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Legopedia

What is Right to Equality under the Indian Constitution

right to equality in india

The term ‘Equality’ 

Equality is regarded as the basis of Democracy. The concept of equality is also closely associated with the theory of natural rights. The beginning of the principle of equality may be traced to the theory of natural equality because it was said by Thomas Jefferson “all men are born equal and it is the man himself who creates differences between individuals.” Equality implies treatment and opportunities of all people alike. Equality presumes that there must not be any discrimination when it comes to opportunities. Therefore, Right to Equality is essential for all individuals for their development.  However, equality is a broad term and contains many exceptions in our Constitution.

Right to Equality under the Indian Constitution[1]

Article 14-18 of the Constitution of India provides for Right to Equality. It is one of the six fundamental rights enshrined under Part III of the Constitution of India.

Article 14

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Prima facie, the term ‘equality before the law’ and ‘equal protection of the laws’ may look similar, but they are different. Equality before the law is a negative concept implying the absence of any special privilege based on birth, creed, colour, sex, or the like whereas, equal protection of laws is a more positive concept implying the right of treatment in similar situations.

Article 15 

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.

Sub-clause (1) says that the State shall not discriminate on the above-mentioned grounds.

Sub-clause (2) says that no citizen on the above-mentioned grounds is subject to any disability, liability, restriction or condition with regards to public places such as restaurants, shops, etc.

Sub-clause (3) empowers the State to make provisions for women and children.

Sub-clause (4) empowers the State to make special provisions for Scheduled Castes and Scheduled Tribes.

Sub-clause (5) was inserted by the 93rd Constitutional Amendment Act, 2005 and it allows reservation for socially and educationally backward classes in State or State-aided educational institutions subject to the exclusion of the “creamy layer” from OBCs.

Article 16 –

Article 16 talks about equality of opportunities in matters of public employment.

Sub-clause (1) says that there must be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The term “in matters relating to employment or appointment” denotes all matters in relation to employment both prior and after the employment which is incidental to the employment and form a part of the T&Cs of the employment. The crux of equality of opportunity is not just the maintenance of legal equality but on the presence of abilities and opportunity of excellence in each cadre or grade. Thus, all persons situated similarly must be treated in a like manner.

Sub-clause (2) says that no citizen, on the grounds of religion, race, caste, sex, descent, place of birth be ineligible for any office under the State. This provision only applies to public employment.

In K.C. Vasanth Kumar v. the State of Karnataka[2], the Supreme Court held that reservation in favour of backward classes must be based on the mean test. It further suggested that the policy of reservation should be reviewed after every five years and the class reaches a level wherein they do not require a reservation, its name must be deleted from that list.

Sub-clause (3) empowers the Parliament to make laws regarding a class or classes of employment or appointment to an office. In M.R. Balaji v. Mysore[3]the apex court had put a 50% cap on reservations in all states except Tamil Nadu and Rajasthan.

Sub-clause (4) empowers the State to make provisions for reservation of appointments or posts in favour of a backward class of citizens, which in the opinion of the State are not represented in the services under the State.  Reservation under Article 16(4) included promotions which were overruled by the Supreme Court in Indra Sawhney v. Union of India[4].

The judgment had a very significant impact on Article 16(4). It held –

  • Backwardness under Article 16(4) is mainly social. It need not be social or educational.
  • For reservation under Article 16(4), the limit cannot exceed 50%.
  • Identification of a class as “backward classes” is subject to judicial review.

Article 16(4) confers a discretionary power on the State to make a reservation if the need is but no constitutional right upon the members of the backward classes to claim the same.[5]

Article 17 –

Article 17 abolishes the evil practice of untouchability. Untouchability was an evil practice carried out on members of the lowest rungs of the society such as Dalits. Parliament is also authorized to make laws prescribing punishment for the same.

Article 18 – 

‘Title’ is something that goes along with one’s name. For example, during the British rule in India, titles such as Lord, Lady, King, Queen were used. But, this has been done away with by the Constitution of India. This prohibition operates only against the State, and it does not prohibit public institutions to award titles. The State also isn’t debarred from awarding titles for say, excellence in some field. For example, Bharat Ratna, Padma Vibhushan and Padma Bhushan are titles awarded by the Government, which are legal.

CONCLUSION – 

Right to Equality is a necessity for every individual living in any democratic set-up. In countries such as India, equality is essential due to the significant economic, social and political disparities. Some have benefitted from the system of reservation while a specific section of the society doesn’t accept reservation in today’s time. Barring reservation, equality attempts to put everyone on a level playing field, which is a man’s natural right. Nobody is born equal physically or mentally, and some are very good and some not so good. One can overcome these if equality is there in society. To achieve equality in the practical sense, one has to do away with discrimination.

[1] Durga Das Basu, Introduction to the constitution of India (2015).

[2] AIR 1985 S.C. 1495

[3] AIR 1963 SC 649

[4] AIR 1993 SC 477

[5] S.Pushpa v. Sivachanmugavelu, AIR 2005 SC 1038

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