“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[1]
The word ‘Equality’ has been defined in the Black’s Law Dictionary[2] as the condition of possessing substantially the same rights, privileges and immunities, and being liable to substantially the same duties.
A.V. Dicey’s second principle of the Rule of Law concerns equality: ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’
The Objectives Resolution, as moved by Shri. Jawaharlal Nehru in the Constituent Assembly and subsequently adopted by it on 22 January 1947, in its fifth point, read thus: “WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality.”
Consequently, as regards equality, the Constitution of India guarantees equality before the law and equal protection of the laws within the territory of India to all persons, be it a citizen or a foreign national, under Article 14. In addition, it also guarantees to its citizens equality of status and of opportunity, and gives practical effect to the same through Articles 15 to 18.
INDIA’S EQUAL PROTECTION CLAUSE:
Article 14 of the Constitution of India combines the English doctrine of the Rule of Law with the equal protection clause of the 14th Amendment of the U.S. Constitution.[3] It reads thus: “Art. 14. Equality before law. – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The word ‘Person’ in Article 14 not only includes natural persons but also extends to legal persons such as Statutory Corporations, Companies, Registered Societies and so on. The right to equality guaranteed under this Article is available against the State, but it cannot be claimed against private individuals or private entities. It protects a person against a law, but not against any agreement or contract.[4]
EQUALITY BEFORE THE LAW:
In the words of Ivor Jennings, equality before the law means, “The right to sue and be sued, to prosecute and be prosecuted, for the same kind of action should be the same for all citizens of full age and understanding and without distinction of race, religion, wealth, social status, or political influence.”[5]
The expression ‘Equality before the law’ and ‘Equal protection of the laws’ do not mean the same thing, even if there may be much in common. The word ‘law’ in the former expression is used in a philosophical sense, whereas the word ‘laws’ in the latter expression denotes specific laws in force.[6] ‘Law’ in Article 14 is not confined to the law enacted by a legislature, but includes any order or notification. Thus, it protects a person not only against legislation but also against executive orders or notifications.[7]
Equality before the law does not mean an absolute equality of men, which is a physical impossibility, but the denial of any special privilege by reason of birth, creed or the like[8] in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law courts.[9]
Therefore, Article 14 guarantees only similarity of treatment and not identical treatment.[10] The question of discrimination will arise only as between persons who are similarly situated, if not identically situated.[11] The concept of equal treatment presupposes the existence of similar legal foothold and does not countenance repetition of a wrong action to bring forth wrongs on a par.[12]
It is important to note that the above-mentioned A.V. Dicey’s second principle of the Rule of Law is concerned primarily with equal access to the courts, and not with the nature of the rules which individuals find when they get there.[13] Furthermore, the said principle did not deal with the role of law in deciding whether different rules applicable to different groups were defensible on the ground that there was some rational justification for the difference in treatment.[14]
Where the State commits an illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof. Only a claim which is just and legal can constitute a ground of discrimination on the basis that it had been extended to some and denied to others.[15]
EQUAL PROTECTION OF THE LAWS:
‘Equal Protection of Laws’ means right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the laws.[16] Implicit in the concept of equality is the concept that the persons who are in fact unequally circumstanced, cannot be treated on a par.[17] The guarantee of equal protection applies against substantive as well as procedural laws.[18]
Learned author H.M. SEERVAI in his book ‘CONSTITUTIONAL LAW OF INDIA (Volume 1)’ elucidated: “What is meant by ‘the equal protection of laws’? If all men were created equal and remained equal throughout their lives, then the same laws would apply to all of them. But we know that men are unequal; consequently, a right conferred on persons that they shall not be denied ‘the equal protection of the laws’ cannot mean the protection of the same laws for all. It is here that the doctrine of classification steps in, and gives content and significance to the guarantee of the equal protection of the laws. According to that doctrine equal protection of the laws must mean the protection of equal laws for all persons similarly situated.”[19]
“To separate persons similarly situated from those who are not, we must discriminate, that is, ‘act on the basis of a difference between’ persons, or ‘observe distinctions carefully’ between the persons who are, and persons who are not, similarly situated.”[20]
“But as the distinction is to be made for the purpose of making a law, how must the distinction be related to the law? This is answered by the central test for a permissible classification:
Permissible classification must satisfy two conditions, namely, (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) the differentia must have a rational relation to the object sought to be achieved by the statute in question, with the qualification that the differentia and the object are different so that the object by itself cannot be the basis of the classification.”[21]
“A law based on a permissible classification fulfils the guarantee of the equal protection of the laws and is valid; a law based on an impermissible classification violates that guarantee and is void.”[22]
