ARTICLE 14 OF THE CONSTITUTION OF INDIA

“Four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated, can long endure.”

—Abraham Lincoln: Gettysburg Address

Equality as a concept is a complex term and often sounds even paradoxical when placed in socio-political context in human life.

‘We are equal’ is the slogan in the society, when we politically or socially protest against discrimination.

‘Our class is superior in the society’ is a critical assertion of the same persons in the same society, when we claim exclusive entitlements.

Aldous Huxley rightly said ; “that all men are equal is a proposition which at ordinary times no sane individual has ever given his assent.” ( Proper Studies  by Alduos Huxley )

Unlike scientific fields of mathematics or biology, the conceptual lucidity, precision and measurement methodology relevant for comprehensive understanding of ‘equality’ proves both complex and vulnerable to the semantic risks in the legal and constitutional domains of human life.

Saga of human life since times immemorial to the present day constitutionalism in the social-scapes of vibrant and vocal of democracies is punctuated with almost endless conflicts and tensions.

In mathematics and branches of applied science, metrics and topology simplify the conceptual as well as computational aspects of equality.

Identically in anthropology and biology, DNA and RNA decode and disclose the semantics of equality of course, in a different context.

In the socio-political trajectories, we observe that two vital claims of the citizenry: 1. Right to equality 2. Right to freedom, have always been the ignition and fuel of the eternal struggles of mankind in each and every corner of the world.

Viewed in a historic perspective, the fierce and fiery conflicts in this aspirational direction of ideal-chasing by humankind have been endless, uninterrupted and eternally painful.

Skipping the pre-Socratic period of philosophy and polity, we find an exegesis of doctrine of isonomy in the works of Aristotle. The said doctrine posits legal treatment in the quintessential nature of non-discrimination amongst the peers in a society. The said doctrine of isonomy was, through well chosen words and expressions, enshrined in Constitution of India as Article 14 to Article 18, literally to cover all aspects of equality in socio-political life of humans, within eternal glow of a comprehensive rubric- Right to Equality.

The political history of the World marks various events leading to crystallization and development of the said doctrine of isonomy. The first celebrated event of signing of a charter described as Magna Carta by king John of England on 15.06.1215 at Runnymede (county of Surrey in England) is in itself a great milestone, which became a precursor in the human endeavourers for establishment of rule of law. This ‘rule of law’ is indeed the soul of ‘right to equality’. The right to equality is an embodiment of rule of law. Rule of law is distinguishable from the rule of the ruler. The rules made by the rulers as per procedure established by law, if found valid on the touchstone of constitutionality, are treated as rules of law.

Again far off in America, on 15.12.1791 another historical event of signing of Bill of rights authored by James Madison through a series of amendments (Initially 17 amendments were proposed and only 12 were ratified) to the newly ratified constitution of USA also deserves to be regarded as a symbol of triumph for humanity in the context of its political, social and moral struggle to attain equality for all.

Apart from the above, even due consideration of the dissertations and enlightened opinions of scholars and philosophers, from time to time, by the power centers across the political map of the world is always hailed as crowning moment of human struggle for rights, particularly right to equality. Be it John Locke (Theory of Natural Rights), Rousseau (social Contract),Montesquieu (Separation of Powers), John Stuart Mill (On Liberty), Professor Dworkin (Taking Rights seriously, Law’s Empire) the deliberations of equality and liberty which constitute the foundation of their views, certainly shaped the politics of the day, from time to time.

In passing a vital thought of Lord Wilson Rievaulaux ( Prime Minister of England for two terms ) on the subject need to be borne in mind ;

“Everybody should have an equal chance – but they should not have a flying start.”

In a recent judgement, National legal Services Authority v Union of India, (2014) 5 SCC 438, Hon’ble Bench of Supreme Court of India approvingly referred to philosophical and historical aspects of equality as delineated by erudite discourses of Aristotle, Immanuel Kant, Nelson Goodman and John Rawls. Para 107, 108, 127 and 133 of the said judgement elucidate the jurisprudential value of such meaningful references.

Hegel, a German thinker and philosopher, suggests that a ‘concept’ (Der Begriff) is best understood by converting its essence into ‘mere representations’ (Vorstellungen) of everyday life. ‘Equality’ as a constitutional concept is to be grasped by identifying and referring to  Vorstellungen , which can be culled out of the dicta of the courts in everyday forms of lis, hinging upon the concept of equality in different facets of human life.

Referring to a philosophical perspective, of pre-Hegelian period, we notice that Immanuel Kant analyses the concept of ‘equality’ by questioning whether it is a nuomenon (thing-in-itself) or a ‘phenomenon’ (what is captured by the observational faculties). Such perspective may also facilitate deeper philosophical probe into the concept.

