Right to Equality: Concept and Explanation | Article 14-18

By | June 10, 2020
Right to Equality: Concept

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Right to Equality: Concept and Explanation | Article 14-18 | Overview

This article deals with the content and scope of the Right to Equality in detail, by analysing the nature, extent and impact of relations among the various dimensions of the Right to Equality. It encompasses the various judgements and regulations that have been improvised in order to maintain a concrete structure, based on the Constitution of India.

Introduction

The fundamental rights are guaranteed to protect the basic human rights of all the citizens of India and are put into effect by the courts, subject to some limitations. One of such fundamental rights is the Right to Equality. Right to Equality refers to the equality in the eyes of law, discarding any unfairness on grounds of caste, race, religion, place of birth and sex. It also includes equality of prospects in matters of employment, the abolition of untouchability and abolition of titles.

Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in detail. This fundamental right is the major foundation of all other rights and privileges granted to Indian citizens. It is one of the chief guarantees of the Constitution of India. Thus, it is imperative that every citizen of India has easy access to the courts to exercise his/her Right to Equality.

Conceptual backdrop

Since the 17th century, the theory, that man has certain essential, basic, natural and inalienable rights or freedoms and it is the function of the state to make provisions for their exercise, has been publicized. In order that human liberty may be preserved, human personality developed, the concept of human rights can be traced to the natural law philosophers, such as Locke and Rousseau.

In modern times, it is widely accepted that the right to liberty is the very essence of a free society and it must be safeguarded at all times. The underlying idea in entrenching certain basic and Fundamental Rights is to take them out of the reach of transient political majorities. It has, therefore, come to be regarded as essential that these rights be entrenched in such a way that they may not be violated, tampered or interfered with by an oppressive government.

As the Supreme Court has observed, the purpose of enumerating Fundamental Rights in the Constitution,

“is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the government at the centre or in the State”.[1]

In a society like India, where it is fragmented into many religious, cultural and linguistic groups, the enunciation of the Fundamental Rights in the Constitution was rather inevitable. It was necessary to declare Fundamental Rights to give to the people a sense of security and confidence.

The Fundamental Rights are a necessary consequence of the declaration in the Preamble to the Constitution that the people of India having solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens’ justice, social, economic, and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity.

The words contained in the Preamble —’Justice-Social, economic and political,’ ‘equality of status’ to all the citizens and ‘fraternity’ are guidelines to the rulers for changing the very structure of society through socio-economic reforms.

The Fundamental Rights in the Indian Constitution have been grouped under six heads as follows:

  • Right to Equality comprising Articles 14 to 18, of which Article 14 is the most important.
  • Right to Freedom comprising Articles 19 to 22 which guarantee several freedoms, the most important of which is the freedom of speech.
  • Right against Exploitation consists of Articles 23 and 24.
  • Right to Freedom of Religion is guaranteed by Articles 25 to 28.
  • Cultural and Educational Rights are guaranteed by Articles 29 and 30.
  • Right to Constitutional Remedies is secured by Articles 32 to 35.

These Articles provide the remedies to enforce the Fundamental Rights, and of these the most important is Art. 32.

RIGHT TO EQUALITY

The doctrine of equality before the law is a necessary corollary of Rule of Law which pervades the Indian Constitution.[2]

“Equality is one of the magnificent corner-stones of Indian democracy.”[3]

The Constitution of India guarantees the Right to Equality through Articles 14 to 18, of which article 14 is the most important. Art. 14 is the genus while Arts. 15 and 16 are the species.

  1. Article 14 outlaws discrimination in a general way and guarantees equality before the law to all persons. In view of a certain amount of indefiniteness attached to the general principle of equality enunciated in Article 14, separate provisions to cover specific discriminatory situations have been made by subsequent Articles.
  2. Article 15 prohibits discrimination against citizens on such specific grounds as religion, race, caste, sex or place of birth.
  3. Article 16 guarantees to the citizens of India equality of opportunity in matters of public employment.
  4. Article 17 abolishes untouchability, and
  5. Article 18 abolishes titles, other than a military or academic distinction.

Thus, the Supreme Court has said that the Constitution lays down provisions both for protective discrimination as also affirmative action.[4]

It may be worthwhile to note that Art. 7 of the Universal Declaration of Human Rights, 1948, declares that all are equal before the law and are entitled without any discrimination to the equal protection of laws. By and large, the same concept of equality is inherent in Art. 14 of the Indian Constitution.