What Article 14 prohibits is ‘class legislation’ and not ‘classification for purpose of legislation’. The legislature can classify persons for legislative purposes so as to bring them under a well-defined class. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law would not become discriminatory though due to some fortuitous circumstances some included in a class get an advantage over others, but they should not be singled out for special treatment.[23]
Classification for the purpose of legislation cannot be done with mathematical precision. The legislature enjoys considerable latitude while exercising its wisdom taking into consideration myriad circumstances, enriched by its experience and strengthened by people’s will. So long as the classification can withstand the test of Article 14, it cannot be questioned why one subject was included and the other left out and why one was given more benefit than the other.[24]
EQUALITY AND THE STATE POWER:
The State has wide discretion in respect of classification of objects, persons and things for the purposes of taxation.[25] The Legislature can devise classes for the purpose of taxing or not taxing, exempting or not exempting, granting incentives and prescribing rate of tax, benefits or concessions.[26] Thus, the State may: (1) exempt certain classes of property from taxation at all, such as charities, libraries and the like; (2) impose different specific taxes upon different trades and professions; (3) tax real and personal property in different manner and so on.[27]
The guarantee of equal protection includes absence of any arbitrary discrimination by the laws themselves or in the matter of their administration. Thus, even where a statute itself is not discriminatory, but the public official entrusted with the duty of carrying it into operation applies it against an individual, not for the purpose of the Act but intentionally for the purpose of injuring him, the latter may have that executive act annulled by the court on the ground of contravention of the guarantee of equal protection. Of course, it is for the aggrieved individual to establish beyond doubt that the law was applied against him by the public authority with an evil eye and an unequal hand.[28]
The word ‘arbitrary’ is defined in the Shorter Oxford Dictionary (3rd ed.) as follows: “(2) Lawrelating to or dependent on the discretion of an arbiter, discretionary, not fixed.”
When a law based on impermissible classification is struck down for violating the equal protection of the laws, that does not involve a finding that the law is “arbitrary”. The question whether persons or things are classified on the basis of an intelligible differentia reasonably related to the object of the law, raises questions of fact, evaluation and law on which honest persons may differ in good faith. The reversal by an appellate court of a trial court’s judgement upholding a classification, and the reversal by the Supreme Court of the appellate court’s judgement shows that the highly trained and independent judges can, and do, hold different views as to whether a particular classification is permissible or not, and no question of upholding arbitrariness arises if different views are taken.[29]
Since the 14th Amendment of the U.S. Constitution prohibits the State from denying to any citizen the equal protection of the laws, the question arises: What is “State action?” Since a State can act only by its legislative, executive and judicial authorities, the equality clause means that no agency of the State or officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of laws. Whoever, by virtue of a public position under a State Government denies or takes away equal protection of the laws violates a constitutional prohibition because he acts in the name of and for the State, and is clothed with the State’s power. Therefore, his act is that of the State.[30]
The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled into act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.[31]
EXCEPTIONS TO EQUALITY BEFORE THE LAW:
The concept of equality before the law does not involve the idea of absolute equality amongst all. Certain exceptions to the general rule of equality before the law are acknowledged by every modern State. The exceptions founded on the comity of nations which would also be recognized by the Constitution of India through Article 51 are:
- Foreign sovereigns of independent countries, while entering into the territory of another State, reserve the immunities due to their sovereign statuses, and are exempt from the jurisdiction of the Courts of the foreign country[32], criminal or civil.[33] [See, further, under Entry 16, List I, 7th Schedule, COI.]
- Ambassadors [See under Entry 11, List I, 7th Schedule, COI.]
- Civil servants of the United Nations [See Entry 12, List I, 7th Schedule, COI.]
- Alien Enemies
The following exceptions to the equality before the law are on the grounds of public interest –
- Heads of the State [See, further, under Article 361, COI.]
- Judges [see Judicial Officers’ Protection Act, 1850]
- Members of Legislatures [See, further, under Article 105, COI]
- Trade Unions [see Trade Unions Act, 1926]
- Military Personnel [see under Article 33, COI]
SUMMING UP:
The true meaning and scope of Article 14 has been explained in several decisions of the Supreme Court of India which were referred to and their effects were summarised by Das C.J. in Dalmia’s Case[34]. The following propositions are established by Dalmia’s case:
- Article 14 condemns discrimination not only by substantive law but by a procedural law.
- Article 14 forbids class legislation but does not forbid classification.
- Permissible classification must satisfy two conditions, namely, (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (2) the differentia must have a rational relation to the object sought to be achieved by the statute in question.
- The differentia and object are different and it follows that the object by itself cannot be the basis of the classification.
- In permissible classification mathematical nicety and perfect equality are not required. Similarity, not identity of treatment is not enough.