In order to clarify the terms ‘noumenon’ and ‘phenomenon’ a glance at an illustration would be helpful. Illustratively ‘noumenon’ of a rainbow is actuality of collected vapours placed in a particular path of light. The ‘phenomenon’ of rainbow is a visible band of seven colours, across the sky, observed by the onlooker delightfully from a particular location.

In the state of nature, equality is in existence in the shape of ‘sameness’, whereas in the legal and constitutional concept, equality is not ‘sameness’ but a certain judicially discernible degree of similarity, based on an acceptable and rational criteria.

Thus, even philosophical aids do not, proprio vigor, simplify the concept of equality. Extra large treatises of Maxwell, Craies, Crawford, GP Singh, to name a few, shed light on how to read and how to interpret the laws on the anvil of equality. Still Justice Cardozo of USA Supreme Court had to admonish the judiciary with his indelible words: “A judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He has to draw his inspiration from consecrated principles.”

The Article 14 of the Constitution of India reads as under:

EQUALITY BEFORE LAWThe State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India .

The said Article is analogous to the following:

  1. Section 41 of constitution of Eire 1937
  2. Article 3(1) of Constitution of West Germany
  3. Common Law of UK
  4. Section 1 of Article 14 of Constitution of United States
  5. Article 4 of Constitution of Swiss Confederation 1874
  6. Section 15 Of Canadian constitution act 1982
  7. Article 33(2) Of Constitution of People’s Republic Of China 1982
  8. Articles 6 and 7 of Universal Declaration of Human rights 1948

The aforesaid article 14 is having two functional limbs.

The first limb ‘Equality before law’ is borrowed from British Constitution. The British Constitution, though not a formalized written document, is a terra firma of conventions, traditions and ideals which are deemed sacrosanct in concept and practice and are treated under the nomenclature ‘common law’. The first limb is a negative concept. The second limb of the said Article 14 which speaks of ‘Equal protection of laws’ is borrowed from the American Constitution (14th amendment thereof). The second limb is a positive and affirmative concept.

The relevant part of the text of the said 14th Amendment reads as under:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

The second limb of Article 14 is based on a time tested legal maxim famously known as ‘due process.’ As regards judicial review of the second limb of this article is concerned, unlike American precedents, law is interpreted in the light of philosophy of  the basic structure of Indian Constitution by the Hon’ble Supreme Court ( refer :West Bengal v Anwar Ali Sarkar 1952 SCR 332). Clarifying the real position of Article 14, Hon’ble Supreme Court in Subramaniam Swamy v. CBI (2014) 8 SCC 682 states as under:

“Article 14 of the Constitution incorporates the concept of equality and equal protection of laws. The first part of Article 14 is a declaration of equality of the civil rights of all persons within the territories of India and enshrines basic principles of republicanism. The second part which is a corollary of the first enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favoritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.”

Illustratively, a conspectus of legal aspects pervading interpersonal relations as well as citizen-state relations in the society need to be viewed to understand the broad contours of the concept of equality.

While dwelling on the constitutional concept of gender equality ,the exclusionary practice of denial of access to the deity Ayayapa in the Sabrimala Temple in Kerala to the females was found to be offensive to ‘constitutional morality’- a phrase evolved on the basis of numerous references, to protect the petitioners from perpetual violence of inequality, strengthened with the religious beliefs and nourished by age-old religious practices and textual interpretations. It is relevant that the concept of ‘constitutional morality’ was also judicially construed in Manoj Narula v Union of India, 2014 (9) SCC 1, where the question of election of the persons with criminal antecedents arose before the Court. The entire warp and weft of political governance was examined by the Supreme Court on the touchstone of ‘constitutional trust’ and ‘constitutional morality’. The concept of constitutional morality finds its first mention in the history of Greece authored by eminent English historian George Grote. The said historian describes the Athenian democracy as a rule based on constitutional morality in contrast with a mob rule. Article 25 of the Constitution of India also refers to a term morality. Dr B. R. Ambedkar, when asked to comment, why so voluminous administrative details have been incorporated in the constitution, replied that administrative details can be omitted from constitution only if the entire citizenry is saturated with constitutional morality. The constitutional morality has been defined and described as a cultivated value in the society through different processes of socio-political development and growth. It is certainly not a transient value which varies with cultural and social sensitivities of the individuals over a particular period of time. Constitutional morality is an abiding virtue and soul of constitutional ideals and practices.

Article 14 operates as a bar against unreasonable classification, but certainly does not prohibit reasonable classification.

The rights guaranteed under part 3 of the constitution are not absolute rights but the same are subject to reasonable restrictions (Chairman Railway Board vs Chandrima Dass 2000 2 SCC 465) .

