Right to Equality

PART – III / ARTICLE 14 - 18

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 force of many
revolutions. The charter of the UnitedNations 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 realized
in a full measure. However, complete equality among men and women in all spheres of life
is an ideal; this goal is to be attained only by the march of humanity along the long and
difficult path of economic, social and political progress.

The Constitution and laws of a country can at best assure to its citizens only a limited measure of
equality. Therefore political and legal equality had been given the status of fundamental right in
the Indian constitution while, economic and social equality was largely left within the scope of
Directive Principles of State Policy. Realization of economic and social equality depends on
country’s socio-economic development.

The Right to Equality guarantees 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. The equality clause prevents such power being
exercised in a discriminatory and arbitrary manner. Keeping this vision in mind the framers of
the Indian constitution incorporated the right to equality in Article 14 -18 of part III of the
Constitution.
 Article 14(Equality before law) declares that "the State shall not deny to any person
equality before the law or equal protection of the laws within the territory of India". The phrase
"equality before the law" finds a place in almost all written constitutions that guarantee
fundamental rights. Equality before the law is an expression of English Common Law while
"equal protection of laws" owes its origin to the American Constitution. Both these expressions
have, however beenused in the Universal Declaration of Human Rights.

Equality before law: The concept of equality does not mean absolute equality among human
beings whichphysically not possible to achieve. It is the concept implying absence of any special
privilege by reason of birth, creed or the like of any individual, and also the equal subjection of
all individuals and classes to the ordinary law of the land. Guarantee of equality before the laws
means no person is above the law and the every person, whatever be his/her rank or conditions,
is subjected to the jurisdiction of ordinary courts. 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 legal jurisdiction as
any other citizen. The rule of law embodied in Article 14 is the "basic feature" of the
Indian constitution and hence it cannot be destroyed even by an amendment of the Constitution
under Article 368 of the Constitution.

Equal protection of the Laws: This has been interpreted to mean subjection to equal law,
applying to all in the same circumstances. It only means that all persons have right to equal
treatment in similar circumstances. Equal protection thus ensures equal treatment in equal
circumstances and differing treatment in differing circumstances. Thus the rule is that the like
should be treated alike and not that unlike should be treated alike. The phrase “equal protection
of the laws” is borrowed from the 14th amendment of the U. S. constitution. It means that like
should be treated alike, that none should be favored and none should be discriminated, against.

The word "any person" in Article 14 of Constitution

denotes that the guarantee of the equal protection of laws is available to any person
whether a citizen or an alien, which includes any company or association or body of individuals.
The equality before the law is guaranteed to all without any arbitrary discrimination on the
ground of race, colour or national.

Both the phrases aim to establish what is called the"equality to 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 the laws is a more
positive concept employing equality of treatment under equal circumstances.

Exceptions: The above rule of equality is, however, not an absolute rule and there are a number
of exceptions to it. For instance, foreign Diplomats are immune from the jurisdiction of courts.
Article 361 of the Indian Constitution affords immunity to the President of India and the State
Governors.

The Constitution stipulates three exceptions:

1. The President of India or, the Governor of a State is not answerable to any court for his
official actions.

2. The President or, the Governor is not subject to criminal prosecution during
his term of office.

3. Civil suits claiming relief for personal actions cannot be brought against the President or,
a Governor when in office.

Article 14 permits classification but prohibits class legislation: The equal protection of laws
guaranteed by Article 14 does not mean that all laws must be general in character. The varying
needs of different classes of persons often require separate treatment and different laws in
different places. In fact, identical treatment in unequal circumstances would amount to
inequality.

Art 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth - (1) that “the state shall not discriminate against any citizen on grounds only of religion,
race, caste sex, place of birth or any of them.”
 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) 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 the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause
(1) of article 19 shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educationalinstitutions, whether aided
or unaided by the State, other than the minority educational institutions referred to in clause (1)
of article 30.

Art 16. Equality of opportunity in matters of public employment –

(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office.

There are five exceptions to prohibition of discrimination under Art. 16. (1)
The Parliament may lay down residence qualification for some appointments in states.
Article 16(3) - Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any requirement
as to residence within that State or Union territory prior to such employment or
appointment.
i. The state may reserve some appointments for backward classes if they are not adequately
represented in the state services (Article 16 (4).

ii. The state may reserve some appointments in favour of the Scheduled Castes and the
Scheduled Tribes if they are not adequately represented in the state services.
iii. The State may allow appointment of a person professing a particular religion or
belonging to aparticular denomination in any religious or denominational institution.