It may be noted that the right to equality has been declared by the Supreme Court as a basic feature of the Constitution. The Preamble to the Constitution emphasizes the principle of equality as basic to the Constitution. This means that even a constitutional amendment offending the right to equality will be declared invalid. Neither Parliament nor any State Legislature can transgress the principle of equality. [5]

This principle has been recently reiterated by the Supreme Court in the following words:

“Equality is a basic feature of the Constitution of India and any treatment of equals unequally or unequal as equals will be a violation of the basic structure of the Constitution of India.” [6]

 I. Article 14

Article 14 runs as follows:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

This provision corresponds to the equal protection clause of the 14th Amendment of the U.S. Constitution which declares: “No State shall deny to any person within its jurisdiction the equal protection of the laws.”

A. Equality before Law

This is a negative concept which ensures that there is no special privilege in favour of anyone, that all 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 second corollary of the Dicean concept of the Rule of Law in Britain.[7]

This, however, is not an absolute rule and there are a 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.

But when a charge of discrimination was made for treating diploma holders and degree holders in the same category, the Supreme Court suddenly said that Art.14 cannot be stretched too far as it will paralyse the administration and repelled the challenge.[11]

Art. 14 thus means that ‘equals should be treated alike’; it does not mean that ‘unequals ought to be treated equally’. Persons who are in the like circumstances should be treated equally. On the other hand, where persons or groups of persons are not situated equally, to treat them as equals would itself be violative of Art. 14 as this would itself result in inequality.

B. Equal protection of laws

The second concept, ‘equal protection of laws’, is positive in content. It does not mean that identically the same 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. [8]

The Supreme Court has explained in Sri Srinivasa Theatre v. Govt. of Tamil Nadu[9], that the two expressions ‘equality before law’ and ‘equal protection of law’ do not mean the same thing even if there may be much in common between them. “Equality before law” is a dynamic concept having many facets.

One facet 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….”The line of distinction between the equals and unequals should not be arbitrary, but be based on relevant and justifiable reasons reflecting the actual differences in characteristics.

As all persons are not equal by nature or circumstances, the varying needs of different classes or sections of people require differential treatment. This leads to classification among different groups of persons and differentiation between such classes. Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in question is based on rational classification it is not regarded as discriminatory.[12]

A Legislature is entitled to make a reasonable classification for purposes of legislation and treat all in one class on an equal footing. The Supreme Court has underlined this principle thus:

“Art. 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.”[13]

Test for valid classification

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. A classification to be reasonable should fulfil 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.[14]

What is, however, necessary is that there must be a substantial basis for making the classification and that there should be a nexus between the basis of classification and the object of the statute under consideration. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved.

As the Supreme Court has explained: “The differentia which is the basis of the classification and the Act are distinct things and what is necessary is that there must be a nexus between them.”[15]

Arbitrariness test

Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract Art. 14, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the Legislature has in view, in making the law in question.[16]

As the Supreme Court has observed recently in K. Thimmappa v. Chairman Central Board of Directors [17] that,

“When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of the legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object which the legislature has in view”.

II. ARTICLE 15 – Social Equality and Equal Access to Public Areas

The Right to Social Equality and Equal Access to Public Areas is clearly mentioned under Article 15 of the Constitution of India stating that no person shall be shown favouritism on the basis of race, religion, caste, sex and place of birth. Article 15 is an extension of Art. 14.

Art. 15 expresses a particular application of the general principle of equality embodied in Art. 14 and is limited to the citizens only. It aims at providing equality in all the spheres of life viz. political, social, economic and cultural and thus tries to remove the disparities in all these respects.

A. Article 15(1)

It specifically bars the state from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth, or any of them.

It ensures safety and better conduct against State’s discrimination on the grounds only of religion, race, caste, sex, place of birth or any of them. Therefore, any law discriminating on any one of these grounds would be void. Besides, the guarantee under the clause can be invoked only when discrimination has been made by the State and not otherwise.

Thus, the State on its part is absolutely barred to treat any person unfavourably merely on the ground that he belongs to a particular religion or caste though on any other ground, a consideration of differential treatment will not be unconstitutional. Such classification, on any other ground, may be based on physical or intellectual fitness for some work, on better provision for the education of women and even on the ground of residence.

Similarly, the State is specifically warned that religion cannot be the ground for any disqualification or discrimination in any public matter nor is the State to offer unequal treatment to any citizen because of his race. In the same way, any legislation based on caste consideration would contravene Article 15 (1). So far as consideration for ‘sex’ is concerned any special provision can be provided in a legislation for the betterment of women and it cannot be challenged on the ground that there is no reasonable basis for classification.

