CONSTITUIONAL LAW II

NATIONAL LAW INSTITUTE

UNIVERSITY,BHOPAL

SUBJECT – CONSTITUTIONAL LAW II

A PROJECT ON -
“SCOPE AND AMBIT OF ARTICLE 14”

SUBMITTED BY-

Manasvi Tewari & Arshia Verma

2014BALLB75 and 2014BALLB76

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INDEX

INDEX.....................................................................................................................................................2
ACKNOLEDGMENT.................................................................................................................................3
INTRODUCTION.....................................................................................................................................4
MEANING OF EQUALITY........................................................................................................................5
ARTICLE 14: RIGHT TO EQAULITY...........................................................................................................6
Equality before law............................................................................................................................6
Equal protection of laws....................................................................................................................8
OBJECT OF ARTICLE 14:..........................................................................................................................8
(A) Test Of Reasonable Classification.........................................................................................9
ARBITRARINESS AS A TEST UNDER ART.14:.........................................................................................10
AFFIRMATIVE ACTION NEEDS PROTECTIVE DISCRIMINATION:.....................................12
IMPORTANT CASE: SMT. MANEKA GANDHI V. UNION OF INDIA. AIR 1978 SC 597......12
PRINCIPLE OF NATURAL JUSTICE:........................................................................................................13
LIMITATION FOR RULE OF ACCESS TO THE COURT:.............................................................................15
CONCLUSION.......................................................................................................................................15
BIBLIOGRAPHY.....................................................................................................................................16

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ACKNOLEDGMENT

I would like to begin with acknowledging our Professor Kuldeep Kaur who gave us this
opportunity to work on a project work, giving us full autonomy to choose our topics as well
as guidance where ever needed.

I would also like to thank the director of the university and the administration who have given
us all the requisite facilities like library, Wi-Fi connection, computer lab, which make the
task much easier and efficient.

Also, I would like to extend my gratefulness to my batch mates and parents who have
supported me throughout in this endeavour.

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INTRODUCTION

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

The Constitution of India guarantees the Right To Equality through Art 14 to 18.In the series
of Constitutional provisions from Article 14 to 18, Art 14 is the most significant. Situations
not covered by Art15 to 18, the general principle of Equality is embodied in Art14 is attracted
whenever discrimination is alleged. The goal set out in our Constitution regarding status &
opportunity is embodied in Art14 to Art18.Right to Equality has declared as Basic Feature of
Indian Constitution by Supreme Court.

The phrase ‘Equality before Law’ occurs in almost all written Constitution which guarantees
the Right to Equality, the Constitution of United States uses the expression ‘Equal protection
of law’. Our Constitution, on the other hand, uses both expressions that are Equality before
law and Equal protection of law. The two expressions may seem to be identical, but in fact,
they mean different things. As to their origin, it may be said that ‘Equality before Law 1 ,
while the other expression owes its origin to the American Constitution. Preamble to the
Constitution of India emphasises principle of Equality as the basic to the Contitution.Even
constitutional amendment which offends basic structure of the Constitution are invalid. The
mere fact that Equality which is part of the basic structure, can be excluded for a limited
purpose to protect certain kinds of law, does not prevent it from being part of the basic
feature of Constitution. It was held that essence of the principle behind Art.14 is part of basic
structure. In fact, essence or principle of the right or nature of violation is more important
than equality in the abstract or formal sense. Equality is one of the magnificent corner stone’s
1
Dicey, Law of the Constitution,10Ed.(1959)

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of Indian Democracy.2 Neither Parliament nor any State Legislature can transgress the
principle of Equality.

MEANING OF EQUALITY

The state or quality of being equal; correspondence in quantity, degree, value, rank, or ability
Equality basically means access or provision of equal opportunities, where individuals are
protected from being discriminated against. Discrimination in equality can occur in race, sex,
health, religion, family structure, age, politics, disability, culture, sexual orientation or in
terms of believes.

 Equality is the basic feature of the constitution of India and treatment of equals
unequally will be violation of basic structure of the constitution of India .
 The ideal of equality under Indian Constitution: It has been seen that the Preamble to
our constitution promises ‘equality of status and opportunity to all citizens and that
this is the ideal of equality embraces both social and political equality. So far the
ideal of social equality is concerned it is embodied in a series of Articles, of which
Art.14 is the genus, and succeeding Arts. 15-18 contain particular application thereof.
 Our constitution is wedded to the concept of equality which is the basic feature of the
constitution. Even a constitutional amendment which offends basic feature is
declared as invalid.

