AUTHOR’S NAME – Raju Bathini, LL.B, Third Year.
INSTITUTION NAME – Adarsha Law College, Kakatiya University, Warangal.
INTRODUCTION:
Part-3 of the constitution enshrines the backbone of our democratic system which is the fundamental rights. The fundamental rights can be classified as follows: –
Right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to constitutional remedies.
The constitution says that the government shall not deny to any person in India equality before the law or the equal protection of laws. It means that the laws apply in the same manner to all, regardless of a person’s status. This is called the rule of law is the foundation of any democracy. right to equality is one of the essential elements of fundamental rights.
RIGHT TO EQUALITY (ARTICLE 14-18):
Right to equality Includes:
- Equality before law (article 14)[i]
- Prohibition of discrimination (article 15)[ii]
- Equality of opportunity (article 16)[iii]
- Right against untouchability (article 17)[iv]
- Abolition of titles (article 18)[v]
- Equality before the law (article 14):
Art.14 of the constitution reads, ‘’The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’’
This article has two limbs:-(a) equality before the law, and (b) equal protection of the law. Equality before the law is of English origin and it is a negative concept that implies the absence of any special privilege in favor of any individual and the equal subjection of all classes to law. In an explanatory note sir b.n. Rau, who was the constitutional adviser of the constituent
assembly pointed out that equality before the law was adopted from the Weimar. THERE ARE only certain exceptions to this rule as per the constitution.
Rule of Law The concept of ‘equality before the law’ is an element of the concept of ‘Rule of Law’,
propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects:
- Absence of arbitrary power, that is, no man can be punished except for a breach of law. (ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts
- Prohibition of discrimination (article 15):
Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth. The two crucial words in this provision are ‘discrimination’ and ‘only’. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavorably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
Reservation for OBCs in Educational Institutions.[vi]
The above exception(c) was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).[vii] In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the ‘creamy layer’ (advanced sections) among the OBCs while implementing the law.
The children of the following different categories of people belong to the ‘creamy layer’ among OBCs and thus will not get the quota benefit: Persons holding constitutional posts like President, VicePresident, Judges of SC and HCs, Chairman, and Members of UPSC and
SPSCs, CEC, CAG, and so on. 2. Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities, etc., and also in private employment. 3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force, and the Paramilitary Forces.[viii] 4. Professionals like doctors, lawyers, engineers, artists, authors, consultants, and so on. 5. Persons engaged in trade, business, and industry
Reservation for EWSs in Educational Institutions
The above exception (d) was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in admission to educational institutions. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservations for SCs, STs, and OBCs.[ix]
- Equality of Opportunity (Article 16):
Article 16 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.
Reservation for EWSs in Public Employment
The one exception was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in civil posts and services in the Government of India. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservation for SCs, STs, and OBCs. The eligibility criteria laid down in this regard have already been explained under Article 15.
The posts should be in grades above the lower grade in Group A of the service concerned. (ii) They should be classified as “scientific or technical” in terms of Cabinet Secretariat Order (1961), according to which scientific and technical posts for which qualifications in the natural sciences or exact sciences or applied sciences or in technology are prescribed and the incumbents of which have to use that knowledge in the discharge of their duties.
Abolition of Untouchability Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offense punishable in accordance with law. In 1976, the Untouchability (Offences) Act, of 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, of 1955 to enlarge the scope and make penal provisions more stringent. The act defines a civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17[x] of the Constitution. The term ‘untouchability’ has not been defined either in the Constitution or in the Act. However, 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 had developed historically in the country’. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain caste. Hence, it does not cover the social boycott of a few individuals or their exclusion from religious services, etc. 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.
Abolition of Titles (Article 18)
Article 18 abolishes titles and makes four provisions in that regard: (a) It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner. (b) It prohibits a citizen of India from accepting any title from any foreign state. (c) 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. (d) 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. From the above, it is clear that 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.
[i] INDIA CONST. art. 14.
[ii] INDIA CONST. art. 15.
[iii] INDIA CONST. art. 16.
[iv] INDIA CONST. art. 17.
[v] INDIA CONST. art. 18.
[vi] education, https://www.education.gov.in/fundamental_rights_article-15, (last visited July. 26, 2023).
[vii] india.gov.in, https://www.india.gov.in/sites/upload_files/npi/files/amend93.pdf, https://www.education.gov.in/fundamental_rights_article-15, (last visited July. 26, 2023)
[viii] doptcirculars, https://in.search.yahoo.com/search?fr=mcafee&type=E211IN1289G0&p=Officers+of+the+All+India%2C+Central+and+State+Services%3B+and+Employees+holding+equivalent+posts+in+PSUs%2C+Banks%2C+Insurance+Organisations%2C+Universities%2C+etc.%2C+and+also+in+private+employment.+3.+Persons+who+are+in+the+rank+of+colonel+and+above+in+the+Army+and+equivalent+posts+in+the+Navy%2C+the+Air+Force%2C+and+the+Paramilitary+Forces, (last visited July. 26, 2023).
[ix] pib.gov., https://pib.gov.in/PressReleasePage.aspx?PRID=1577969, (last visited July. 26, 2023).
[x] INDIA CONST. art. 17.