Equality is the prime principle and absolute source of all other liberties. Indian Constitution contains a Code of Equality i.e., through Article 14 it engrafts, “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In the case of Chairperson, Railway Board v. Chandrima Das A.I.R. 2000 S.C. 988 : (2000) 2 S.C.C. 798, The apex court held that the rights guaranteed under part III of the constitution are not absolute in terms.
They are subject to reasonable restrictions and, therefore, in the case of non-citizens also, those rights will be available subject to such restrictions as may be imposed in the interest of the security of the state or other important considerations. This particular case derives that, this Article 14 is not only for Indian citizens but also applicable for non-citizens.
Article 14 overview
The ambit of the ‘Code of Equality’ is wide, which does not ensure mere formal equality before the law but also highlights the concept of substantive equality depending upon the socio-economic stability. Article 14 not only provides equality before the law or equal protection of laws it strikes arbitrary and discriminatory state action. ‘Code of Equality’ not only prohibits unequal treatment but also demands equal treatment.
The first objectivity of Article 14 is ‘Equality before Law’, which means Law is equal for everyone, precisely the treatment of law must be equal for everyone, this object has a negative approach because all persons are not equal by their nature, or attainment. The varying needs of different classes of persons often require separate treatment. That is why there are chances this particular doctrine would permit arbitrary and capricious exercise of power.
However, the doctrine of ‘Equal Protection of law’ is part of the first section of the Fourteenth Amendment to the United States Constitution, this doctrine refers to the concept of the subjection of equal laws applying to all in the same circumstances, in general parlance this doctrine says if two people are not same in the manner (economically, socially) for the treatment of law will not be same, it also engrafts the concept of special treatment by laws. For this kind of modified structure which promotes the concept of natural justice and not only that, which always protects the natural or inherent rights, this doctrine has a Positive approach.
The ‘Code of Equality’ is not only stated in Article 14 of the Indian Constitution but also exaggerated through Articles 15 and 16. Not only the concept of equality before the law but also equal protection of the law is also mentioned in these articles. Whereas, along with these proportions of equal protection of law, ‘reservation’ is there, for the implementation of equal protection of laws and by which equality before law can be established. In the Indian Constitution ‘reservation’ implies ‘representation’.
It is not given to anyone depending upon individual capacity or individual crisis, it is given to uplift a group of people by promoting their representation, basically, it is given to an individual as a representative of the underprivileged community. The person who benefited from the reservation is expected to help his or her community to come up, this is the main objective of the concept of ‘reservation’.
In the discussion of ‘reservation’, the reference to ‘representation’ is there as well and the concept of representation connotes one term which is ‘inclusive social order’. In general parlance ‘inclusive social order’ is a kind of political arrangement where the representation of several sections of society is there in a governing body or a law-making body.
Reservation in India
There are two major objects behind this ‘inclusive social order’ first one is, that participatory social order is conducive to the peaceful and sustainable development of society and the second one is, that this order augments the pool of human rights development. There are two kinds of reservations: vertical and horizontal.
Social reservations in favour of oscheduledle castscheduledule tribe and O.B.C. under Article 16(4) of the Indian Constitution are vertical reservations, whereas special reservations in favour of physically handicapped, women etc. under Article 16(1) and 15(3) of the Indian Constitution are horizontal reservations.
In the year 1979, Prime Minister Morarji Desai established the Mandal Commission, also known as ‘The Socially and Educationally Backward Classes Commission’ (SEBC). This Commission is led by B.P. Mandal who was also the Member of Parliament. The main object of this Commission is, “to identify the socially and educationally backward classes of India and to consider reservations as a means to address caste inequality and discrimination”.
This Commission submitted its report on 31st December 1980. After India gained Independence, it started its action towards the backward classes, the basic motive was to uplift them and connect them with the mainstream of social life. But the main obstacle was ‘how to address ‘. However, there are several SC/ST groups, who are not socially or politically backward but still they are marginalized in society and for the betterment of these classes or groups a major upliftment was needed.
To address this problem, the nation’s first Backward class commission was set up in the year 1953 led by Kaka Kalelkar, which was also known as the Alelkar Commission. In the year 1955, this Commission submitted its report and mentioned that there were 2399 backward groups in the nation and out of these 2399 groups 837 were ‘most backwards’.However, the Union Govt rejected its recommendations.
