Indian society has been no�ced and a�acked ever since Buddha’s �me and has been Central to the social reforms from �me to �me, widespread social and economic inequali�es, o�en sanc�oned by law or public policies and exercise of public power, supported by religion and other social norms and prac�ces existed and flourished such inequali�es could not be removed minimised or dealt with by a provision like Ar�cle 14 alone. Even if they could be dealt with, it would have been a very slow process. Therefore, they expressly abolished and prohibited some of the exis�ng inequali�es prac�sed not only by public power or State but even by private persons, and expressly authorised the State to take necessary steps to remove them. Ar�cle 15 to 18 clearly express such inten�on of Cons�tu�on makers. Thus, the right to equality in the Cons�tu�on of India is not merely a nega�ve right not to be discriminated against, but also a posi�ve right to be treated as an equal. Under the later aspect of the right, which is the essence of the core of right to equality, the State is under an obliga�on to take necessary steps so that every individual receives equal respect and concern which he is en�tled to as a human being. Ar�cle 14, though much wider and general than Ar�cle 15 to 18 in its scope, it must be read in conjunc�on with Ar�cle 15 to 18 and should not either permit anything prohibited or prohibit anything permi�ed by the la�er.
Ar�cle 14 guarantees to every person, including non-ci�zens and transgender , the right to equality before law or the equal protec�on of laws. The first expression equality before the law, which is said to have taken from the English common-law, is declara�on of equality of all person in the eyes of law, implying absence of any special privilege in any individual. Every person, whatever his rank or posi�on, is subject to the jurisdic�on of the ordinary courts. Explaining the concept of legal equality as it operated in England, Dicey said, “With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal jus�fica�on as any other ci�zen. The second expression, “the equal protec�on of the laws”, which is rather a corollary Of the first and is based on the last clause of the first sec�on of 14th Amendment to the US Cons�tu�on, directs that equal protec�on shall be secured to all persons within the territorial jurisdic�on of the Union in the enjoyment of their rights and privileges without favour or discrimina�on. It has been said that “the equal protec�on of laws” is a pledge of protec�on or guarantees of equal laws. The two
expression are simultaneously used in Ar�cle 7 of Universal Declara�on of Human Rights, 1948 which may have influenced the formula�on of Ar�cle 14. The underlying purpose of the two expression is to give as wide amplitude to Ar�cle 14 as possible.
The obliga�on imposed on the State by Ar�cle 14 is for the benefit of all persons, within the territory of India. The benefit of Ar�cle 14 is, therefore, not limited to ci�zens. Every person whether natural or ar�ficial, whether he is ci�zen or an alien, is en�tled to the protec�on of this Ar�cle.
In Na�onal Legal Services Authority V/s Union of India (2014) , it was observed that the meaning of the term 'person' within Ar�cle 14, is gender neutral and also covers transgenders who are neither male nor female. They are en�tled to legal protec�on of laws in all spheres of State ac�vity, including employment, healthcare, educa�on as well as equal civil and ci�zenship rights, as enjoyed by any other ci�zen of India.
Ar�cle 14 uses the two expressions to make the concept of equal treatment a binding principle of State ac�on. For long the nature and the extent of the guarantee has been understood to be the same under both the expressions. In the case State of West Bengal V/s Anwar Ali Sarkar(1952) , Patanjali Sastri CJ observed that the second expression was a corollary of the first. Indeed, it will be difficult to imagine any viola�on of "the equal protec�on of the laws", which would not be a viola�on of "equality before the law". However, the court has also observed that even if there is much in common between the two expressions in Ar�cle 14, they do not mean the same thing. "The word 'law' in the former expression is used in generic sense - a philosophical sense — whereas the word 'laws' in the la�er expression denotes specific laws ". It has not explained this statement any further, but it means that equality for all is the law or standard norm of the land. As we will also no�ce below under the head "Expanding Horizons of Equality", some of the judges have been poin�ng out from the very beginning that equality is a dynamic concept which goes on changing with changing �mes and social contexts and must be understood in that sense.
In Stephens College V/s University of Delhi , the Honourable Court held that the expression “equal protec�on of laws is now being read as a posi�ve obliga�on on the state to ensure equal protec�on of laws by bringing in necessary social and economic changes so that everyone may enjoy equal protec�on of laws and nobody is denied such protec�on. If the state leaves the exis�ng inequali�es untouched by its laws, It fails in its
shareholders. The Court observed that the law would be cons�tu�onal, even if it applied to one person or one class of persons, if there was sufficient basis or reason for it.
