Right to Equality (Articles14-18): Doctrine of Reasonable Classification and the Principle of Absence of Arbitrariness, Legitimate Expectations, Principle of Compensatory Discrimination

Theoretical overview

Right to equality is a fundamental right which is enshrined under article 14 to article 18 of part iii of the Indian constitution. As per article 14, the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Here the word any person includes both citizens and non-citizens of India. In layman’s language, article 14 ensures the equality in two spheres which are: – 

• equality before law which is a negative connotation as it consists of prohibition of discrimination. This particular concept is same as the concept of rule of law which states that no man is above law irrespective of their rank.
• Equal protection of law which is a positive connotation. It states that the like should be treated like and unlike should be treated like. The concept of compensatory discrimination says that discrimination is allowed but it should not be arbitrary and must be reasonable.

Class legislation is not allowed but reasonable classification is. It should be based on intelligible differentia which means intelligent reason for classification. It is upon the judiciary to decide whether a particular classification meets the requirements of reasonableness. Also, article 14 does not restrict the word person to males or females, it does include hijras/transgenders.

Article 15

Article 15 prohibits the discrimination on 5 grounds which are religion, race, caste, sex or place of birth. The state can not discriminate against any citizen on these five grounds as per article 15(1). Many people believe that the policy and concept of reservation is against this article as the state discriminate on the basis of caste but the answer to that is a clear no. This is so because reasonable restrictions and classifications can be done on the basis of intelligible differentia protected by article 14.

Article 15(2) gives the immunity to the citizens from not being subject to any disability, liability, restriction or condition with regard to –

• The private owned places – Access to shops, public restaurants, hotels, places of public entertainment 
• State property – Use of wells, tanks, bathing ghats, public resort wholly or partly by state funds

Article 15(3) gives the exception to the whole article. It states that special provisions for women and children. While art 15(4) which was added by 1^st amendment act states that this article and article 29 won’t prevent state from making special provision for advancement of socially and educationally backward classes of citizens or SC/ST. also, being from rural area doesn’t give a a tag of being socially and educationally backward.

Article 15(5) states the same provision mentioned in fourth sub section in relation to the admission in institutions including private (aided and unaided both) other than minority educational institutions.

Also, backwardness under article 15(4) must be both social and educational. Caste cannot be the sole test for determining the backwardness. The supreme court in its decisions stated that reservation cannot be given more than 50%.

Article 16 

Article 16 of the Indian constitution provides equality of opportunities in matters of public employment. Its sub section 1 says that all citizens will have equality of opportunity in any office under the state

Article 16(2) gives the seven grounds on which equality should be provided. These grounds are religion, race, caste, sex, place of birth, descent and residence. While article 16(3) gives exception to these seven grounds which says that reservation can be given on the basis of residence if backward class is not represented adequately.

Article 16(4) provides provision for reservation for jobs for the backward classes which also includes reservation in promotion on the basis of seniority. There have been numerous amendments on the issue of reservation in promotion. The supreme court in the case of Nagraj vs. Union of India gave three requirements for this type of reservation which are – 

• Demonstrate the backwardness of SC/ST
• Proves that they are inadequately represented
• Maintain overall efficiency of administration.

To understand the provisions, policy and methods of reservation, it is important to study about two commissions which are – 

Kalekar Commission – it was the first backward class commission formed under article 340(1). It was formed to identify methods of improving the conditions of socially and educationally backward classes

Mandal Commission – it was formed in the year 1979 which was headed by BP Mandal. The aim was to determine criteria for defining the socially and educationally backward class. They submitted in its report that 52% population are socially and economically backward (SEBC’s). After that, 27% reservation in addition to previously existing 22.5% reservation for SC/ST was given as OBC reservation.

Article 17

Article 17 of the constitution ensures the abolition of untouchability. Untouchability and any of its practices in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

Also, article 35 empowers parliament to make laws to give effect to the provisions of part iii of the constitution. Due to this parliament enacted the protection of civil rights act,1955 which has a provision of punishment of imprisonment upto 6 months and a fine of 500/- or both.

The subject matter of this article is not untouchability in its literal or grammatical sense but the practice as it had developed historically in the country

Article 18

Article 18 of the Indian constitution states abolition of titles. It further states that – 

1. No title, not being a military or academic distinction shall be conferred by state.
2. No citizen of India shall accept any title from any foreign state
3. A non-citizen of India, who holds office of profit in India shall not accept foreign titles without president’s consent

The validity of national awards was challenged as they were violative of principle of equity but the court referred to art 51-A(i) of the fundamental duties and stated that “to strive towards excellency in all spheres of individual and collective activity is needed so that the nation constantly rises to higher level of endeavor and achievement.

Relevant articles

Article 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15.– Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public 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

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause ( 2 ) of Article 29 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

Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination

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 law

Article 18. Abolition of titles – No title, not being a military or academic distinction, shall be conferred by the State No citizen of India shall accept any title from any foreign State 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 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 Right to Freedom

Important case laws

1. Pandhir Singh vs. Union of India,1982 – equal pay for equal work is not a fundamental right but clearly a constitutional good under article 14 and 16
2. State of Madras vs Champakam Dorairajan,1951 – supreme court held that fundamental rights will prevail over DPSP. DPSP has to work as a supplement.
3. Indra Sawhney vs Union of India,1992 – it was held that economy can not be the sole criteria for reservation. The concept of creamy layer was included and the reservation was capped at 50%.
4. Balaji Raghwan vs. Union of India,1996 – The validity of national awards was challenged as they were violative of principle of equity but the court referred to art 51-A(i) of the fundamental duties and stated that “to strive towards excellency in all spheres of individual and collective activity is needed so that the nation constantly rises to higher level of endeavor and achievement.
5. PUDR vs. Union OF India,1982 – the apex court held that fundamental right under article 17 is available against private individual too

Points to remember

• Right to equality is a fundamental right which is enshrined under article 14 to article 18 of part iii of the Indian constitution.
• As per article 14, the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Here the word any person includes both citizens and non-citizens of India 
•  Article 15 prohibits the discrimination on 5 grounds which are religion, race, caste, sex or place of birth. The state cannot discriminate against any citizen on these five grounds as per article 15(1). 
• Article 16 of the Indian constitution provides equality of opportunities in matters of public employment. Its sub section 1 says that all citizens will have equality of opportunity in any office under the state.
•  Article 17 of the constitution ensures the abolition of untouchability. Untouchability and any of its practices in any form is forbidden. 
•  Article 18 of the Indian constitution states abolition of titles.