Equality before Law: ART.

14 Article 14 declares that the state shall not deny to any person before the law or the equal protection of the laws within the territory of India. Thus article 14 uses two expressions equality before the law and equal protection of the law. The first is a negative concept which ensures that there is no special privilege in favour of any one, that all are equally subject to the ordinary law of the land and that no person, whatever is his rank or condition, is above the law. This is equivalent to the concept of rule of law in Britain1. This, however, is not an absolute rule and there is no. of exceptions to it, e.g., foreign diplomats enjoy immunity from the countrys judicial process; Art 361 extends immunity to the pres ident 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 The second concept, equal protection of laws is a more positive concept implying equality of treatment in equal circumstances2. It does not mean that identically the same law should apply to all persons, or that every law has a universal application within the country irrespective of differences of circumstances. In state of West Bengal v. Anwar Ali sarkar,3 Patanjali sastri, C.J., has rightly observed that the second expression is corollary of the first and it is difficult to imagine a situation in which the violation of equal protection of laws will not be the violation of the equality before law. The Supreme Court has explained in Sri Srinivasan Theatre v. Govt. of Tamil Nadu,4that the two expressions do not mean the same thing even there is much in common between them. Equality before law is a dynamic concept having many facts. One facet is that there shall be no privileged person or class and that none shall be above law. Another facet is the obligation among the state to bring about, though the machinery of law, a more equal society.For, equality before law can be predicated meaningfully only in an equal society. The principle of equality of law thus means not the same law should apply to everyone but that a law should deal alike with all in one class: that there should be an equality of treatment under equal circumstances. It means that equal should not be created unlike and unlike should be treated alike. Like should be treated alike5. But when 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.6 Art. 14 thus mean 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 group of person are not situated equally, to treat them as equals
1 2

WADE & PHILLIPS, CONST. & ADM. LAW,87 (1997). th Dicey -law of constitution, p.49 (10 ed.) 3 AIR 1952 SC 75 4 AIR 1992 SC, at 1004 5 Gauri Shankar v. union of India 6 Dilip Kumar Garg v. state of Uttar Pradesh, (2009)SCC 753: (2009) 3JT202

would itself be violative of Art. 14 as this would itself result in inequality. As all persons are not equal by nature or circumstances, the very needs of different classes or sections of people require different treatment, so the courts have evolved the principle that if the law in question is based on rational classification it is not regarded as discriminatory.7 The clubbing of those dealers against whom there was no allegation with a handful of those against whom there were allegations of political connection and patronage, results in treating unequals as equals.8 Article permits classification but prohibits class legislation: The equal protection of laws guaranteed by Article does not mean that all the laws must be general in character. It does not mean that same law should apply to all persons. It does not mean that every law has a universal application for; all persons are not, by nature, attainment or circumstances in the same position. The varying needs of different classes of persons often require separate treatment.9 Thus, what article 14 forbids is class-legislation but it does not forbid reasonable classification. A legislature is entitled to make 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. Class legislation is that which makes an improper discrimination by conferring special privileges upon a class of person arbitrarily selected from a large no. of persons, all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.10,

Test of reasonable classification: Classification to be reasonable must fulfill the following two conditions:1) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and 2) The differentia must have rational relation to the object sought to be achieved by the act.11 The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the

7 8

Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673 9 Chiranjit Lal v. Union of India, AIR 1951 SC 41 10 Monoponier co. v. city of los angeles, 33 cal app. 675 11 K.Thimmappa v. Chaiman central Board of directors SBI, AIR 2001 SC 467

object of the act which makes the classification. No contract can be made to depend upon the stature or colour of the hair. Such a classification will be arbitrary.12 New concept of equality In E.P. Royappa v. state of Tamil nadu,13 the Supreme court has challenged the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. Bhagwati, J., delivering the judgement on behalf of himself, Chandrachud and Krishna iyer, JJ. Propounded the new concept of equality in the following words- Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. In Maneka Gandhi v. Union of India,14 Bhagwati J., again quoted with approval the new concept of equality propounded by him in the E.P. Royappa case. He said:- Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence. In R.D. shetty v. airport authority, AIR 1979 SC 1628.:- in this case also the same principle was outlined that the doctrine of classification which is involved by the court is not paraphrase of Article 14 nor is it the objective and end of that article. It is just the formula for determining whether the legislative or executive action is arbitrary and constituting denial of equality. The basic postulates of the rule of law are that justice should not only be done but it must also see to be done. If there is any reasonable ground on which a litigant believes that his matter may not be heard by a particular judge, it is appropriate for that judge to exclude himself from the bench hearing that matter. This step is required to be taken by the learned judge not because he is likely to give a reasonable apprehension in the mind of the litigants that the mind of the learned judge may be sub-consciously has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of opposition party. This ruling was laid down in R.k.Ghosh v. J.G.Rajput15 in which the respondent who was on employee of the Ahmadabad Municipal Corporation filed a writ petition in the Gujarat High court challenging his suspension. Mr. B.L.shethana, who has argued his case and obtained a stay order later, became the judge of the same court. In 1993, respondent was served with another charge of theft of some municipal property. This charge was not connected with the earlier dispute. However, he filed a petition praying that the said charge sheet be stayed and the appellant municipal corporation be punished for contempt of court and two earlier orders be restored. His petition came for hearing before the division bench of the High court comprising R.A. Mehta and B.L.shethana, JJ. The appellant object that the matter should not be heard as

