Fundamental Rights

Right to Equality

(Article 14)

Article 14 declares that “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 phrase “equality before the law” occurs in almost all written constitutions that guarantee fundamental rights. Equality before the law is an expression of English Common Law while “equal protection of the laws” owes its origin to the American Constitution. Both the phrases aim to establish what is called the “equality of status and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of law is a more positive concept implying equality of treatment under equal circumstances. Thus, Article 14 stands for the establishment of a situation under which there is a complete absence of any arbitrary discrimination by the laws themselves or in their administration.

Interpreting the scope of the Article, the Supreme Court of India has held that : (a) equal protection means equal protection under equal circumstances; (b) the State can make reasonable classification for purposes of legislation; (c) presumption of reason­ableness is in favour of the legislation; and (d) the burden of proof is on those who challenge the legislation. Explaining the scope of reasonable classification, the Court held that “even one corporation or a group of persons can be taken to be a class by itself for the purpose of legislation, provided there is sufficient basis or reason for it. The onus of proving that there were also other companies similarly situated and this company alone has been discriminated against, was on the petitioner”.

In its struggle for social and political freedom, mankind has always tried to move towards the ideal of equality for all. The urge for equality and liberty has been the motive of many revolutions. The Charter of the United Nations records the determination of the member nations to reaffirm their faith in the equal rights of men and women. Indeed, real and effective democracy cannot be achieved unless equality in all spheres is realised in full measure.

However, complete equality among men and women in all spheres of life is a distant ideal to be realised only by the march of humanity along the long and difficult path of economic, social and political progress. The constitution and the laws of country can at best assure to its citizens only a limited measure of equality. The framers of the Indian Constitution were fully conscious of this. That is why while they gave political and legal equality the status of a fundamental right, economic and social equality was largely left within the scope of Directive Principles of State Policy.

The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern state, the executive is armed with vast powers, in the matter of enforcing the laws, rules and regulations as well as in the performance of a number of other functions. The equality clause prevents such power from being exercised in the discriminatory manner. For example, the issue of licences regulating various traders and business activities cannot be left to the unqualified discretion of the licensing authority. The law regulating such activities should lay down the principles under which the licensing authority has to act in the grant of these licences.

Prohibition of
Discrimination on Certain Grounds (Article 15)

Not content with a mere general declaration of the right to equality and fully conscious of the types of discrimination prevalent in the country, the framers of the Constitution went a step further in Article 15, which is more illustrative in character than introducing anything substantially new. Yet, there is one striking feature in it which brings within its scope, although in a limited way, the actions of private individuals. According to the Article, “The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Further, on the basis of any of these grounds, a citizen cannot be denied “access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.”

Interpreting the scope of the Article, the Supreme Court has held out that “it is plain that the fundamental right conferred by Article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally”. In another decision, the Court rejected the plea that residence in the State was equivalent to place of birth and held that these are two distinct conceptions with different connotations both in law and in fact, and when Article 15(1) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence. Residence as a qualification for certain purposes such as employment may not be classed with discrimination based on caste and place of birth.

The significance of the Article is that it is a guarantee against every form of discrimination by the State on the basis of religion, race, caste or sex. It also strikes at the root of provincialism by prohibiting discrimination based upon one’s place of birth. It also goes well with the ideal of a single citizenship which the Constitution establishes for the entire country. By including within its scope certain discriminatory actions of private individuals, the Article anticipates Article 17 which abolishes untouchability and facilitates the removal of discriminatory practices indulged in by the higher castes against the lower castes and helps in a substantial measure the progress of social equality.

Article 15 has, however, two notable exceptions in its application. The first of these permits the State to make special provision for the benefit of women and children. The second allows the State to make any special provision for the  advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The special treatment meted out to women and children is in the larger and the long-range interest of the community itself. It also recognises the social customs and background of the country as a whole. The second exception was not in the original Constitution but was later on added to it as a result of the First Amendment of the Constitution in 1951.

Equality of Opportunity
in Matters of Public Employment (Article 16)

Article 16 guarantees equality of opportunity in matters of public employment. In the first part of the Article, the general rule is laid down that there shall be equal opportunity for all citizens, wherever they are living, in matters of employment under the State, thereby the universality of Indian citizenship is emphasised. In the next section, the general principle is explained in detail. According to this, the State is prohibited from showing any discrimination against any citizen on grounds of religion, caste, race, sex, descent, place of birth or residence.

The next clauses are in the nature of exceptions. According to the first, residence qualifications may be made necessary in the case of appointments under the State for particular positions. But instead of leaving it to individual States to make any rules they like in this regard, the power is vested in Parliament to prescribe the requirements as to residence within the State. This is intended to make the qualifying test uniform throughout India. The second exception is in favour of reservation of positions in public employment for any backward class of citizens. This is meant to help those who have had very little share so far in public employment. The determination of a backward community is a matter that is left to each State Government. The third exception seeks to take out of the scope of the general principle the management of the affairs of any religious or denominational institution under any special law providing for the same.

The Central Government has been taking several measures to translate the ideal embodied in Article 16 into practice. It convenes, on a regular basis, a conference of State Ministers of Backward Classes with a view to assessing the measures already taken and suggesting necessary modifications to existing practices in order to produce better results. It also advises the State Governments from time to time on specific actions, such as the deletion of references to caste from official records and application forms for admission to educational institutions and issuing warning against the practice of untouchability to all government servants, etc.

The States are also advised to adopt economic criteria for the determination of the backwardness of a particular
class. But the Governments in the States which are really concerned with the implementation of these proposals have yet to change their attitudes. Most of them are still so much influenced by caste and communal considerations that it seems unrealistic to expect much from them in the near future. Rapid industrialisation and the availability of plenty of new jobs along with simultaneous expansion of educational opportunities for the backward sections of the community as well as a change in the outlook and attitude of those classes and groups which held a traditional monopoly in public services, will gradually facilitate the realisation of the ultimate goal of equal opportunity in public services. 

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