Text

Literally speaking the word equality means the state of being equal. The
ideal form of governance is where the laws are aimed at achieving this state
of equality. It may be noted here that absolute equality is not possible
because of inherent disparities existing socially, economically and
politically. Recognizing fully the importance of right to equality in a
democratic polity, the constitution assigns first place to this right in the list
of fundamental rights. Article 14 guarantees to all the people equality before
the law and, all enjoy equal protection of laws. The nature of this right is not
mere individual right of admonition to the state. Equal subjection of all the
people to the laws of land and equal legal protection to all the persons are
the two fundamental rights enshrined in article 14. It is similar to article 7 of
the Universal Declaration of Human Rights, 1948. Article 14 is one of the
fundamental rights enshrined in the part III of the constitution. Article 14
embodies the general principles of equality before the law and prohibits
unreasonable discrimination between the persons. Article 14 embodies the
idea of equality expressed in the preamble. The concept of equality and
equal protection of laws in its proper spectrum encompasses social and
economic justice in a political democracy as has been laid down by the
hon’ble supreme court in the case of-------Dalmia Cement Bharat Ltd. v.
Union of India (1996) X SCC, it may be noted that right to equality has been
declared by the Supreme Court as the basic feature of the constitution.
Article 14 provides,
“The state shall not deny to any person equality before the law and equal
protection of laws within the territory of India”.
The protection guaranteed under article 14 or rights conferred under article
14 are available to all the persons within the territory of India and not
restricted to the citizens alone. The word person includes not only natural
persons but also legal or juristic persons. The mandate of article 14 is
directed towards the state and not against private entities.
Scope and ambit of article 14
Article 14 uses two expressions ‘equality before law’ and ‘equal protection
of laws’. These expressions aim at establishing at what is called as ‘equality
of status’ in the preamble of the constitution. While both the expressions
seem to be identical, they do not convey the same meaning.
Equality before Law: The concept of equality does not mean absolute
equality among human beings, which is practically not possible to achieve. It
is a concept implying absence of any special privilege by reason of birth,
creed or like in favour of any individual and also the subject of all individual
and class to the ordinary law of the land. The expression equality before the
law owes its origin to British Common Law but there it is limited to only
citizens. Its scope was widened in article 14 to cover all the persons. While
both the expressions ‘equality before law’ and ‘equal protection of laws’
used in article 14 seem to be identical they do not convey the same meaning.
Equality before the law is a negative concept, which implies the absence of
any special privilege in favour of individuals and equal subject of all classes
to the ordinary law. As per Dr. Jennings equality before the law means that
among equals law should be equal and should be equally administered, that
the like should be treated alike. Equality before law is an aspect of Dicey’s
Rule of Law in England, which means that no one is above law. Everyone is
equal before law irrespective of his status or rank, is subject to the ordinary
law and is amenable to jurisdiction of ordinary tribunal.
The rule of equality however is not an absolute rule and there are a number
of exceptions to it, for example, special laws for certain specified categories
of people, discretionary powers of some executives, statutory rules providing
for differential treatment, like rules of armed forces, professionals, etc are
not applicable to ordinary person.
Equality Protection of Laws: The expression equal protection of laws is
similar to the one embodied in American Constitution through 14th
Amendment, which provides that…. ‘Nor shall any state----------- deny to
any person equal protection of laws.’ The expression means subjection to
equal laws, applying to all in the same circumstances. All persons similarly
circumstanced shall be treated alike both in the privileges conferred and
liabilities imposed by laws. Equal laws should be applied to all in the same
situations, and there should be no discrimination between one person and
another.
In the beginning there has been some controversy over the scope of two
phrases used in article 14. Some of the decisions pertaining to this aspect of
article 14 are as:
Sheo Shanker v. M.P. Government AIR 1951 Nag. 53, the Nagpur High
court held that,
‘While both the expressions aim at establishing what may be regarded as
equality of legal status for all, there is some difference between the two
expressions. The former expression is somewhat a negative concept
implying absence of any special privilege in favour of an individual while
the latter is more positive concept implying equality of treatment in equal
circumstances.’
Surya Pal Singh v. U.P. Government AIR 1951 All. 674, the Allahabad high
court also observed that,
‘Equality before the law has not the same meaning as equal protection of
laws, the former expression may be defined as equal subjection of all people
to ordinary law of land while the later as equal protection of laws’.
This controversy was set at rest in the case of, State of West Bengal v.
