Equality’ is a contested concept: “People who praise it or disparage it disagree about what they are praising or disparaging” (Dworkin 2000, p. 2). Our first task is therefore to provide a clear definition of equality in the face of widespread misconceptions about its meaning as a political idea.
The terms “equality” (Gr. isotes, Lat. aequitas, aequalitas, Fr. égalité, Ger. Gleichheit), “equal,” and “equally” signify a qualitative relationship. ‘Equality’ (or ‘equal’) signifies correspondence between a group of different objects, persons, processes or circumstances that have the same qualities in at least one respect, but not all respects, i.e., regarding one specific feature, with differences in other features. ‘Equality’ needs to thus be distinguished from ‘identity’ — this concept signifying that one and the same object corresponds to itself in all its features: an object that can be referred to through various individual terms, proper names, or descriptions. For the same reason, it needs to be distinguished from ‘similarity’ — the concept of merely approximate correspondence (Dann 1975, p. 997; Menne 1962, p. 44 ff.; Westen 1990, pp. 39, 120). Thus, to say e.g. that men are equal is not to say that they are identical. Equality implies similarity rather than ‘sameness.(https://plato.stanford.edu/entries/equality/)
When we talk about equality in India, the first thing that pops into someone’s mind is Article 14. Article 14 of the Indian Constitution talks about equality before law and equal protection of law.
Though the concept equality before law and equal protection of law may seem similar but they are two different concepts:
EQUALITY BEFORE LAW
Equality before law is an English concept and has been borrowed from the common law it is considered to be a negative concept as curbs the power of the state to discriminate among the individuals on any arbitrary basis further it gives for absence of any special privileges that may be given to anyone on the basis of creed, birth. It subjects everyone equally before the ordinary law.It means no man is above the law and every person, whatever be his rank or status, is subject to the same ordinary jurisdiction of the courts. The concept of Equality before law has got its origin in the concept of ‘Rule of Law’, elaborated by Prof. Dicey.
RULE OF LAW:
The concept of Rule of Law is an age-old concept which has been evolving with time Aristotle defined rule of law as “Government of law” as opposed to “Government of Man” i.e. a government, which does not work according to the whims and fancies of man but according to law. Later, A.V. Dicey gave meaning to the term Rule of Law. According to him, it implied three things:((https://www.brainyias.com/equality-before-law-and-equal-protection-of-laws-article-14/))
- Absolute supremacy of law or Absence of arbitrary power — Dicey opines that justice must be done through the known principles of law, as opposed to arbitrariness or wide discretionary powers in the hands of the government.
- Equality before law — no one is above law. Equal subjection of all persons to the ordinary law of the land as administered by the ordinary courts.
- The rights of the people must flow from the customs and traditions (rights have Common Law origin). Constitution is not the source but the consequence of rights of individuals as individual rights are enjoyed even before the emergence of the Constitution and the Constitution only consolidates and codifies the same for legal protection.
Rule of Law is the basic feature of all democratic constitutions including Indian Constitution, as implied in Article 14,(https://www.brainyias.com/equality-before-law-and-equal-protection-of-laws-article-14/)
EXCEPTIONS TO RULE OF LAW:
Despite provisions of equality in our Constitution, there are some exceptions to the Rule of Law in public interests:
- The President or the Governor of a State shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
- No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.
- No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any court, until the expiration of two months after a notice is served on him. These immunities shall not bar impeachment of the President or suits or other proceedings against the Government of India or State.
- Exception in favour of foreign sovereign and ambassadors.
EQUAL PROTECTION OF LAWS
Equal protection of the laws owes its origin to American Constitution. It is a more positive concept, implying the right to equality of treatment in equal circumstances. It means that among equals, the law should be equal and equally administered, that equals should be treated alike, both in the privileges conferred and liabilities imposed. Equal law should be applied to all persons who are similarly placed, and there should be no discrimination between one person and another. In other words, Article 14 ensures equality among equals.
This provision allows categorisation of people, provided there is ‘reasonable’ basis of classification. It allows differential treatment of people. For example, classification of people based on socio-economic status and educational backwardness. It allows for providing ‘affirmative action’ to weaker sections of society or creating differential tax rates for different income categories of peoples.
However, before Article 14, the concept of equality is found the preface of the constitution. The preamble that was held to be a part of the Indian Constitution as it not only gives the goals that are intended to be achieved by the Constitution. The preamble gives for equality of status and opportunity. The concept of equality in preamble has been borrowed from French Revolution (1789). This shows the importance of concept of equality.
Article 14 applies to all persons, natural as well as juristic. Among the natural persons are included all human beings male, female and transgenders.(National Legal Services Authority. Union of India, (2014) 5 SCC 438,492). Discrimination on the basis of sexual orientation or gender identity is also covered by Article 14. A juristic person such as a corporation is also entitled to the right in this article. (Charanjit Lal Chaudhary v. Union of India, AIR 1951 SC 41. But application of Article 14 to corporations vis-a-vis natural persons may differ. (State of Gujarat v. Ambica Mills Ltd.(1974) 4 SCC 656.
Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined’’ within traditional and doctrinaire limits. From positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other, to the whim and capricious of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political and constitutional law and is therefore violative of Article 14. (E.P Rayappa v. State of T.N (1974) 4 SCC 3
Author: Harsh Vasu Gupta,
UILS,Panjab University, 2nd year
6 thoughts on “Right to equality”