Anda di halaman 1dari 55

CONSTITUTIONAL LAW-II

CONSTITUTIONAL LAW-II

PROJECT REPORT
ON

EQUALITY BEFORE LAW AND


EQUAL PROTECTION OF LAWS

SUBMITTED TO:
Dr. Shruti Bedi,
Professor, University Institute of Legal Studies,
Panjab University, Chandigarh.
SUBMITTED BY:
Anshul Singhal,
127/13, 4th Semester,
Section-C, B.Com L.LB,
University Institute of Legal Studies,
Panjab University, Chandigarh.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

CONSTITUTIONAL LAW-II

ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my project
report. Whatever I have done is only due to such guidance and I would never forget to thank
them.
I am thankful to and fortunate enough to get constant encouragement, support and guidance
throughout the completion.
I am very much thankful to Dr. Shruti Bedi for her support and guidance, without which I wont
be able to accomplish this project work. I am thankful to my friends who helped me in collection
of material.
Lastly and most importantly, I would like to thank my parents and the almighty for moral support
and constant supervision.
Anshul Singhal,
127/13.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 1

CONSTITUTIONAL LAW-II

Table of contents
S. No.

Particulars

Page no.

ACKNOWLEDGEMENT

(i)

TABLE OF CASES

(iv)

1.

FUNDAMENTAL RIGHTS

2.

o Introduction
o History
o Fundamental Rights and Human Rights
o Fundamental Rights and Preamble to the Constitution
STATE

3.

o Judiciary as a State
o Justiciability of Fundamental Rights
RIGHT TO EQUALITY

4.

o Introduction
o Right to Equality as Basic Structure
o Preamble Ensuring Equality
o Right to Equality as Basic Human Right
EQUALITY BEFORE LAW AND EQUAL PROTECTION OF

12

LAWS
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o

Article 14
Introduction
Right to Equality under US Constitution
Who may claim protection under Article 14?
Equality Before Law
Equal Protection of Laws
Distinction between the two Phrases
Exception to the Rule of Equality
Reasonable Classification but not Class Legislation
Reasonable Classification-Permitted
Class Legislation-Prohibited
Tests for Reasonable Classification
Principles for determining Reasonableness of Classification
Article 14 strikes at Arbitrariness
Instances of Classification
Oral Interview Test and Article 14
Judicial Adjudication and Article 14

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 2

CONSTITUTIONAL LAW-II
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o

Rules Of Natural Justice and Article 14


Article 14 and Reasoned Decisions
Gender Equality and the Rule of Harmonious Construction
An Action of State Per Se Arbitrary
Equality Clause cannot be invoked to Perpetuate Illegality
Basis of Classification
Laws Applicable to Single Individual
Tax Laws and Article 14
Special Courts and Procedural Classification
Wednesbury Principle
Article 14 and Policy Decisions
Admission to Educational Institutions
Horizontal and Vertical Reservation
Need for Common Entrance Examination
Belated/Midstream Admissions
Standard of Education
Right of the Examinee to have Access to Evaluated Scripts

REFERENCES

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

(xi)

Page 3

CONSTITUTIONAL LAW-II

Table of cases
S. No.

Name of the Case

Citation
A.

1.

A.C.C. v. State of Chhattisgarh

AIR 2007 (NOC) 669

2.

A.L. Kalra v. P. & E. Corpn.

AIR 1984 SC 1361

3.

A.N. Bhati v. State of Gujarat

AIR 2005 SC 2115

4.

A.P.B.C. Sangh v. J.S.V. Federation

AIR 2006 SC 2814

5.

Air India v. Nargesh Meerza

AIR 1981 SC 1829

6.

Ajay Hasia v. Khalid Mujib

AIR 1981 SC 487

7.

Anil Kumar Gupta v. State of U.P.

(1995) 5 SCC 173

8.

Ashutosh Gupta v. State of Rajasthan

AIR 2002 SC 1533

9.

Associated Provincial Picture House v. Wednesbury

(1947) 2 All ER 640

Corporation
B.
10.

B.D.D.S.W. Association v. State of W.B.

AIR 2010 (NOC) 498

11.

B.I.C. v. Collector, Central Excise

(W.B.)
AIR 1963 SC 104

12.

B.P. Corpn. Ex-employees Association v. Bharat

AIR 1995 SC 1126

13.

Petroleum Corporation Ltd.


Baburao v. Bombay Housing Board

AIR 1954 SC 153

14.

Behram Khurshid v. State of Bombay

AIR 1955 SC 123

15.

Bihar Public Service Commission v. Kamini

(2007) 5 SCC 519

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 4

CONSTITUTIONAL LAW-II
16.

Brind v. Secy. of State of Home Deptt.

[1996] 3 All E.R. 720

17.

Budhan v. State of Bihar

(H.L.)
AIR 1955 SC 191

C.
18.

Chiranjit Lal Choudhary v. Union of India

AIR 1951 SC 41

19.

Clarence Pais v. Union of India

AIR 2001 SC 1151

D.
20.

D.G. Rly. Protection Force v. K.R. Babu

AIR 2008 SC 1958

21.

D.S. Nakara v. Union of India

AIR 1983 SC 130

22.

Damoh Panna Sugar R.R. Bank v. Munna Lal Jain

AIR 2005 SCW 95

23.

Dev Dutt v. Union of India,

AIR 2008 SC 2513

24.

Dharam Dutt v. Union of India

AIR 2004 SC 1295

25.

DTC v. DTC Mazdoor Congress

AIR 1991 SC 101

E.
26.

E.P. Royappa v. State of T.N.

AIR 1974 SC 555

27.

E.V. Chinnaiah v. State of Andhra Pradesh

AIR 2002 SC 361

28.

East Court Railway v. Madhav Appa Rao

AIR 2010 SC 2794

G.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 5

CONSTITUTIONAL LAW-II
29.

G.K. Mohan v. Union of India

AIR 2008 SC 305

30.

G.M., Uttranchal Jal Sansthan v. Laxmi Das

AIR 2009 SC 3121

31.

Gauri Shankar v. Union of India

AIR 1995 SC 55

32.

Githa Hariharan v. Reserve Bank of India

AIR 1999 SC 1149

33.

Golak Nath v. State of Punjab

AIR 1967 SC 1643

34.

Government of Andhra Pradesh v. P. Laxmi Devi

AIR 2008 SC 1640

35.

Gulam Ahmed v. State of Bombay

AIR 1962 Bom. 96

H.
36.

Hemani Malhotra v. Delhi High Court

AIR 2008 SC 2103

I.
37.

I.R. Coelho v. State of T.N.

Judgment dated Sept. 4

38.

Indian Airlines Ltd. v. Prabha D. Kanan

2010
AIR 2007 SC 548

39.

Indira Nehru Gandhi v. Raj Narain

AIR 1975 SC 2299

40.

Indra Sawhney v. Union of India

AIR 1993 SC 477

J.
41.

Jagannath Prasad v. State of Uttar Pradesh

AIR 1961 SC 1245

42.

Jasbir Kaur v. Union of India

AIR 2004 SC 293

43.

Javed v. State of Haryana

AIR 2003 SC 3057

44.

Joydev Sen v. State of W.B.

AIR 2010 (NOC) 256


(CAL)

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 6

CONSTITUTIONAL LAW-II
K.
45.

K.C. Sarkar v. Rajesh Rajan

(2005) 3 SCC 307

46.

K.L. Tripathi v. State Bank of India

AIR 1984 SC 273

47.

Kasualata v. M.U.N.T. Employees Association

AIR 2002 SC 1223

48.

Kedar Nath Bajoria v. State of W.B.

AIR 1953 SC 404

49.

Kerala S.E. Board v. Saratchandran

AIR 2009 SC 191

50.

Kesavananda Bharati v. State of Kerala

AIR 1973 SC 1461

51.

Krishena Kumar v. Union of India

AIR 1990 SC 1782

M.
52.

M.C.Mehta v. Union of India

(1987) 1 SCC 395

53.

M.G. Badappanavar v. State of Karnataka

AIR 2001 SC 260.

54.

M.P. Oil Extraction and Fur v. State of M.P.

AIR 1998 SC 145

55.

M/s. Vishal Properties (P) Ltd. v. State of U.P.

AIR 2008 SC 183

56.

Mangilal v. State of M.P.

AIR 2004 SC 1280

57.

Marri Chandra Shekhar Rao v. Dean, Seth G.S.

1990 (3) SCC 130

58.

Medical College
Matajog Dobey v. H.C. Bhari

AIR 1956 SC 44

59.

Medical Council of India v. Madhu Singh

AIR 2002 SC 3230

60.

Mehmood Alam Tariq v. State of Rajasthan

AIR 1988 SC 1451

61.

Mithu v. State of Punjab

AIR 1983 SC 473

62.

Mohanlal Jain v. Man Singhji

AIR 1962 SC 73

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 7

CONSTITUTIONAL LAW-II
63.

Municipal Committee, Patiala v. Model Town

AIR 2007 SC 2844

Residents Association
N.
64.

N.R. Nair v. Union of India

AIR 2000 Ker. 340

65.

Nair Service Society v. State of Kerala

AIR 2007 SC 2891

66.

National Human Rights Commission v. State of

AIR 1966 SC 1234.

67.

Arunachal Pradesh
Neelu Arora v. Union of India

AIR 2003 SC 1082

P.
68.

P. Rajendra v. State of Madras

AIR 1968 SC 1012

69.

P.S.T. Bar Association v. State of U.P.

AIR 2003 SC 1115

70.

Pradeep Jain v. Union of India

AIR 1984 SC 1420

71.

Preeti Srivastava v. State of M.P.

AIR 1999 SC 2894

72.

Premier Enterprises, Secundrabad v. C.T.O.

AIR 2003 SC 4449

73.

President, B.S.E., Orissa v. D. Suvankar

(2007) 1 SCC 603

74.