Anwar Ali Sarkar AIR 1952 Patnajali Shastri C.J. observed that,
‘Equal protection of laws is corollary of the equality before the law. It is
difficult to imagine a situation when equality before the law can be
maintained without equal protection of laws. In practice therefore both the
expressions come to mean one and the same thing’
Reasonable Classification:
In order to maintain equality among the person it is necessary that equals
have to be treated equally. Treating different persons situated in different
circumstances equally amounts to negation of equality. In order maintain the
doctrine of equality articles 14 permits reasonable classification. Meaning of
equality under article 14 means equality among equals. For the purpose of
article 14 equal protections of laws does not mean that same law should
apply to all the persons. It does not mean that every law must have universal
application for all, because all persons are not, by nature, attainment or
circumstances in the same position. The varying needs of different class of
persons often require separate treatment for which reasonable classification
is must. In Charanjit Lal Chowdhry v. Union of India AIR 1951 SC Fazil Ali
J. observed:
“The guiding principle of article 14 is that all persons and things similarly
circumstanced shall be treated alike both in respect of privileges conferred
and liabilities imposed. Equality before the law means that among equals
law should be equal and should be equally administered and that like should
be treated alike it forbids discrimination between the persons who are
substantially in similar circumstances or conditions. It does not forbid
different treatment of unequals. The guarantee of equal protection of laws
means the protection of equal laws. It forbids class legislation but does not
forbid classification which rests upon reasonable grounds of distinction”.
Article 14 forbids class legislation but permits reasonable classification.
Class legislation is that which 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 favored no
reasonable distinction or the substantial difference can be found justifying
the inclusion of one and the exclusion of other from such privilege. The
classification in order to be reasonable it must not be arbitrary, artificial or
evasive but must be based on some real and substantial distinction bearing a
just and reasonable relation with the object sought to be achieved by the
legislation.
Permissible grounds of classification:
A reasonable classification may be made on any basis, which affords
achievement of the object of the legislation. The grounds of permissible
classification are not exhaustive but are inclusive. There are a variety of
grounds on which the reasonable classification can be made which includes,
age, gender, geographical or territorial basis, historical basis, time, nature of
trade profession or occupation etc.
Test of reasonable classification:
Article 14 prohibits class legislation but it does not prohibit reasonable
classification. Classification must not be arbitrary, fanciful or evasive. It
was observed by the Supreme Court in the case of Kathi Raning Rawat v.
State of Saurashtra AIR 1952 SC the classification to be reasonable must
fulfill the following two conditions;
a) The classification must be founded on an intelligible differentia,
which distinguishes persons that are grouped together from others left
out of group.
b) That the differentia must have rational nexus/relation sought to be
achieved by the statute in question.
For the validity of classification the first requirement is that it must be
founded on some intelligible differentia, which distinguishes persons or
things that are grouped together from others left out of group. It means that
distinction must not be imaginary but real and substantial. State of Bombay
v. F. N. Balsara AIR 1951 the differentia, which is the basis of classification
and the object of the Act, are two distinct things. What is necessary is that
there must exist a nexus between the basis of classification and the object of
the Act, which makes the classification. It is only when there is no
reasonable basis for classification that the legislation making the
classification can be declared discriminatory and hence unconstitutional. In
the case of Ramakrishna Dalmia v. Justice Tendulkar AIR 1958 SC certain
preposition were laid down governing a valid classification. The
prepositions are as:
a) A law may be constitutional even though it relates 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.
b) There is always presumption in favour of 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.
 c) The presumption may be rebutted in certain cases by showing that on
the face of the statute there is no classification at all 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.
d) 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.
e) In order to sustain the presumptions of constitutionality the court may
take into consideration matters of common knowledge, matters of
report, history of times and may assume every state of facts which can
be conceived existing at the time of the legislation.
If the classification satisfies the test laid down in the above preposition, the
law will be declared constitutional.
New Concept of Equality: Article 14 strikes at arbitrariness—A
Dynamic Approach
In E.P. Royappa v. State of Tamil Nadu AIR 1974 SC, the Supreme Court
challenged the traditional concept of equality based on reasonable
classification and has laid down a new concept of equality. Bhagwati J;
delivering judgment on behalf of himself Chandrachud and Krishna Iyer JJ;
observed,
‘Equality is a dynamic concept with many aspects and dimensions and it
cannot be cribbed, cabined or confined within traditional doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies, one belong to the rule of
law in a republic and other to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit that it is unequal both according to
political logic and constitutional law and is therefore violative of article 14.
Again in the case of------ Maneka Gandhi v. Union of India AIR 1978 SC
Bhagwati J observed that,
‘Equality is a dynamic concept with many aspects and dimension and it
cannot be imprisoned within traditional doctrinaire limits. Article 14 strikes
at arbitrariness in state action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness, pervades article 14 like
a brooding omnipresence.’