Equal Protec�on of Law
Equal protec�on of law means that law provides equal opportuni�es to all those who are in similar circumstances or situa�ons. This concept is slightly posi�ve in connota�on.
Both Equality before law and Equal protec�on of law aim to establish the “Equality of Status and Opportunity” as embodied in the Preamble of the Cons�tu�on. Further, because all persons are not, by nature, a�ainment or circumstances in the same posi�ons; ar�cle 14provides that state can treat different persons in differently if circumstances jus�fy such treatment. This is called Doctrine of Reasonable classifica�on and it says that protec�ve discrimina�on is also a facet of equality.
Tests for Reasonable Classifica�on
Ar�cle 14 in its ambit and sweep involves two facets, viz, it permits reasonable classifica�on is founded on intelligible differen�a and accommodates the prac�cal needs of the society and the differen�al must have a ra�onal rela�on to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is the 'fonjuris' of our Cons�tu�on, the fountainhead of jus�ce." Differen�al treatment does not per se amount to viola�on of Ar�cle 14 of the Cons�tu�on and it violates Ar�cle 14 only when there is no reasonable basis and there are several tests to decide whether a classifica�on is reasonable or not and one of the test will be as to whether it is conducive to the func�oning of modern society.
Classifica�on having regard to microscopic differences is not good. To borrow from the judgement in Roop Chand Adlakha V/s Delhi Development Authority(1989) : "To overdo classifica�on is to undo equality". In order to pass the test of permissible classifica�on, it was reiterated, two condi�ons must be fulfilled, namely,
- Ineligible Differen�a: The classifica�on must be founded on an intelligible differen�a which dis�nguishes those that are grouped together from other, and
- Ra�onal Rela�on: That differen�a must have a ra�onal rela�on to the object sought to be achieved by the Act.
Where the law is challenged as offending against the guarantee in Art 14, the first duty of the court is to examine the purpose and policy of the Act and then to discover whether the classifica�on made by the law has a reasonable rela�on to the object which the Legislature seeks to obtain. The object of the Act is to found in its Title, Preamble and Provisions.
It is not possible to exhaust the circumstances or criteria which may accord a reasonable basis for classifica�on in all cases. It depends on the object of the legislature. In order to be ‘Reasonable’, a classifica�on must not be arbitrary but must be ra�onal`.
The Supreme Court in the case, LIC of India V/s Consumer Educa�on and Research Centre , has however warned against over-emphasis on classifica�on. The Court has explained that 'the doctrine of classifica�on is only a subsidiary rule evolved by the courts to give prac�cal content to the doctrine of equality, over-emphasis on the doctrine of classifica�on or anxious or sustained a�empt to discover some basis for classifica�on may gradually and impercep�bly erode the profound potency of the glorious content of equity enshrined in Ar�cle 14 of the Cons�tu�on. The over-emphasis on classifica�on would inevitably result in subs�tu�on of the doctrine of classifica�on for the doctrine of equality... Lest, the classifica�on would deny equality to the larger segments of the society'.
Principles for determining Reasonableness of Classifica�on
These principles were laid down in R.K. Dalmia v. Jus�ce Tendulkar, s�ll hold valid ground, which are follows -
(a) A law may be cons�tu�onal even though it relates to a single individual, if, on account of some special circumstances or reasons, applicable to him and not applicable to other, that single individual may be treated as a class by himself.'
For instance, Indian Military Nursing Service is a dis�nct separate class by itself, though a part of Indian Army, prescrip�on of dress code for the Nurses, has been held as not viola�ve of Ar�cle 14.
(b) There is always a presump�on in favour of the cons�tu�onality of an enactment and the burden is upon him, who a�acks it, to show that there has been a clear transgression of the cons�tu�onal principles.' It is an accepted doctrine of American Courts.
interest of the safety and security of the state. In fact, iden�cal amount to unequal circumstances would amount to inequality. Thus, a reasonable classifica�on is permi�ed for the develop society.
Ar�cle forbids class-legisla�on but it does not forbids reasonable classifica�on. The classifica�on, however, must not be "Arbitrary, ar�ficial or evasive" but must be based on some real and substan�al Dis�nc�on bearing a just and reasonable rela�on to the object sought be achieved by the legisla�on. Ar�cle 14 is implied where equal are treated differently without any reasonable Basis.But where equals and unequal are treated differently, ar�cle 14 does not apply class legisla�on is that which makes an improper discrimina�on by conferring par�cular privileges upon a class of persons arbitrarily selected from a large number of persons.
