Brief Article on Fundamental Right to Equality
Equality is one of the basic principles of liberalism. Equality before law means everyone is the same in front of the law. Equality is considered a fundamental human rights in the modern world and is declared under Article 7 of the human right declaration. The principle of equality means that every individual, whether male or female, rich or poor, should be tested equally.
In India, demand for equality started in the early 20th century after the formation of the congress party. Congress party demanded equality with Britishers and demanded representation of Indians in the legislative assembly and government jobs.
In the early nineties, every section of Indian society was demanding equality. Women’sWomen were fighting for equality with men,, and Hindus and Muslims were demanding equality in voting after the introducing communal electorates by Britishers. For SC and ST community, it was like a two-front fight. They were fighting for equality with Indians and Britishers.
In March 1946, the cabinet mission got approval from the British parliament and a constituent assembly was set up for framing the constitution of independent India. The struggle of every community for equality got noticed, and proper safeguards were given in the constitution under fundamental rights.
The fundamental rights guarantee under part third is considered as the core of the Indian constitution. When the advisory committee headed by Sardar Patel meet, they divided fundamental rights into two parts, justiciable and non-justiciable fundamental rights.
Right to equality
The principle of equality is given in article 14 of the constitution. The concept of equality is further elaborated in article 15 to 18. Article 14 is considered the basic foundation of the Republican government. In the Indian constitution, equality is given to both citizens and non-citizens, but some areas are reserved for citizens only.
According to article 14, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 14 talks about two concepts, one equality before the law and the other equal Protection of laws. It is also declared that the basic structure doctrine feature, can not be destroyed by parliament.
Equality before law is a negative concept. It prohibits the State from discriminating against people and directs the State to treat every person equally. Equality before law enforces the rule of law given by dicey.
Equal Protection of law is a principle taken from the American constitution, and it is a positive concept. The guarantee of equal Protection of law means the Protection of equal laws. It forbids class legislation, but it does not prohibit decisions based on the reasonable ground of distinction.
It does not forbid legislation that is applied only to particular citizens. It merely requires that persons subjected to such legislation be treated equally in circumstances and conditions both in the privileges conferred and in the liability imposed.
According to professor Wills “A law applying to one person or one class of persons will be constitutional if there are sufficient reasons or basis for it.”
Protection against inequality given in the constitution is not absolute. Government has the power to differentiate people for attaining the definite objective. Laws can be made that only apply to a specific community for their upliftment same is done in article 15 and article 16. In this article, the State is provided with the power to make special provisions for children, women, ST and SC members.
Article 14 also prohibits the State from taking arbitrary decisions. Equality and arbitrariness are sworn, enemies. The principle of arbitrariness is applied in monarchy only, not in Republican and democratic form of government. If the subject with which State is dealing and the reason for the decision are not relevant, it will amount to malafide use of power, and the decision taken will be hit by article 14.
No person can ask for equality in illegal actions. If any person is benefited from an unlawful act and passed safely through the hands of the same government person or any other person cannot ask for it again.
In Coromandel Fertilizers Ltd. vs Union of India and Ors., [(1984) Supp SCC 457], it was held in paragraph 13 that wrong decision in favour of any party does not entitle any other party to claim the benefit based on the wrong decision.
In Gursharan Singh & Ors. vs NDMC & Ors., Supreme court held that citizens had assumed wrong notions regarding the scope of Article 14 of the Constitution, which guarantees equality before the law to all citizens. Benefits extended to some persons irregularly or illegally cannot be claimed by a citizen on the plea of equality as enshrined in Article14 of the Constitution.
Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
According to article 15, “State shall not discriminate against any citizen on the ground only of religion, race, sex, place of birth or any of them.”
Protection under Article 15 is only given to citizen, and non-citizens cannot ask for equality under this article. This article declared that every person should have access to shops, public restaurants, hotel, wells, bathing ghats, public resort etc., maintained wholly or partially by state funds or dedicated to the use of the general public.
Under this article, the constitution had provided power to the central and State government for making special provisions for the advancement of children, women, economically and educationally backward classes of citizens, SC and ST.
Article 15 says that State can reserve seats for above said people’s for admission to an educational institution, including private institutions, whether aided or unaided by State. Still, it cannot reserve seats in minority educational institution.
This article had given massive security to women from inequality. Under clause 3 of Article 15, specific posts can be exclusively reserved for women. It also provides power to State for securing 50 per cent of seats for women in any government job or under any local authority.
The rule of reservation is only applicable to minor posts. It is not applicable for specialist and super-specialist posts in medicines—Association of aims v union of India.
Article 16: Equality of opportunity in matters of public employment
This states that “No citizen shall, on the ground only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of, any employment or office under the state.”
Article 16 of the constitution talks about reservation in jobs for SC, ST, backward class of citizens and economically weaker section, who in the opinion of the State are not adequately represented.
The word employment is so broad that it includes tenure, duration, emoluments and duties and obligations, whether the employment is temporary or permanent. They cover not merely the initial appointment but also salary, increments, revision of pay, promotion, gratuity, leave, pension and age of superannuation.
Articles 14, 15 and 16 form part of a scheme of the Constitutional Right to equality. Article 15 and 16 are incidents of guarantees of equality and give effect to Article 14.
In Ajit Singh vs the State of Punjab: it was decided that article16 (4) and 16(4A) do not confer any fundamental rights, nor do they impose any constitutional duties. These articles only enable the State to grant reservation to SC and ST who are not adequately represented in the opinion of the State. After this judgement, reservation in promotion was excluded from fundamental rights.
Article 17: Abolition of Untouchability.
“Untouchability” is abolished, and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with the law.
Article 17 strike down the practices which are based on superstitions and beliefs that have no logic. Untouchability was abolished after commencement of the constitution, but proper rules regarding Untouchability were framed in Protection of civil rights.
The primary purpose of article 17 is to ban the practice of Untouchability in any form. This expression refers to the social disabilities imposed on certain classes of a person because of birth in a particular caste and does not cover social boycott based on conduct.
Article 18: Abolition of Titles
1.No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4) No person holding any office of profit under the State shall, without the President’s consent, accept any present, emolument, or office of any kind from or under any foreign State.
The framers of the constitution abolished the titles that Britishers gave to citizens for their work for them. It was cancelled because it is violative of the principle of equality and leads to creating a separate class.
In Balaji Raghavan/S.P.Anand vs Union Of India on 15 December 1995, the question that came in front of the court was whether the National Awards (Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri) comes in the definition of tiles abolished under article 18.
“The supreme court held the National Awards do not amount to “titles” within the meaning of Article 18(1), and they should not be used as suffixes or prefixes. If this is done, the defaulter should forfeit the National Award conferred on him or her by following the procedure laid down in Regulation 10 of each of the four notifications creating these National Awards.”
The court observed that the person who is awarded National Award could not write award name in suffix or prefix with his name to distinguish himself