Article 15 Constitutional Dilemma
‘Code of Equality’ is extended through Ar.15 and 16 also, whereas Ar.14 derives the basic formulation of it. Article 15 mainly deals with the concept of “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Clause 1 of this article says the state shall not discriminate against any citizen on the grounds of religion, race, caste, sex, place of birth or any of them.
However, based on relevant consideration, discrimination is valid.
Article 15(2) lays down that no individual shall be subjected to any disability, restriction or any other form of discrimination abo the excess of shops, parks, restaurants, hotels, or any other public place. Every individual has the right to use wells, tanks, bathing ghats, roads and any other place which are maintained by government authority for the general public.
Role of Judiciary
Article 15(2) was invoked in the case ‘Nainsukhdas v. State of U.P’, in this case, the estate had set up different electoral boards, for different religions. The apex court held that such differentiation on electoral boards based on religion is unconstitutional as per Article 15(2)Â Clause 3,4,5,6 of Article 15 discusses the provisions made by the government to empower certain classes in society.
Article 15(3) empowers the state to make special laws for women and children.
In the case of ‘Yusuf Abdul Aziz v. State of Bombay’ a judgement was passed by the court which stated, under section 497 of the Indian Penal Code,1860 only men can commit the crime of adultery and be punished for the same. However, in the case of ‘Joseph Shine v. UOI’, adultery was decriminalized since it violated Articles 14,15 and 21 of the Indian Constitution.
Hence, no longer treated as a crime, rather it can only act as grounds for divorce. Article 15(4) empowers the state to make special provisions for socially and educationally backward classes. Clause 4 of Article 15 is inserted in the 1st Constitutional Amendment. ‘State of Madras v. Champakam Dorairajan’, Madras Govt. passed one act, according to this act in every medical college in Madras every community will get a reservation. The court held that the govt. Cannot give any reservation on the grounds of caste or religion. Apex Courtstrikese out this order.
Clause 4 says that the state has the power to make special provisions for the advancement of the educationally and socially backward groups. ‘M.R. Balaji v. State of Mysore‘, the State of Mysore regulated one Govt. order, that says, there will be reservations in every medical and engineering college, [Backward class – 28%, More backward Class- 22% and SC – 15%, ST – 3%] total 68% seats were under reservation. This Govt. order was challenged in this case.
Supreme Court Strikes out this Govt. order and said that:
Backwardness must be both social and educational, Caste cannot be the e sole Dominant Test,
Reservation should be less than 50% [carry forward rule and backlog vacancies],
Backwards to more backwards this concept is not valid,t which means further categorization is not valid.
Whenever the state adopts positive discrimination, the State cannot overlook the concept of ‘Society at large advancement’. In ‘Indra Sawhney v. UOI’the court held the opposite verdict of the ‘M.R. Balaji case. The court held that the state can define Backwardness only on the basis of caste. And also held that Backward class and more Backward class both are valid. Clause 5 of Article 15 inserted by the 93rd Amendment Act,2005.
This clause is specifically for admissions in the educational institute, special provisions must be there for backward classes in the case of admission, not only in Govt. colleges but also in private institutions. In the year 2006, in the case of ‘M. Nagraj v.UO, the Apex court ordered parliament to enable the reservations even in ‘promotion’ i.e., reservation for SC’s and STs in further promotion process as well.
However, the Court did lay down some principles which made it difficult for both Centre and State Govt. to grant such reservation. This case was decided as per the 77th and 81st Amendment Act.
As discussed earlier, the ‘Code of Equality’ promotes discrimination, it cannot be that based on relevant consideration discrimination is valid. Several suits are issued regarding ‘the Constitutional Dilemma’, one of those dilemmas is discussed here, which begins with two terminologies:
- Place of Birth
- Place of
Place of Birth refers to ‘from where the person belongs’, whereas Place of Residence refers to ‘Where the person resides’ it is also ascertained the domicile identification. In the case of D.P. Joshi v. State of Madhya Bharat, there was a medical college that was established in Indore, and it was under the control of M.P. Govt.
The Govt. had made a rule which stated that all the domicile students residing in Madhya Bharat would not be required to pay any capitation fees. This rule was challenged by filing a writ in the Supreme Court under Article 32 claiming that it had violated the Fundamental Rights guaranteed under Articles 14 and 15(1). The Court has passed a judgement stating that this rule does not violate Article 15(1) since ‘Place of Birth’ and ‘Place of Residence’ are two distinct terms.