Punjab Tin Supply Co. v. Central Government

AIR 1984 SC 84

R.
75.

R. Kaaruppan v. Government of India

AIR 2008 Mad. 264

76.

R.K. Daria v. Rajasthan Public Service Commission

AIR 2007 SC 3127

77.

Ram Chandra v. State of Orissa

AIR 1956 SC 298

78.

Ramrao v. A.I.B.C.B.E.W. Association

AIR 2004 SC 1459

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 8

CONSTITUTIONAL LAW-II
79.

Re Special Courts Bill, 1978

AIR 1978 SC 478

S.
80.

Saurabh Chaudri v. Union of India

AIR 2004 SC 361

81.

Shalendra Nath v. State Bank of India

AIR 2007 Pat. 44

82.

Shri Ram Krishna Dalmia v. Shri Justice S. R.

1958 AIR 538

83.

Tendolkar & Others


Soloman v. Commr. of Custom and Excise

[1991] 1 All E.R. 871.

84.

Srinivasa Theatre v. Government of Tamil Nadu

AIR 1992 SC 999

85.

State of A.P. v. N.R. Reddi

AIR 2001 SC 3616

86.

State of H.P. v. Sada Ram

(2009) 4 SCC 422

87.

State of Haryana v. Jai Singh

AIR 2003 SC 1696

88.

State of Haryana v. Mohinder Singh

AIR 2000 SC 890

89.

State of Haryana v. Ram Kumar Mann

JT 1997 (3) SC 450

90.

State of Orissa v. Dhaniram Luhar

AIR 2004 SC 1794

91.

State of Rajasthan v. Amrit Lal Gandhi

AIR 1997 SC 782

92.

State of Rajasthan v. Sohan Lal

AIR 2004 SC 4520

93.

State of T.N. v. S.V. Bratheep

AIR 2004 SC 1861

94.

State of W.B. v. Anwar Ali Sarkar

AIR 1952 SC 75

95.

State of W.B. v. Subodh Gopal Bose

AIR 1954 SC 92

96.

Swati Gupta v. State of U.P.

(1995) 2 SCC 560

97.

Syndicate Bank v. Gen. Secy., Syndicate Bank staff

AIR 2000 SC 2199

Association
EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 9

CONSTITUTIONAL LAW-II
T.
98.

T.M.A. Pai Foundation v. State of Karnataka

AIR 2003 SC 355

99.

T.N. Godavarman v. Ashok Khot

(2006) 5 SCC 1

100.

The Secretary & Curator, Victoria Memorial Hall v. AIR 2010 SC 1285

101.

Howrah Ganatantrik Nagrik Samity


Transport & Dock Workers Union v. Mumbai Trust

Decided

Board

November, 2010

15th

on

U.
102.

Union of India v. P.N. Menon

AIR 1994 SC 2221

103.

Unni Krishnan v. State of Andhra Pradesh

AIR 1993 SC 2178

V.
104.

V. Revathi v. Union of India

AIR 1988 SC 835

105.

V.M. Syed Mohd. & Co. v. State of Andhra Pradesh

AIR 1954 SC 314

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 10

CONSTITUTIONAL LAW-II

FUNDAMENTAL RIGHTS
INTRODUCTION
It is generally accepted that the Constitution comprises rules that regulate the organization and
exercise of State power, on the one hand, and the relations between the State and its citizens, on
the other. The rules that stipulate and regulate the relations between the State and its citizens and,
more generally, the relations between the controlling and the controlled are characterized as
public freedoms or fundamental rights or human rights.
Fundamental Rights are the modern name for what have been traditionally known as natural
rights. As one author puts it, they have simply because of the fact that in contradiction with
other human beings, he is rational and moral. They are the primordial rights necessary for the
development of human personality. They are the rights which enable a man to chalk out his own
life in the manner he likes the best.1
It would also be useful to clarify that fundamental rights, when formulated in the Constitution,
have increased formal power. This means that they cannot be abrogated or changed by a formal
law or any regulatory deed of the executive power, but they lay down the limits and the legal
framework within which State agents should act as regards their relations with the citizens. In
this sense, fundamental rights have an interdisciplinary legal character, since they lay down the
principal rules of administrative law, criminal law, labour law, civil law, as well as overall
procedural law.
The fundamental rights were included in the constitution because they were considered essential
for the development of the personality of every individual and to preserve human dignity. The
writers of the constitution regarded democracy of no avail if civil liberties, like freedom of
speech and religion were not recognized and protected by the State. Most of these rights are
enforceable against the State by the way of their language, while some others are directed both
against the State and private individuals. The most important feature is that the fundamental
rights gave the higher judiciary a clear set of criteria to regulate relations between citizens and
the government as well as among citizens themselves. Furthermore, Indian Courts have
1 Golak Nath v. State of Punjab, AIR 1967 SC 1643.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 1

CONSTITUTIONAL LAW-II
interpreted these rights not only in a negative dimension (i.e. in the terms of protection against
violation) but also in a positive dimension (i.e. in the terms of entitlements to benefits).
Fundamental rights recognise the importance of the individual in the affairs of the state and seek
to assure to every citizen full freedom to enjoy life, liberty and happiness as he likes. The
development of a citizens personality, the pursuit of his profession or vocation, and the manner
in which he seeks to enjoy the pleasure and comforts of life are basically his individual concern
and the State can interfere the basic right only if the consideration of public good justify the
interruption.2
Rights are claims that are essential for the existence and development of individuals. In that
sense there will a long list of rights. Whereas all these are recognized by the society, some of the
most important rights are recognized by the State and enshrined in the Constitution. Such rights
are called fundamental rights. These rights are fundamental because of two reasons:
1.
2.

First, these are mentioned in the Constitution which guarantees them and,
Second, these are justiciable, i.e. enforceable through courts. Being justiciable means
that in case of their violation, the individual can approach courts for their protection.
If a government enacts a law that restricts any of these rights, it will be declared
invalid by courts.

Such rights are provided in Part III of the Indian Constitution. The Constitution guarantees six
fundamental rights to Indian citizens as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

Right to Equality,
Right to Freedom,
Right against Exploitation,
Right to Freedom of Religion,
Cultural and Educational Rights, and,
Right to Constitutional Remedies.

While these fundamental rights are universal, the Constitution provides for some exceptions and
restrictions.

2 P.B.Gajendragadkar: The Indian Parliament and the Fundamental Rights (T.L.L.), p.39.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 2

CONSTITUTIONAL LAW-II
Originally, there were seven Fundamental Rights in the Constitution. Besides the above
mentioned six rights, there was the Right to Property also. Since this Right created a lot of
problems in the way of attaining the goal of socialism and equitable distribution of wealth, it was
removed from the list of Fundamental Rights in 1978 by 44th constitutional amendment.
However, its deletion does not mean that we do not have the right to acquire, hold and dispose of
property. Citizens are still free to enjoy this right. But now it is just a legal right and not a
Fundamental Right.
HISTORY
Demand for Fundamental Rights by Indians can be traced down the course of history. Firstly,
demanded in the Swaraj Bill in 1895 by Lokmanya Tilak, then in the Congress Resolution in the
period of First World War, further, in the Commonwealth of India Bill by Annie Besant, then in
1927 by the means of Madras Resolution of Congress, then in 1928 by the Nehru Committee,
then in 1931 the Karachi Session of Congress adopted a Resolution on Fundamental Right, and
in 1945 Sapru Committee Report made distinction between -justifiable and non justifiable rights.
Finally, it was adopted under Part III of the Indian Constitution.
Part III of the Constitution contains a long list of fundamental rights. This chapter of the
Constitution of India has very well been described as the Magana Carta of India. As early as
1214 the English people exacted an assurance from King John for respect of their ancient
liberties. The Magna Carta is the evidence of their success which is a written document. This is
the first written document relating to the fundamental rights of citizens. Thereafter from time to
time the King had to accede to many rights to his subjects. In 1689 the Bill of Rights was written
consolidating all important rights and liberties of the English people. In France Declaration of
Rights of Man and Citizen (1789) declared the natural, inalienable and scared rights of man.
Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man
and Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. The
Americans were the first to give the Bill of Rights a Constitutional status. Thus when the
Constitution of India was being framed the background for the incorporation of the Bill of Rights
was already present. The framers took inspiration from this and incorporated a full chapter in the
Constitution dealing with Fundamental Rights. But the declaration of Fundamental Rights in the
Indian Constitution is the most elaborate and comprehensive yet framed by any State.
EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 3

CONSTITUTIONAL LAW-II
FUNDAMENTAL RIGHTS AND HUMAN RIGHTS
If one compares the Universal Declaration of Human Rights 1948 with Pats III and IV of the
Constitution of India, one finds remarkable similarities in the two. It is significant that the
Committee on Fundamental Rights in India was deliberating when the third committee of United
Nations was deliberating on the Universal Declaration of Human Rights. Both are manifests of
mans inviolable and fundamental freedoms. The applicability of UDHR and the principles
thereof may be read into domestic jurisprudence. In Soloman v. Commr. of Custom and Excise3
and Brind v. Secy. of State of Home Deptt.4 It has been held that in construing any provision in
domestic legislation which is ambiguous and/or in conflict with the International Convention, the
courts would presume that Parliament intended to legislate in conformity with the convention
and not in conflict with it. Some of the Human Rights are: Equality before Law, Freedom from
Discrimination, Right to Life, Liberty and Personal Security, Right to Free Movement, Right to
Education, Right to Marriage and Family, Freedom of Thought, Conscience and Religion, Right
to Peaceful Assembly and Association and Right to Participate in the Cultural Life of the
Community.
FUNDAMENTAL RIGHTS AND PREAMBLE TO THE CONSTITUTION
The rights described as fundamental rights are a necessary consequence of the declaration in the
Preamble that the people of India have 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 of opportunities.5

3 [1991] 1 All E.R. 871.


