The idea of equality is the heart and soul of the Indian Constitution. India achieved independence on the 15th of August, 1947 after a long political struggle in which a number of patriots laid down their lives and countless suffered to secure self-government and to throw off the foreign yoke. But self-government was not an end in itself. It was a means to an end.
They struggled and suffered not merely to be ruled by their chosen representatives in the place of foreign rulers, but to achieve the basic human rights and freedom and to secure social, economic and political justice so as to build up a welfare State from which poverty, ignorance and disease may be banished and to lay the foundation of a strong and independent country which may command respect in the world.
A Constituent Assembly was formed to draw up a Constitution which was ultimately adopted on the 26th January, 1950. The aspirations of the people are reflected in the Preamble of the Constitution which reads thus:-
The Preamble of our Constitution promises equality, which is explained in detail in Articles 14 and 15 resply as enshrined in Part III of the Constitution. Equality, as contemplated under our constitutional system, is ‘among equal and similarly situated’. Equality in general cannot be universally applied and is subject to the condition and restriction as spelt out in the Constitution itself.
The Preamble to the Constitution referred to above does not grant any power but it gives the direction and purpose to the Constitution. It outlines the objective of the whole Constitution. The Preamble contains the fundamentals of the Constitution. It serves several important purposes, as for example: –
(1) It contains the enacting clause which brings the Constitution into force.
(2) It declares the great rights and freedoms which the People of India intended to secure to all its citizens.
(3) It declares the basic type of Government and polity which is sought to be established in the country.
(4) It throws light on the source of the Constitution, viz. the People of India.
Articles 14, 15 and 16 resply deal with the various facets of the right to equality.
- Article 14 provides for equality before law and prohibits the State from denying to any person, equality before law or equal protection of laws.
- Article 15 provides for prohibition of discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth or any of them, but permits special provisions being made for women and children or for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
- Article 16 guarantees equality of opportunity in matters of public employment to the citizens of India.
These three Articles form part of the same Constitutional code of guarantees and, in the sense, supplement to each other. Article 14 on the one hand, and Articles 15 and 16 resply on the other, have frequently been described as being the genesis and the species respectively.
The Constitution of India was framed by the Constituent Assembly after long drawn debates. Many of the Members of the Constituent Assembly themselves were actively and directly involved in the struggle for freedom. They, therefore, brought in framing the Constitution their experience of movement for liberation from the colonial rule. The Constitution was framed at a time when the memories of violation of human and fundamental rights at the hands of colonial rulers were fresh. So was fresh in the mind of the people the Nazi excesses during the time of Second World War.
Directive Principles of State Policy
Declaration of separate chapter of fundamental rights with special focus on equality and personal liberties was thus inevitable. The framers of the Constitution, thus, dedicated a whole chapter (Part III) for fundamental rights. While doing so, important provisions were made in Part IV pertaining to the Directive Principles of State Policy, making detailed provisions laying down a road-map for bringing about a peaceful social revolution through Constitutional means and for the Governments to bear in mind those principles while framing future governmental policies.
Article 37 contained in Part IV provides that the provisions contained in that Part shall not be enforceable by any court, but it makes it clear that the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. Interplay of fundamental rights and directive principles of state policy has occupied the minds of this Court on several occasions.
Article 15, as originally framed, did not contain clauses (4) and (5). Clause (4) in fact was introduced through the First Constitution Amendment in the year 1951. This was necessitated due to a judicial pronouncement of the Supreme Court in the case of The State of Madras v. Sm. Champakam Dorairajan & Another, AIR 1951 SC 226.
In Article 15, there are two words of very wide import –
(1) “Discrimination” and
(The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.)
THE EXPRESSION “DISCRIMINATE AGAINST”, according to the Oxford Dictionary means, “to make an adverse distinction with regard to; to distinguish favourably from others”. The true purport of the word “discrimination” has been very well explained by Supreme Court in a Constitution Bench decision of five Judges in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123: –
“7. All legislative differentiation is not necessarily discriminatory. In fact, the word “discrimination” does not occur in Art. 14. The expression “discriminate against” is used in Art. 15(1) and Art. 16(2), and it means, according to the Oxford Dictionary, “to make an adverse distinction with regard to; to distinguish unfavourably from others”.
Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Arts. 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Art. 14 is different….”
The principle has been consistently followed in subsequent decisions. Reference may be made, in this respect, in the case of Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
A VERY IMPORTANT DECISION ON THE SIGNIFICANCE OF THE WORD “ONLY” (as used in Article 29(2) also relating to fundamental rights) is that of the Full Bench in Srimathi Champakam Dorairajan and Another v. The State of Madras, reported in AIR 1951 Madras 120.