Important Judgements

In Yousuf Abdul Aziz v. State of Bombay[18], Section 497 of Indian Penal Code which only punishes man for adultery and exempts the woman from punishment even though she may be equally guilty as an abettor was held to be valid since the classification was not based on the ground of sex alone.

Similar provisions apply to children. The provision of free education for children or measure for prevention of their exploitation would also not come within the inhibition of Article 15 (1). It has, however, been held that Article 15 (3) provides for only special provisions for the benefits of women and children and does not require that absolutely identical treatment as those enjoyed by males in similar matters must be afforded to them.

But recently the Supreme Court in Joseph Shine v. Union of India[19] struck down Section 497 as unconstitutional being violative of Art 14, 15 and 21 of the Indian constitution and held that Section 198(2) of CrPC shall be unconstitutional to the extent of its applicability to Sec 497 IPC.

The stated sections are held to be discriminative as there is no provision or right of a woman to prosecute her husband who indulges in adultery and it does not punish a woman in adultery not even as an abettor.

B. Article 15(2)

It prohibits subjection of a citizen to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth with regard to-

(a) access to shops, public restaurants, hotels and places of entertainment, or,

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

Clause (2) of Article 15, on the other hand, relates to State as well as private actions. It prohibits class discrimination in public places, and guarantees to the citizen‘s equal access to shops, restaurants, hotels and places of public entertainments owned by private persons. It also deals with places of public resort which are either maintained by State funds wholly or in part; or dedicated to the use of the general public.

Discrimination on grounds of morality, health etc, is not prohibited. Besides, on the ground of ‘race’, discrimination is completely prohibited at a public place and the word ‘caste’ seeks to improve the Hindu social system by abolishing several social evils. The Untouchability (Offences) Act, 1955, is an attempt in this direction. Attempts to impose any religious or social disability upon any person on the considerations of ‘high caste’ or law caste, will take a person to the court of law for prosecution.

C. Article 15(3)

The state is not prevented from making any special provision for women and children.

Clause (3) guarantees that ‘nothing in Article 15 shall prevent the state from making special provisions for women and children.’ For the betterment of these two sections of the society, the State can make special provisions and special institutions may be established for the exclusive use of women or children.

However, the general prohibition contained in Article 14 will apply so that the special provision which the State makes cannot be arbitrary or unreasonable. Equality between the sexes is an essential condition of democracy. Whatever a man has the right to do, a woman should also have an opportunity and right to do. They must have the same status as a man.

Hence, special provisions must be made for liberating women from unnecessary burdens and disabilities they suffer from, both legally and in practice. Similarly, to improve the conditions and standard of working children by preventing their exploitation, certain safeguards were most essential. After independence, the Union, as well as several State Governments, has made certain laws for the well being of womenfolk and children.

D. Article 15(4) or Art. 29(2)

It does not prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Clause (4) of Article 15 makes special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes and such a provision cannot be challenged on the ground of it being discriminatory.

This clause was inserted in the Constitution as a result of the First Amendment Act of the Constitution in 1951. This amendment itself was the result of certain decisions of courts which were sought to be nullified in their effects. Therefore, it was keenly felt that unless the State holds some special power to improve the lot of the downtrodden masses of India, it cannot bear this special responsibility efficiently.

Clause (4), therefore, seeks to bring Articles 15 and 29 in line with Articles 16 (4), 46 and 340 so as to make it constitutional for the State to reserve seats in the educational institutions for the members of backward classes, Scheduled Castes and Scheduled Tribes. Though several provisions of the Constitution have provided protection as well as a reservation for the depressed classes in the legislatures and services, it has been a difficult problem to lay down any particular criterion to determine the socially and educationally backward classes. It is because socially backward groups are found as much as in the upper castes as in the lower castes.

However, every special provision must be within reasonable limits and not at the cost of the interests of the country as a whole. It is the duty of the State to promote the educational and economic interests of the weaker sections of people and protect them from social injustice and all forms of exploitation. In the present day circumstances, democracy can never succeed unless and until the democratic principle of economic equality is truly applied to the society. In order for the development of human personality, economic equality is a base upon which a whole of the social structure is erected. Hence, the main objective of a democratic society is to reduce the gap and disparity between ‘haves and ‘have-nots’.

Important Judgements

Article 15 relates to the specific application of the general right of equality and is limited to the citizens only.