4 [1996] 3 All E.R. 720 (H.L.).
5 Behram Khurshid v. State of Bombay, AIR 1955 SC 123.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 4

CONSTITUTIONAL LAW-II

STATE
Like many other concepts and ideas, the concept of fundamental rights also developed in the
West. Under the concept unlike other legal rights, which are the creation of the state, the
fundamental rights are claimed against the state. Therefore, whether a constitution says it or not,
it is generally assumed that the fundamental rights given in it are available only against the state.
For this reason the Constitution of the United States, first amongst the modern written
constitutions to provide for the fundamental rights, applied those rights only to state action even
though the constitution does not say so. The same conception has played a role in the application
of fundamental rights in our constitution though some of them are, expressly applicable to nonstate action and some other are not expressly confined to state action.
In the case of State of W.B. v. Subodh Gopal Bose6 it was observed by Patanjali Sastri, C.J. that,
The whole object of Part III of the Constitution is to provide protection for the freedom and
rights mentioned therein against arbitrary invasion by the state.
For that reason and more than that for the reason that some of the fundamental rights are
expressly guaranteed against the State, a definition was necessary. But the definition of State
cannot and must not be used for restricting the application of fundamental rights only against the
state while its contents and nature a right is not so restricted. Fundamental Rights may be
violated by the state as much directly as indirectly. While in the former case its officials and
agencies violate them, in the latter it may let them be violated by others either through its
inaction or active connivance. The latter violation may be as injurious as former. In such cases
State cannot escape its responsibility or liability for the protection of fundamental rights on the
plea that they are actions of private individuals and not of state. In several cases the courts have,
therefore, given relief to the petitioner without going into question whether the violator of
fundamental right was state.7
In enacting fundamental rights in Part III of our Constitution (Arts. 12 to 35) the founding fathers
6 AIR 1954 SC 92.
7 M.C.Mehta v. Union of India, (1987) 1 SCC 395.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 5

CONSTITUTIONAL LAW-II
showed that they had the will, and were ready to adopt the means, to confer legally enforceable
fundamental rights. But against whom were fundamental rights to be enforced? Broadly
speaking, against the State, not as ordinarily understood but as widely defined by Article 12:
In this part, unless the context otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India.
Thus the following are included in the definition of the State:
1. The Government and Parliament of India: Definition provided under Art. 12 of the
State provide that the Government of India and Parliament of India are to be regarded as
the State. Government of the country is the Executive organ and Parliament is a
Legislative organ. Thus, article 12 includes the executive and legislative wings of the
Union in all their possibilities and these organs can be held liable for violation of Part III
of the Constitution.
2. The Government and Legislature of each of the States: Similarly, under the definition
provided under Art. 12 of the State provide that the Government of the states and
Legislatures of the states are to be regarded as the State. Both the executive and
legislative wings of the state in all their possibilities fall within the ambit of Article 12.
3. All Local Authorities: First two expressions of the provision were quite specific and
self-explanatory. But the expression all local authorities is not so specific and requires
some explanation. The local authorities are under the exclusive control of the State by the
virtue of entry 5 of List II of the 7 th Schedule. That entry contains a list of some local
authorities. The General Clauses Act, 1897 provides that Local authority" shall mean a
municipal committee, district board, body of port commissioners or other authority
legally entitled to, or entrusted by the Government with, the control or management of a
municipal or local fund.
4. Other Authorities: The interpretation of the term other authorities has caused a good
deal of difficulty, and judicial opinion has undergone changes overtime. Todays
government performs a large number of functions because of prevailing philosophy of a
social welfare state. The government acts through natural persons as well as juridical
persons. Some functions are discharged through traditional government departments and
EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 6

CONSTITUTIONAL LAW-II
officials while some are discharged through autonomous bodies existing outside the
departmental structure. In Ajay Hasia v. Khalid Mujib,8 the Supreme Court laid down the
following tests to adjudge whether a body is an instrumentality of the government or not
and whether it is included in the term other authorities or not:
(i) If the entire share capital of the body is held by the government, it goes a long
way towards indicating that the body is an instrumentality of the government.
(ii) Where the financial assistance given by the government is so large as to meet
almost entire expenditure of the body, it may indicate that the body is impregnated
with government character.
(iii)

It is relevant factor if the body

enjoys monopoly status which is conferred or protected by the state.


(iv)Existence of deep and pervasive state control may afford an indication that the
body is a state instrumentality.
(v) If the functions performed by the body are of public importance and closely
related to the governmental functions, it is a relevant factor to treat the body as an
instrumentality of the government.
JUDICIARY AS A STATE
In the United States, a judicial decision is included in the concept of State action for the purposes
of enforcement of the fundamental rights.
In India, the definition of the term State in Article 12 is not specifically mentioned. Therefore,
the judgments of the Courts cannot be challenged on the ground that they contravene
fundamental rights.
But, so far as the right to equal protection is contained in Article 14 was concerned, the Supreme
Court in the case of Budhan v. State of Bihar,9 held that any state action, executive, legislative or
judicial, which contravenes Art. 14 is void. But it was limited to application of Article 14 to
judicial decisions by the qualifications that they will be hit by the Article only when they
involved a willful and purposeful discrimination.

8 AIR 1981 SC 487.


9 AIR 1955 SC 191.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 7

CONSTITUTIONAL LAW-II
Judiciary while exercising its rule-making power would be covered by the expression State
within the meaning of Article 12, but while performing its judicial function, it is not so included
within the expression State.
JUSTICIABILITY OF FUNDAMENTAL RIGHTS
Article 13 provides teeth to the fundamental rights. It makes these rights justiciable, i.e.,
enforceable in the Courts.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 8

CONSTITUTIONAL LAW-II

RIGHT TO EQUALITY
INTRODUCTION
The constitution of India guarantees the Right to Equality through Articles 14 to 18. Equality is
one of the magnificent corner-stones of Indian democracy.
The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the
Indian Constitution.10
Art. 14 outlaws discrimination in a general way and guarantees equality before 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. Thus, Art. 15 prohibits discrimination against citizens on
such specific grounds as religion, race, caste, sex or place of birth. Art. 16 guarantees to the
citizens of India equality of opportunity in matters of public employment. Art. 17 abolishes
untouchability and Art. 18 abolishes titles, other than a military or academic distinction.
In this series of constitutional provisions, Art. 14 is the most significant. It has been given a
highly activist magnitude in recent years by the courts and, thus, it generates a large number of
court cases. In recent days, Art. 16 has also assumed great significance because of the problems
of reservation in public services. Art. 14 is the genus while Arts. 15 and 16 are the species. Art.
14, 15 and 16 are constituents of a single code of constitutional guarantees supplementing each
other. In situations not covered by Arts. 15 to 18, the general principle of equality embodied in
Art. 14 is attracted whenever discrimination is alleged.11
Right to equality is very important in a society like ours. The purpose of this right is to establish
the rule of law where all the citizens should be treated equal before the law. It has five provisions
(Articles 14-18) to provide for equality before law or for the protection of law to all the persons
in India and also to prohibit discrimination on the grounds of religion, race, caste, sex or place of
birth.
10 Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
11 Prof. M.P. Jain, Indian Constitutional Law, Wadhwa & Company, Nagpur, 5th edition, 2003, p. 855.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 9

CONSTITUTIONAL LAW-II
1.

Equality before Law: The Constitution guarantees that all citizens will be equal before
law. It means that everyone will be equally protected by the laws of the country. No
person is above law. It means that if two persons commit the same crime, both of them

2.

will get the same punishment without any discrimination.


No Discrimination on the basis of Religion, Race, Caste, Sex or Place of Birth: The
State cannot discriminate against a citizen on the basis of religion, race, caste, sex or
place of birth. This is necessary to bring about social equality. Every citizen of India has
equal access to shops, restaurants, places of public entertainment or in the use of wells,
tanks or roads without any discrimination. However, the State can make special

3.

provisions or concessions for women and children.


Equality of Opportunity to all Citizens in matter of Public Employment: The State
cannot discriminate against anyone in the matter of public employment. All citizens can
apply and become employees of the State. Merits and qualifications will be the basis of
employment. However, there are some exceptions to this right. There is a special
provision for the reservation of posts for citizens belonging to Scheduled Castes,

4.

Scheduled Tribes and Other Backward Classes (OBCs).


Abolition of Untouchability: Practising untouchability in any form has been made a
punishable offence under the law. This provision is an effort to uplift the social status of
millions of Indians who had been looked down upon and kept at a distance because of
either their caste or the nature of their profession. But, it is really very unfortunate that
despite constitutional provisions, this social evil continues even today. Can you find any
difference when you see a nurse cleaning a patient, a mother cleaning her child and a lady
cleaning a toilet in the illustration? Why do people consider the cleaning of a toilet in a

5.

derogatory manner?
Abolition of Titles: All the British titles like Sir (Knighthood) or Rai Bahadur which
were given to the British loyalists during the British rule, have been abolished because
they created distinctions of artificial nature. However, the President of India can confer
civil and military awards to those who have rendered meritorious service to the nation in
different fields. The civil awards such as Bharat Ratna, Padma Vibhushan, Padam
Bhushan and Padma Shri and the military awards like Veer Chakra, Paramveer Chakra,