In Deepak Sibal V/s Punjab University , the Supreme Court has pointed out that a classifica�on need not be made with mathema�cal precision. But, if there is li�le or no difference between the persons or things which have been grouped together and was le� out of the group then classifica�on cannot be regarded as reasonable. The court has also pointed out that to consider reasonable Ness of the classifica�on it is necessary to take into account the objec�ve of such classifica�on if the objec�ve be illogical, unfair and unjust, necessarily the classifica�on will have to be held as unreasonable.
A Dynamic Approach towards Ar�cle 14
The doctrine of reasonable classifica�on has been for long, the undisputed touchstone to determine the scope and content of Ar�cle 14. Over the years, Ar�cle 14 has received a liberal interpreta�on. Its scope has also been expanded by crea�ve interpreta�on of the Courts. The Supreme Court in E.P. Royappa V/s State of Tamil Nadu , however, has given a dynamic connota�on to the equalising principle, enunciated in the Ar�cle. The Supreme Court declared this equalising principle contained in Ar�cle 14 as a "'founding faith, a way of life" and for that reason it must not be subjected to "a narrow pedan�c or lexicographic approach." Bhagwa�, J. (as he then was) speaking for himself, Chandrachud and Krishna Iyer, J.J., propounded the new concept of equality from a posi�vis�c point of view and observed :
Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within tradi�onal and doctrinaire limits. From a posi�vis�c point of view, equality is an�the�c 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. Where an act is arbitrary, it is implicit in it that it is unequal both according to poli�cal logic and cons�tu�onal law and is therefore viola�ve of Ar�cle 14.
In Mohd. Shujat Ali V/s Union of India , the Supreme Court warned that the doctrine of classifica�on should not be carried to a point which instead of being useful servant, it became a dangerous master. The court observed : "Over emphasis on the doctrine of classifica�on or an anxious and sustained a�empt to discover some basis for classifica�on may gradually and impercep�bly derive the guarantee of equality of its spacious content."
In Ajay Hasia v. Khalid Mujib , the Supreme Court struck down as cons�tu�onally invalid, the alloca�on of as high a percentage as 33.3 of the total marks for the oral interview for admission to the Engineering College and declared it as “Infec�ng the admission procedure with the vice of arbitrariness". The Court firmly laid down that "what Ar�cle 14 strikes at is arbitrariness because an ac�on that is arbitrary must necessarily invole nega�on of equality". So ruled, the Court said that, not more than 15% of the total marks, should be allocated for the oral interview.
Instances of Classifica�on
Air India V/s Nargesh Meerza
In Arjun Singh v. Vice-chancellor, Jamia Millia Islamia ," the law students, governed by the Regula�on of the Bar Council of India, were required to secure 25 per cent minimum a�endance while students of other Facul�es governed by the University Regula�ons were exempted from the requirement of minimum a�endance. The Delhi High Court held that since the students of the Faculty of Law and the students of other facul�es were not similarly placed, there was no basis for the conten�on of the law students that they were subjected to hos�le discrimina�on and that their fundamental right guaranteed by Ar�cle 14 had been violated.
D.S. Nakara v. Union Of India
The Government issued an office memorandum announcing a liberalized pension scheme for re�red government servants but made it applicable to those who had re�red a�er 31 March 1979. The supreme court held that the fixing of the cut off date to be
of each case as also the provisions of a Statute or Statutory Rules. However, they are held to cons�tute "the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and jus�ce which is not the preserve of any par�cular race or country but is shared in common by all men. The first rule is that "no man shall be a judge in his own cause" and the second rule is "hear the other side".
Another salutary requirement of natural jus�ce is spelling out reasons for the order made. "Reason" is said to be the heart beat of every conclusion and without the same, it becomes lifeless. Therefore, where the High Court refused to grant leave to appeal against acqui�al by a non-speaking order, it would be improper as viola�ve of Ar�cle 14.
In Delhi Transport Corpora�on v. D.T.C. Mazdoor Congress , the Supreme Court held that Regula�on 9(b) of the Delhi Road. Transport Authority (Condi�on of Appointment and Service) Regula�ons,- 1952, which conferred power on the. Authority, to terminate the services of a permanent employee by issuing a no�ce without assigning any reason and without giving .him any opportunity of hearing, was wholly arbitrary, unjust, unfair and unreasonable, viola�ng principles of natural jus�ce as well as Ar�cle 14.
