Right To Equality Is Not Absolute But Highly Qualified Under The Constitution Of India

Advocate Arjun *

Supreme Court of India, photographed about 170 metres from the main building outside the perimeter wall
Pix - Wikipedia/Legaleagle86

The Constitution of India guarantees the Right to Equality through Article 14 to 18 of the Indian Constitution. Article 14 outlaws discrimination in a general way and guarantees equality before the Law to all the Citizens, irrespective of caste, creed, religion, sex, regions, or sex etc. The Equality of Opportunity, Non-discrimination, and Abolition of Titles in general lives amongst the Citizens of India are absolute and constitutionally qualified in it.

Among these Articles from 14 to 18, Article 14 is the most significant one. Article 14 generates a large number of Court cases. If the situations are not covered under the Articles 15 to 18, the general Principle of Equality embodied in the Article 14 is attracted whenever discrimination is alleged.

The Article 14 of the Indian Constitution reads as follows that " the State shall not deny to any person equality before law or the Equal Protection of the Law within the territory of India ". However, this is not an absolute rule and there are a number of exceptions to it. Though there declares it constitutionally absolute, there arises certain immunity to certain individuals. For example, foreign Diplomats enjoy immunity from the Countries Judicial process. Even Article 361 extends immunity to the President of India and Governors of the States, Public Officers and Judges. Some special groups and interests like Trade Unions have been accorded special privileges by law.

The second concept "equal protection by laws is positive in content. But, identically some laws should not be applied to all persons. All persons are not equal by nature, attainment or circumstances. The varying needs of different classes or sections of people require different and separate treatment. The legislature is required to deal with diverse problems arising out of an infinite variety of human relations and occupational or professional positions. Therefore, it must necessarily have the power of making certain distinct laws to attain particular objects and for that purpose if distinguishing, selecting and classifying persons and things upon which its laws are to be operated categorically and personally.

In case of sitting MLAs and MPs when they are alleged criminal charges, they could not be immediately arrested but the case under trial is found guilty of a corrupt practice by an order under Sec. 99 of the Representation of the People Act, 1951, by the High Court, the sitting MLA or MP may be ,within a period of three months from the date of such Order of the Court, may be disqualified only after intimating to the President for determination of the question as to whether such person shall be disqualified and if so, for what period.

Recently, on 10/7/2013 Indian Supreme Court declared a judgement by challenging the provisions under Sec. 8(4) of the Representation of Peoples Act 1951 as unconstitutional and void. Once a sitting MP or MLA is found guilty and convicted for a term at least up to two years in jail, the convicted MP or MLA shall immediately be declared disqualified from being a member in the Parliament or the State Assembly. Earlier, during the pendency of appeal proceedings to a Higher Court, the sitting MP or MLA was enjoying her/his position and power as usual equally as if she/he is an Innocent in the Parliament or Assembly.

The Principle of Equality of Law and Equal Protection of all the Citizens before the Law thus means false that not the same law shall apply to each and every one alike but philosophically rather than practical a law should deal alike with all in one class i.e., there should be an equality of treatment under equal circumstances.

The Article 15 (1) of the Constitution specially bars the state from discriminating against any citizen of India on grounds of religion, race, caste, sex, place of birth, any of them. Article 15(2) prohibits subjection of a citizen to any disability, liability, restriction or condition on ground only of religion, race, caste, sex or place of birth with regard to access to shops, public restaurants, hotels and places of entertainments or the use of wells, tanks, bathing places, roads, places of public resorts maintained wholly or partially out of state funds or dedicated to the use of general public.

There is special provision under Art. 15(3) for safeguarding the women and children. The State shall not be prevented from making any special provision for women and children. Art. 15 (4) too declares that the state has privileges TO MAKE SPECIAL PROVISIONS for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes.

The question of reservations has been becoming a very knotty socio-politico issue of the day. Because of keen competition for limited opportunities available in the country, governments are pressurised to indulge in all kinds of reservations for all kinds of groups apart from reservations for scheduled cases, scheduled tribes and backward classes. Basically, any reservation denotes the discriminatory amongst the citizens because reservation means giving more priority and privileges or advantages to one individual between two competitors of equal merits under merciful to one's low socio-economic profile and position in the society.

Secondly, even the more deserving or far meritorious students could be defeated by any less meritorious or reserved student under this Indian Reservation System. Ironically, many deserving candidates have to sacrifice their place for the less deserving candidates under the reservation system. This frustrates many educated dynamic youths and the state only employs the less qualified candidates who are to administer Indian offices and important service departments. This is good for nonsense but very worse for the whole nation. Day by day many educated youths turn into any white collar criminals or hostiles in the state for a change in the administration of Justice or Nation.

Once again, India seems to be proud of her low profile administration with corruption in horizontal changing process caused by the unfit Bureaucrats from reserved families rather than changing vertically. While trying to get justice for upliftment of the Lower Caste, Tribes and Poor Families, India is of course, not in a position to come up vertically in her developmental race compared to that of the other Western Nations. Americans are proud of their administration for justice to enable providing opportunities to those energetic and qualified youngsters to work in public services.

Of course, they automatically have been developing vertically in every second, whereas India is fighting to keep peace and harmony amongst her citizens within the states by simply playing the magical role of Divide and Rule yet. There seems no sincerity and honesty in her administration for the last 67 years since her Independence on 15 August 1947. Many others also comment that this kind of reservation in job and service sectors under the word equality before the law and equal protection of the people in the eyes of law is very much unconstitutional and deceit and deception.

Finally, the combined effort of Article 14 and 15 is not that the state cannot pass unequal laws but if it does pass unequal laws, the inequality must be based on some reasonable ground and that due to Art. 15(1), i.e., religion, race, caste, sex or place of birth cannot be grounds for justice but only the actual economic position of the family or the individual if no one is there to support oneself, shall be the correct and just for the reservation system. At any cost, reservation begets the corruption in both outside and inside the office. This is very much unfortunate and necessary to be erased so immediately.