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 10

CONSTITUTIONAL LAW-II
Ashok Chakra are conferred. Do you know that these awards are not titles? Educational
and military awards can be prefixed with ones name?12
RIGHT TO EQUALITY AS BASIC STRUCTURE
In Indira Nehru Gandhi v. Raj Narain13, the majority of the Supreme Court has held that the right
to equality conferred by Article 14 is a basic structure of the Constitution and an essential feature
of the democracy or rule of law. It has been held to be a right which more than any other is a
basic postulate of our Constitution.14
The Constitution is wedded to the concept of equality. The Preamble to the Constitution
emphasizes upon 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 the
Parliament nor any State Legislature can transgress the principle of equality.15 This principle has
been recently reiterated by the Supreme Court in M.G. Badappanavar v. State of Karnataka,16 by
stating, Equality is a basic feature of the Constitution of India and any treatment of equals
unequally or unequals as equals will be violation of basic structure of the Constitution of India.
PREAMBLE ENSURING EQUALITY
The goal set out in the Preamble to the Constitution regarding status and opportunity is embodied
and concretized in Arts. 14 to 18. Thus, Preamble too ensures that the Right to Equality.
RIGHT TO EQUALITY AS BASIC HUMAN RIGHT
12 Fundamental Rights and Fundamental Duties, available at:
http://www.nios.ac.in/media/documents/secsocscicour/english/lesson-16.pdf, assessed on 11 March, 2015
at 11:39 p.m.
13 AIR 1975 SC 2299.
14 Prof. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad, 8th edition,
2011, p. 107.
15 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
16 AIR 2001 SC 260.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 11

CONSTITUTIONAL LAW-II
It may be worthwhile to know that Art. 17 of the Universal Declaration of Human Rights
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 inheres in Art. 14 of the Indian
Constitution.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 12

CONSTITUTIONAL LAW-II

EQUALITY BEFORE LAW AND EQUAL PROTECTION


OF LAWS
ARTICLE 14
It provides: The State shall not deny to any person equality before the law or equal protection of
laws within the territory of India.
INTRODUCTION
Over the last several years, the courts have been unfolding the vast potentialities of Art. 14 as a
restraint on the legislative power of the legislature as well as administrative power of the
Administration. Art. 14 bars discrimination and bars discriminatory laws. Art. 14 is now proving
as a bulwark against any arbitrary or discriminatory state action. The horizons of equality as
embodied in Art. 14 have been expanding as a result of the judicial pronouncements and Art. 14
has now come to have highly activist magnitude17
In other constitutions right to equality is expressed as in Article 14. As such this right was
considered generally a negative right of an individual not to be discriminated in access to public
offices or places or in public matters generally. It did not take account of existing inequalities
arising even from the public policies and exercise of public power. The inequalities arising even
from the public policies and exercise of public power. The makers of Indias Constitution were
not satisfied with that kind of undertaking of right to equality. They knew of the widespread
social and economic inequalities in the country sanctioned for thousands of years of public
policies and exercise of public power supported by religion and other social norms and practices.
Such inequalities could not be removed, minimized or taken care of by a provision like article 14
alone. But even if they could be so taken care of, it would have been very slow process.
Therefore, they expressly abolished and prohibited some of the existing inequalities not only in
public but even in private affairs and expressly authorized the state to take necessary steps to
minimize and remove them. Articles 15 to 18 clearly express such intention of the constitution
makers. Even Article 14 cannot be divorced from these later articles and must draw its contents
17 Supra Note 11, p. 856.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 13

CONSTITUTIONAL LAW-II
from them though of course it is much wider and general in scope and application. Thus, the
right to equality in Constitution of India is not merely a negative right not to be discriminated
against but also a positive right to be treated as an equal. Under the later aspect of the right,
which is the essence and core of the right to equality, the State is under an obligation to take
necessary steps so that every individual is given equal respect and concern which he is entitled to
as human being.18
Two concepts are included in Article 14:
1. Equality before Law.
2. Equal Protection of laws.
RIGHT TO EQUALITY UNDER US CONSTITUTION
The provision under Article 14 of the Indian Constitution corresponds to the equal protection
clause of the 14th Amendment of the US Constitution which declares: No State shall deny to any
person within its jurisdiction the equal protection of laws.
WHO MAY CLAIM PROTECTION UNDER ARTICLE 14?
The obligation imposed on the State by Article 14 is for the benefit of all persons, within the
territory of India. The benefit of Article 14 is, therefore, not limited to citizens. Every person
whether natural or artificial, whether he is a citizen or an alien, 19 is entitled to protection of this
article.
Though the foreigners also enjoy some fundamental rights under the Constitution of India, but,
fundamental rights, which are available only to the citizens of this country, cannot be extended to
non-citizen through Article 14.
EQUALITY BEFORE LAW

18 Mahendra P. Singh, V.N. Shuklas Constitutional Law of India, Eastern Book Company, Lucknow,
10th edition, p. 37.
19 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1966 SC 1234.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 14

CONSTITUTIONAL LAW-II
The phrase equality before law finds place in almost all written Constitutions 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 amenable to the
jurisdiction of ordinary tribunals.20 He observes: With us every official, from the Prime Minister
down to a constable or a collector of taxes, is under the same responsibility for every act done
without legal justification as any other citizen.21
For instance, in K.C. Sarkar v. Rajesh Rajan22, a three-Judge Bench of the S.C. ruled that
MPs/Influential politicians were not above the law and while in custody, were to be kept in
prison cell like any other normal prisoner.
Dr. Ivor Jennings explains: Equality before the law means that among equals the law should be
equal and should be equally administered, that like should be treated alike.
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.23
EQUAL PROTECTION OF LAWS
The 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

20 T.N. Godavarman v. Ashok Khot, (2006) 5 SCC 1.


21 A.V. Dicey, Law of the Constitution, Macmillan & Co. Ltd., London, 1994, p. 193.
22 (2005) 3 SCC 307.
23 Supra Note 14, pp. 108-109.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 15

CONSTITUTIONAL LAW-II
be equal and equally administered, that the like should be treated alike without distinction of
race, religion, wealth, social status or political influence.24
The varying needs of different classes or sections of people require differential and separate
treatment. The legislature is required to deal with diverse problems arising out of an infinite
variety of human relations. It must, therefore, necessarily have the power of making laws to
attain particular objects and, for that purpose, of distinguishing, selecting and classifying persons
and things upon which its laws are to operate.25
The principle of equality of law thus means not that 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 equals should not be treated unlike and unlikes should
not be treated alike. Likes should be treated alike.26
Art. 14 thus infers that equals should be treated alike; it does not infers 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 persons are not situated equally, to treat them as equals
would itself be violative of Article 14 as this would itself result in inequality. 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.27
DISTINCTION BETWEEN THE TWO PHRASES

24 Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245.


25 Prof. M.P. Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, 5th edition, 2003, pp.
856-857.
26 Gauri Shankar v. Union of India, AIR 1995 SC 55.
27 Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 16

CONSTITUTIONAL LAW-II
The phrase equality before law is somewhat a negative concept for it implies absence of any
special privilege in favour of any particular individuals, while equal protection of laws is
positive in operation, ensuring equality of treatment to all in equal circumstances. However, the
second expression has been held to be the corollary of the first. It would, therefore, be difficult to
imagine a law, having inequality of operation may yet give equality of protection. It would be a
contradiction to say that any violation of equal protection of laws would not result in violation of
equality before law. It was thus held that both these expressions meant one and the same thing,
i.e., equality of status and of opportunity.28 The dominant idea common to both these expressions
is that of equal justice.
Later, in Srinivasa Theatre v. Government of Tamil Nadu,29 the Supreme Court held that the
expressions equality before law and equal protection of laws in Article 14, did not mean the
same thing, even though there was much in common between them. The court explained that the
term law in the former expression was used in generic sense, a philosophical sense, whereas in
the latter expression, the word laws denoted specific laws in force. The court laid down that
these expressions had to be read and interpreted with regard to the context and scheme of the
Constitution of India and not in the light of the interpretations placed on them in the countries of
their origin, though their relevance was undoubtedly great.
EXCEPTION TO THE RULE OF EQUALITY
The rule of equality is, however, not an absolute one and there are a number of exceptions to it.
For instance, foreign diplomats are immune from the jurisdiction of countrys courts. Article 361
immunes the President and the Governor of a state, from the jurisdiction of the Courts. Police
Officers, Judges also enjoy some protection and some special groups like the trade unions are
accorded special privileges in certain matters. 30
REASONABLE CLASSIFICATION BUT NOT CLASS LEGISLATION
28 State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
29 AIR 1992 SC 999.
30 Supra Note 14, p. 110.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 17

CONSTITUTIONAL LAW-II
Equality secured by Article 14 does not mean absolute equality, which is a human impossibility.
It is held to be a comparative concept. 31 It does not mean that all laws must be universal in
application or general in character. It does not mean that the same laws should apply to all
persons. Article 14 does not make it incumbent on the Legislature, always to make laws
applicable to persons generally.32
Explaining the concept of equality, the Supreme Court in Marri Chandra Shekhar Rao v. Dean,
Seth G.S. Medical College,33 observed:
Equality must become a living reality for the large masses of the people. Those who are
unequal, in fact, cannot be treated by identical standards; that may be equality in law but
it would certainly not be real equality. Existence of equality of opportunity depends not
merely on the absence of disabilities, but on presence of abilities. It is not simply a matter
of legal equality. De jure equality must ultimately find its raison detre in de facto
equality.
All persons are not equal by their nature, attainment or circumstances. The varying needs of
different classes of persons of persons often require separate treatment. 34 From the very nature of
the society, there should be different laws, applying differently in different places. Application of
the same laws uniformly to all, under different circumstances, may result in violation of the
principle of equality.35 The legislature is required to deal with diverse problems resulting from an
infinite variety of human relations. It must, therefore, have power to make laws dealing with
particular problems. 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. 36
In view of the inherent complexities involved in modern society, it is held that some free play
31 I.R. Coelho v. State of T.N., (Judgment dated Sept. 4 2010).
32Supra Note 14, p.110.
33 1990 (3) SCC 130.
34 Chiranjit Lal Choudhary v. Union of India, AIR 1951 SC 41.
35 Municipal Committee, Patiala v. Model Town Residents Association, AIR 2007 SC 2844.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 18

