RIGHT TO EQUALITY: NEW DIMENSION & NEW VERSION - PART ONE (CS SHUBHAM BUDHIRAJA)
RIGHT TO EQUALITY: NEW DIMENSION & NEW VERSION
(CS SHUBHAM BUDHIRAJA)
“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 & 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 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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