In that case the Madras Government, finding that there were not sufficient vacancies for admission of students to Medical College, issued a circular making, what it considered, an equitable division of the vacancies available among the various classes of citizens of the State. Out of every 14 seats, 6 were to be filled by non-Brahmin Hindus, 2 to backward Hindu communities, 2 to Brahmins, 2 to Harijans, 1 to Anglo-Indians and Indian Christians and 1 to Muslims.
The circular was challenged by various persons on the ground that it decided admission to persons only on the ground of religion or caste. It was sought to support the circular on the ground that the denial was not only on the ground of religion or caste, but as a matter of public policy based upon the provisions of Article 46 together with the paucity of the vacancies.
It was held that much significance could not be attached to the word ‘only’ because even reading the Article without that word, the result would be the same. It was further held that the circular was bad because it infringed the clear and unambiguous terms of Article 15(1) since it discriminated against citizens only on the ground of religion, race, caste, sex, and place of birth or any of them. The judgment states:-
“15…..“Discriminate against” means “make an adverse distinction with regard to”; “distinguish unfavourably from others” (Oxford Dictionary). What the article says is that no person of a particular religion or caste shall be treated unfavourably when compared with persons of other religions and castes merely on the ground that they belong to a particular religion or caste. Now what does the Communal G.O. purport to do?
It says that a limited number of seats only are allotted to persons of a particular caste, namely Brahmins. The qualifications which would enable a candidate to secure one of those seats would necessarily be higher than the qualifications which would enable a person of another caste or religion, say, Harijan or Muslim to secure admission…..”
It was, therefore, held that the Communal G.O. was void.
This decision was upheld by the Supreme Court on appeal in The State of Madras v. Sm. Champakam Dorairajan & another (supra). Their Lordships say:-
“11. It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g. (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates.
This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made.
The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29(2)…..”
Clause (4) to Article 15
In view of the aforesaid, the Parliament intervened & introduced clause (4) to Article 15 which provided that if any action was taken by the State to make special provisions for the advancement of the communities specified therein, that could not be challenged on the ground that it contravened Article 15(1).
In other words, a specific exception was made to the provisions of Article 15(1) in regard to the backward communities mentioned in Article 15(4). This amendment also shows how a progressive democratic legislature does not hesitate even to amend the Constitution with a view to harmonise the fundamental rights of the individual citizen with the claims of social good.
Thus, the decisions of Supreme Court in Champakam Dorairajan (supra) and Kathi Raning Rawat (supra) establish the proposition that, while classification is permissible, it cannot be based on any of the factors mentioned in the Articles 15 and 16 resply. So far as this proposition of law is concerned, it still holds good even after the pronouncement of this Court in the case of Indra Sawhney and Others v. Union of India and Others reported in 1992 Supp (3) SCC 217.
Article 16 of the Constitution guarantees equality of opportunity in matters of public employment to all the citizens. Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
Clause (2) of Article 16 further amplifies this equality of opportunity in public employment, by providing that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
Clause (4) of Article 16 reads thus: “(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
Correlation of Articles 14, 15 and 16
Article 14 guarantees equality in very wide terms and is worded in negative term preventing the State from denying any person equality before law or the equal protection of the laws within the territory of India.
Article 15(1), on the other hand, prevents the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Clause (2) of the Article further provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, use of wells, tanks, bathing ghats, etc. of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
Article 16, in turn, pertains to equality of opportunity in matters of public employment. Clause (1) of Article 16, as already noted, guarantees equality of opportunity to all citizens in matters of employment or appointment to any office under the State.
Clause (2) thereof, further amplifies that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State.
Thus, Articles 14, 15 and 16 resply are all different facets of concept of equality. In different forms, such Articles guarantee equality of opportunity and equal treatment to all the citizens while specifically mandating that the State shall not discriminate against the citizens only on the grounds of religion, race, caste, sex, descent, place of birth or any of them.
Like Article 14, neither Article 15(1) nor Article 16(1) prohibits reasonable classification. In other words, the clauses of Articles 15 and 16 respectively guaranteeing non-discrimination on the grounds only of religion, race, caste, sex, place of birth or equality of opportunity for all citizens in matters of public employment prohibit hostile discrimination, but not reasonable classification.
As in Article 14, as well in Article 15(1), if it is demonstrated that special treatment is meted out to a class of citizens, not only on the ground of religion, race, caste, sex, place of birth or any of them, but due to some special reasons and circumstances, the enquiry would be, does such a classification stand the test of reasonableness and in the process,
it would be the duty of the court to examine whether such classification fulfils the above noted twin conditions, namely, it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
Janhit Abhiyan v. UOI (2023)