Article 16 guarantees equality of opportunity in matters of appointment in State Services. It does

not however, prevent the State from prescribing the necessaryqualification and selective tests for
recruitment for Government Services. The qualifications prescribed may, beside mental
excellence, include physical fitness, sense of discipline, moral integrity, and loyalty to the State.
Where the appointment requires technical knowledge, technical qualification may be prescribed.
The character and antecedents of candidates may be taken into consideration for appointment in
Government Services.

Thus parochialism and nepotism is eliminated in the matters of appointment in Government

Services.
Article: 17: Abolition of Untouchability. “Untouchability” is abolished and its practice in
any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall
be an offence punishable inaccordance with law. The position is further fortified by the Abolition
of the Untouchability Act of 1955. Though the term untouchability has not been defined in either
the constitution or the Act of 1955, practice of untouchability in any form is strictly forbidden.
Refusing admission to public institutions like schools and hospitals on grounds of
untouchability is a punishable crime. Parliament originally enacted the Untouchability
(offences) Act 1955. This Act prescribes punishment for the practice of untouchability. This Act
has been amended by the Untouchability (Offences) Amendment Act, 1976, in order to make
laws more tough to remove untouchability from the society. It has also been renamed as The
Protection of Civil Rights Act, 1955. The protection of Civil Rights Act prescribes punishment
which may extend to imprisonment upto six months and also with a fine which may extend to
five hundred rupees or both for any one enforcing. The Act of 1955 provided penalties for
preventing a person from entering a place ofworship or from taking water from a tank or well.
 Article: 18: Abolition of titles.
(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust
under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kindfrom
or under any foreign State.

The British government had created an aristocratic class known as Rai Bahadurs and Khan
Bahadurs in India; these titles were also abolished. However, Military and
academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and
Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within
the constitutional prohibition".

Criticism:

1. Ineffectiveness in Eliminating Social Inequalities: Although the Right to Equality, as mentioned

in Articles 14 to 18 of the Indian Constitution, aims to establish equality before the law, it often fails
to address the deep-rooted social inequalities prevalent in Indian society. Discrimination based on
caste, religion, gender, and economic status continues to persist despite legal provisions,
highlighting the gap between constitutional ideals and social realities.

2. Misuse of Affirmative Action Policies: Articles 15 and 16 of the Constitution provide for
affirmative action to uplift historically disadvantaged communities through reservations in
education and employment. However, these provisions are often criticized for being misused or
poorly implemented, leading to questions about meritocracy. The reservation policy sometimes
overlooks economically disadvantaged individuals from non-reserved categories, causing
resentment and perceived reverse discrimination.

3. Judicial Interpretation and Ambiguity: The interpretation of the Right to Equality by the judiciary
has sometimes led to inconsistencies, especially in matters concerning reservations and special
provisions. For instance, debates around the ‘creamy layer’ concept in OBC reservations and the
extension of reservations to economically weaker sections (EWS) have often stirred legal and
political controversies, creating ambiguity in the application of equality principles.

4. Gender Inequality and Personal Laws: While the Constitution prohibits discrimination based on
sex, personal laws governing marriage, divorce, and inheritance continue to perpetuate gender
inequality, especially among women. The lack of a Uniform Civil Code, despite being a directive
principle, results in unequal treatment of citizens under different personal laws, undermining the
constitutional promise of equality.

5. Inequality in Access to Justice: The principle of equality before the law is often compromised due
to the unequal access to legal resources. Marginalized communities, including the poor and socially
backward, face significant challenges in accessing legal aid, leading to a skewed justice delivery
system. This disparity questions the practical implementation of Article 14, which promises equal
protection of the laws.

Conclusion

The Right to Equality enshrined in the Indian Constitution is a cornerstone of India's democratic
framework, aimed at eradicating discrimination and promoting social justice. While it has made
significant strides in providing a legal basis for equality, its impact is often diluted by social,
economic, and institutional factors. The challenges in the implementation of affirmative action
policies, judicial ambiguities, and persistent social inequalities highlight the complexities involved
in realizing the constitutional vision of equality.

To truly achieve equality, there is a need for continuous policy reforms, judicial clarity, and a
societal shift towards embracing the principles of non-discrimination and inclusivity. Strengthening
access to education, ensuring economic empowerment of marginalized groups, and revisiting
outdated legal provisions that perpetuate inequality are essential steps forward. The constitutional
right to equality must evolve to address contemporary challenges, ensuring that the ideals enshrined
in the Constitution translate into tangible outcomes for all citizens.