May 28, 2023

The substantive quality of right to equality

“Liberty and equality are words of passion and power. They were the watchwords of the French Revolution; they inspired the unforgettable words of Abraham Lincoln’s Gettysburg Address; and the U.S. Congress gave them practical effect in the 13th Amendment, which abolished slavery, and in the 14th Amendment, which provided that “the State shall not deny to any person within its jurisdiction…the equal protection of the laws.”

Conscious of this history, our founding fathers not only put Liberty and Equality in the Preamble to our Constitution but gave them practical effect in Art. 17 which abolished “Untouchability,” and in Art. 14 which provides that “the State shall not deny to any person equality before the law and the equal protection of the laws in the territory of India”

– H. M. Seervai

H.M. Seervai, ‘Constitutional Law of India, A Critical Commentary’, 4th Edition, (1991- reprinted 1999) at p. 435.

Articles 14 to 18 of the Constitution are to ensure the right to equality. The makers of our Constitution noticed the widespread social and economic inequalities in the society that obtained ever since a long past, often sanctioned by public policies, religion and other social norms and practices. Therefore, they enacted elaborate provisions for eradication of inequalities and for establishing an egalitarian society.

The first expression ‘equality before the law’ of Article 14 is taken from the all-time wisdom as also from English Common Law, implying absence of any special privilege in any individual; and the other expression ‘the equal protection of the laws’, referable to the 14th Amendment to the U.S. Constitution, is a constitutional pledge of protection or guarantee of equal laws. Both these expressions occur in Article 7 of the Universal Declaration of Human Rights, 1948.

IN A NUTSHELL, the principle of equality can be stated thus:

Equals must be treated equally while unequals need to be treated differently, inasmuch as for the application of this principle in real life, we have to differentiate between those who being equal, are grouped together, and those who being different, are left out from the group. This is expressed as reasonable classification.

Test of Classification

Now, a classification to be valid must necessarily satisfy two tests:

First, the distinguishing rationale should be based on a just objective and

Secondly, the choice of differentiating one set of persons from another should have a reasonable nexus to the object sought to be achieved. However, a valid classification does not require mathematical niceties and perfect equality; nor does it require identity of treatment.

If there is similarity or uniformity within a group, the law will not be condemned as discriminatory, even though due to some fortuitous circumstances arising out of a particular situation, some included in the class get an advantage over others left out, so long as they are not singled out for special treatment.

In spite of certain indefiniteness in the expression ‘equality’, when the same is sought to be applied to a particular case or class of cases in the complex conditions of a modern society, there is no denying the fact that the general principle of ‘equality’ forms the basis of a Democratic Government.

The new dimensions of Equality

Since the early 1970s, equality in Article 14 being a dynamic concept, has acquired new dimensions. In E.P. royappa v. State of tamil nadu and anr: (1974)[2], a new approach to this doctrine was propounded in the following words: –

“85. …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 the 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…”

In maganlal chhaganlal (p) ltd. V. Municipal corporation of greater bombay and ors: (1974)[3], it was observed: –

“33. ……Article 14 enunciates a vital principle which lies at the core of our republicanism and shines like a beacon light pointing towards the goal of classless egalitarian socio-economic order which we promised to build for ourselves when we made a tryst with destiny on that fateful day when we adopted our Constitution. If we have to choose between fanatical devotion to this great principle of equality and feeble allegiance to it, we would unhesitatingly prefer to err on the side of the former as against the latter…”

Equality is at the nucleus of the unified goals of social and economic justice

Indian constitutional jurisprudence has consistently held the guarantee of equality to be substantive and not a mere formalistic requirement. Equality is at the nucleus of the unified goals of social and economic justice. In Minerva Mills[4] it was observed: –

“111. … the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle…”

Thus, equality is a feature fundamental to our Constitution but, in true sense of terms, equality envisaged by our Constitution as a component of social, economic and political justice is real and substantive equality, which is to organically and dynamically operate against all forms of inequalities. This process of striking at inequalities, by its very nature, calls for reasonable classifications so that equals are treated equally while unequals are treated differently and as per their requirements.


Janhit Abhiyan v. Union of India, (2023)

[2] 4 SCC 3

[3] 2 SCC 402

[4] Minerva Mills Ltd. and Ors. v. Union of India and Ors.:

(1980) 16