Article 15(1) prohibits differentiation on certain grounds mentioned above. Commenting on Art. 15(1), the Supreme Court in Narasappa v. Shaik Hazrat, 1958 has observed:

“Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it”.

Just as the principle of classification applies to Art. 14 so it does to Art. 15(1) as well. The combined effect of Art.14 and 15 is not that the state cannot pass unequal laws, but if it does pass unequal laws, the inequality must be based on some reasonable ground (Art. 14), and that, due to Art. 15(1), religion, race, caste, sex, or place of birth alone is not, and cannot be, a reasonable ground for discrimination.

The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias. The use of the word ‘only’ in the Arts. 15(1) and 15(2) connotes that what is discountenanced is discrimination purely and solely on account of any of the grounds mentioned.

If religion, sex, caste, race or place of birth is merely one of the factors which the Legislature has taken into consideration, then, it would not be discrimination only on the ground of that fact. But, if the Legislature has discriminated only on one of these grounds, and no other factor could possibly have been present, then, undoubtedly, the law would offend against Art. 15(1).

The Hon’ble Supreme Court, in G.M. Southern Railways v. Rangachari[20] held Article 15(4) of the Constitution of India to be an exception to Article 15(1). The relevant portion is hereunder:

“Article 15(4) which provides, inter alia, for an exception to the prohibition of discrimination on grounds specified in Article 15(1) lays down that nothing contained in the said Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.

Under Art. 15(4), the State can make special provisions for certain sections of the society as stated above. But for any section of the population not falling under Art. 15(4), special provisions can be made if there is a reasonable classification.

In M. R. Balaji v. State of Mysore[21], it was held that, in the given case, the reservation of 68 per cent made by the impugned order is inconsistent with Article 15(4) as it only enables the government to make special provisions and not exclusive provisions.

It was contended that national interest would suffer if competent and talented students are excluded from taking admissions in higher education.

Devadasan v. Union of India[22]

‘Carrying forward’ the rule of unfulfilled quota to the next two succeeding year was adopted by the Central Government in the Central services for SC’s and ST’s if suitable candidates were not available. It was invalidated because the accumulation of the unfilled quota resulted in 64 per cent in the present case. It was construed that an exception cannot substantially dilute the general rule as Article 15(4) is considered an exception to Article 15(1).

State of Kerala v. N. M Thomas[23]

Facts: The exemption was given to SCs and ST’s from passing a departmental test for some years for the purpose of their promotion in the department. In a particular year, the reservation for them was 68 per cent.

Holding: The court upheld the exception stating that Article 15(4) is not an exemption to Article 15(1). Rather, Article 15(4) is a direction to the State to enforce the concept of equality in society. The State could make adequate reservations for the upliftment of its citizens.

Indira Sawhney v. Union of India[24] (Mandal Commission Case) overruled T. Devadasan v. Union of India and held that, except for any extraordinary circumstances, total reservation should not exceed 50 per cent. Moreover, such quota will not include those SEBC’s who get selected on merit and will be adjusted towards the open category. It also held that reservations won’t be applicable in cases of promotion. ‘Carry forward’ rule is permissible as long as the limit is observed.

III. ARTICLE 16 – Equality in Matters of Public Employment

Article 16 of the Constitution of India clearly mentions that the State shall treat everyone equally in matters of employment. No citizen shall be discriminated on the basis of race, caste, religion, creed, descent or place of birth in respect of any employment or office under the State. Every citizen of India can apply for government jobs.

Some exceptions to this right

  1. The Parliament may pass a law mentioning that specific jobs can only be filled by candidates who are residing in a particular area. This requirement is mainly for those posts that necessitate the knowledge of the locality and language of the area.
  2. The State may also set aside some posts for members of backward classes, scheduled castes or scheduled tribes which are not properly represented in the services under the State to uplift the weaker sections of the society.
  3. Also, a law may be passed which may entail that the holder of an office of any religious institution shall also be a person professing that specific religion.

This right shall not be granted to the overseas citizens of India as directed by the Citizenship (Amendment) Bill, 2003.

Provisions of Article 16

Article 16 deals with the equality of opportunity in matters of public employment. Equal opportunity is a term which has differing definitions and there is no consensus as to the precise meaning. The constitution of India has given a wide interpretation of this article.

A. Clause (1) of Article 16 has proclaimed the equality of opportunity for all citizens in matters of public employment. This equality of opportunity, however, means equality as between members of the same class of employees and not equality between members of separate, independent classes.

