The constitution classifies the Fundamental Rights into following six categories:-
(1) Right to Equality (Article 14-18)
(2) Right to Freedom (Article 19-22)
(3) Right against Exploitation (Article 23-24)
(4) Right to Freedom of Religion (Article 25-28)
(5) Cultural and Educational Rights (Article 29 and 30)
(6) Right to constitutional Remedies (Article 32)
In this section the first set of Fundamental Rights i.e. Right to Equality would be covered
Right to Equality (Article 14 to 18)
Article 14
It
is the core article under Right to Equality. It deals with two kinds of
rights. It states that the State shall not deny to any person
(a) Right to equality before the law.
(b) Right to Equal Protection before the law.
(A) Right to Equality before the law
It
is a negative concept because it means that no man is above the law or
in other words all individuals are subject to the Law of the land. Rule
of law means the absolute supremacy of ordinary law of land as opposed
to the influence of arbitrary power of the ruler.
The three principles which govern the Rule of law are:
(I)
No man shall be punished either in body or goods (material) except for
the violation of law in force. Further, the violation of law shall be
established in an ordinary court of land in an ordinary legal manner.
(II)
All individuals irrespective of their social or economic understanding
are subject to ordinary law of land. Further, all the individuals are
subject to the jurisdiction of the court. I.e. all individuals can be
sued before the court. A person can appear before the court in form of
attorney or himself.
(III) The constitution is the result of ordinary Law of land.
However
the third rule had been modified in its application under the Indian
constitution where the third law reads as the Constitution is Supreme
law of Land and all laws passed by the legislature shall conform to it
to be legally valid.
Significance of Rule of law
(i) It is the adoption of rule of law that has changed the constitution from Rex Lex (king is law) to Lex Rex (Law is king)
(ii)
The rule of law is essential to maintain an individual’s liberty.
Therefore Rule of law is an essential feature of democracy.
Protection of Rule of Law
The constitution under article 32 and 226 confers the power on Supreme Court and
the High Court’s respectively to safeguard the Rule of law by
exercising the writ jurisdictions. Further the constitution emphasizes
that the Rule of Law is an immutable Principle of Governance of the
Country.
In
Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held
that the Rule of Law is a part of basic structure of the constitution
and cannot be destroyed.
Exceptions to the Rule of Law
(1) Article 361- The President or the Governor of State is not answerable to a court of law with regard to exercise of its executive functions.
(2)
No criminal proceedings whatsoever can be instituted against the
President and Governor of State during his/her term of office. He should
be first remove impeached to continue the proceedings against him.
(3)
No civil proceedings in which relief is claimed can be instituted
against the President or the Governor of State in a court, except of the
expiry under a 2 month notice served on the President and Governor.
(4) According to the International Laws- The visiting subject to the jurisdiction of local court.
(B) Equiprotection before Law
(1) It originated as a concept in USA.
(2) It is a positive concept.
(3)
It means equality of treatment in equal circumstances. Among equals the
law shall be equal and equally administered. “The like should be
treated alike”. All the persons placed in equal circumstances shall be
treated similarly. Therefore, it ensures equality among equals. It does
not mean inequality among equals.
(4)
It allows State to classify individuals on a reasonable basis into
similar groups. Once such a classification is made, the law shall apply
equally among all the people within a group. Then no person within a
group shall be treated differently. However, the State is free to
discriminate people between the groups.
(5)
The concept of equal protection before law is also called “Positive
Discrimination” on the Part of the State and the policy of reservation
is legally justified under it.
(6)
This concept is based on the Aristotelian Principle that ‘Equality can
exist only among the equals and equality cannot exist among unequals.
Thus the Legislative may:
(i) Exempt certain classes of property from taxation such as charities, libraries etc.
(ii) Impose different specific takes upon different trades and professions.
(iii)Tax income and property of individuals in different manner etc.
Article 15: Right against Discrimination
This
right is available only to citizens. Article 15(1) states that the
State shall not discriminate its citizen on grounds of religion, race,
caste, sex, place of birth or any of them.
It
means that on other grounds citizens can be discriminated e.g. state
domicile. It also means that these cannot be the sole ground of
discrimination. There can be additional grounds e.g. preference of men
in Armed Forces and females are preferred to be recruited as nurses or
in departments like Gynecology in Medical Colleges.
The
crucial word in Article 15(1) is ‘only’ which means that race,
religion, caste; sex or place of birth cannot be the sole ground for
discrimination. If there is any other valid ground on which
discrimination can be shown then Article 15(1) does not prohibit race,
religion, caste etc. being additional ground for discrimination.
Article 15(2)
It states that no citizen shall be denied:
(a) Access to public places such as Shops, Public Restaurants, Hotels and places of public entertainment.
(b) The use of wells, tanks, bathing Ghats, roads or places of public resort.
It
applies to both to the State as well as individual. It prohibits both
the State and individuals from practicing discrimination. Therefore it
also helps in eradication of untouchability.
Article 15(3)
It
confers the power on State to make special provisions for welfare of
women and children since they are the most vulnerable section of
society.
For example 33% of seats in Panchyats Posts are reserved for women.