- The classification may be found on different bases, namely, geographical or according to objects or occupations or the like.
- If a law deals equally with members of a well-defined class, it is not open to the charge of denial or equal protection on the ground that the law has no application to other persons.
- It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
- While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatory legislation. The principle must be borne in mind in deciding whether a law violate Article 14.
[1] Article 1 of the Universal Declaration of Human Rights. Proclaimed by the United Nations General Assembly (UNGA) in Paris on 10 December 1948 (General Assembly Resolution 217 A).
[2] Henry Campbell Black, Black’s Law Dictionary, 5th edition, p.481.
[3] Per Das C.J. in Basheshar Nath v. C.I.T. Delhi and Rajasthan (1959)Supp. 1 S.C.R. 528, 551, (’59).
[4] Shantabai v. Bombay (1959) S.C.R. 265, (’58) A. SC. 532.
[5] Ivor Jennings, Law of the Constitution, 5th Edition, p.50.
[6] Durga Das Basu, Commentary on the Constitution of India, volume 1, 8th edition, p.958
[7] W.B. v. Anwar Ali Sarkar (1952) S.C.R. 284, 294, (’52) A.SC. 75. Per Patanjali Sastri C.J.
[8] Art. 26 of the U.N. Covenant on Civil & Political Rights, 1966. See also State of Karnataka v. B. Suvarna Malini, AIR 2001 SC 606 : (2001) 1 SCC 728; Gajendra Singh v. State of Rajasthan, AIR 2001 Raj. 328; Durga Das Basu, Commentary on the Constitution of India, Volume 1, 8th edition, p.987.
[9] A.V. Dicey, Law of the Constitution, 1959, p.193. See also Durga Das Basu, Commentary on the Constitution of India, Volume 1, 8th edition, p.987.
[10] Ashuthosh Gupta v. State of Rajasthan, (2002) 4 SCC 34; Bhandara District Central Co-operative bank Ltd. V. State of Maharashtra, AIR 1993 SC 59 : 1993 (Supp-3) SCC 259; State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
[11] Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618. See also Pranab Kumar Roy v. RBI, AIR 1993 Cal 50.
[12] UOI v. International Trading Co, (2003) 5 SCC 437. See also Sanjay Kumar Manjul v. Chairman, UPSC, (2006) 8 SCC 42; Ekta Shakti Foundation v. Government of NCT of Delhi, AIR 2006 SC 2609.
[13] G. Marshall, Constitutional Theory (Clarendon, 1971), p 137. See also, https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm#note175
[14] See https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm#note175
[15] Gursharan Singh v. New Delhi Municipal Committee, AIR 1996 SC 1175 : (1996) 2 SCC 459.
[16] State of West Bengal v. Anwar Ali, (1952) SCR 289; Ramana v. IAAI, AIR 1979 SC 1628; John Vallamation v. UOI, AIR 2003 SC 2902.
[17] TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
[18] Lachmandas v. State of Bombay, (1952) SCR 710 (726).
[19] H.M. Seervai, Constitutional Law of India, (Volume 1), 4th edition, p.439.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] State of Andhra Pradesh v. Nallamilli Rami Reddi, (2001) 7 SCC 708. See also Dharam Dutt v. UOI, AIR 2004 SC 1295.
[24] Ombalika Das v. Hulisa Shaw, (2002) 4 SCC 539.
[25] State of Kerala v. Aravind Ramakant Modawdakar, (1999) 7 SCC 400, para 6.
[26] State of Uttar Pradesh v. Kamala Palace, AIR 2000 SC 617 : (2000) 1 SCC 557, para 12.
[27] Durga Das Basu, Introduction to the Constitution of India, 26th edition, p.103.
[28] Amita v. UOI, (2005) 13 SCC 721 : (2005) 7 JT SC 288 : (2005) 6 Scale 397. See also Durga Das Basu, Introduction to the Constitution of India, 26th edition, p.105.
[29] H.M. Seervai, Constitutional Law of India, (Volume 1), 4th edition, p.441.
[30] Id. at 450.
[31] Vide Cooley’s Constitutional Limitations, Vo. 1, p.379 : Per Mukherjea J. in K. C. Gajapati Narayan Deo v. Orissa, (1954) S.C.R. 1 at pp. 10-11.
[32] The Parlemente Belge, (1880) 55 P.D.197.
[33] Mighell v. Sultan of Johore, (1894) 1 QBD 149; Gaekwad of Baroda, (1912) Prob.92; De Haber v. Queen of Portugal, (1851) 17 QBD 196.
[34] (1959) S.C.R. 279, 296-8, (’58) A.SC. 538.
Author: Srishti Thapliyal
Juris Centre 