The state, its agencies and other local bodies being charged with public duty are bound to
take action which must be in accordance with Art.14.The liability given to the state and
its instrumentalities by the statute enacted under the constitution did not exempt them
from honouring constitution itself and they continued to be ruled by Art.14.

The equality clause under Art.14 of the constitution does not speak of mere formal
equality before law but embodies the real concept of real and substantive equality, strikes
at this inequalities . A more positive duty of the state is to minimise inequalities in the
status, income and opportunities amongst individuals. Where unequals are competing,
conditions must be created by relaxation or otherwise so that unequals compete in terms
of equality with others in respect of jobs and employment of the state.

2
Indra sawhney v. Union of India.

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ARTICLE 14: RIGHT TO EQAULITY

(A) ARTICLE 14 provides that the State shall not deny to any person equality before law or
the equal protection of the laws within the territory of India.

(B) The Right to Equality guaranteed under Art. 14 consists of two parts namely:

(a) Equality before Law

(b) Equal protection of Laws.

Article 14 of the Constitution of India is a declaration of equality of civil rights for all
purpose within the territory of India and basic principles of republicanism and there is no
discrimination.

• The expression “Equality before law” and “Equal protection of law” does not mean the
same thing. Meaning of these expressions has to be found and determined having regard to
the context and scheme of our Constitution. The word “Law” in the former expression is used
in a genuine sense – a philosophical sense, whereas the word “Laws” in the latter expression
denotes specific laws in force.

• The benefit of “Equality before law” and “Equal protection of law” accrues to every person
in India, whether a citizen or not.”We are a country governed by Rule of Law.

• The concept of equality and equal protection of laws guaranteed by Art. 14 in its proper
spectrum encompass social and economic justice in a political democracy

Equality before law

(a) “Equality before Law “only means that amongst the equals, the law should be equal and
should be equally administered, and that the like should be treated alike.

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The “equality before the law” owes its origin to the English Common Law. The doctrine of
equality is a dynamic and evolving concept.11 It is embodied not only Arts. 15-18 as well as
in Arts. 3, 39, 39 A, 41 and 46.It is a Negative concept because it implies the absence of any
privilege in favour of any individual, and equal subjection of all classes to the ordinary
law12. It means law should be equal and should equally administered, that is like should be
treated alike. In short there shall not be discrimination. It is a declaration of equality of
privilege in favour of every individual13.it means that no man above the Law of the land and
that every person, whatever is his rank or status is subject to ordinary law of land. The
concept of equality before law does not involve the idea of absolute equality amongst all,
which may be a physical impossiblity.Art.14, guarantees the similarity of treatment and not
identical treatment.

(b) Rule of Law: (Prof. A.V.DICEY)

Equality before law is co-relative to the concept of Rule of Law for all round evaluation
of healthy social order.

I. Basic Feature of the Rule of Law is that ‘Justice should not only be done but it
must also be seen to be done’
II. Judicial review of Administration action is an essential part of Rule of Law.14
III. Independence of Judiciary.
IV. Non Arbitrariness. “A number of distinct meanings are normally given to the
provision that there should be equality before the law. One meaning is that
equality before the law only connotes the equal subjection of all to a common
system of law, whatever its content...A second theory asserts that equality before
the law is basically a procedural concept, pertaining to the application and
enforcement of laws and the operation of the legal system....A third meaning
normally borne by declarations that all are equal before the law, perhaps no more
than a variant of the second, is that State and individual before the law should be
equal”.

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Equal protection of laws

a) The phrase “Equal Protection of the Law” owes its origin to the American
Constitution. This is Positive Concept as it implies equality of treatment in equal
circumstances both in privileges conferred and liabilities imposed. So all the persons
must be treated alike on reasonable classification. Among equals law should be equal and
equally administered. The guarantee of equal protection applies against substantive as
well as procedural laws.

b) Limitation of the Doctrine of Equal Protection: i. Every law cannot be made

universally applicable. There are different class of persons who require special treatment.
ii. State has power to classify persons for legitimate purpose. Every classification is
likely to produce some inequality and mere production of equality is no enough.16 
International Covenant: Article 26- All persons are equal before the law and are entitled
without any discrimination to the equal protection of law. Article 26 of the International
Covenant on Civil and Political Rights, 1966, not only uses both the expressions but also
adds explanatory words, prohibiting discrimination.

