Fundamental Rights (Right to Equality)
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"The Story of Rule of Law is nothing but the story of Civilization of Humans"
Fundamental Rights - Rights which are guaranteed by the Constitution of India mentioned in Part III are known are Fundamental Rights.
Classification of Fundamental Rights
- Right to Equality (Article 14 to 18)
- Right to Freedom (Article 19 to 22)
- Right against Exploitation (Article 23 and 24)
- Right to Religion (Article 25 to 28)
- Cultural and Educational Rights (Article 29 and 30)
Right to Property (Article 31)- Repealed by 44th Constitutional Amendment Act 1978- Right to Constitutional Remedies (Article 32)
Right to Equality
Article 14 - State shall not deny to any individual the right to
- Equality before law
- Equal protection of law
Equality before law -
- The concept is originated in England.
- It is a negatively worded concept which means 'no body is special in the eyes of law, i.e., the absence of privileges ' enjoyed by an individual in the eyes of law.
- All the person irrespective of their race, caste, religion, post, rank, economic status, etc are equal before the law and thus shall be treated equally by the law.
- Article 14 guarantees only Jurisdictory (legal) equality not the complete equality, i.e., all persons are subjected to ordinary jurisdiction of court and all can be sued before the same court.
- However, there are some exceptions to the concept of equality before law.
- For example - Presidential & Governor's privileges, MPs privileges, MLAs & MLCs privileges and immunities, etc and Article 31C
- Presidential and Governor's privileges -
- The president and governor are not answerable to the court of law for discharging his official function.
- No civil proceedings in the case where compensation be demanded can be initiated against the president/governor except before giving him a two months notice.
- No criminal proceedings what so ever can be initiated or continued against the president/governor.
- Article 31 C - It provides that the law made by the state for implementing the DPSPs contained in clause (b) or (c) of Article 39 can't be challenged on the ground that it violates Fundamental Rights. Supreme Court held that "Where Article 31C comes in Article 14 goes out".
- Equality before law gives rise to the condition which gives rise to 'Rule of Law', the concept originated from England has been incorporated in the Constitution of India under the concept of Right to Equality.
Rule of Law -
- Rule of Law means 'Lex Supremus', i.e., law is supreme and absolute supremacy of regular law of the Constitution as opposed to the influence of an arbitrary power.
- The adoption of Rule of Law has changed the concept of administration from 'Rex Lex' to 'Lex Rex', i.e., it changed the concept from king is law to law is king which is very essential for maintaining stability in the society.
- Rule of law has got 3 principles -
- No men can be punished or made to suffer except for the violation of law and such a violation shall be established in the court of law.
- All persons are subjected to ordinary law of line without any distinctions and thus all can be sue before the court.
- The third principle of Rule of Law applied in India is a modification of third principle as applicable in Britain, since in England every act of parliament is considered as law however in India law is valid only when it is as per the provisions of the Constitution, i.e., in India the third principle of Rule of Law states the 'Supremacy of Constitution'.
Equal Protection of Law
- The concept is originated in USA.
- It is a positively worded concept which means 'equality of treatment of law in equal circumstances', i.e. law should treat people alike only if they are alike, i.e., law will always not applied uniformly rather situational variations are also taken into consideration before applying the law.
- The Article 14 guarantees equality but only among the equals.
- Equal protection of law thus provides for what is known as 'Positive/Protective discrimination' under which even the reservation policy is justified.
Article 15 (1) - State shall not discriminate any citizen only on the ground of religion, race, caste, sex, place of birth or any of them.
i.e., these conditions alone are not sufficient ground to have a discrimination done under equal protection of law.
However, if these conditions are accompanied with some other factors or circumstances, then that can be a reason, state can discriminate.
Article 15 (2) - Prohibits state and individual both from discriminating against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them in having access to Public Places such as parks, hotels, entertainment hubs, hospitals or wells, tanks, ghats, roads maintained out of state fund.
Article 15 (2) helps the state in fighting many social evils including untouchability.
Article 15 (3) - It is an exception of Article 15 (1) which says that state shall make special provision for the welfare of women and children.
Article 15 (4) - It was introduced by 1st Constitutional Amendment Act 1951. It empowers the state for making any special provisions for the advancement of Socially and Educationally backward classes of the citizen including SCs and STs.
Reservation, scholarships, exemption of fees, etc are part of this.
Article 15 (5) - It was introduced by 93rd Constitutional Amendment Act 2005 which empowers the state to make special provision for admission of backward classes of citizens in educational institutions including private educational institutional whether aided or unaided except Minorities educational institutions.
