Right to Equality
Government Indian Polity Indian Society

Right to Equality in India

Right to Equality | India is a nation borne after a struggle of hundreds of years and thousands of years of rich dynasty. India being a country of diverse geography, multiple religions and colorful cultures, it attracts people towards her. However, the India we see today was not the India we had a hundred years ago. 

The country has seen many phases of caste divisions, communal feuds and the concept of untouchability. All these problems were seen by our founding fathers at the time of making of our constitution. And these were the reasons to include “Right to Equality” as a fundamental right in our constitution. To bring equality of status and opportunity.

All human beings have the same natural right to both (self-)ownership and freedom.

-Locke

What is Right to Equality?

Right to Equality constitutes of Article 14 to Article 18 of the Indian Constitution. It ensures the equality and prohibits discrimination only on the basis of religion, race caste, sex and birth. Let’s analyze these articles in detail and understand the extent of egalitarian society we have and the measures to ensure it. How well has India implemented the Right to Equality in the constitution.

Article 14: Equality before the law and equal protection of laws

The article says that the state shall not deny to any person equality before the law and the equal protection of laws within the territory of India. 

  • Equality before Law
    1. The absence of any special privileges in favour of any person.
    2. The equal subjection of all persons to the ordinary law of the land administered by ordinary law courts.
    3. No person is above the law.
  • Equal protection of laws
    1. The equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws.
    2. The similar application of the same laws to all persons who are similarly situated.
    3. The like should be treated alike without any discrimination.

**The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

This article provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.

The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to: 

  1. Access to shops, public restaurants, hotels and places of public entertainment; 
  2. The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly by State funds or dedicated to the use of the general public. 

This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.

There are three exceptions to this general rule of non-discrimination:

(a) The state is permitted to make any special provision for women and children. E.g., reservation of seats for women in local bodies, provision of free education for children.

(b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. E.g., reservation of seats or fee concessions in public educational institutions.

(c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

Article 16: Equality of opportunity in matters of public employment

This article provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.

There are three exceptions to this general rule of equality of opportunity in public employment.

  • Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority e.g., Andhra Pradesh and Telangana.

Note: The Public Employment (Requirement as to Residence) Act of 1957 expired in 1974.

  • The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
  • A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to that particular religion or denomination.

Mandal Commision: Officially known as Socially and Educationally Backward Classes Commission (SEBC). The primary mandate for the commission was to identify the socially or educationally backward classes of India and to consider reservations as a means to address caste inequality and discrimination. 

The commission developed 11 criteria to identify the backward classes who were called “Other Backward Classes” or OBCs. The criteria are classified as social, economic and educational. The Commission also identified backward classes among non-Hindus.

According to the report that 52% of the country’s population were comprised of OBCs. initially, the commission argued that the percentage of reservation in government service should match this percentage. However, to abide by the Supreme Court ruling which had laid down the extent of reservation to under 50%. The figure of reservation for OBCs were capped at 27% owing to already provided already 22.5% reservation for SCs and STs.

Article 17: Abolition of untouchability and prohibition of its practice

It abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent.

Fact: the Mysore High Court held that the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the ‘practice as it has developed historically in the country’.

The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

Article 18: Abolition of titles except military and academic

The hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of all. Moreover, it abolishes titles and makes following provisions:

  1. It prohibits the state from conferring any title on any body, whether a citizen or a foreigner. (except a military or academic distinction)
  2. It prohibits a citizen of India from accepting any title from any foreign state.
  3. A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
  4. No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
Fact: The National Awards—Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri had its constitutionality upholded by the Supreme Court in 1996.

The general principle of equality and non-discrimination is a fundamental element of international human rights law. Confidence in equality, fairness and opportunity is a key public value that needs to be present in a state. As Rousseau said liberty and equality are gifts of nature.

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