The right to equality is available only against the State. It is not enforceable against a private unaided educational institution, whether minority or non-minority (barring exceptional legal requirements). Frank Anthony Public school Employees Association v Union of India Air 1987 SC 311.

A relevant question that often arises in the context of interpretation of Article 14 is the expression ‘class’ which also forms the semantic nucleus of the expression classification. The expression ‘class’ means a homogenous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like (State of A.P. v P. Sagar, AIR 1968 SC 1379, 1382.)

The word class is used in the sense of social class and not in the sense it is understoof in Marxist jargon. (Indra Sawhney v. Union of India, AIR 1993 SC 477, 552)

Whether a single individual constitute a class? The said question arose in Mohd. Shahabudin vs State of Bihar ( 2010) 4 SCC 653.Court answered the question in the affirmative, while upholding administrative notification under section 9 (6) of CrPC whereby the petitioner was required to face trial inside the Siwan Jail.

It needs to be borne in mind that principles of legitimate expectation cannot override public interest which is core value of Article 14 (Reliance Telecom Limited v union Of India AIR 2017 SC 337)

Professor Laski says: “equality does not mean the identity of treatment or the sameness of reward. If a bricklayer gets the same reward as a mathematician or a scientist, the purpose of society will be defeated. Equality, therefore, means, first of all the absence of social privilege. In the second place it means that adequate opportunities are laid open to all”.

Article 14 applies to all persons and is not restricted to the citizens of India. (Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988: (2000) 2SCC 465)

While a large string of judicial pronouncements on the anvil of Article 14 consistently applied classification approach for determination of the issues under challenge, in E P Royappa v State of Tamil Nadu 1974 AIR SC 555) a new dimension to Article 14 was for the first time added. It was succinctly held in the said case that Article 14 embodies a guarantee against arbitrariness. It needs to be borne in mind the classification approach of interpretation, which still holds the field, envisaged the following criteria:

(i)That the classification must be founded on intelligible differentia which distinguishes persons grouped together from others left out of the group.

(ii)That differentia must have rational nexus to the object sought to be achieved.

The said criteria is laid down in a number of cases including State of AP v Nallamillirami Reddi (2001) 7 SCC 708 (Para 8).

Courts applied various legal maxims to foster and nurture the right to equality in its exalted role sentinel qui vive. In this regard the application of maxim ; “actus curiae neminem gravabit” i.e. act of court shall prejudice no man and another maxim “lex non cogit ad impossibilia” i.e. law does not compel a man to do which he cannot possibly do  were applied in : Raj Kumar Dey  v Tarpnda Dey AIR 1987 SC 2195, Gursharan Singh  v NDMC( AIR 1996SC 1175) are relevant and noticeable while understanding judicial pruning of otherwise unwieldy concept of equality in the domains of administrative law.

While reasonable classification remains the underlying principle of the right to equality, a perspective-shift in the judicial treatment of the concept of equality, revealed its essence in various subsequent cases. Thus in  Maneka Gandhi v Union of India ( AIR 1978 SC 597 ) the 7 judges bench of Supreme court held, inter alia , that : (a) a procedure which is arbitrary, oppressive or fanciful is no pricedre at all and (b)a procedure which is unreasonable could not be said to be in conformity with Article 14 (c) The fundamental rights are overlapping. Thus apart from the factum of competence of legislature to pass a legislation, the touchstone of non-transgression of any fundamental right under the constitution is a relevant and necessary  parameter to examine validity of law.  However, again in Om kumar v Union of India (2001)  2 SCC 386 , principle of proportionality came to be aptly applied by the Bench in the judicial evaluation of equality. Hon’ble Court held that when an administrative action of State is challenged, court applies the principle of proportionality, as a  primary review. If the action is alleged to be violative of Article 14 on the ground of arbitrariness, court by the way of secondary review applies ‘Wednesbury Principle’.

In this regard it needs to be understood that ‘Proportionality’ is a judicial test to examine whether the administrator or legislator have adopted reasonable or the least restrictive choice of measures in the context of regulating the fundamental rights of the petitioner, so as to achieve the object in question . It was held : “maintain a proper balance between the adverse effects which the legislation or administrative order may have on rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve.”

‘Wednesbury Principle’ finds its conceptual genesis in Wednesbury case decided by Lord Greene in 1948(Associated Provincial Picture Houses v R (1947)2 All ER 680 CA).As per ‘Wednesbury Principle’ if a statute gave a direction/power to an administrator  to take a decision, the scope of judicial review in the matter would remain restricted. The judicial intervention would be justified only if the order or decision is found contrary to law, or if it transpires that relevant factors were not considered or irrelevant/ extraneous factors were taken into consideration or the decision was one which no reasonable person could have taken.