However, the rules of Natural Jus�ce are not embodied rules and undue reliance on these principles, may lead to miscarriage of jus�ce. There can be certain situa�ons in which an order passed in viola�on of natural jus�ce need not be set aside, e.g., where no prejudice is caused to the person concerned and if quashing of the order made in breach of natural jus�ce is likely to result in revival of another order which is in itself illegal. The Supreme Court in several cases has developed the principle that in addi�on to breach of natural jus�ce, prejudice must also be proved. Again, the principle of natural jus�ce, of giving opportunity of hearing, may be dispensed with on the ground of public policy and safety or in the interest of jus�ce. It may thus be said that the requirement of natural jus�ce must deperid on the facts and circumstances of the case.
In State of Haryana v. Ram Kumar Mann , the respondent's resigna�on from service was accepted for contes�ng elec�on to the Legisla�ve Assembly of the State. He having been defeated in the elec�on, sought reinstatement in service, on the ground that others, earlier had been so reinstated. Rejec�ng the claim of the respondent, the Supreme Court held that Ar�cle 14 would apply only when invidious discrimina�on was meted out to equals and similarly circumstanced without any ra�onal basis or rela�onship in that behalf. A wrong decision by the government, the Court ruled, did not give a right, to
enforce the wrong order and claim parity or equality. The wrong order, .the Court said, could not be the founda�on, for claiming equality, for enforcement of the same order.
In Aligarh Muslim University v. Mansoor Ali Khan , the respondent, a Laboratory Assistant, was deemed to have vacated his post, on the ground of overstaying of leave and unauthorised absence. The Court held that the absence of a no�ce to show cause did not make any difference, for the employee had already been told that his further overstay for con�nuing in the job with a foreign university was bound to be refused.
Right cannot be waived : A person cannot voluntarily get discrimina�on or waive his Fundamental Right against discrimina�on. This was observed in Basheshar Nath V/s IT Commissioner(1959).
MISTAKE NOT TO BE REPEATED
The guarantee of 'equality before law' is a posi�ve concept. It cannot be enforced by a person in nega�ve manner. Therefore, if an illegality or irregularity is commited by the state in favour of a person or a group of persons, others cannot claim that the same irregularity or illegality be also commi�ed in their favour on thee principle of equality before law. A wrong decision/order in favour of any par�cular person does not en�tle any other party to claim the benefits on the basis of such wrong decision. illegality cannot be a basis for equal treatment.
The principle of equality under Ar�cle 14, it has been ruled, does not apply when the order relied upon is unsustainable in law and is illegal. It is ruled that two wrongs do not make one right' and that an illegality cannot be allowed to be perpetuated under the so- called "equality doctrine". It is trite law that there is no equality in illegality.
BASIS OF CLASSIFICATION
It has been held that classifica�on to be reasonable must be founded on some intelligible differen�a which dis�nguishes persons or things that are grouped together from those le� out of the group. There may be different basis of classifica�on referable to different considera�ons in each case.
Geographical Basis
Ar�cle 14 does not require that uniform laws be enacted for the whole of the territory of India. A law may be applicable to one part of the territory of India and not to the other
Right to equality is a Fundamental Right. It can be enforced in High Court under Ar�cle 226 and in Supreme Court under Ar�cle 32.Fundamental Rights can be enforced only if the state violates it. Right to Equality is considered as basic feature of the Indian Cons�tu�on. Right to Equality under Art.14 is vested not only to ci�zens but to all persons. It includes equality before Law and Equal Protec�on of Law. No one is above the law of the land. Everyone is equal in the eyes of law. There should be no discrimina�on. Law must be equal and must be equally administered. So like must be treated alike and unlike. Equality before law is nega�ve concept and Equal protec�on of law is posi�ve concept. Reasonable Classifica�on is allowed in the administra�on of jus�ce. But it should have some rela�on to the object of the legislature.
In every society there are two classes namely upper class and lower class. The standard of living of the upper class is high but that of lower class is low. As a result it is the duty of the state to upli� the lower class in the society to bring Equality. Absolute equality is impossible but there should not be inequality. Discrimina�on on the basis of caste, sex, race, religion, language etc must be not there at all. A sense of equality must be there then and then only then will be unity in any state.