OBJECT OF ARTICLE 14:

The aim or the object of this Article to ensure that invidious distinction or arbitrary
discrimination shall not be made by the state between a citizen and a citizen who answers the
same description and the differences which may obtain between them are of no relevance for
the purpose of applying a particular law reasonable classification is permissible. Article 14
provides that the state shall not deny to any person whether citizen or not, equality before the
law and equal protection of law. It does not mean that same law must be applicable to all but
the law should deal alike with all in one class; there shall be equality of treatment under
Equal circumstances. So the object is that “equals should be treated unlike and unlike should
not be treated alike. Likes should be treated alike. The object of Art. 14 is wider and is to
ensure fairness and equality of treatment.

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(A) Test Of Reasonable Classification : If all men are treated equal and remained equal
throughout their lives, then the same laws would apply to all of them. But we know
that men are unequal.Equality does not mean that all men are protected by the same
laws. It is here the Doctrine of classification steps in. All persons are not equal by
nature or circumstances, the varying needs of different classes or sections of people
require different treatment. This leads to classification among different groups of
persons or class. For the purpose of this Article, even a single institution can form a
class by itself and while deciding the question of violation of Article 14, it is to be
seen whether there are any reasonable basis on which a single or group of persons
are left out of the group19.Though discrimination is prohibited, that cannot be
applied to nullify a discrimination recognised by the Constitution itself. Art.14
prohibits class legislation and not classification for purpose of legislation. A
classification would be justified unless it is patently arbitrary. If there is any
Reasonable basis for classification, the legislature would be entitled to make a
different legislation. The legislature is competent to make classification. It is upon
the legislature to identify the class of the people to be given protection and on what
basis such protection is given. Court cannot interfere. Art.14 does not require that the
Legislative classification should be scientifically or logically perfect .Classification
for the purpose of legislation cannot be done with mathematical precision. The
concept of equality permits rational or discriminating discrimination. Conformity of
special benefits or rights or protection to a particular class of citizens is envisaged
under Art.14 and is implicit in the concept of equality.Art.14 proceeds on the
premise that equality of treatment is required to be given to persons who are equally
circumstanced. None should be favoured or should be placed under any
disadvantage, in circumstances that do not admit of any reasonable justification for a
different.

The two tests of classification are as follows:

1. Ineligible Differentia: The classification must be founded on an intelligible differentia

which distinguishes those that are grouped together from other, and

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2. Rational Relation: That differentia must have a rational relation to the object sought to be
achieved by the Act.23

• Where the law is challenged as offending against the guarantee in Art 14, the first duty of
the court is to examine the purpose and policy of the Act and then to discover whether the
classification made by the law has a reasonable relation to the object which the Legislature
seeks to obtain. The object of the Act is to found in its Title, Preamble and Provisions.

• It is not possible to exhaust the circumstances or criteria which may accord a reasonable
basis for classification in all cases. It depends on the object of the legislature. In order to be
‘Reasonable’, a classification must not be arbitrary but must be rational.

b. Basis of Classification:

1. The basis of classification may be geographical.

2. The classification may be according to difference in time.

3. The classification may be based on the difference in nature of trade, calling or occupation,
which is sought to be regulated by the legislation.

c. Classification Authorised by the other provisions of the Constitution:

1. Any law making special provision for Women (or Children) under Article 15 (3) cannot be
challenged on the ground of contravention of Art. 14.

2. Where the Constitution itself makes a classification, the charge of discrimination cannot
be levelled against such separate treatment.

REASONABLENESS and FAIRNESS is the Heart and Soul of Article 14

ARBITRARINESS AS A TEST UNDER ART.14:

a) While the American interpretation of the ‘Equal protection of Law’ as well as earlier
decision of our Supreme Court took the view that the test of violation of Art.14 was the
absence of a reasonable classification, while under Art 19, a restriction was to be
considered unreasonable if it was arbitrary or not founded on any rational principle, in
recent cases, the Supreme Court appears to have mingled up the two concepts in

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broadening the sweep of Art. 14, thus setting up a dynamic concept of equality .An
arbitrary action may not be always be mala fide.

b) Even if arbitrariness is not found ex facie, the same can be gathered on wholesome reading
of the statute and rule, regulations, orders or notifications issued there under. An Act which is
discriminatory is liable to be labelled as arbitrary.

c) Where the classification is not reasonable, the impugned legislative or executive action
would be held arbitrary and violative of Art. 14; but the content of and reach of Art.14 must
not be confused with the doctrine of classification.