B. Clause (2) of Article 16 declares any discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them as a violation of the fundamental right of a citizen. The words ‘descent’ and ‘residence’ have been used with the particular intention of not only avoiding discrimination in ‘appointment’ and employment to an office under the State but also to keep an All India character in services, as far as possible.

C. Clause (3) of Article 16 empowers the Parliament to make any law prescribing residence within the State as a condition for particular classes of employment or appointment under any State specified in Ist Schedule or any local or other authority. It thus restricts the operation of clause (2) by making this exception in the matter of employment. A citizen cannot be denied employment in any State on the ground of his being a non-resident in that State. It should also be noted that the permissible requirement under this clause is ‘residence’ and not ‘place of birth’. This restriction has been included for efficiency.

D. Clause (4) of Article 16 is an extension of the general rule provided in clause (1) and (2) of the same article. Clause (4) empowers the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.

To determine the backwardness and investigate its causes, Article 340 has provided for the appointment of a Commission. Apart from clause (4) of article 16 several other provisions of the Constitution have guaranteed certain safeguards to the Scheduled Castes, Scheduled Tribes and backward classes.

However, reservation beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. The members of the backward classes may also compete against the unreserved posts with members of the non-backwards classes in general competition. To assess the general condition of employment of the backward classes and the reservation in State services, several reports of the Commissioner of Scheduled Castes and Scheduled Tribes as well as the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, have brought to light the real state of affairs.

According to Article 16 (4A) the State can make any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

According to Article 16 (4B) the State can ‘carry forward’ the unfilled vacancies to the next year, provided that it should not exceed the limit of fifty per cent reservation on the total number of vacancies of that year.

Lastly, in accordance with clause (5) of Article 16 the offices relating to religious institutions may be reserved for persons professing that particular religion only. The State is competent enough to make such a reservation.

Important Judgements

In 2006, the Supreme Court of India, in the case of M.Nagaraj & Others v. Union of India & Others[25] decided on the constitutional validity of the 77th amendment. The honourable court stated that the power to amend the constitution implies that the ‘the personality of the constitution must remain unchanged’ and ‘one cannot legally use the constitution to destroy itself’.

Therefore, the honourable court concluded that equality is part of the basic structure of the constitution. The Court upheld the constitutional validity of the 77th amendment thus reservations in promotions was made constitutional, provided –

  • The backwardness of a class of people is shown
  • Inadequacy of representation is shown
  • Overall administrative efficiency is proved

Therefore, to prove the above points the state needs to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.

In U.P. Power Corporation Ltd. v. Rajesh Kumar[26] the Supreme Court held that “A fresh exercise in the light of the judgement of the Constitution Bench in M.Nagaraj case, is a categorical imperative in which Articles 16(4-A) and 16(4-B) were held to be constitutionally valid as enabling provisions for the reservation in promotion with consequential seniority and the State can make reservations for the same on certain basis or foundation.

In essence, bypassing the 117th Amendment to the constitution, no data or exercise will be required for a reservation for promotion in government jobs. (i.e., The 3 conditions as mentioned in the M. Nagaraj case need not be fulfilled).

Provisions contained in Arts. 15 and 16 are merely enabling provisions. No citizen of India can claim reservation as a matter of right and accordingly no writ of mandamus can be issued.

IV. ARTICLE 17 – ABOLITION OF UNTOUCHABILITIES

The Constitution of India procured for nullifying of untouchables—a social shrewdness rehearsed in this nation from time immemorial. Article 17 provides that Untouchability be nullified and its practice in any form are strictly prohibited. The authorization of any inability emerging out of ‘this practice’ might be an offence culpable as per law. Article 17 reads as follows,

“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 law”[27]

Abolition of Untouchability is considered to be a beginning towards social revolution. Article 17 has tended to change the age-old tradition and tried to throw the evil practice of untouchability and so it has been considered a landmark in the constitutional history of India. This article not only announces the abolition of untouchability but also prescribes it to be a punishable offence that is in accordance with the law.

Its primary aim is not only to abolish the social evil but also to eradicate those factors which cause that social evil. Untouchability Offences Act, 1955 is a major step towards the extermination of such anti-social practices. Also for the effective enforcement of the declaration that is contained in the article 17, the Constitution contemplates penal laws specifying various acts that are to be penalized and prohibited and under Article 35, the Parliament can alone make laws prescribing punishments for the acts forbidden under Article 17.

V. ARTICLE 18 – ABOLITION OF TITLES

The framers of the Indian Constitution decided to abolish titles through the constitutional provisions and Article 18 under the chapter, fundamental rights, was inserted because during the pre-independence period the British rulers had conferred titles on ardent supporters and government officials in order to create a difference in the society.

