Brief description of the right to equality articles
|Articles:||Brief Description of Articles related to Right to Equality|
|Article – 14*||Says that state shall not deny to any person these two Laws:
1. Equality before Law.
2. Equal Protection before Law.
|Article – 15*||The State shall not discriminate among citizens on grounds only of religion, race, caste, sex, place of birth, or any of them.|
|Article – 16*||There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.|
|Article – 17||Abolition of untouchability.|
|Article – 18*||Abolition of titles except for academic and military distinction.|
Note – This ( * ) used along with articles indicates some conditions. Those Articles are not in absolute form, except Article 17 of Right to Equality, which is available in absolute form.
Absolute form means without any restriction.
- The right to equality is a part of Fundamental rights that comes under Part-3 of the Indian Constitution. Article 14 to Article 18 ensures the Right to Equality in India.
- Legality directly in the Supreme Court can be fought, if they are violated.
Now, Let’s dive into the detailed explanation of the Right to equality Article 14 – Article 18 with examples
Right to equality – Article 14
What is Article 14 of the Indian constitution?
- Article 14 says that the State shall not deny to any person (to both foreigners as well as citizens, provided they are not from the enemy country) these two Laws.
- Equality before Law.
- Equal Protection before Law.
Equality before Law
- This concept was originated in England There is no previlege to anyone.
- In the eyes of law all are equal that is all persons irrespective of their rank or position are equal before the law and shall be treated equally by the law.
Explanation: Equality before the law means all are equal in eyes of the law, irrespective of their social and economic status.
No special privilege should be given to anyone. In the eyes of law, everyone is alike. Otherwise, no right to equality will be there.
Exceptions to Equality before Law
- President and Governor are not answerable to any court of law for the discharge of their official function.
- No criminal proceedings whatsoever can be started against President and Governor.
- No Civil proceedings can be initiated against them at least not without two months of notice, prior to the proceedings.
Rule of Law (Law is supreme) by A.V.DICEY
- In India ” Rule of law ” concept came from England and has been made part of the Right to Equality under Article 14 of the Indian Constitution.
Aspirants can read more about rule of law in this linked article.
Equal Protection before Law
- This concept came from America and is made part of Article 14.
- It means that like should be treated alike, it does not mean applying uniform law to eveyone in all circumstances.
- There are some situational variation which taken into account before applying the law. It is Equality of treatment in equal circumstances.
- Equal Protection before Law Provides for positive discrimination or protective discrimination under which reservation policies are justified.
Article 14 of the Indian constitution thus guarantees, Equality among equals (provided they are equal), otherwise there can’t be a right to equality.
Equal protection before law simply means that Equality among equals provided they are equal.
What this means is that everybody has different potential and caliber.
Let’s take an example to understand why sometimes discriminating among people is right.
John and Sam are the only sons of their parents. John gets good grades in school but Sam does not. Parents want Sam to be as good as John.
So they started handling Sam with more care and also allocating an extra budget for his education.
This is not discrimination against John. We can call it Protective discrimination.
Sam is the weakest link in the family & the only way to make him at least as good as John is by providing Protective discrimination.
The right to equality is not threatened in this case.
Similarly, people from lower castes are provided reservations, so that they can reach their maximum potential.
In fact, this is why reservations are necessary to empower them and make them equal to the people from the upper caste.
NOTE- Explanation is for understanding only.
If still have doubts or queries related to Article 14, leave a comment below.
Now let’s move forward to second article of the right to equality which is article 15
Right to Equality – Article 15
Article 15(1) – Right Against Discrimination – only Citizens
Article 15 of the Indian Constitution says that states that the State shall not discriminate against citizens only on grounds of Religion, Race, Caste, Sex, Place of Birth, or any one of them alone.
In the past women were not allowed in the armed forces. Still, they are not given absolute independence as compared to men.
Isn’t it some sort of discrimination on basis of sex?
No, it is not. Well, sex was not the only reason why women were not allowed. The biological realities of women are different as compared to men. Such discrimination has nothing to do with sex.
Article 15 of the Indian Constitution orders states not to discriminate on basis of caste. But when State provides reservation on basis of Caste.
Isn’t this discrimination on grounds of caste?
Reason- Caste was not the alone factor taken into consideration while giving reservation. Other reasons were also taken into consideration such as backwardness.
Any factor beyond Religion, Race, Caste, Sex, Place of birth, or any of them alone will be considered as Protective discrimination but not discrimination.
Note that Protective discrimination is nowhere mentioned in the constitution explicitly.
So, Giving Scholarship, Reservation, Easy promotion comes under the advent of Protective discrimination.
Protective discrimination is necessary for the Right to equality.
Note- The argument is for understanding only.
- It prohibits the state and the individual from discriminating against any citizens only on the grounds of Religion, Race, Caste, Sex, Place of Birth, or any of them.