1. Extending a benefit to one class of establishment and denying to the other class
enumerating in the same para of the Act was held to be arbitrary and bad.
2. . The refusal by university to grant an educational institution permission to start a
new law college on the ground that a law college already existed in that district is
unreasonable and arbitrary as the factor to considered is whether the population
requires another such college for the purpose or not.
3. A statute creating no right of appeal or only illusory right of appeal is not violative
of Art. 14

d) For deciding whether a particular decision was arbitrary or reasonable, the existing
circumstances at the time of taking the decision had to be examined and not those prior to the
decision33.It has held that right to equality now means not only right to be not discriminated,
but also protection against arbitrary act of State.

e) Equality is not violated by the mere conferment of discretionary power; it is violated by

arbitrary exercise of these on whom conferred.

f) Due to spreading of arbitrariness there is requirement to state reasons in an order or

decision. The recording of reasons in a decision would shield it from attack on the ground of
arbitrariness or unfairness in the decision making process

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AFFIRMATIVE ACTION NEEDS PROTECTIVE

DISCRIMINATION:

While in the earlier cases, the Supreme Court understood the guarantee of equality in Art. 14
to mean absence of discrimination, in later cases, the courts has come to hold that in order
that equality of opportunity may reach the backward classes and minority, the State must take
affirmative action by giving them a preferential treatment or protective discrimination

• To make Equality a living reality for the large masses of people, those who are unequal’s
cannot be treated by identical standards. It may be equality in law, but it would certainly not
be real equality. It is necessary to take into account de facto inequalities which exist in the
society and to take affirmative action by way of giving preferences to the socially
economically disadvantaged persons. Such affirmative action though apparently
discriminatory is calculated to produce equality by eliminating De Facto inequalities and
placing the weaker sections of the society on a footing of equality.

• When competing rights between the general and the reserved candidates require
adjudication and adjustment with the rights of general candidates, the doctrine of violation of
Art. 14 have no role to play, as some protective discrimination itself is a facet of Article 14
and it does not again deny equality to the reserved candidates.

• The very concept of equality is valid classification for preferences in favour of

disadvantaged classes of citizen to improve their conditions so as to enable them to raise their
position of equality with other more fortunate classes of citizen.

•The object of positive discrimination was empowerment of backward class adequate sharing
of power.

IMPORTANT CASE: SMT. MANEKA GANDHI V. UNION OF INDIA.

AIR 1978 SC 597.

On July 4 1977, Smt. Maneka Gandhi received a letter from the Regional Passport Officer, Delhi,
intimating her to surrender the passport (No. K. 869668) within 7days from the date of receipt of the
letter, as it was decided by the Government of India to impound her passport under Section 10(3) (c)

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of the Passport Act 1967 in the public Interest. The Petitioner sends a letter to the Regional Passport
Officer asking the reasons and requesting her to provide a copy of the Statement of Reasons for
making the order. On reply it was send by the Ministry of External Affairs, Government of India, on
July 6, 1977 stating that the Government has decided to impound the passport 1. In the interest of
the Public and 2. Not to hand over her a copy of the statement of reasons. So, the Petitioner filed a
petition. • Is Section 10(3) (c) of the Passport Act 1967, violates the Article 14 of the Indian
Constitution? Under Section 10(3) (c) of the Passport Act, the Passport Authority impounded the
passport of the petitioner “in the interest of general public”. Thus it confers unguided and
unfettered power to the Passport Authority • It is violative of the Equality clause contained in Article

PRINCIPLE OF NATURAL JUSTICE:

Doctrine of natural justice means fairness in action. It means Right to be heard before
adverse action is taken. Principle of Natural Justice is an integral part of the guarantee of
equality assured by Art.14.Natural Justice is applicable to judicial, quasi-judicial,
administrative orders affecting prejudicially unless the said rule is expressly
excluded.Principle of Natural Justice is requirement of Art.14.

Few cases:

I. Where permission is granted to open a school, a subsequent decision cancelling the

same without notice is not valid.
II. An order cancelling the contract without notice to the affected person is not valid .
III. Excluding a name from the list of eligible members of contractors on basis of
decision of screening committee, but without notice to the affected person is violation
of Art. 14.

