9 Equality-I: Classification, Non-Discrimination And Non-Arbitrariness
Dr. Anjali Bansal Goyal
1. Introduction
In a system wedded to freedom and democracy, it is only fair that the fundamental rights of the citizens enshrined in the Constitution should have primacy over any privileges or special rights of any class of people, including the elected legislators, and that all such claims should be subject to judicial scrutiny, for situations may arise where the rights of the people may have to be protected even against the Parliament or against captive or capricious parliamentary majorities of the moment.1 These observations were made by Supreme Court in Justice Ripusudan Dayal (Retd) v State of MP2 where the validity of certain letters were challenged which were issued by Secretary, Vidhan Sabha with regard to a case registered by the Special Police Establishment (SPE) of the Lokayukt Organisation, against the officials of the Vidhan Sabha alleging irregularity in the construction work carried out in the premises of Vidhan Sabha.3 Thus, the basic law that all citizens should be treated equally before the law holds good in the case of members of Parliament as well. They have the same rights and liberties as ordinary citizens except when they perform their duties in the Parliament. The privileges, therefore, do not, in any way, exempt members from their normal obligation to society which apply to them as much and, perhaps, more closely in that as they apply to others.4
2. Learning Outcome
2.1 Awareness about different concepts involved in Article 14
2.2 Understanding the expanding horizons of Right to Equality
3. Right to Equality- Fundamental Right Guaranteed By Article 14
Equality clause, embodied in Article 14 does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation and is thus consequently an essential ingredient of social and economic justice. Article 14 of the Constitution states that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.5 It talks about two expressions namely i.e. Equality before law; and Equal protection of laws.
3.1 Equality Before Law
The phrase “equality before law” finds place in almost all written Constitution that guarantee fundamental rights. It is English in origin. It is a familiar feature of what Dicey called the “Rule of Law”. “Rule of Law” means that no man is above the law and that every person whatever be his rank or condition, is subjected to the ordinary law of the land and is amendable to the jurisdiction of the ordinary tribunals. He observes: “With us every official, from the Prime Minister down to a constable or a Collector or taxes, is under the same responsibility for every act done without legal justification as any other citizen.6 “Equality before law” thus means absence of any special privileges for any particular person. It also strikes at arbitrary power on the part of the Government. It is, therefore, a negative concept. This, however, is not an absolute rule and there are a number of exceptions to it i.e., Foreign diplomats, Judges, President of India as well as state Governors etc.7
3.2 Equal Protection of Laws
The phrase “equal protection of laws” is based on section 1 of the fourteenth Amendment of the Constitution of the United States of America adopted on July 28, 1868 which runs as: “nor shall any State deny to any person within its jurisdiction the equal protection of laws.”8 This phrase is interpreted to mean “subjection of equal laws applying to all in the same circumstances.” It means that all persons have the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by laws. It requires that equal laws should be applied to all in the same situation and that there should be no discrimination between one person and another. Thus, the phrase “equal protection of laws” lays down the rule that “like should be treated alike and not that unlike should be treated alike.”9 It is known to be positive in content. It is a pledge of the protection of equal laws.
4. Article 14 Permits Reasonable Classification
All persons are not equal by their nature, attainment or circumstances. The varying needs of different classes of persons often require separate treatment. As a consequence the legislature must have power to make laws distinguishing, selecting and classifying persons and things upon which its laws are to operate.10
4.1 Reasonable Classification – An Integral Part of Article 14
Article 14 permits classification. Classification is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. It must be reasonable and not arbitrary, artificial or evasive.
| Case | Provision/Rule/Regulation | Reasonable Classification |
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Chiranjit Lal Chowdhury
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1. Promulgation of the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance, 1950, empowering the Central Government to take over the management and administration of the Sholapur Spinning and Weaving Co Ltd., which was closed down due to disputes between the management and the employees.2. The Ordinance was subsequently replaced by an Act of Parliament, containing similar provisions. |
The court observed that the law would be constitutional, even if it applied to one person or one class of persons, if there was sufficient basis or reason for it. |
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The court observed that the law would be
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1. Appointment of Commission of Inquiry under the Commission of inquiry Act, 1952, with Justice S.R. Tendolkar as its Chairman, against one of the Dalmia concerns, on the ground of mismanagement in the said concern, apprehending considerable loss to the investing public.
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The discretion conferred by the Act was not unguided because the Act had clearly laid down the policy, viz, to enquire into |
4.2 Principles For Determining Reasonable Classification as Laid Down in Dalmia’s Case11,Further Elaborated in Re Special Courts Bill, 197812 and followed by Courts
The basic principle of Right to Equality is that all persons similarly circumstanced should be treated alike both in privileges conferred and liabilities imposed.