CONSTITUTIONAL LAW-II
must be given to the Executive also in this connection. 37 The principle of equality embodied in
Article 14, thus, permits classification.
REASONABLE CLASSIFICATION-PERMITTED
Article 14 permits classification. Classification is merely a systematic arrangement of things into
groups or classes, usually in accordance with some definite scheme. But, the classification
permitted by Article 14 must rest upon reasonable grounds of distinction. It must not be
arbitrary, artificial or evasive. It must be a reasonable classification.38
In Chiranjit Lal Choudhary v. Union of India,39 the Governor-General of India promulgated 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. The Ordinance was subsequently replaced by an Act of
Parliament, containing similar provisions. The Court upheld the constitutionality of the
impugned Act and action taken against the Company. The Court held that there was no
infringement of the provisions of Article 14 even though the legislature had proceeded against
one company only and its shareholders. 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.
In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others,40 the Central Government
appointed a Commission of Inquiry, with Justice S.R. Tendolkar as its Chairman, against one of
the Dalmia concerns, on the ground of mismanagement in the said concern, apprehending
36 R. Kaaruppan v. Government of India, AIR 2008 Mad. 264.
37 Transport & Dock Workers Union v. Mumbai Trust Board, decided on 15th November, 2010.
38 State of W.B. v. Anwar Ali, AIR 1952 SC 75.
39 AIR 1951 SC 41.
40 1958 AIR 538.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 19

CONSTITUTIONAL LAW-II
considerable loss to the investing public. The Commission was appointed under the Commission
of Inquiry Act, 1952, which empowered Government to appoint a Commission to enquire into
any definite matter of public importance. The petitioners challenged the constitutionality of the
Act and the appointment of the commission and contended that the Commission of Inquiry Act,
1952 gave wide and unregulated discretion to the Government which could result in the denial of
equality. The Supreme Court rejected the contentions raised by the petitioners, and held that the
discretion conferred by the Act, was not unguided, because the Act had clearly laid down the
policy, viz., to enquire into matters of public importance. The Court upheld the action taken
against the petitioner and laid down that while Article 14 forbade class legislation, it did
not forbid reasonable classification for the purposes of legislation.
CLASS LEGISLATION-PROHIBITED
Article 14 as stated above, prohibits class legislation. Class Legislation means legislation
differentiating between the same class of persons. When persons belong to the same class or that
they are equal among themselves in certain respects, they have to be treated equally in such
matters. Law would be violative of Article 14 if it treats these persons differently. It is also said
to be similarly situated test. A person is treated unequally if that person is treated worse than
others, and those others (the comparison group) must be those who are similarly situated to the
complainant.41
For instance, in D.S. Nakara v. Union of India,42 the Supreme Court struck down as violative of
Article 14, a pension rule classifying between government pensioners retiring before March 31,
1979 and those retiring on or after that date, since they belonged to the same class for the
purpose of computation of their pension.
TESTS FOR REASONABLE CLASSIFICATION
It has been held in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
Others,43 by a constitution bench of five judges that, It is, therefore, not necessary to enter upon
any lengthy discussion as to the meaning, scope and effect of the article in question. It is now
41 I.R. Coelho v. State of T.N., (Judgment dated Sept. 15, 2010).
42 AIR 1983 SC 130.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 20

CONSTITUTIONAL LAW-II
well established that while article 14 forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, filled namely,
(i)

that the classification must be founded on an intelligible differentia which


distinguishes persons or things that are grouped together from others left out of the

(ii)

group and,
that that differentia must have a rational relation to the object sought to be achieved
by the statute in question. The classification may be founded on different bases,
namely, geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification and the
object of the Act under consideration. It is also well established by the decisions of
this Court that article 14 condemns discrimination not only by a substantive law but
also by a law of procedure"..

After laying down the above two broad tests, the court propounded the following principles
which were to be borne in mind by the courts in determining the validity of a statute on the
ground of violation of Article 14.

PRINCIPLES FOR DETERMINING REASONABLENESS OF CLASSIFICATION


The following are the principles which are developed by the apex court of this country and laid
down in the Dalmias case:
1. A law may be constitutional even though it relates to a single individual if, on account of
some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself.44

43 1958 AIR 538


44 Dharam Dutt v. Union of India, AIR 2004 SC 1295.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 21

CONSTITUTIONAL LAW-II
For instance, Indian Military Nursing Service is a distinct separate class by itself, though
a part of Indian Army, prescription of dress code for the nurses, has been held as not
violative of Article 14.45
2. There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles.46 It is an accepted doctrine of American Courts. 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.47
3. The presumption may be rebutted in certain cases by showing that on the face of Statute,
there is no classification at all and no difference, peculiar to any individual or class, and
yet the law hits only a particular individual or class.48
4. It must be presumed that the legislature understands and correctly appreciates the need of
its own people, that its laws are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds.49
5. The legislature is free to recognize degrees of harm and may confine its restrictions to
those cases where the need is deemed to be the clearest.
6. In order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common report, the history of
the times and may assume every state of facts which can be conceived existing at the time
of legislation.
7. While good faith and knowledge of the existing conditions on the part of a legislature are
to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may
reasonably be regarded as based, the presumption of constitutionality cannot be carried to
the extent of always holding that there must be some undisclosed and unknown reasons
45 Jasbir Kaur v. Union of India, AIR 2004 SC 293.
46 P.S.T. Bar Association v. State of U.P., AIR 2003 SC 1115.
47 B.D.D.S.W. Association v. State of W.B., AIR 2010 (NOC) 498 (W.B.).
48 A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814.
49 Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, 1958 AIR 538.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 22

CONSTITUTIONAL LAW-II
for subjecting certain individuals or corporations to hostile or discriminating legislation. 50
Thus, an action per se arbitrary itself, would be held to be denial of equal protection of
law.51
The above principles will have to be constantly borne in mind by the court when it is called upon
to adjudge the constitutionality of any particular law attacked as discriminatory and violative of
the equal protection of the laws.
Some more general principles propounded by the Courts, from time to time, may be summarized
as follows:
1. Classification made by a legislature need not be scientifically perfect, or logically
complete. Mathematical nicety and perfect equality are not required. Similarity and not
identity of treatment, is enough.52 Equality before law does not require mathematical
equality of all persons in all circumstances. Equal treatment does not mean identical
treatment, does not per se amount to discrimination.53
2. Classification may be made on different basis, e.g., geographical or according to object or
occupation or the like.
3. Classification should be reasonable both from substantive and procedural standpoints.
4. A legislation may not be amenable to challenge on ground of violation of Article 14,
when it is intended to give effect to principles specified under Article 15 or 16 or where
the differentiation is not unreasonable or arbitrary, but when a classification is made,
which is per se violative of constitutional provision, the same cannot be upheld.54
5. The courts always lean against a construction which reduces the Statute to a futility. A
Statute or any enacting provision therein, it is said, must be so construed as to make it
50 A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814.
51 A.L. Kalra v. P. & E. Corpn., AIR 1984 SC 1361.
52 Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404.
53 State of A.P. v. N.R. Reddi, AIR 2001 SC 3616.
54 E.V. Chinnaiah v. State of Andhra Pradesh, AIR 2002 SC 361.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 23

CONSTITUTIONAL LAW-II
effective and operative on the principle expressed in the maxim ut res magis valeat
quam pareat.55
6. Equality before law, being a dynamic concept, having many facets is said to be
interpreted not only on the anvil of Articles 14 and 16, but also having regard to the
International Law might not ipso facto be applied for interpretation of our domestic laws,
yet their relevance thereof, in a grey area, could not be lost sight of.56
ARTICLE 14 STRIKES AT ARBITRARINESS
This is a dynamic approach taken by the courts. The doctrine of reasonable classification has
been for long, the undisputed touchstone to determine the scope and content of Article 14. Over
the years, Article 14 has received a liberal interpretation. Its scope has also been expanded by
creative interpretation of the Courts.57 The Supreme Court in E.P. Royappa v. State of T.N.,58 has
given a dynamic connotation to the equalizing principle, enunciated in the Article. The Court
declared this equalizing principle contained in Article 14 as a founding faith, pedantic or
lexicographic approach. Bhagwati J. speaking for himself, Chandrachud J. and Krishna Iyer J.,
propounded the new concept of equality from a positivistic point of view and observed:
Equality is a dynamic concept with many aspects and dimensions and it cannot be
cribbed, cabined and confined within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in
it that it is unequal both according to political logic and constitutional law and is
therefore violative of article 14..

55 Saurabh Chaudri v. Union of India, AIR 2004 SC 361.


56 Nair Service Society v. State of Kerala, AIR 2007 SC 2891.
57Supra Note 14, p. 116.
58 AIR 1974 SC 555.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 24

CONSTITUTIONAL LAW-II
INSTANCES OF CLASSIFICATION
In Mithu v. State of Punjab,59 the Supreme Court struck down Section 303 of the Indian Penal
Code, 1860 as unconstitutional on the ground of violation of Article 14. This section provided for
mandatory death penalty for murder committed by a life convict while Section 302 of IPC
conferred discretion on the court to impose life imprisonment or death penalty for a murder
committed by a free man.
The Court said that a provision of law which deprived the court of the use of its wise and
beneficent discretion in a matter of life and death, without regard to the circumstances in which
the offence was committed and, therefore, without regard to the gravity of the offence, could not
but be regarded as harsh, unjust and unfair.
In Air India v. Nargesh Meerza,60 Regulation 46 of the Air India and Indian Airlines Regulations
provided that an Air Hostess was to retire from service upon attaining the age of 35 years or on
marriage, if it took place within four years of her joining service or on first pregnancy, whichever
occurred earlier. Regulation 47 empowered the Managing Director, at his option, to extend the
age of retirement, up to the age of 45 years, if the Air Hostess was found to be medically fit.
The Supreme Court struck down the regulation providing for retire of Air Hostess on her first
pregnancy, as unconstitutional, void and violative of Article 14. The court explained that the
regulation did not prohibit marriage after four years of joining service and if an Air Hostess after
fulfilling the first condition became pregnant, there was no reason why pregnancy should stand
in the way of her continuing in service. Having taken the Air Hostess in service and after having
utilized her service for four years, to terminate her service if she became pregnant, the Court
said, amounted to compelling the poor Air Hostess, not to have any children. It was held not only
a callous and cruel act, but an open insult to Indian Womanhood, the most sacrosanct and
cherished institution.