In a democratic country like ours where social, political and economic equality is the axis, it is not desirable to confer titles on some individuals and create a distinction that is artificial among members of the political system. The primary aim of Article 18 is to curb the growth of any artificial inequality in society. This article is based on democratic equality. The title is something that is attached to one’s name as an appendage such as sir, Maharaja, Nawab etc.,

Article 18 reads as follows,

  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, shall accept without the consent of the President any title from any foreign State.
  4. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.”[28]

This Article abolishes all titles and prohibits the state to confer titles irrespective of whether he is a citizen or not. Military and academic distinctions are exempted from this prohibition. There is no bar on a University giving title or honour on a man of merit. Also, Clause 2 of the article prohibits a citizen from accepting any title from foreign states. Clauses (3) and (4) have been added to ensure that a non-citizen should remain loyal to the State i.e. do not commit the breach of the trust reposed in him.

In Balaji Raghavan v. Union of India[29], the validity of these National Awards was challenged by the petitioners and also requested the Court to prevent the Government from conferring these Awards. The Supreme Court held that the National Awards such as Padma Bhushan, Bharat Ratna and the Padma Shri are not violative of the principle of equality as guaranteed by the provisions of the Indian Constitution. These National Awards do not amount to “titles” within the meaning of Article 18 and, therefore, not violative of Article 18 of the Constitution.

Conclusion

Right to equality is considered to be one of the inalienable rights of human and plays a significant role in the upliftment of the various backward classes. This particular right helps in achieving social and economic justice. The factors like vagueness about the dimensions of the Right to Equality, changing judicial tests, misconceptions about them, failure to apply them in some of the significant areas, needs to be dealt with, in order to ensure equality and justice in the society which is the prime motive of the concept of equality.

Courts have to make sure that the right to equality is properly interpreted so as to achieve the ends intended by the framers of the Constitution.


References:

  1. P.Jain, Indian Constitution Law (8th ed, Lexis Nexis 2018)
  2. Sujit Choudhry, The Oxford Handbook of the Indian Constitution(Oxford University Press UK 2016)

[1] The Chairman, Railway Board & Ors v. Chandrima Das & Ors, (2000) 2 SCC 465.

[2]  Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 : AIR 2002 SC 1533.

[3] Thommen, J., in Indra Sawhney v. Union of India, AIR 1993 SC 477: 1992 Supp (3) SCC 212.

[4] Andhra Pradesh Public Service Commission v. Baloji Badhavath, (2009) 5 SCC 1 : (2009) 5 JT 563.

[5]  Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225; Indra Sawhney v. Union of India (II), AIR 2000 SC 498 : (2000) 1 SCC 168

[6]  M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264 : (2001) 2 SCC 666

[7] Wade & Phillips, Const. & Adm. Law, 87 (1977).

[8]  Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245 : (1962) 1 SCR 151

[9] AIR 1992 SC, at 1004.

[10]  Gauri Shankar v. Union of India, AIR 1995 SC 55, at 58 : (1994) 6 SCC 349.

[11]  Dilip Kumar Garg v. State of Uttar Pradesh, (2009) 4 SCC 753 : (2009) 3 JT 202.

[12] Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34.

[13] Western U.P. Electric Power and Supply Co. Ltd. v. State of Uttar Pradesh, AIR 1970 SC 21, 24 : (1969) 1 SCC 817.

[14] Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873, 891: (1981) 2 SCC 600.

[15] In re v. Special Courts Bill, 1978, AIR 1979 SC 478: (1979) 1 SCC 380.

[16]  Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436: (1976) 1 SCC 682.

[17]AIR 2001 SC 467: (2001) 2 SCC 259.

[18] (1954) AIR 321

[19] (2018) SC 1676

[20] (1962) AIR 36

[21] AIR 1963 S.C. 643

[22] (1964) AIR 179

[23] (1976) AIR 490

[24] AIR 1993 SC 477

[25] (2006) 8 SCC 212

[26] U.P. Power Corp. Ltd. v. Rajesh Kumar & Ors. (2012) 7 SCC 1.

[27] Indian Constitution, Article 17

[28] Indian Constitution, Article 18

[29] (1996) 1 SCC 361


  1. Constitutional Law; Notes, Case Laws And Study Material
  2. Unveiling Constitutional Morality in India
  3. Constitution of India – Full Text
  • Rinsha says:

    This article gives a clear picture of the concept of Right to equality.