Types of Educational institutions -
- Public - Reservation in admission is allowed
- Private - Reservation is allowed
- Minorities educational institutions (these are the educational institutions started by the Minority for the Minority and are recognised by the state) - Reservation is not allowed
Article 15 (6) - It was introduced by 103rd Constitutional Amendment Act 2019. It enables the state to make special provisions for the advancement of any Economically weaker sections including reservation in educational institutions.
The amendment did not define what are the criteria for Economically Weaker Sections and left it for the Parliament.
The amendment introduced reservations that exceeds the 50% ceiling limit on reservation established by Indra Sawhney Case.
Article 16 (1) - Provides for the Equality of opportunity for all the citizens of India in case of Public Employment.
Article 16 (2) - Prohibits the state from discriminating against the citizen only on the ground of religion, caste, sex, place of birth, descent, residence or any of them in gaining public employment.
Note - Here, Language is not mentioned. So, language can be made criteria for the state to discriminate while inviting applications for employment.
Article 16 (3) - It is an exception of Article 16 (2) under which Parliament is empowered to provide by law, residence as a ground for qualification in getting certain employment under the state.
Article 16 (4) - It empowers the state to make special provisions in the favour of backward classes of citizen in reserving the post of the nature of public employment if the said class is not adequately represented in public services and also it is socially and educationally backward class.
OBC reservation
Morarji Desai Government → Mandal Commission (1979)
V.P. Singh Government → implemented the recommendation (1991)
- Indra Sawhney vs Union of India Case, 1992
Supreme Court clarified the legal position on reservation policy. Supreme Court held that 27% reservation for OBCs in public employment is constitutionally valid.
Court also directed the state to identify the creamy layer section among the OBCs group and remove them from the benefit of reservation.
Court also held that reservation in the favour of backward classes ordinarily should not exceed 50% of the total seats (Vertical Reservation).
Reservation allows for giving benefit to the backward class is fixed only at entry level, i.e., at the time of recruitment but not in promotion. Thus, reservation for SCs and STs in promotion was declared unconstitutional and void.
Parliament responded through 77th Constitutional Amendment Act 1995 by asserting Article 14 (4A) under which reservation in promotion was permitted for SCs and STs in public employment.
Article 16 (5) - It empowers the state to prescribe Religion as a ground or qualification for recruitment of candidates in certain categories of public employment.
Article 16 (6) - It was introduced by 103rd Constitutional Amendment Act 2019. It provides for the reservation of people from Economically Weaker Sections in government posts.
Criteria for EWS is not mentioned in the Constitution. It is provided by the Parliament through enactment.
- Nagraj vs Union of India Case, 2006
Supreme Court held that reservation policy is valid only when it satisfies the following five conditions -
- The class getting the reservation must be socially and educationally backward.
- The class should be given reservation only if they are not adequately represented in public services.
- Concept of creamy layer shall be applied on OBCs.
- Overall reservation for the seats for the backward classes ordinarily should not exceed 50% of the total seats.
- The general efficiency of the administration after giving the reservation should not get compromised.
Article 17 - Untouchability is prohibited in all its form.
It is the only Article given in its absolute term without any exception allowerd.
Neither the Constitution not any Parliamentary law defines the term Untouchability. However, Judiciary had defined it as 'a social practice mainly among the Hindus where a person solely on the basis of his birth in a particular caste is looked down and discriminated wrongly'.
Recently, in Sabrimala Judgement, Supreme Court has expanded the scope of the practice where considering a person as impure or polluted can also be seen as untouchability.
i.e., Earlier Untouchability is viewed on the basis of Caste but now considering someone impure or polluted on the basis of caste, sex, religion, etc comes under Untouchability.
Untouchability Offence Act 1935 which initially prescribe for the punishment for practicing Untouchability was changed, strengthen and renewed as 'Civil Rights (Protection) Act, 1976'.
Article 18 (1) - It prohibits the state from giving any title except in the form of military or academic distinctions.
National awards also known as Padma Awards given by the government is not a violation of the Fundamental Rights under Article 18 (1) as these awards are regarded as decorations and not as a title. Thus, the awardee is not supposed to use them as a prefix or suffix with their name.
Article 18 (2) - It prohibits the citizen of India from accepting any title from Foreign state.
Article 18 (3) - A foreigners holding an office of profit or trust under the state can't accept any title from foreign state without the consent of the President.
A foreign student studying in India can receive title (foreign title) since he is not holding any office of profit.
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