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constitutional_law:part-1:right-to-equality

Right to Equality

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Art 14 of the Constitution guarantee the right to equality as enshrined in the Preamble. It prohibits unreasonable discrimination between individuals.

The concept ‘Equality before Law’ originated in USA is a negative concept it implies absence of special privileges on the other hand ‘Equal Protection of Law’ originated in UK, is a positive concept and aims at equality of treatment in equal circumstances.

Dicey’s Rule of Law

The rule of law (also known as nomocracy) is the legal principle that law should govern a nation, and not arbitrary decisions by individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials. The phrase can be traced back to the 16th century, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.

Three Principles of Rule of Law are

  • Supremacy of Law or absence of arbitrary powers
  • Equality before Law
  • Predominance of Legal Spirit or absence of individual liberty

Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law (which is not necessary by definition but which is typical). Lack of the rule of law can be found in democracies and dictatorships, and can happen because of neglect or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse, such as an independent judiciary with a rule-of-law culture, a practical right to petition for redress of grievances, or elections.

Rule of Law in United States

All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.

At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the “rule of law,” and if so, which one. For example, Law Professor John Harrison asserts that the word “law” in the Constitution is simply defined as that which is legally binding, rather than being “defined by formal or substantive criteria,” and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.

Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Professor Brian Tamanaha asserts: “The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries.”

Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.” That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed “you must have administration, and you must have administration by administrative officers.” By 1941, a compromise had emerged. If administrators adopted procedures that more-or-less tracked “the ordinary legal manner” of the courts, further review of the facts by “the ordinary Courts of the land” was unnecessary. That is, if you had your “day in commission,” the rule of law did not require a further “day in court.” Thus Dicey's rule of law was recast into a purely procedural form.

James Wilson said during the Philadelphia Convention in 1787 that, “Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” George Mason agreed that judges “could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course.” Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: “When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law.”

Criticism of Dicey’s Rule of Law

Many commentators criticise Dicey's views on discretionary powers. He did not anticipate the increased need for discretionary powers in the modern State and the need for legal control of such powers.

Dicey seems to have been primarily concerned with the State's functions in maintaining law and order and levying taxation. Dicey's opposition to discretionary power has been characterised as being driven by his opposition to government intervention. Although it is a fact of history that there has been a huge extension in State services and powers for example, modern government is involved in wide aspects of daily life including detailed regulations of industry and provision of welfare.

Discretion is now seen as necessary for the decision making required in an increasingly complex society. More recently, therefore, the rule of law has been reconciled to discretionary power. However, discretion should still be constrained by values of the rule of law, such as fairness, impartially and equality.

Dicey's explanation of legal certainty provides insufficient protection for individual rights and freedoms because it is more concerned with due process than the content of laws.

Dicey's rule of law provides no criterion for deciding whether a statute excessively restricts civil liberties. Theoretically, Dicey's definition of rule of law would allow an Act of Parliament to authorize torture so long as it was sufficiently precise in its terms.

The identical treatment in unequal circumstances would amount to inequality. So a reasonable classification is necessary. The Art 14 forbids class-legislation but does not forbid reasonable classification. The classification must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing a just and reasonable relation to the object sought to be achieved by the legislation. Article 14 is applicable where equals are treated differently without reasonable basis. But where equals and unequal are treated differently Art 14 is not applicable.

Class legislation makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.

Test of Reasonable Classification

Article 14 forbids class legislation it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific goals. However, the classification must not be arbitrary, artificial or evasive. It must be based upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification in order to be reasonable should fulfil following two conditions-

  1. The class must be founded on the intelligible differentia which distinguishes persons ot thing that are grouped together from the others left out.
  2. The differentia must have a relation to the object sought to be achieved by the act.

The differentia which the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be a nexus between the basis of classification and the object of the act. No contract can be made subject to colour of hair however age can be one of the distinction.

New concept of equality

In E.P. Royappa v. State of Tamil Nadu1) Supreme Court replaced the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. The Honourable Judges who gave the decision were of the opinion that “Equality is a dynamic concept with many aspects and dimensions and it cannot be cabined or confined within traditional limits”.

Case Laws

Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar

In this case2) the court held:

  • A law many be constitutional even though it may relate to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by itself.
  • There is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.
  • The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
  • It must be assumed that Legislature correctly understand and appreciates the need of its own people that its law are directed to problem made manifest by experience and that its discrimination are based on adequate grounds.
  • In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.
  • The legislation is free to recognize degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.
  • 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 be reasonable be regarded as based, the presumption of constitutionality cannot be carried to extent always that there must be some undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile or discriminating legislation.
  • The classification may be made on different bases eg geographical or according to object or occupation or the like.
  • The classification made by the legislature need not be scientifically perfect or logically complete, Mathematical nicety and perfect equality are not required. Equality before law does not mean identical treatment. Similarly not identity of treatment is enough.
  • There can be discrimination both in the substantive as well as the procedural law. Art 14 applies to both. If classification satisfies the test laid down in the above propositions, the law will be declared constitutional. The question whether a classification is reasonable and proper and not must however be judged more on commonsense than on legal subtitles.

Ameerunnisa Begum v Mehboob Begum

Dispute since 1938, A nobleman of Hyderabad died in 1936 when it was under the rule of the Nizam, and disputes as to succession arose between his legally married wife and two ladies, Mahboob Begum and Kadiran Begum, who claimed to be his wives. An enactment called the Waliuddowla Succession Act, 1950, was therefore passed by Hyderabad Legislature which provided that “the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab are hereby dismissed” and that the above decision “cannot be called in question in any court of law.