12 13

Anwar Alis case AIR 1952 SC 75 AIR 1974 SC 555 14 AIR 1978 SC 597 15 (1996) 6 SCC 744

Mr. Shethana who was on the bench had earlier appeared as an advocate in the court on behalf of the respondent on 1988. The Supreme Court held that by the action of the judge the rule of law was violated and quashed the order of the high court and sent the matter for fresh hearing in accordance of law. In D.S. Nakara v. Union of India,16 The Supreme court struck down Rule 34 of the central service (pension) rules, 1972 as unconstitutional on the ground that the classification made by it between prisoners retiring before a particular date and retiring after a date was not based on any rational principle and was arbitrary and violative of Article 14 of the constitution. In that case, Desai, J., re state the concept of equality Thus, the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin test of classification being founded on an intangible differentia which distinguishes person or things that are grouped together from those that are left out of the group and that the differentia must have a rational nexus to the object sought to be achieved by the statute in question. In Suneel jately v. State of Haryana,17 the reservation of 25 seats for admission M.B.B.S. and B.D.S. course for students who were educated from class 1 to 8 in common rural schools was held be violative of article 14 and invalid as the classification between the rural educated and the urban educated for this purpose was wholly arbitrary and irrationally having no nexus to the object sought to be achieved of providing extra facilities to students coming from rural schools to medical colleges. The same government prescribes same standards of education, grants, equipment in both the schools. Thus, all the students of class 9 to 12 those coming from rural or urban have same standard of education, so such classification was held to be constitutionally invalid. In Mithu v. state of Punjab,18 the court struck down Section 303 of Indian Penal code as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of the imprisonment and those who commit murders whilst they were not under the sentence of life imprisonment for the purpose of making the sentence of death mandatory in the case of former class and optional in the later class was not based on any rational principle. In K.A. Abbas v. Union of India,19 the validity of Cinematography Act, 1952 was challenged on the ground that it makes Unreasonable classification. Under the act, cinema films are classified into two categories, viz U films and A films according to their suitability for adults or young people, it was argued that motion picture is a form of expression and, therefore, entitled to equal treatment with other forms of expression. The petitioner contended that there is other form of speech and expressions besides the films but none of them have been subject to any prior restraint. The court held that the treatment of motion picture must be different from that of other forms of art and expression as it is able to stir up emotions more deeply than any other product of
16 17

AIR 1983 SC 130 (1984) 4 SCC 296 18 AIR 1983 SC 473 19 AIR 1971 SC 481

art. Its effect particularly on children and adolescent is very great since immaturity makes them more willingly suspend their disbelief than mature man and woman. Thus the classification of films into two categories of U films and A films is a reasonable classification. In case of Ajay hasia v. Khalid mujib,20, the regional engineering college made admission of candidates on basis of oral interview, in which large number of candidates were admitted on the basis of high mark in oral test. The test of oral interview was challenged as it was arbitrary and unreasonable because high percentage of marks was allocated for oral test. The court struck down the rule as it is unreasonable and violative of article 14 as it cannot be regarded as very satisfactory test. The court suggested that the interview should be tape recorded in order to judge whether it was conducted in an arbitrary manner. In D.V. Bakshi v. Union of India,21 the Supreme Court held that the test evolved in case of Ajay Husia v. state of Haryana cannot be applied in every case and particularly in selection of professionals. In Air india v. Nargesh22, supreme court struck down regulation 46 of Indian Airlines regulation on the retirement and pregnancy bar on the services of air hostesses as unconstitutional because it provide that an airhostess would retire from the services upon attaining the age of 35 years, or on marriage, if it took place within four years of services or on first pregnancy, whichever occurred earlier. The condition that services of air hostesses would be terminated on first pregnancy was unreasonable and hence struck down. In K. Nagraj v. State of A.P.23 the validity of A.P. public employment ordinance was challenged on the ground that it was violative of Article 14 of the constitution as they reduced the age of retirement of all government employees from 58 to 55 years and there was no basis of reducing the age, hence held unconstitutional. In Indian council of legal aid & advice v. Bar council of India 24 the validity of new rule 9, added by the bar council of India in bar council rules which barred the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate was challenged as discriminatory and violative of article 14 as it was argued that the rules were intended to maintain the dignity and purity of the profession by keeping out those who retire from governmental and non-governmental institution. The supreme court held that rule was unreasonable and arbitrary and hence struck down In Javed v. state of Haryana25 the petitioners challenged the validity of section 175(1)(g) of Haryana Panchayati raj act, 2004 on ground that it is violative of article 14 as it disqualify a person to contest election if he has more than 2 children. The court did not find it unconstitutional as there is a nexus with the popularization of family planning programme.

20 21

Air 1981 SC 487 1993 22 AIR 1981 SC 1829 23 1985 24 1995 25 2003