Equality Before Law : ARTICLE.14
Equality Before Law
A constitution bench of the supreme court has declared in no uncertain terms that equality is a basic feature of the constitution and although the emphasis in the earlier decisions evolved around discrimination and classification, the content of Article 14 got expanded conceptually and has recognized the principles with rules of natural justice eschewing irrationality etc.
If there is no affectation of a vested right, the question of applicability of Art.14 would not arise. Such an absolute proposition is inconsistent with the recognition by the supreme court in many of its earlier judgements in relation to promissory estoppel and legitimate expectation which are not much short of indefeasible right but were evolved to protect a person from arbitrary exercise of power.
Article 14 bars discrimination and prohibits discriminatory laws. Article 14 of the constitution provides for equality of opportunity. It forms the cornerstone of our constitution. Article 14 and 15read in the light of the preamble to the constitution reflect the thinking of our constitution makers and prevent any discrimination based on religion or origin in the matter of equal treatment or employment and to apply the same even in respect of a cooperative society. All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.
Two concepts are involved in Art.14, viz , ‘ equality before law’ and ‘equal protection of laws’.
The first is a negative concept which ensures that there is no special privilege in favour of any one, that are equally subject to the ordinary law of the Land and that no person, whatever be his rank or condition, is above the law. This is equivalent to the secondary of the DICEAN concept of the Rule Of Law in Britain. This, however, is not an absolute rule and there are number of exceptions to it,e.g., foreign diplomats enjoy immunity from the country’s judicial process; Art.361 extends immunity to the president of India and the State Governors; public officers and judges also enjoy some protection, and some special groups and interests, like the trade unions, have been accorded special privileges by law.
The second concept,’ equal protection of laws’ , is positive in content. It does not mean that identically the same law should law should apply to all persons, or that every law must have a universal application within the country irrespective of differences of circumstances. Equal protection of the laws does not postulate equal treatment of all persons without distinction. What it postulates is the application of the same laws alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances. It implies that among equals the law should be equal and equally administered, that the like should be treated alike without distinction of race, religion, wealth, social status or political influence.
Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable in itself shall be labelled as arbitrary. Every state action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.
The Supreme Court has explained in Sri Srinivasa Theatre v. Govt. of Tamil Nadu, that the two expressions ‘ equality before law ‘ do not mean the same thing even if there may facets. One facets is that there shall be no privileged person or class and that none shall be above law. Another facet is “ the obligation upon the state to bring about, through the machinery of law, a more equal society…………for, equality before law can be predicated meaningfully only in an equal society…………”
Article 14 provide positive and negative equality. Hence any action or order contrary to law does not confer any right upon any person for similar treatment. Thus unauthorized additional construction and change of user of land cannot be claimed on the basis that the same had been granted in other cases in contravention of laws.
Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. Classification to be reasonable should fullfill the following two tests:
- It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it.
- The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.
Article 14 in its ambit and sweep involves two facts, viz..it permits reasonable classification which it founded on intelligible differentia and accommodates the practical needs of the society and the differential must have a rational relation to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is the ‘ Fonjuris ‘ of our constitution, the fountainhead of justice. Differential treatment does not per se amount of violation of Article 14 of the Constitution and it violates Article 14 only when there is no reasonable basis and there are several facts to decide whether a classification is reasonable or not and one of the tests will be as to whether it is conducive to the functioning of modern society. Hostile discrimination is obvious where some allottees despite having compelled with all conditions, including payment of full amount due, were not given possession, whereas others were granted possession even before payment or after depositing a small proportion of the total dues.
Difference between Indian and European prisoners in the matter of treatment and diet violates Art.14.
Where some allottees despite having complied with all conditions, including payment of full amount due, were not given possession, whereas other were even before making payment or reposting a small proportion of the total due, it indicative of hostile discrimination against the alottees who have paid up and that undue favour had been shown to the others.
In Ram Sarup v. Munshi, the supreme court has held that the right of pre-emption based on prosanguinity did not infringe Art.19(1)(f) . But, later, in Ram prakash v. State of Haryana, the court ruled that such a right is inconsistent with Art.14 characterising it as “ a relic of the feudalist “ and “ inconsistent with modern ideas “ , Right of pre-emption in favour of C0-sharers or tenants is however been held to held to be valid.
Failure to implement a scheme within a reasonable time may amount to unreasonable infringing Art.14.
The Bihar Hindu Religion Trust Act excludes the Sikhs from its purview and provides for separate trust boards for Hindus and Jains. This is valid because there are some differences between Hindus, Sikhs and Jains in essential details of their faiths, religious practices and organisations of their trusts; It cannot be said that Sikhs, Hindus and Jains are situated alike in the matter of religious trust in Bihar.
