CONSTITUTION OF INDIA
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 somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of the 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 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 idea of equality for all. The urge for equality and liberty has been the motive of many revolutions. The Character of 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 measures.
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 with 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 measures of equality. The framers of the Indian Constitution were fully conscious of this. This 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 by 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.
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 embodies 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.
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 somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of the 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 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 idea of equality for all. The urge for equality and liberty has been the motive of many revolutions. The Character of 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 measures.
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 with 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 measures of equality. The framers of the Indian Constitution were fully conscious of this. This 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 by 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.
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 embodies 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 a 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.