 Adding dimensions to right to equality has been a dynamic judicial approach to safeguard the right of equality under different circumstances. Thus in Motiram v state of MP AIR 1978 SC 1594, Hon’ble Bench, while   dispensing with the practice of insisting for sureties from the same State/ Court jurisdictions, held as under :

“What law prescribes sureties from outside or non- regional linguistic, some times legalistic applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, some times legalistic. Art 14 protects all Indians qua Indians, within the territory of India. Art 350 sanctions representation to any authority. including a court, for redress of grievances in any language used in the Union of India . Equality before the law implies that even a vakalat 6-526 SCI/78 or affirmation made ill any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff”.

In the context of challenges of the matters in courts ,‘reading down’ a provision as distinguished from ‘striking down’. The impugned provision on the touchstone of Article 14 also deserve a passing reference. Any law is ‘read down’ by the courts if any impugned word or phrase can be qualified or taken away without doing violence to the substantive part of law. In contrast, if any provision of law under challenge comprises of more than one limb and such limbs are found to be severable, the harmless limb is saved and the bad one is severed and struck down. It depends on the factual mould of the challenge as to how justice is to be ensured on the basis of Article 14 of the Constitution of India.

 In 1974 2 SCC 409, two distinct interpretations by Justice Bhagwati and Justice Alagiriswami resulted in a debate whether Article 14 really shines like a beacon light pointing towards goal of class-less egalitarian socio economic order or it is a just and fair rule of equality to be always tested on the touchstone of reasonableness. The critics of Justice Bhagwati’s point of view held that a classless egalitarian social economic order may be a goal of a school of thought or the creed of some political parties, but is not the essence and light of Article 14 as such. The view of Justice Alagiriswami that Article 14 does not demand a fanatical approach but is a safeguard against unreasonable discrimination found favour with the eminent constitutional scholars and accordingly the said exposition of law holds the field till date.

Racial discrimination, being anathema to the rule of law was struck down on the anvil of the rights enshrined in Article 14 of the Constitution of India (Kama Dorjee v Union of India AIR 2017 SC 113)

Exceptions/ limitations/ deviations to Article 14

  1. Privileges of President of India, Governor of a State, Members of the Parliament (Article 361, 361A of the Constitution of India)
  2. Special treatment to scheduled and tribal areas under Articles 244 and 244A of the Constitution of India
  3. Reservations for different communities under Article 330-342 of the Constitution of India
  4. The exceptions mentioned in Articles 15, 16, 18 and references to such exceptions in other provisions of the constitutional scheme.

With the aforesaid clarificatory concept of constitutional right to equality in mind, we need to grasp the judicial interpretation of the said vital provision of Constitutional law by reference to some relevant judgments. In nutshell, the following propositions laid down in different judgments diligently excerpted and mentioned in a well-acknowledged commentary by eminent jurist on constitutional law elucidate how the right enshrined in Article 14 has been approvingly read by the Supreme Court over a period of time:

  • Article 14 condemns discrimination not only by substantive law but by a procedural law {(1959) SCR at p. 297}
  • Article 14 forbids class legislation but does not forbid classification (D D Joshi v Union 1983 ASC 420,425)
  • Permissible classification must satisfy two conditions, namely (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question (Anwar Ali Sarkar’s Case (1952) SCR at pp. 340-341)
  • The differentia and object are different and it follows that the object by itself cannot be the basis of the classification (Anwar Ali Sarkar’s Case (1952) SCR at p. 341)
  • In permissible classification mathematical nicety and perfect equality are not required. Similarity, not identity of treatment is enough (Balsara case (1951) SCR 682 at pp 709-10)
  • The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. (Dalmia case (1959) SCR 279 at p. 297)
  • If a law deals equally with members of a well defined class, it is not open to the charge of denial of equal protection on the ground that the law has no application to other persons. (Bombay v. F.N. Balsara (1951) SCR 682, 709)
  • Even a single individual may be in a class by himself on account of some special circumstances or reasons applicable to him and not applicable to others, a law maybe constitutional even though it relates to a single individual who is in a class by himself. {(1959) SCR at p. 297}
  • The Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. (khyerbari Tea cO. v Assam (1964) 5 SCR 975)
  • There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles (1959) SCR supra at p. 297 proposition (a))
  • In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived ((1959) SCR supra at p. 297 proposition (e). fol. In Ramraj singh v State (’69) AB 333)
  • 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. (ibid p.297, proposition (c))
  • 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 reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatory legislation. The principle must be borne in mind in deciding whether a law violates Article 14. (Ram Prasad Narayan Sahi v Bihar (1953) SCR 1129)

 

“What is obvious is always not known, and what is known is not always present.”

Dr. Johnson (Preface to Dictionary)

 

 

 

 

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