- In having access to public places such as park hotels, entertainment hubs, hospitals, etc.
- Also In having access to Wells, Ghats, Tanks, Roads and so on which are maintained under state fund.
Difference between Article 15(1) & Article 15(2) of right to equality
- Article 15(1) gives direction to the states to not discriminate among people which makes it a positively worded Article.
- Article 15(2) restricts or prohibits the state from discriminating among people. Article 15(2) is negatively worded (not in intention) as it prohibits the State.
Article 15(3) – Women & Children
- This article is an exception to Article 15(1) as it says that State can make special provisions for the welfare of women and children.
- For example, State can give scholarships to women and not to men. Also, the State can provide Educational benefits to children, not to adults.
- Article 15(4) – Backward Classes
- Introduced by the 93rd Amendment Act 2005.
- It empowers the state to make special provisions for the admission of backward classes of citizens in educational institutions (Private & Government) both aided as well as unaided, except for minority educational institutions.
This led to the passage of Central Education Institutions (reservation in admission act 2006) which provided for reserving up to 27% seats for OBC’S in central Educational Institutions (IIT, IIM, etc) except for:
- Minority Educational institutions.
- Those situated in Schedule 6 Areas. (Assam, Meghalaya, Mizoram, etc)
- Certain Specified Research Institutions like Tata Institution of Fundamental Research, Physical Research Lab (Hyderabad)
Before 2006. All the Central Education Institutions (IIT, IIM, etc) which comes under the central government.
There was no reservation for OBC’s. Even the parliament was not empowered to make changes in laws, related to the reservation policy.
So firstly Parliament Amended the constitution & taken power itself from the constitution. And then parliament added Article 15(5).
And then the parliament made law in reservation policy.
It is easy, isn’t it? Well if you have any doubts or queries related to article 15 just leave a comment below, we will respond soon.
Now let us see the third article of right to equality i.e Article 16
right to equality – article 16
It provides for equality of opportunity for all the citizens in case of public employment.
- It prohibits the state from discriminating against citizens only on the ground of Religion, Race, Caste, Sex, Place of Birth, Residence, Descent in gaining public employment.
- This all is for the protection of the right to equality of an individual for public employment.
Residence and Descent (Hereditary) were added under Article 16(2)
Is residence a ground for discrimination?
Article 16(3) seems to contradict Article 16(2). Article 16(3) empowers the state to provide residence as the ground in certain jobs.
Hence, Residence became a specific criterion to deny somebody a job in some states.
You will understand it more clearly in the article below (refer: the explanation of Article 16(3))
Note – Explanation is for Understanding only.
- Under this Article of the right to equality, the parliament is empowered to provide residence as a ground, for qualification in certain categories of employment under the state.
Example – In some state services such as OPSC (Odisha Public Service Commission), people from other states mostly were not eligible to write an exam.
Reason – This is due to the linguistic barrier i.e you should have studied the Odia language which was made compulsory for OPCS and some other exam in Odisha.
This kind of linguistic barrier is generally used by states which have unique languages.
This is generally a way to filter out people. States use such barriers to provide reservations to their own people.
They are generally not stopping people to join State services but barriers like this are just a clever way to make people from other states not eligible for State PCS. This is done for other jobs as well.
So the question is who is having the power to make laws related to residence as a ground for providing jobs. Parliament or state legislature?
Answer – The Parliament is empowered under Article 16(3). The reason is simply that if the state legislature has been given the authority, then most of the states would have given reservation to their own people leaving people from some states vulnerable to jobs.
Article 16(4) – Reservation for Backward Classes
- It empowers the state to make special provisions in favor of Backward classes of Citizens for Public Employment, if the Backward Class is not adequately represented under services in the state.
However, the state cannot introduce law in favour of backward classes unless two conditions are met.
- The said class of citizen should be socially and educationally backward (not economically).
- It shall not be adequately represented in Government services.
In 1978 Prime Minister Morarji Desai gave Mandate to Mandal Commission which was established in 1979.
The mandate was to “identify the socially or educationally backward classes” of India and what measures should be taken to raise their status to ensure their right to equality.
Around 3000 classes were identified which were backward and the Mandal commission told that they should be given reservations.
Later VP Singh came to power and with some effort in 1990, they provided reservations for OBC’s. The reservation provided to OBC’s was around 27%. This is done by Article 16(4).
Later on, somebody contested against the reservations for OBC’s which led to the rising of a famous case i.e Mandal Case also known as Indra Sawhney Vs Union of India Case (1992)
NOTE – Explanation is for understanding only.
Indira Sawhney Case
Supreme Court in Indira Sawhney Case clarified legal position on reservation policy in jobs, Court said:
- The court held that 27% of Reservation for OBC in public employment is valid constitutionally.