Again in R. D. Shetty v. Airport Authority, AIR 1979 SC, Bhagwati J,
reiterated the same principle in the following words:
‘It must therefore be taken well settled that what article 14 strikes at is
arbitrariness because an action that is arbitrary, must necessarily involve
negation of equality. The doctrine of classification, which is evolved by the
court, is not a paraphrase of article 14 nor is it the objective and end of that
article. It is merely a judicial formula for determining whether the legislative
or executive action in question is arbitrary and therefore constituting denial
of equality. If the classification is not reasonable and does not satisfy the two
conditions in the doctrine of reasonable classification, the impugned
legislation or the executive action will be plainly arbitrary and the guarantee
under article 14 would be breached’.
Thus as per the new interpretation given to article 14 the content and reach
of article 14 cannot be determined on the basis of doctrine of classification.
Article 14 as per new interpretation strikes at arbitrariness. If the action of
the state is arbitrary, it is implicit in it that it is unequal and therefore
violative of article 14. Article 14 strikes at arbitrariness in state action and
ensures fairness and equality in treatment. It is attracted where equals are
treated differently without any reasonable basis.
In the case of D.S. Nakara v. Union of India AIR 1983 SC 130, while
striking down rule 34 of Central Services (Pension) Rules, 1972 as
unconstitutional on the ground that the classification made by it between
pensioners retiring after that date was not based on any rational principle and
was arbitrary and violative of article 14 of constitution. Das, J; who spoke
for the majority assimilated both the doctrines i.e. the doctrine of
arbitrariness and the doctrine of classification. Restating the concept of
equality the Supreme Court observed that,
‘Thus the fundamental principle is that article 14 forbids class legislation but
permits reasonable classification for the purpose of legislation which
classification must satisfy the twin tests of classification being founded on
an intelligible differentia which distinguishes persons or things that are
grouped together from those that are left out of the group and that the
differentia must have a rational nexus to the object sought to be achieved by
the statute in question’.
In Air India v. Nargesh Meerza AIR 1981 SC the court struck down the Air
India and Indian Airlines Regulations on the retirement and pregnancy bar
on the services of airhostesses as unconstitutional on the ground that that the
conditions laid down therein were entirely unreasonable and arbitrary.
Regulation 46 provided that an airhostess would retire from the services on
attaining the age of 35 years, or on marriage, if it took place within four
years of service or on first pregnancy, which ever earlier. Under Regulation
47 the Managing Director had the discretion to extend the age of retirement
by one year at a time beyond the age of retirement up to the age of 45 years
if an airhostess was found to be medically unfit. The condition that service
of airhostess would be terminated on first pregnancy was the most
unreasonable and arbitrary provision and liable to be struck down. The
regulation did not prohibit marriage after four years and if an airhostess after
having fulfilled the first condition became pregnant, there was no reason
why pregnancy should stand in the way of her continuing in service. The
court held that the termination of service on pregnancy was manifestly
unreasonable and arbitrary and was therefore clearly violative of article 14
of the constitution. Having taken in services and after having utilized her
services for four years to terminate her services if she becomes pregnant
amounts to compelling the poor airhostess not to have any children and thus
interfere with and divert the ordinary course of human nature. The
termination of services of airhostess in such circumstances is not only
callous and cruel act but also an open insult to Indian women hood------the
most sacrosanct and cherished institution. The provision of extension of Air
Hostesses services at the option of Managing Director confers a
discretionary power without laying down any guidelines or principles are
liable to struck down as unconstitutional. The option to continue in service
may be exercised in favour of one airhostess and not in favour of other and
is thus discriminatory. Under these regulations extension of the retirement of
an airhostess was entirely at the mercy and the sweet will of the managing
director the conferment of such a wide and uncontrolled power on the
managing director was violative of article 14 as it suffered from the vice of
excessive delegation of powers.
Conclusion
The right to equality is the epitome of rule of law and ensures guaranteed
protection against discrimination, arbitrariness, and as such forms the
conscience of the government. The Concept of equality does not involve the
idea of absolute equality amongst all, which is physically impossible. Article
14 guarantees similarity of treatment and not identical treatment. Article 14
permits reasonable classification based on differentia but prohibits class
legislation. Thus equal treatment amongst unequal is not permissible under
article 14. Article 14 strikes at arbitrariness, when an action is arbitrary it
cannot be protected under the doctrine of reasonable classification.
In E.P. Royappa’s case the Supreme Court held that, equality is a dynamic
concept with many aspects and dimensions it cannot be imprisoned within
the traditional doctrinaire limits. Article 14 strikes at arbitrariness in state
action and ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically is an essential
element of equality or non-arbitrariness, pervades article 14 like a brooding
omnipresence.