Fundamental Right to Equality in India
Foremost among the fundamental rights guaranteed by the constitution of India is the right to equality. Articles 14-18, state and elaborate the Right to Equality in India.
Art 14 states that ‘The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The two phrases”(a) equality before the law and (b) equal protection of the law do not mean exactly the same thing. The former is negative in content implying absence of special privilege in favor of any section of the people or any individual. Equal protection of the law is positive in content. It implies equality of treatment in equal circumstances.
Again ‘equality before the law implies that all are equal in the eyes of law and from the highest to the humblest, all will be tried by the same law and will be given the same punishment for same crime.
The constitution stipulates three exceptions:
The President of India or, the Governor of a State is not answerable to any court for his official actions.
The President or, the Governor is not subject to criminal prosecution during his term of office.
Civil suits claiming relief for personal actions cannot be brought against the President or, a Governor when in office.
The phrase ‘equal protection of the laws is borrowed from the 14th amendment of the U. S. constitution. It means that like should be treated alike, that none should be favored and none should be discriminated, against. This allows the Parliament to classify persons for the purpose of taxation. The classification should be reasonable. The state may also make some exceptions. Thus the state may exempt charities and trusts from taxation, may impose different rules of tax on different trades or professions and may tax real and personal property in different ways. Equal protection thus ensures equal treatment in equal circumstances and differing treatment in differing circumstances.
Art 15 states that ‘the state shall not discriminate against any citizen on grounds only of religion, race, caste sex, place of birth or any of them. This article ordains that no citizen shall be denied
‘access to shops, public restaurants, hotels or places of public entertainment or
the use of wells, tanks, bathing ghats, roads and places of public resorts maintained wholly or partly out of state funds.
This article however does not forbid the state from making special provisions for women and children. The state is equally free to make special provisions for socially and educationally backward classes and for the scheduled castes and tribes
Art. 16 guarantees equality of opportunity in matters of public employment. The article states that:
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. The article also forbids discrimination on grounds only of religion, race, caste, sex, descent, and place of birth or any of them in matters of public employment. There are five exceptions to prohibition of discrimination under Art. 16. (I) The Parliament may lay down residence qualification for some appointments in states.
The state may reserve some appointments for backward classes if they are not adequately represented in the state services.
Offices in the religious institutions may be kept reserved for the followers of the religion concerned.
Posts in the state services may be kept reserved for the scheduled castes and tribes.
Finally Art. 16 forbid discrimination in matters of state employment only on the grounds stated in the article itself. It does not forbid preferential treatment on other grounds such as efficiency or mercy.
Art. 17 of the constitution says, ‘Untouchability is abolished and its practice in any form is forbidden. The position is further fortified by the Abolition of the Untouchability Act of 1955. Though the term untouchability has not been defined in either the constitution or the Act of 1955, practice of untouchability in any form is strictly forbidden. Refusing admission to public institutions like schools and hospitals on grounds of untouchability is a punishable crime.
Art. 18 forbid titles except military or academic distinctions. Title from foreign governments such as knighthood is forbidden. However honors conferred by the government of India such as Bharat Ratna or Podmashri etc. are not titles but are only recognition of meritorious services. Right to equality in all its forms are available to Indian constitutional remedies against the violation of fundamental right to equality.
However the President is empowered to suspend the right during the pendency of a National Emergency under Art 352 of the constitution.