59 AIR 1983 SC 473.


60 AIR 1981 SC 1829.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 25

CONSTITUTIONAL LAW-II
The Regulation giving option to the Managing Director to extend the service of an Air Hostess,
conferred a discretionary power without laying down any guidelines or principles, was struck
down as unconstitutional.
However, the provision that an Air Hostess was to retire if she married within four years of
joining service was upheld as there was no unreasonableness or arbitrariness in the provision. It
was held to be a very sound and salutary principle.
In V. Revathi v. Union of India,61 the validity of Section 198(2) of Cr.P.C., 1974 read with Section
497 of the Indian Penal Code, 1860, was challenged on the ground of violation of Article 14.
Section 497 of IPC states, Whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man, without the consent or connivance
of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence
of adultery, and shall be punished with imprisonment of either description for a term which may
extend to five years, or with fine, or with both. In such case the wife shall not be punishable as
an abettor. Section 198(2) of Cr.P.C. gives the right to prosecute the adulterer, to the husband of
the adultress and not to the wife of the adulterer. It permits neither the husband of the offending
wife to prosecute his wife, nor does it permit the wife to prosecute the offending husband for
being disloyal to her. The Supreme court has upheld the constitutionality of the impugned
provision as follows:
The philosophy underlying. appears to be that as between the husband and the wife
social goodwill be promoted by permitting them to make up or break up the
matrimonial tie rather than to drag each other to the Criminal Court. They can either
condone the offence in a spirit of forgive and forget and live together or separate by
approaching a matrimonial court and snapping the matrimonial tie by securing divorce.
They are not enabled to send each other to jail. Perhaps it is as well that the children (if
any) are saved from the trauma of one of their parents being jailed at the instance of the
other parent.

61 AIR 1988 SC 835.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 26

CONSTITUTIONAL LAW-II
ORAL INTERVIEW TEST AND ARTICLE 14
In Ajay Hasia v. Khalid Mujib,62 the Supreme Court struck down as constitutionally invalid, the
allocation of as high a percentage as 33 1/3 of the total marks for the oral interview for admission
to the Engineering College and declared it as infecting the admission procedure with the vice of
arbitrariness. The court firmly laid down that what Article 14 strikes at arbitrariness because an
action that is arbitrary must necessarily involve negation of equality. So ruled, the court said
that not more than 15% of the total marks, should be allocated for oral interview.
In Mehmood Alam Tariq v. State of Rajasthan,63 the Supreme Court upheld the validity of the
Rule prescribing 33% as minimum qualifying marks in the viva voce test to be obtained by a
candidate for selection to Administrative and Police Services. The total marks prescribed for oral
test were 11.9% of aggregate marks.
It may, therefore, be stated that no hard and fast rule can be laid down, which would meet the
requirements of all cases in this behalf and much would depend on the nature of performance
expected for the responsibility to be handled by a candidate after his selection.64
JUDICIAL ADJUDICATION AND ARTICLE 14
In B.P. Corpn. Ex-employees Association v. Bharat Petroleum Corporation Ltd.,65 the Supreme
Court held that discrimination arising out of judicial adjudication could not be impugned as
violative of Article 14.
RULES OF NATURAL JUSTICE AND ARTICLE 14
In recent decisions, Article 14 has acquired a new and dynamic meaning. It has been held that
Article 14 requires not only reasonable classification but also that the classification must be just
62 AIR 1981 SC 487.
63 AIR 1988 SC 1451.
64 Hemani Malhotra v. Delhi High Court, AIR 2008 SC 2103.
65 AIR 1995 SC 1126.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 27

CONSTITUTIONAL LAW-II
and fair. The classification would not be reasonable if it is made without observing the rules of
natural justice. Even an administrative order, which involves civil consequences, must be made
in consonance with the rules of natural justice. It has been held that the rules of natural justice
form an essential component of Article 14. 66 Even in criminal matters, it is held, that the court
while awarding compensation to the victim of an offence, must give opportunity of hearing to the
accused.67
In DTC v. DTC Mazdoor Congress,68 the Supreme Court held that Regulation 9(b) of the Delhi
Road Transport Authority (Condition of Appointment and Service) Regulations, 1952, which
conferred power on the Authority, to terminate the services of a permanent employee by issuing a
notice without assigning any reason and without giving him any opportunity of hearing, was
wholly arbitrary, unjust, unfair and unreasonable, violating principles of natural justice as well as
Article 14.
However, rules of natural justice are not embodied rules 69 and undue reliance on these principles,
may lead to miscarriage of justice. There can be certain situations in which an order passed in
violation of natural justice need not be set aside,70 e.g., where no prejudice is caused to the
person concerned and if quashing of the order made in breach of natural justice is likely to result
in revival of another order which is in itself illegal. The Supreme Court in several cases has
developed the principle that in addition to breach of natural justice, prejudice must also be

66 Dev Dutt v. Union of India, AIR 2008 SC 2513.


67 Mangilal v. State of M.P., AIR 2004 SC 1280.
68 AIR 1991 SC 101.
69 D.G. Rly. Protection Force v. K.R. Babu, AIR 2008 SC 1958.
70 Syndicate Bank v. Gen. Secy., Syndicate Bank staff Association, AIR 2000 SC
2199.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 28

CONSTITUTIONAL LAW-II
proved.71 It may thus be said that the requirement of natural justice must depend on the facts and
circumstances of the case.72
Natural Justice is said to have an expanding content and is not stagnant. 73 It is, therefore, open to
the courts to develop new principles of natural justice in appropriate cases.74
ARTICLE 14 AND REASONED DECISIONS
It is a settled legal proposition the every administrative as well as judicial order must be
supported by cogent reasons. The giving of reasons for a decision has been held to be an
essential attribute of judicial and judicious disposal of a matter before Courts. 75 It has been said
to be an essential requisite of principles of natural justice.76
Reason is said to be the heartbeat of every conclusion. 77 The requirement of giving reasons for a
decision has been impressed by the courts in a catena of judgments. Reason, it is said, introduces
clarity in order and without the same, it becomes lifeless. Reasons substitute subjectivity by
objectivity. Absence of reasons renders the order indefensible/unsustainable, particularly when
the order is subject to further challenge before a higher forum. Thus, reasons ensure transparency
and fairness in decision making and have been held to be hallmark of Article 14.

71 K.L. Tripathi v. State Bank of India, AIR 1984 SC 273.


72 Indian Airlines Ltd. v. Prabha D. Kanan, AIR 2007 SC 548.
73 State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794.
74 Dev Dutt v. Union of India, AIR 2008 SC 2513.
75 East Court Railway v. Madhav Appa Rao, AIR 2010 SC 2794.
76 State of Rajasthan v. Sohan Lal, AIR 2004 SC 4520.
77 State of H.P. v. Sada Ram, (2009) 4 SCC 422.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 29

CONSTITUTIONAL LAW-II
So ruled, a bench of three judges of the Apex Court in The Secretary & Curator, Victoria
Memorial Hall v. Howrah Ganatantrik Nagrik Samity,78 said that the rejection of the
recommendations, made by an expert committee, by the High Court without assigning valid and
good reasons was illegal. The Expert Committee was appointed by the High Court to find out
possibility of erection of new building within the same campus of VMH to enhance existing
facilities. The building replacing existing cluster of annexe building which was dilapidated. The
respondent had filed a PIL petition before the Calcutta High Court seeking large number of
reliefs, particularly, directing the respondents therein to preserve, protect and maintain historical
monument. Hearing the petition, the High Court had constituted the Expert Committee for
improving the environment of VMH. However, the court brushed aside the recommendations of
the committee without giving any reason whatsoever. Setting aside the High Courts order, the
Apex Court allowed the application filed by the appellant for the said purpose.
GENDER EQUALITY AND THE RULE OF HARMONIOUS CONSTRUCTION
The Supreme Court in Githa Hariharan v. Reserve Bank of India,79 invoked the rule of
harmonious construction for securing constitutional guarantee of gender equality. The court ruled
that if on one construction a given statute would become unconstitutional, whereas on another
construction, which might be open, the Statute remained within the Constitutional limits, the
Court would prefer the latter on the ground that the Legislature was presumed to have acted in
accordance with the Constitution and courts generally lean in favour of the constitutionality of
the statutory provisions.
AN ACTION OF STATE PER SE ARBITRARY
Article 14 strikes at arbitrariness in State action executive, administration or cultural and for the
application of Article 14, one need not allege any discrimination vis--vis others, or that one
need not confine the denial of equality to a comparative evaluation between two persons to arrive

78 AIR 2010 SC 1285.


79 AIR 1999 SC 1149.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 30

CONSTITUTIONAL LAW-II
at a conclusion of discriminatory treatment. An action per se arbitrary, itself, would be held to
held to be denial of equality of equality of protection by law.80
EQUALITY CLAUSE CANNOT BE INVOKED TO PERPETUATE ILLEGALITY
It is well established rule that the guarantee of equality before law is a positive concept and it
cannot be enforced by a citizen or Court in a negative manner. 81 Article 14, thus, cannot be read
to support a situation where a breach or illegality, which has been previously committed, is cited
for a subsequent breach or illegality to be committed.82
The principle of equality under Article 14, it has been ruled, does not apply when the order relied
upon is unsustainable in law and is illegal. It is ruled that two wrongs cannot make one right and
that an illegality cannot be allowed to be perpetuated under the so-called equality doctrine. 83 It
is trite law that there is no equality in illegality.84
In a catena of cases, it is well established that Article 14 carries with it positive effect and that
equality clause cannot apply in a case where it arises out of illegality.85
In State of Haryana v. Ram Kumar Mann,86 the respondents resignation from service was
accepted for contesting election to the Legislative Assembly of the State. He, having been
defeated in the election, sought reinstatement in service, on the ground that others earlier had
been so reinstated. Rejecting the claim of the respondent, the Supreme Court held that Article 14
80 A.L. Kalra v. Project and Equipment Corporation, AIR 1984 SC 1361.
81 Kerala S.E. Board v. Saratchandran, AIR 2009 SC 191.
82 Joydev Sen v. State of W.B., AIR 2010 (NOC) 256 (CAL).
83 Bihar Public Service Commission v. Kamini, (2007) 5 SCC 519.
84 M/s. Vishal Properties (P) Ltd. v. State of U.P., AIR 2008 SC 183.
85 G.M., Uttranchal Jal Sansthan v. Laxmi Das, AIR 2009 SC 3121.
86 JT 1997 (3) SC 450.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 31