Right cannot be waived:

A person cannot voluntarily get discrimination or waive his Fundamental Right against
discrimination.

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Any person: 1) Any person, natural or artificial, whether he is a citizen or an alien, is entitled
to the protection of Article 14.

2) Government servants do not lose the protection of Article 14 by entering into Government
service.

3) Even a prisoner in a jail is entitled to equal treatment under the Prison Rules

4) The State itself is a juristic person. Hence, where no special provision is made, the State
has equal rights with other persons.

• The orthodox view of Locus Standi has been modified and the class of persons entitled to
enforce Fundamental Rights has been widened by the doctrine of “ Public Interest Litigation
” according to which any public minded individual is allowed to invoke Fundamental Rights
under Art. 32 & 226.No prejudice need to be proved for enforcing the fundamental rights.
Burden of Proof and Pleading

: 1. The burden of showing that a classification rests upon an arbitrary and not reasonable
basis or the discrimination is apparent and manifest is upon the person who impeaches the
law as a violation of the guarantee of the equal protection.

2. The allegation must be specific, clear and unambiguous and must give particulars.

3. It is for the petitioner to show that the person or objects as between whom the legislature is
alleged to have discriminated, are similarly situated.

4. Burden lies on the person claiming party in pay to establish that there was equality in
work.Burden to prove equality in qualifications, duties and functions is on the person
claiming party in pay.

5. When prima facie, a plea of discrimination is made out, the burden of proof shifts on the
state to show that it is not so.

 Right to Compensation: Apart from liability to pay damages under the law of Torts
the Supreme Court has also ordered to pay compensation to the citizen for loss or
injury (physical or mental), caused by the arbitrary action of the public authority.

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 Right to equal access to the Courts : Equal access to the courts for vindication of
legal right may also be regarded as a condition of equal protection and a person
should not be deprived of such protection unless there is any reasonable basis of such
classification. By ‘just grievances’ is meant the adjudication of disputes relating to
his rights. When the legislature seeks to deprive a citizen of his right to access to the
court without any reasonable basis for this special treatment, there is denial of equal
protection. Access to the court is a right vested to every citizen and that the same
cannot be denied even when the statutes are silent. Access to the Court is an
important right to every citizen.

• A dispute was a ‘ long-standing ‘ one is no reasonable ground for denying the right to have
their legal dispute adjudicated as those who have got that rights.

LIMITATION FOR RULE OF ACCESS TO THE COURT:

I. It does not prevent the adjudication of Special cause or Dispute by special
tribunals.
II. . When a right is created by the statute, the statute may provide for a special
remedy and a special forum for the determination of such right, in which case,
there is no right to take the matter to the ordinary courts except in certain cases. .
III. Reasonable checks may be imposed, in the public interests, to prevent vexatious
litigations.

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CONCLUSION

Right to equality is a Fundamental Right. It can be enforced in High Court under Article 226
and in Supreme Court under Article 32.Fundamental Rights can be enforced only if the state
violates it. Right to Equality is considered as basic feature of the Indian Constitution. Right to
Equality under Art.14 is vested not only to citizens but to all persons. It includes equality
before Law and Equal Protection of Law. No one is above the law of the land. Everyone is
equal in the eyes of law.

There should be no discrimination. Law must be equal and must be equally administered. So
like must be treated alike and unlike. Equality before law is negative concept and Equal
protection of law is positive concept. Reasonable Classification is allowed in the
administration of justice. But it should have some relation to the object of the legislature. In
every society there are two classes namely upper class and lower class. The standard of living
of the upper class is high but that of lower class is low. As a result it is the duty of the state to
uplift the lower class in the society to bring Equality. Absolute equality is impossible but
there should not be inequality. Discrimination on the basis of caste, sex, race, religion,
language etc must be not there at all. A sense of equality must be there then and then only
then will be unity in any state.

BIBLIOGRAPHY

 http://www.idsa.in/jds/4_2_2010_constitution_rdixit
 http://www.halfmantr.com/display-national-issues
 http://www.ror.isrj.net/UploadedData/62.pdf
 http://www.firstpost.com/tag/constitution
 http://theviewspaper.net
 Halsbury law of India
 V.N Shukla
 Class notes
 Constitutional law -2 Material

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