Held - that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community, in Courts of law, the Act was discriminatory ; that there was no rational or reasonable basis for the discrimination, and the Act contravened the provisions of article 14 of the Constitution and was therefore void. The analogy of private Acts of the British Parliament is not helpful as the British Parliament enjoys legislative omnipotence and there are no constitutional limitations on its authority or power.3)

Maneka Gandhi v Union of India

Held Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Art 14 like a brooding omnipresence. Intelligible – capable of being understood, capable of being apprehended by the intellect alone. Differentia – an attribute that distinguishes a species or thing frpm other species of same genus.4)

Air India v Negesh Meeraza

Air India Employee Service Regulations, Regulations 46 & 47 Indian Airlines Service Regulation 12

  • Validity of different Conditions of service of Air Hostess employed by AI in India and UK was challenged.
  • Retirement of Air Hostess in the event of marriage taking place within 4 years of service -whether unreasonable or arbitrary
  • Retirement of Air Hostess or on first pregnancy whichever occurs earlier – whether unconstitutional
  • Retirement age of Air Hostess at 45 instead of 58 – whether invalid
  • Air Hostess extension of service option conferred on MD- whether delegation of power

Ajay Hasia v Khald Mujib

Jammu & Kashmir Regional Engineering College, Srinagar registered as a Society under the J&K Registration Act, 1898 – whether a State under Art 12

  1. The viva voce test – interview of each candidate lasting 2-3 minutes asking formal questions relating to the candidates percentage and residence and without any relevance to marks.
  2. 1/3rd of marks required for qualifying examination for viva voce.- whether bad, unreasonable and arbitrary.
  3. Whether prescribing different administrative procedure for candidates belonging to J&K and candidates belonging to other State is violative of Article 14.

Justice PN Bhagwati observed that Art 14 forbids Classification and there would be no discrimination where classification making the differentia fulfils two conditions viz.

  1. Classification is founded on intelligible differentia
  2. differentia has a rational relation to the object sought to be achieved by the impugned legislation or executive action.

D.S. Nakara v. Union of India

The Government issued an office memorandum announcing a liberalized pension scheme for retired government servants but made it applicable to those who had retired after 31 March 1979. The supreme  court held that the fixing of the cut off date to be discriminatory as violating Article 14. The division of pensioners into two classes on the basis of the date of retirement was not based on any rational principle because a difference of two days in the matter of retirement could have a traumatic effect on the pensioner. Such a classification held to be arbitrary and unprincipled as there was no acceptable or persuasive reason in its favour. The said classification had no rational nexus with the object sought to achieve.5)

Madhu Limaye v. Supdt. Tihar Jail Delhi

There were Indian and European Prisoners. Both were treated differently. European gets better diet. Court held that difference between Indian and European prisoners in the matter of treatment and diet violates right to equality under Article 14 of Indian prisoners. They all are prisoners they must treat equally.6)

Sanaboina Satyanarayan v. Govt. of A.P

In Andra Pradesh. They formulate a scheme for prevention of crime against women. In prisons also prisoners were classify in to two category first Prisoners guilty of crime against women and second prisoners who are not guilty of crime against women. Prisoners who are guilty of crime against women challenge the court saying that there right to equality is deprived. Court held that there is reasonable classification to achieve some objective.7)

Tamil Nadu  Electricity Board v R. Veeraswamy

The employee were governed by the contributory provident fund scheme. With effect from 1-7-1986 a scheme was introduced. The question was whether the pension scheme ought to be applied to those who had already retired before the introduction of the pension scheme the supreme court rejected the claim. As per the rules prevalent at the time the retirees had received all their retiral benefits. If the pension scheme was made applicable to all past retirees, the resulting financial burden would be Rs200 crore which would be beyond the capacity of employer. The reason given for introducing the scheme was financial constraint- a valid ground. The court held that retired employees and those who were in employment on 1-7-1986 can’t be treated alike as they do not belong to one class. Te workmen who had retired and received all the benefits under the contributory provident fund scheme cease to be employees of the appellant  board w.e.f. the date of their retirement. They form a separate  class. Thus there was no illegality in introducing the pension scheme and not making it applicable retrospectively to those who had retired before the date.8)

Conclusion

What Article 14 forbids is discrimination by law that is treating persons similarly circumstanced differently and treating those not similarly circumstanced in the same way or as has been pithily put treating equals as unequal and unequal as equals. Article14 prohibits hostile classification by law and is directed against discriminatory class legislation.

A legislature for the purpose of dealing with the complex problem that arise out of an infinite variety of human relations cannot but proceed on some sort of selection or classification of persons upon whom the legislation is to operate.

It is well settled that Article 14 forbid classification for the purpose of legislation. It is equally well settled that in order to meet the test of Article 14

  1. classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of group and
  2. the differentia must have a rational nexus to the objects sought to be achieved by the executive or legislative action under challenge. Article 14 contains a guarantee of equality before law to all persons and protection to them against discrimination by law. It forbids class legislation.
1)
AIR 1974 SC 555
2)
AIR 1958
3)
AIR 1953 SC 91
4)
AIR 1978 SC
5)
AIR 1983 SC 130
6)
AIR 1975 SC 1505
7)
dt of judgment 29.7.2003
8)
dt of judgment 26.3.1999