‘Equality’ has emerged as heartthrob of all fundamental rights

Fundamental Rights begin with Article 14, which is to prevent denial of equality before law or the equal protection of laws by the State. Though a gateway, it turns into the lifeblood and essence of all fundamental rights. The Article has also got the flavour and blend of natural justice, reasonableness, lack arbitrariness, proportionality, etc. The brooding sprit of reason pervades the other fundamental rights.

‘Rule of law’ is the basic rule of governance of any civilised polity. The scheme of the Constitution is based upon the concept of rule of law. Everyone, whether individually or collectively, is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above law. For achieving establishment of the rule of law, the Constitution has assigned the special task to the judiciary. It is only through the courts that the rule of law unfolds its contents and establishes its concept. The Constitutional principle of equality is inherent in the rule of law, which is satisfied when laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction. The concept of equality allows differential treatment, but it prevents distinctions that are not properly justified. Non-arbitrariness is a necessary concomitant of the rule of law. The doctrine of equality before law is a necessary corollary to the concept of the rule of law of the onstitution.

The expression ‘State’ includes all ‘instrumentalities or agencies’ of the Government whether they are departments or not, whether a statutory corporation or other body. It is the State’s duty to allay fears of citizens regarding discrimination and arbitrariness. Any person, natural or artificial, whether a citizen or an alien, is entitled to the protection of this article. Government servants do not lose the protection of this Article by entering into service. Even a prisoner is entitled to equal treatment under the Prison Rules. The State itself is a juristic person. Hence, where no special provision is made, the State has equal rights with other persons. The use of the phrase “any person” in the context of legislation in general or executive action affecting group rights is construed to mean persons who are similarly situated. The classification of such persons for the purposes of testing the differential treatment, of course, be intelligible reasonable – reasonableness being determined with reference to the object for which the action is taken.

The first expression “equality before the law” contained in Art.14, which is taken from the English common law, is a declaration of equality of all persons within the Indian territory, implying thereby the absence of any special privilege in favour of any individual. Art. 14 is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals. The letter is the core and essence of the right to equality and the State the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to. This doctrine of equality is a dynamic and evolving concept, which has many facets. It is embodied not only in Art. 14 but also in Arts. 15-18 of Part III as well as in Arts. 38, 39, 39A, 41 and 46 of Part IV. The object of all these provisions is to attain ‘justice, social, economic and political’, which is indicated in the Preamble and which is the sum-total of the aspirations incorporated in Part IV.

In view of the equality doctrine contained in Art. 14, the State cannot reason to the theory of “take it or leave it”. Any unjust condition, as in the instant case, thrust by the State in such matters, would attract the wrath of Art. 14. It is trite that the State in all its activities must not act arbitrarily. Equality and good conscience should be at the core of all the governmental functions. It is now well-settled that every executive action which operates to the prejudice of any person must have the sanction of law. The executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any court of law. The concept of equality before law means that among equals the law should be equal and should be equally administered and the likes should be treated alike. All that Art. 14 guarantees is a similarity of treatment and not identical treatment.

The guarantee of equal protection of law and equality before law does not prohibit reasonable classification. The State always has the power to have a classification on the basis of rational distinctions relevant to the particular subject to be dealt with, but such permissible classification must satisfy two conditions, namely, the classification to be founded on intelligible differentia which distinguishes persons or things that are grouped from others who are left out of the group and the differentia must have a rational relation to the object sought to be achieved by the legislation. In other words, there must be a nexus between the basis of classification and the object of legislation. So long as the classification is based on a rational basis and so long as all the persons falling in the same class are treated alike, there can be no question of violating the equality clause. If there is equality and uniformity within each group, the law cannot be condemned as discriminatory. Conferment of special benefits or protection or rights to a particular group of citizens for rational reasons is envisaged under Art.14 and is implicit in the concept of equality. There is no abridgement of the content of Art.14 thereby but  an exposition and practical application of such content.

Equal protection of the laws means that amongst equals the law should be equal and should be equally administered and the likes should be treated alike.

Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Equal protections means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstances cannot be treated on par. Therefore, the basic principle underlying Art. 14 is that the law must operate equally on all persons under like circumstances. The amalgamation of two classes of people for reservation would be unreasonable as two different classes are treated similarly which is in violation of the mandate of Art. 14 which is “to treat similar similarly and to treat different differently”. It is well-settled that to treat unequals as equals also violates Art. 14.

Since the guarantee of equal protection embraces the entire realm of ‘State action’, it would extend not only when an individual is discriminated against in the matter of exercise of his rights or in the matter of imposing liabilities upon him but also in the matter of granting privileges, e.g., granting licences for entering into any business, inviting tenders for entering into a contract relating to Government business, issuing quotas or giving jobs. Equal protection requires affirmative action by the State towards unequals by providing facilities and opportunities. There should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same.

Equality is the basic feature of the Constitution. The content of Art. 14 was originally interpreted by the Supreme Court as a concept of equality confined to the aspects discrimination and classification. The content of Art. 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppels, non-arbitrariness, compliance with rules of natural justice, eschewing irrational unreasonable conduct.

“Equality” has taken dynamic postures in expressing itself as the pulsating heartthrob of all fundamental rights. “Proportionality” and legitimate expectation are also subsequent developments in the meaningful interpretation of Art. 14.

It requires wide-scale debate to permeate the nuances of the dynamic interpretations given by the Supreme Court to the concept of equality and equal protection.

(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)