CONSTITUTIONAL LAW-II
would apply only when invidious discrimination was meted out to equals and similarly
circumstanced without any rational basis or relationship in that behalf. A wrong decision by the
government, the Court ruled, did not give a right, to enforce the wrong order and claim parity or
equality. The wrong order, the Court said, could not be the foundation, for claiming equality, for
enforcement of the same order.
BASIS OF CLASSIFICATION
It has been held that 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.
Geographical Basis
Article 14 does not require that uniform laws be enacted for the whole of the territory of India. A
law may be applicable to one part of the territory of India and not to the other parts depending on
particular circumstances and peculiar geographical conditions prevailing in that area. 87 A
classification may be, therefore, properly made, on geographical basis. 88 Thus, favoured
treatment to those situated in backward and tribal areas, cannot be held, to be illegal or
arbitrary.89
Historical Consideration
A classification may be made on the basis of historical reasons. 90 Section 87-B of the Civil
Procedure Code, 1908, granted immunity from civil process to the ex-rulers of Indian Princely

87 Ram Chandra v. State of Orissa, AIR 1956 SC 298.


88 Kasualata v. M.U.N.T. Employees Association, AIR 2002 SC 1223.
89 M.P. Oil Extraction and Fur v. State of M.P., AIR 1998 SC 145.
90 Clarence Pais v. Union of India, AIR 2001 SC 1151.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 32

CONSTITUTIONAL LAW-II
states. This section was upheld in Mohanlal Jain v. Man Singhji,91 as the ex-rulers constituted a
separate class on account of historical consideration.
Nature of Business
A classification may be made depending upon the nature of business. The law providing for
fixation of minimum wages may distinguish between a business carried on in a factory and that
carried on outside it.92 Animals in zoos cannot be equated with animals in circuses.93 A law may
treat differently a big and a small manufacturer.94
Time as Basis of Classification
A classification may be made with reference to time. A law may exempt the houses built after a
particular date from the operation of the Rent Control Act, for encouraging the construction of
new houses.95
Cut-off Date
It is well established that the employer has undoubted power to revise the salaries and/or the pay
scales of its employees as also terminal benefits/pensionary benefits. The power to specify a date
from which the revision shall take effect is a concomitant of the said power. In such cases, the
court said that financial implication of making the scheme retrospective was to be the sole
consideration.96 A cut-off date for granting service benefits may not necessarily tantamount to a
violation of Article 14 and will be upheld if there is some reasonable explanation in support of
91 AIR 1962 SC 73.
92 Gulam Ahmed v. State of Bombay, AIR 1962 Bom. 96.
93 N.R. Nair v. Union of India, AIR 2000 Ker. 340.
94 B.I.C. v. Collector, Central Excise, AIR 1963 SC 104.
95 Punjab Tin Supply Co. v. Central Government, AIR 1984 SC 84.
96 State of Rajasthan v. Amrit Lal Gandhi, AIR 1997 SC 782.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 33

CONSTITUTIONAL LAW-II
that date.97 It has been held that so long as such date is specified in a reasonable manner, no
interference is called for by the court in that behalf. 98 The fact that some persons or a section of
the society would hardship, by itself, cannot be a ground for holding that the cut-off date so fixed
is ultra vires Article 14.99
Classification on the Basis of Nature of Persons
Public officials and non-public officials belong to different classes. Therefore, Section 197 of
CrPC, which requires prior sanction of appropriate authority before a public servant is
prosecuted, while no sanction is needed for prosecuting private persons, has been held not
violative of Article 14.100
With a view to popularizing the family welfare/family planning programme, Section 175(1)9(q)
and 177(1) of the Haryana Panchayati Raj Act, 1994 provided for disqualifying a person for
holding the office of Sarpanch or a Panch of Gram Panchayat or a Member of a Panchayati
Samiti or Zilla Parishad, if he had more than two living children. The Supreme Court in Javed v.
State of Haryana,101 upheld the classification as well defined and well perceptible and founded
on an intelligible differentia.
Classification on the Basis of Nature of Offences

97 Krishena Kumar v. Union of India, AIR 1990 SC 1782.


98 Union of India v. P.N. Menon, AIR 1994 SC 2221.
99 Ramrao v. A.I.B.C.B.E.W. Association, AIR 2004 SC 1459.
100 Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44.
101 AIR 2003 SC 3057.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 34

CONSTITUTIONAL LAW-II
Gravity of the offence can form the basis of valid classification. 102 In State of Haryana v. Jai
Singh,103 on the eve of the Independence Day, the Government of Haryana issued a Notification
dated 14-8-1995, in exercise of its power vested under S. 432 of CrPC, granting remission of
prison sentence to all convicts except those excluded in the said Notification.
Classification on the Basis of Educational Qualifications
The State, as an employer, therefore, is entitled to fix separate quota of promotion for the degree
holders, diploma-holders and certificate-holders, separately, in the exercise of its rule making
power under Article 309.104
Classification in favour of State
The term person in Article 14 does not include State. Therefore, a classification which treats
the State, differently from persons, may not be violative of the rule of equal protection of law.
In Baburao v. Bombay Housing Board,105 a law which exempted the factories run by the
government from operation but applied to other factories, was held not to be discriminatory.
LAWS APPLICABLE TO SINGLE INDIVIDUAL
Laws may be made applicable to single individual. For e.g., in Chiranjit Lal Choudhary v. Union
of India,106 the Governor-General of India promulgated 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. The
102 State of Haryana v. Mohinder Singh, AIR 2000 SC 890.
103 AIR 2003 SC 1696.
104 G.K. Mohan v. Union of India, AIR 2008 SC 305.
105 AIR 1954 SC 153.
106 AIR 1951 SC 41.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 35

CONSTITUTIONAL LAW-II
Ordinance was subsequently replaced by an Act of Parliament, containing similar provisions.
The Court upheld the constitutionality of the impugned Act and action taken against the
Company. The Court held that there was no infringement of the provisions of Article 14 even
though the legislature had proceeded against one company only and its shareholders. 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.
TAX LAWS AND ARTICLE 14
The levy of tax by the state is a sovereign function and the power to tax is one of the most
extensive and searching powers. A state is not obliged to tax everything in order to tax
something. It can select districts, objects, persons, methods and even rates of taxation. The power
to levy tax includes the power to pick and choose objects and persons for the purpose of taxation
and to grant exemption.107 A tax statute is construed strictly and hardship is not relevant in
construing taxing statutes.108 It includes the power to levy it with retrospective effect.109
In V.M. Syed Mohd. & Co. v. State of Andhra Pradesh,110 the Supreme Court upheld a law
imposing sales tax on hides and skins and not on other commodities.
SPECIAL COURTS AND PROCEDURAL CLASSIFICATION
Article 14 requires that classification to be constitutionally valid, must be reasonable not only
substantially but also from the procedural standpoint. 111 Thus, laws setting or authorizing the

107 A.C.C. v. State of Chhattisgarh, AIR 2007 (NOC) 669.


108 Government of Andhra Pradesh v. P. Laxmi Devi, AIR 2008 SC 1640.
109 Premier Enterprises, Secundrabad v. C.T.O., AIR 2003 SC 4449.
110 AIR 1954 SC 314.
111 In Re Special Courts Bill, 1978, AIR 1978 SC 478.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 36

CONSTITUTIONAL LAW-II
setting up of special courts, applying a special procedure for trial of offences, have been tested at
the touchstone of Article 14.112
The Special Courts Bill, 1978, proposed for setting up of special courts for speedy trial of
offences committed by persons holding high public or political offices during the emergency of
1975-77, was upheld In Re Special Courts Bill, 1978,113 to be constitutionally valid.
WEDNESBURY PRINCIPLE
There may be a situation where an act or a statute, instead of making the classification, confers
power on the executive in that regard. In such cases, if the Act confers unregulated discretion on
the Executive, the Act itself would be void under Article 14. It may be that the Act has laid down
some principles or policy for the guidance of the exercise of discretion by the Executive in
making classification, then in that case, the Act conferring discretion would not be void as
offending Article 14. Also, a provision cannot be held unconstitutional merely because the
authority vested with the power may abuse his authority.114 But, the executive action, taken by
the administrative authority acting arbitrarily, would be struck down.
The test of unreasonableness for judging the arbitrariness of the order was laid down in
Associated Provincial Picture House v. Wednesbury Corporation,115 and this test is known as
wednesbury test. Relying on this case, it has been ruled that the Court should not interfere with
the administrators decision unless it is illogical or suffers from procedural impropriety or is
shocking to the conscience of the Court, in the sense that it is in defiance of logic or moral
standards.116 It is thus held that an administrative action is subject to control by judicial review on
the following three grounds, namely:
112 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
113 AIR 1978 SC 478.
114 A.N. Bhati v. State of Gujarat, AIR 2005 SC 2115.
115 (1947) 2 All ER 640.
116 Damoh Panna Sugar R.R. Bank v. Munna Lal Jain, AIR 2005 SCW 95.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 37

CONSTITUTIONAL LAW-II
(i) If it is illegal.
(ii) That it is irrational.
(iii)
That it suffers from procedural impropriety.
ARTICLE 14 AND POLICY DECISIONS
It is settled legal proposition that the policy decision taken by the State or its
authorities/instrumentalities is beyond the purview of judicial review unless the same is found to
be arbitrary, unreasonable, in contravention of the statutory provisions or violates the rights of
the individual guaranteed under the Statute.117 There is always a presumption that governmental
action is reasonable and in public interest. It is said that every activity of the Government has a
public interest element in it and it must be informed of reason and guided by public interest. If it
fails to satisfy either test, it would be unconstitutional and invalid.118
ADMISSION TO EDUCATIONAL INSTITUTIONS
It has been observed that the object of any scheme of admission should be to select the best and
most meritorious students, by providing equal opportunities to all citizens in the country. Any
departure from this rule must be justified on the touchstone of Article 14.119
Applying the above rule, the Supreme Court, in P. Rajendra v. State of Madras,120 struck down
the provision for allotment of seats in medical college in the State amongst the various districts
in the State in the ratio of the population of each district to the total population of the State. The
provision was held violative of Article 14.