However, the court directed the state to identify the creamy layer among OBC & remove them from the benefit of reservation.
- The court held ordinarily the reservation in jobs (public, not private) in favor of backward classes (OBC, SC, ST) cannot be more than 50%.
- If the recruitment is only for 1 Seat then the reservation will not apply.
- Supreme Court also held reservation allows extending benefit for Backward Classes only at the entry stage of recruitment but not in promotion.
Therefore reservation for SC & ST in promotion was declared unconstitutional & void.
Why Tamil Nadu has more than 50% of reservation?
Argument – As it is being said the state cannot give reservation more than 50% to overall Backward classes(OBC, SC, ST).
But the Tamil Nadu government is giving reservations of around 68% to its people. On what ground it is justified then?
Well, the reason is that the composition of Backward classes (OBC, SC, ST) in Tamil Nadu state is high. So it is justified to give more reservations to them on such grounds.
If there is only 1 Seat?
eg: Position such as Director-General of some XYZ institution. Then the seat is going to be unreserved.
People who lost privileges because of the Indra Sawhney Case were:
1. Creamy layer (OBC)
2. SC/ST in the promotions because previously they were getting reservations not only in selection but in promotions as well.
However, Parliament reacted to the judgment of Indra Sawhney’s case via Article 16(4a) described below.
Note – Explanation is for understanding only.
- Parliament reacted to the Judgement of Indra Sawhney case by introducing Article 16(4a) through the 77th Amendment act 1995 which provided for reservation even in promotion for SC & ST.
Article 16(4a) is a perfect example that in a country like India, neither Parliament nor Judiciary is supreme.
Parliament – Firstly, extended reservation to Backward communities even in the promotion.
Judiciary – Declared that Reservations in Promotion is Unconstitutional.
Parliament – Now again used its power and brought the 77th Amendment Act which specifically wrote in the constitution, Reservations even in the promotion are valid. A new provision inserted Article 16(4a).
Judiciary – Allowed Article 16(4a). But Judiciary has the power to nullify the amendment itself.
But this is the maturity of Indian Democracy that there is never an ego clash between the Parliament and Judiciary. As they always look forward to the larger interest of the nation.
- It empowers the state to prescribe or declare religion as a ground for qualification for the recruitment of candidates in certain categories of public employment.
- Example – In the Church, Temple, Mosque, URDU, or Arabic School which are under the administration of state will be part of public employment & seats can be reserved.
Residence can become ground for reservation as we have seen under Article 16(2) and Article 16(3). Similarly, can we give reservations on the basis of religion?
Answer – Yes, for example, institutions such as Temple, Church, Gurudwara, Mosque, etc which comes under the Government premises i.e Funded by State.
Then the state can use religion in order to run those premises & only people from a particular religion can run those premises.
Question – Isn’t it a kind of discrimination with respect to public employment?
No, It is not discrimination. It is a kind of extra qualification to protect the interest of all religions. It even ensures the right to equality.
Note – Explanation is for understanding only.
Supreme Court M. Nagaraj VS Union Of India Case (2006)
Court retaliated against the reservation policy saying that the Reservation Policy will be valid only if it satisfies the following five requirements:
- The said class of citizens should be socially & educationally backward.
said class means the class which is in question.
- Inadequate Representation in Jobs– The said class should not be adequately represented in Public services.
- Efficiency– The general efficiency of administration is to be maintained.
- The concept of the creamy layer should be applied for OBC.
- Overall Reservation of seats for Backward Classes should not exceed 50% of total seats.
Right to equality – Article 17 – Abolishes Untouchability
- Article 17 of the Indian Constitution is the abolition of untouchability and is the only article of the Indian constitution that is given in absolute terms without exception.
- Untouchability in any form is illegal & totally banned.
- 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 the 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.
Now lets move to the final article of right to equality which is Article 18.
Right to equality – Article 18 – Abolition of titles
- Article 18 of the Indian constitution is related to abolition of several titles.
Four Provisions under – Article 18
- It prohibits the state from conferring any titles (except military or academic distinction) on anybody, whether a citizen or foreigner.
- It prohibits a citizen of India from accepting any title from any foreign state.
- 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.
- No citizen or a 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.
Any title given cannot be used in prefix or suffix with the name.
The title given is not a title to the person but is a recognition of one’s work in a particular area.
Using it along with name will be a violation of Article 18 of the right to equality.
Exception – Military and Academic distinction.
Example: Dr. (Doctor) Col. (Colonel) are not illegal if used along with the name.
Question – Can someone accept the title from another country?
Answer – Yes, provided they have permission from the State. But still one cannot use it along with the name.
Note – Explanation is for understanding only.
Congratulations, you have finished article 14 to article 18 of the Right to equality. If you have any doubts or queries, feel free to leave a comment below. We will respond as soon as possible.
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