Equality as a general concept simply means the equitable principle of fairness and non-discrimination amongst individuals. Hence, it is to create the full maximization of potentials nature has provided on an equitable platform.
Equality as a concept of law (legal egalitarianism) is a principle of law that seeks to provide the same legal benchmark and standards for all individuals irrespective of background, status or any other divisive parameter.
The general principle of equality and non-discrimination is a foundational element of international human rights law. It is evident that the right to equal treatment requires that all persons be treated equally, fairly and justly before the law, without discrimination.
Equality, before the law is the attribution of fundamental rights accrued from a body of generally accepted rules which seeks to give a humane face to the law while ensuring no individual, is above the law.
Therefore, all are viewed with the same parameters under the law irrespective of individual differences. This fundamental human right is enshrined and protected in the constitution of democratic countries around the world.
One of the countries worthy of focus with respect to this principle is India. Equality is one of the foundational rights in the Constitution of India.
This principle is as contained in Articles 14 to 18 of the Constitution of India and also recited in the Preamble to the Constitution of India. This principle of rule of law is enshrined in Article 14 while Articles 15 to 18 detailed out the application of the principle in Article 14.
Article 14 guarantees equal protection before the law and equality before the law, while the concept of equality before the law has its roots in the English Common law.
The concept of equal protection before the law was taken from section 1 of the fourteenth (14th) amendment Act of the constitution of the United States. As the term implies, each person within the territory of India irrespective of citizenship will be guaranteed equal protection under the law.
The principle of equality before the law sprung out from the doctrine of Rule of Law as propounded by an erudite scholar, Professor A.V. Dicey in his book “The Law of the Constitution” published in the year, 1885 where he highlighted the three (3) implications of the doctrine of Rule of Law. These implications are:
- The predominance of Law/Absence of Erratic wield of Power – Only a breach can trigger punishment. The absence of same makes punishment unjustifiable and unlawful.
It means that no man should be subjected to any form of punishment unless as expressly stated by the law and the said punishment must be stipulated by the law which was allegedly breached.
- Equality before the Law – By this, every person is under the control and dictate of the law. There is no preferential treatment rendered in the operation of law of the land as administered by the courts of law created by law.
- The preeminence of the Rights of the Individual – This implies that the Constitution births the various rights of individuals. It acts as a medium for the documentation of such rights. However, those rights predate the Constitution; hence, the revered status given to the concept.
However just like every law, there are exceptions to the Rule of law. It should be noted that despite these exceptions, the rule of law ensures that the existing discretion conferred upon all authorities must be contained within clearly defined limits. The rule of law is deeply rooted in the foundation of the Constitution of India and it forms one of its standout features.
The import of Article 14 of the Constitution of India does not state that all laws must be uniform in nature and applicable to all persons. The distinct demands of different classes of persons more often than not require differing arguments and discussion.
What the concept of Equality frowns against the article, is the legislation according to Class. But, it does not outlaw reasonable classification which is in place to aid proper enforcement of the principle.
The parameters employed to ensure the same includes the prevention of arbitrary actions as all acts must arise from a legally justifiable laid down distinction which reflects the purpose of the legislation.
Article 14 abhors class legislation which embodies unfair and illegal discrimination by conferring privileges upon a class of persons without any legal and fundamental distinction evidence which would, in turn, justify the inclusion of one and the exclusion of the other from such privilege.
An example of the above are instances where states make special provisions for a certain class of society.
Women and children are an example of this. There is a special seating arrangement which is made for women in buses, trains, metros trains and such cannot be referred to as unconstitutional for reasons enshrined in the paragraphs above.
A sharp contrast can be evidenced in the instructive case of D. S. Nakara v. Union of India, where the Supreme Court held that Rule 34 of the Central Services(Pension) Rules, 1972 was unconstitutional.
It is so, on the ground that the classification made by it between pensioners retiring before a certain date and retiring after that date was not pursuant to any rational principle of law.
Thus, it was deemed arbitrary by the court which further held same to be an infringement of Article 14 of the Indian constitution.
Articles 15 – 18
The provision of Article 15 seeks to prevent discrimination on the grounds of religion, race, caste, sex or place of birth.
In an effort to render protection to particular classes of persons, the constitution permits the making of a unique nature for women and children and for socially and educationally backward classes of citizens who may be collectively called persons under legal disability.
The judgment of the court in the case of State of U. P. v. Pradeep Tandon (1975) 1 SCC 267; AIR 1975 SC 563 is instructive. It was held on the need to apply these legal reservations/exceptions as expressed.
This application is in the support of certain areas on the ground that these areas were instances of socially and educationally backward class citizens. As mirrored in the decided cases, circumstances of birth and place of abode contribute immensely to a person’s perception of laws.
Therefore, the intervention of law by making special provisions for them does not run contrary to the spirit of the law regarding the doctrine of equality before the law.
Article 16 throws light on the need to give equality of opportunity with respect to employment in the public or government-owned establishments. By the dictates of Article 16 of the Constitution of India, it is guaranteed that equal opportunity is to be granted to the citizens where employment or appointment in the government-owned establishment is an issue.
This provision, however, does not forestall the setting of the requisite qualifications benchmark for recruitment.
The Constitution of India in Clause 4 of Article 16 in the obvious attempt at protecting the special class of persons who are under legal disability, permits some exception to the positions for persons who are under the legal disability, who are in fact, inadequately represented in the employment sector of the government.
More light on this was thrown in the case of N. M. Thomas v State of Kerala Article [1976 AIR 490, 1976 SCR (1) 906] where the Supreme Court opined that the preferential treatment of under-represented backward classes was not illegal; so far as such treatment was reasonable and can be rationalized in line with the object sought to be attained which in turn makes such an action valid.
The focus of Article 17 was because of the social disabilities imposed from time immemorial on a certain category of people by reason of their birth in certain castes.
This constantly triggered social boycott as same was duly abolished by virtue of this commendable provision. It abolished what was commonly referred to as “untouchability” and made the practice of such a penal offense and this helped to discourage the practice of same.
The unmeritorious conferment of titles and recognition by the State on the citizens violates the dictates of equality as provided by the constitution for it will create unworthy stratification in the society.
Article 18 abolished such acts which restored equilibrium/balance and restored the principle of equality the existence of the former eroded.
By Clause (2) of Article 18 of the Constitution, citizens are barred from accepting or acknowledging any title from a foreign country but this limitation does not extend to academic and military accolades.
The erstwhile practice of conferring titles and investiture into various Order of the British Empire on the good wishers and supporters of the British regime created an undesired result. This further occasioned inequality contrary to the doctrine of equality which the law upholds.
The limitation as enshrined in Clause 2 of Article 18 of the Constitution is to the extent that accepting any presents in any form whatsoever from a foreign State while occupying a public office or any office of profit or trust in India.
The principle of equality as stipulated in the Constitution of India is the basis of the democratic structure in India.
In a society like India where the values such as social justice, equality, liberty, and fraternity are envisaged by the Constitution, it follows that the constitution against the background of the attendant diversity in India is seeking through these aforementioned values to mind the society.
The important role played by the judiciary in enforcing the dictates of the Constitution has and will continue to consolidate the values as already enshrined in the constitution.
The foresight and the legislative valor displayed by the founding fathers of the India Society is quite commendable as many countries such as America fought for years in order to have these values enshrined in their constitution.