Under the Land Acquistion Act, the government can acquire land for the government company or a public company but not for a private company or an individual.
Article 14 in its ambit and sweep involves two facets, viz……….it permits reasonable classifications which is founded on intelligible differential must have a rational relation to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is the “ fonjuris “ of our constitution, the fountainhead of justice. Differential treatment does not per se amount to violation of Article 14 of the constitution and it violates Article 14 only when there is no reasonable basis and there are several tests to decide whether a classification is reasonable or not and one of the tests will be as to whether it is conducive to the functioning of modern society.
Right To Freedom
Clauses (a) to (g) of Art.19(1) guarantee to the citizens of India six freedoms, viz, of ‘ speech and expression’, ‘ peaceful assembly’, ‘association’, ‘ free movement’, ‘residence’, and ‘ practising any profession and carrying on any buisness’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values it and the oneness and unity of, the country, Article 19 guarantees some of the basic, valued and natural rights inherent in a person.
According to the Supreme court, it is possible that a right does not find express mention in any clause of Art.19(1) and yet it may be covered by some clause therein. This gives an additional dimension to Art.19(1) in the sense that even though a right may not be explicit, it may yet be implicit in the various clauses of Art.19.
It has been said that these rights are great and basic rights which are recognized and guaranteed is the natural rights, inherent in the status of a citizen of a free country but not absolute in nature and uncontrolled in operation. The scheme of Article 19 shows that a group of rights are listed as clauses (a) to (g) and are recognized as fundamental rights conferred on citizens. All the rights do not stand on a common thread that runs throughout clauses (2) to (6) is that the operation of any existing law or the enactment by the state of any law which imposes reasonable restrictions to achieve certain objects, is saved; however, the quality and content of such law would be different by reference to each of sub clauses (a) to (g) of Clause (1) of Article 19.
Originally , Art.19 guaranteed seven freedoms. The Freedom to hold and acquire property was deleted in 1978. However, the freedoms guaranteed by Art.19(1) are not absolute as no right can be. Each of these rights is liable to be controlled, curtailed and regulated to some extent by laws made by parliament and state legislatures. Article 19 confers the several freedoms on the citizens. Therefore, a municipal committee, or a foreigner cannot invoke Art.19. The question of citizenship of a company or a corporation has already been discussed earlier.
Article 19 protects the six freedoms of an Indian citizen from state action, and violation of these freedom of private conduct of an individual is not within its purview.
Inspite of there being a general presumption in favour of constitutionality of a legislation, in a challenge laid to the validity of any legislation allegedly violating any right to freedom guaranteed by Clause (1) of Art.19, on a prima facie case of such violation having been made out, the onus would shift upon the respondent sate to show that the legislation comes within the permissible limits of restrictions set out in clauses (2) to (6) of Art.19, and that the particular restriction is reasonable. The constitutional Court would expect the state to show that the particular restrictions is reasonability. Thus the onus of proof in such cases is an ongoing shifting process to be consciously observed by the court called upon to decide the constitutional validity of a legislation by reference to Artticle 19 of the constitution. These rights have been advisedly the changing needs and evolving notions of a free society. Every right is coupled with a duty.Part III of the Constitution of India although confers rights, duties and restrictions are inherent thereunder. Such reasonable restrictions have been found to be contained in the provisions of part III of the constitution of India , apart from clauses (2) to (4) and (6) of Article 19 of the Constitution of India .
The court ruled that he had not become a citizen of India under Art.5 of the constitution as he had not acquired his domicile in India. For this purpose, “ He prove that he had formed the intention of making his permanently. Residence alone, unaccompanied by this state of mind, is sufficient. “ In the instant case, there was nothing to suggest even remotely that the petitioner and formed any intention of permanently residing here.
A foreigner does, however, enjoy the fundamental right to life and personal liberty under Art.21. According to the tenor of the language of Art.21, it is available not only to every citizen of this country, but also to a person who may not be citizen of this country. Even those who come to India merely as tourists or in any other capacity are entitled to the protection of their lives under Art.21.
Restrictions Under Article 19(2)
- Grounds of restriction
- Security of state and public order.
- Sovereignty and Integrity of India.
- Friendly Relations with foreign states.
- Incitement to an offence.
- Contempt of Court.
- Trial by Media.
- Decency or Morality.
- Freedom of speech and Discipline of Civil Services.
- Noise pollution.
Neha Khatri (Advocate)
(DELHI HIGH COURT)
Master of Law (LL.M.)
UNIVERSITY OF PETROLEUM AND ENERGY