117 M.P. Oil Extraction v. State of M.P., AIR 1998 SC 148.


118 Shalendra Nath v. State Bank of India, AIR 2007 Pat. 44.
119 Pradeep Jain v. Union of India, AIR 1984 SC 1420.
120 AIR 1968 SC 1012.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 38

CONSTITUTIONAL LAW-II
In Pradeep Jain v. Union of India,121 the Supreme Court held that wholesale reservation of seats
in M.B.B.S. and B.D.S. courses, on the basis of domicile or residence within the state, was
unconstitutional and void as being in violation of Article 14.
In Unni Krishnan v. State of Andhra Pradesh,122 (Second Capitation fee case), a constitution
bench of Supreme Court evolved a scheme regulating the admission to private unaided/aided,
recognized affiliated educational institutions conducting professional courses such as medical,
engineering courses, etc., and charging capitation fee for the purpose of admission. As regards
aided institutions, it was held that they were to abide by the rules and regulations as might be
framed by the appropriate authority and in the matter of admission of students, they were to
follow the rule of merit and merit alone, subject to any reservation that might be made under
Article 15(4) and they were not to charge any fees higher than which is charged in governmental
institutions

for

similar

courses.

As

regards

un-aided

institutions,

which

were

recognized/affiliated, the Scheme postulated that at least 50% of the seats in every professional
college, were to be filled by the nominees of the Government /University, and the students for
these seats were to be selected on the basis of merit determined on the basis of common entrance
examination and in its absence, by such criteria as might be determined by the competent
authority. The remaining 50% seats were to be filled by candidates prepared to pay the
prescribed higher fee. However, the allotment of students against such seats known as payment
seats, were to be done on the basis inter se merit determined on the same basis as in the case of
free seats. There would be no quota reserved for the management or for any family, caste or
community, which might have established such college.
This decision, in so far as it framed the scheme of payment seats was overruled by a bench of
eleven judges of Apex Court in T.M.A. Pai Foundation v. State of Karnataka.123 The Court held
that the scheme had the effect of nationalizing education in respect of important features, viz.,

121 AIR 1984 SC 1420.


122 AIR 1993 SC 2178.
123 AIR 2003 SC 355.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 39

CONSTITUTIONAL LAW-II
the right of a private un-aided institution to give admission and to fix the fee. It was held neither
fair nor reasonable.
HORIZONTAL AND VERTICAL RESERVATION
The Supreme Court in Indra Sawhney v. Union of India,124 recognized the concept of horizontal
reservation and explained:
All reservations are not of the same nature. There are two types of reservations, which
may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal
reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other
backward classes under Article 16(4) may be called vertical reservations whereas
reservations in favour of physically handicapped under Clause (1) of Article 16 can be
referred to as horizontal reservations. Horizontal reservations cut across the vertical
reservations that is called inter-locking reservations. To be more precise, suppose 3% of
the vacancies are reserved in favour of physically handicapped persons; this would be a
reservation relatable to Clause (1) of Article 16. The persons selected against this quota
will be placed in the appropriate category; if he belongs to S.C. category he will be
placed in that quota by making necessary adjustments; similarly, if he belongs to open
competition (O.C.) category, he will be placed in that category by making necessary
adjustments. Even after providing for these horizontal reservations, the percentage of
reservations in favour of backward class of citizens remains - and should remain - the
same.
The method of implementing special reservation, which is a horizontal reservation, cutting across
vertical reservation, was explained by the Apex Court in Anil Kumar Gupta v. State of U.P.,125 as
follows:
The proper and correct course is to first fill up the O.C. quota (50%) on the basis of
merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third
124 AIR 1993 SC 477.
125 (1995) 5 SCC 173.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 40

CONSTITUTIONAL LAW-II
step would be to find out how many candidates belonging to special reservations have
been selected on the above basis. If the quota fixed for horizontal reservations is already
satisfied - in case it is an over-all horizontal reservation - no further question arises. But if
it is not so satisfied, the requisite number of special reservation candidates shall have to
be taken and adjusted/accommodated against their respective social reservation
categories by deleting the corresponding number of candidates there from.
The Apex Court in R.K. Daria v. Rajasthan Public Service Commission126 ruled that reservation
from women in the State Judicial Services, being horizontal/special reservation, would be
counted within the vertical reservation. Thus, women selected on merit within the vertical
reservation quota would be counted against the horizontal reservation for women.
In Swati Gupta v. State of U.P.,127 the Supreme Court upheld the policy of State Government
providing for horizontal reservation of seats in the medical colleges. Under this policy vertical
reservation of 50% seats, was made for SC/ST and OBC candidates with reservation of 30%
seats in each category for ladies. No further reservation was made in 50% quota of general
candidates. It further provided for reservation of 15% seats for candidates belonging to other
categories. These candidates on being selected on merit, were to be adjusted in general category
or reserved category depending upon, the category to which they belonged.
NEED FOR COMMON ENTRANCE EXAMINATION
The Apex Court in Preeti Srivastava v. State of M.P.,128 explaining the desirability of holding a
Common Entrance Examination (CEE), observed:
A common entrance examination, therefore, provides a uniform criterion for judging the
merit of all candidates who come from different universities.. The purpose of such a
common entrance examination is not merely to grade candidates for selection. The
126 AIR 2007 SC 3127.
127 (1995) 2 SCC 560.
128 AIR 1999 SC 2894.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 41

CONSTITUTIONAL LAW-II
purpose is also to evaluate all candidates by a common yardstick.. the most legal and
equitable way of selecting students for admission to Post-Graduate Courses
BELATED/MIDSTREAM ADMISSIONS
Belated/midstream admission to different courses, both pre-graduate and post-graduate, is held
undesirable.129
In Neelu Arora v. Union of India,130 the three learned judges of Supreme Court have held that
belated/midstream admissions to Medical Colleges in different courses were not desirable.
Admission of a student after the commencement of the course, the Court said, would be against
the intended object of fixing a time schedule.
STANDARD OF EDUCATION
The Apex Court in State of T.N. v. S.V. Bratheep,131 made it clear that the mere fact that there
were vacancies in the colleges would not be a matter, which would go into the question of fixing
the standard of education.
The Court said that although it was for an expert body to determine qualifying marks for
different categories, but there could not be a big disparity in the qualifying marks for reserved
category and general category candidates.
RIGHT OF THE EXAMINEE TO HAVE ACCESS TO EVALUATED SCRIPTS
It has been said that finality had to be attached to the result of public examination and that in the
absence of statutory provision, the Court could not direct re-assessment/re-examination of
answer scripts.132
129 Medical Council of India v. Madhu Singh, AIR 2002 SC 3230.
130 AIR 2003 SC 1082.
131 AIR 2004 SC 1861.
132 State of T.N. v. S.V. Bratheep, AIR 2004 SC 1861.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 42

CONSTITUTIONAL LAW-II
In President, B.S.E., Orissa v. D. Suvankar,133 their Lordships observed:
it is in the public interest that the results Public examinations when published
should have some finality attached to them. If inspection, verification in the presence of
the candidates and revaluation are to be allowed as of right, it may lead to gross and
indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates,
besides leading to utter confusion on account of the enormity of the labour and time
involved in the process.
The Court further observed:
The Court should be extremely reluctant to substitute its own views as to what is wise,
prudent and proper in relation to academic matters in preference to those formulated by
professional men possessing technical expertise and rich experience of actual day-to-day
working of educational institutions and the departments controlling them.
The Court, thus, ruled that the courts normally should not direct the production of answer scripts,
to be inspected by the examinees, unless a case was made out to show that either some questions
had not been evaluated or the evaluation had been done contrary to the norms fixed by the
examining body.

133 (2007) 1 SCC 603.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page 43

CONSTITUTIONAL LAW-II

References
BIBLIOGRAPHY:
1. Prof. M.P. Jain, Indian Constitutional Law, Wadhwa & Company, Nagpur, 5th edition,
2003.
2. Prof. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency,
Faridabad, 8th edition, 2011.
3. Mahendra P. Singh, V.N. Shuklas Constitutional Law of India, Eastern Book
Company, Lucknow, 10th edition.
4. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad 42nd
edition, 2005.
5. Dr. Duraga Das Basu, Introduction to the Constitution of India, Lexis Nexis,
Gurgaon, 21st edition, 2013.
6. P.M. Bakshi, The Constitution of India, Universal Law Publishing Co., New Delhi,
12th edition, 2012.
WEBEOGRAPHY:
1.

http://www.nios.ac.in/media/documents/secsocscicour/english/lesson-16.pdf,

assessed

on 11 March, 2015 at 11:39 p.m.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

Page 11