Article 15(4)
It was introduced by the constitution (1st constitution
Amendment) Act, 1951. It empowers the State to provide by law Special
provisions for advancement of socially and educationally backward
classes of citizens including Schedule Castes, Schedule Tribes and
Backward Classes.
Article 15(5)
It was introduced by the constitution (93rd constitution Amendment) Act, 2005. It confers the power on State to make laws for advancement of any socially and educationally backward
classes for admissions into educational institutions including private
educational institutions referred to Article 30(1).
Article 16 (Right to Equality of Opportunity)
This
right is available only to citizens. It says that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
Article 16(2)
No
citizen shall be discriminated in respect of public employment by State
only on the basis of religion, race, caste, sex, descent, place of
birth and residence or any of them.
Article 16(3)
It authorizes the Parliament to provide special favors in case of certain classes of public.
Example: The Mizo Accord (1985) grants special privilege to Mizo people.
Even
if certain reservations are made by the State, the relevant law shall
be passed by Parliament. Any such reservation provided cannot be valid
permanently; they can be valid only for a particular period.
Article 16(4)
It
empowers the State to provide by law reserving seats in public
employment in favor of socially and economically backward classes of
citizens if in the opinion of the State, the said class of citizens are
not adequately represented in public employment.
It is an enabling clause as it confers the power on State to provide for reservation in favor of backward classes.
Article
16(4) does not confer a Fundamental Right on the backward classes to
get seat reserved in Public employment. Therefore, if the State fails to
provide reservation for backward classes, they do not enjoy legal
remedy before the court of Law.
The
Supreme Court in Indira Sawhney Vs Union of India 1992 (Mandal Case)
upheld the validity of the reservation of 27% of seats in Public
employment in favor of the OBCs.
The
Supreme Court held that under Article 16(4) the State can provide
reservation only at the entry level (at the time of recruitment). The
reservation provided in favor of Schedule Castes and Schedule Tribes in
the promotion is unconstitutional and void. The Supreme Court also laid
down 5 constitutional requirements which are to be satisfied by
reservation policy in order to be legally valid. These are as:
(1) Reservation shall be based only on social and educational backwardness.
(2) The said classes of citizens are not adequately represented in public employment.
(3)
The concept of “creamy layer” shall be applicable in the case of OBCs
under which the socially and educationally uplifted sections of OBCs
shall be removed from the benefit of reservation.
(4) The overall reservation in favor of OBCs ordinarily should not exceed 50%.
(5) The efficiency in the administration should be given due consideration while implementing reservation.
Article 16 (4 B)
It was introduced by the 81st Amendment
Act, 2001. It provides that the carry forward Rule in favor of Schedule
Castes and Schedule Tribes shall be valid even if the overall
reservation for the backward classes exceeds 50%.
Article 16(5)
It
is the third exception to the general rule laid down in Article 16(1)
and 16(2) which forbid discrimination in public employment on the ground
of religion.
It
says that a law which provides that a person holding an office in
connection with the affairs of a religious or denominational
institutions etc., shall be a person professing the same religion or
belonging to a particular denomination shall not be treated to be
repugnant to this Article.
Article 17 (Abolition of Untouchability)
It
abolishes Untouchability and forbids its practice in any form. If it is
so practiced it shall be dealt with as an offence punishable in
accordance with the law.
Article
35 confers power to the Parliament to enact the laws for abolition of
Untouchability. The Parliament has enacted the untouchability (offence)
Act. The act prescribes punishment for the practice of untouchability.
This act has been amended by the Untouchability (offences) Amendment
Act, 1976 in order to make laws more stringent to remove untouchability
from the society.
Further
the name of the original act has been changed to Civil Rights
(Protection) Act. Article 15(2) also helps in eradication of
untouchability. The Constitution, nowhere defines “What is
Untouchability”, nor do any Acts passed by the Parliament. However, the
judiciary has held that untouchability means any social practice among
the Hindus which looks down upon a certain class.
Article 18 (Abolition of Titles)
The
State shall not confer any title on anybody whether a citizen or a
non-citizen except the recognition of academic and military
distinctions. Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri
and other State awards are not regarded as titles in terms of Article
18(1) of the constitution. The Supreme Court in Balaji Raghavan Vs Union
of India 1996 case stated that these are meritorious awards based on
excellence in the respective fields. The theory of equality does not
mean that the State should not recognize the excellence.
Article 18(2)
It
states that no citizen shall receive any title from a foreign State.
For example Sunil Gavaskar was invited to get Knighthood but he was not
allowed.
Article 18(3)
It
prohibits a foreigner who is in the service of the government of India
or that of a State, from accepting any title from any foreign State
without the consent of the President.
Article 18(4)
No
person holding any office of profit or trust under the State shall
without the consent of the President, accept any present, emolument or
office of any kind from or under any foreign State.
The following two points must be considered:
(1) There is no penalty prescribed for the infringement of the above prohibition.
(2) Article 18 is merely a directory. It is open to Parliament
to make a law for dealing with such persons who accepts a little in
violation of the prohibition prescribed in Article 18.