The State is vested with power to determine, who should be regarded as a class for purposes of legislation and in relation to a law, enacted on a particular subject, by the process of classification.
Classification mean segregation in classes which had a systematic relation usually found in common properties and a rational basis of characteristics its postulated.
Tests for reasonable classification – The classification must have some basis i.e. must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. The differentia must have a nexus with the object sought to be achieved by the statute in question.
Single individual may be treated as a class by himself on account of some reasons applicable to him and not applicable to others.
The Court will always presume in favour of constitutionality of an enactment and the burden is upon the person who alleges violation of constitutional norms to prove any such violation.
For application of this principle of constitutionality, the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived existing at the time of legislature.
Where classification is not based on reasonable grounds then this presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed reasons for subjecting certain individuals to discriminating legislation.
Members of Parliament as well as State Legislative Assembly are the representatives of the people. They understand their need and make laws in order to find solution to their problems.
Legislature is free to identify the degree of harm and may limit its restrictions to those cases where the need is deemed to the clearest. Thus, it could recognize the degree of harm but that classification should never be arbitrary, artificial or evasive.
The statute itself cannot be condemned as discriminatory if it has clear and definite legislative policy, an effective method of carrying out that policy and discretion vested upon a body of administrators for selective application of law to certain classes or groups or persons.
Discretionary power would not necessarily mean discriminatory powers. It cannot be assumed that the authority would always act in an arbitrary manner if discretion is conferred upon it by law.
A practical assessment of the operation of the law in a particular circumstance is necessary.
4.3 Basis of Reasonable Classification
Classification to be reasonable must be founded on some intelligible differentia which distinguishes persons or things that are grouped together from those left out of the group. There may be different basis of classification referable to different considerations in each case like geographical basis, historical basis, nature of business, nature of persons, nature of offences, educational qualification etc.
5. Article 14 Strikes at Arbitrariness
Equality is antithetic to arbitrariness. This new approach was developed by Supreme Court in E.P. Royappa v State of Tamil Nadu.13 It was observed that equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits.14 The court reiterated the same opinion in Maneka Gandhi v Union of India15 where it is observed that Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. This new approach has been consistently applied by the courts in determining the true scope of the equalizing principle. Though there cannot be any exact definition of arbitrariness but a basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action which satisfies the test of reasonableness.
5.1 Doctrine of Justice, Equity, Fairness and Reasonableness in the State Action
Every decision of the State as well as its agencies/instrumentalities to grant largesse must be founded on a sound, transparent, discernible and well defined policy. It shall be made known to the public by publication in the Official Gazette. Such policy must be executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy.
But every decision by the state cannot be challenged on ground of arbitrariness. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest.16
5.2 Striking Down of Any Legislative provision/Regulation/Rule on Ground of Being Arbitrary
5.3 Doctrine of Reasonability Applied By Courts
6. Article 14 Provides Positive and not Negative Equality
Any action or order contrary to law does not confer any right upon any person for similar treatment.
Equality cannot be invoked to perpetuate an illegal order.
7. Rules of Natural Justice Implicit in Article 14
Natural justice is held to be the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental.
Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are `basic values’ which a man has cherished throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of rules of natural justice is to ensure fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice.17 These observations are made by the Apex Court in Justice P D Dinakaran’s case where he had objected to the inclusion of Shri P P Rao, Senior Advocate, Supreme Court of India in the Committee constituted by the Chairman of the Council of States (Rajya Sabha) under Section 3(2) of the Judges (Inquiry) Act, 1968.
The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice.19 Even the State Information Commission exercising powers under the provisions of the Right to Information Act, 2005, is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same.
Conclusion
In the end, it is submitted that Article 14 ensures equality before law and strikes at arbitrary and discriminatory state action. If power conferred by statute on any authority of the State is vagrant and unconfined and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause, because it would permit arbitrary and capricious exercise of power, which is the antithesis of equality before law.21 Our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is antithesis of rule of law.22 The exercise of all administrative power vested in public authority must be structured within a system of controls informed by relevance and reason, relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so.
Summary
Article 14 of the Constitution provides Right to Equality
Two phrases are used in it i.e. Equality Before Law and Equal Protection of Laws
Equality before law is a negative concept whereas equal protection of laws is a positive concept. Equality cannot be invoked to perpetuate illegality.
Equality does not mean absolute equality. It permits reasonable classification.
Article 14 provides that there should be justice, equity, fairness and reasonableness in state action as it is against arbitrariness.
Principles of natural justice are an integral part of Article 14.
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- http://www.reservearticles.com/2011111216872/essay-on-right-to-equality-under-article-14-
of-indian-constitution.html - http://www.ohchr.org/Documents/Publications/training9chapter13en.pdf