Fundamental Rights – Right to Equality
The Fundamental Rights are enshrined in Part III of our constitution from Articles 12 to 35. These are more elaborate in Indian constitution than any other constitution of the world. Our constitution guarantees six fundamental rights. Here we will discuss right to equality and others in consequent parts.
- Definition of State – This article defines ‘State’ which includes the following :-
- Any Centre/state Govt (Executive), Parliament/legislatures, local authorities such as municipality, district boards, panchayat etc. and all other authorities such as ONGC, LIC, BHEL etc.
- As per order of Supreme Court, any private body working as an instrument of State.
Article 13 (Fundamental Rights and laws)
- Any law or its provisions which are in conflict or in violation of any Fundamental Rights shall be considered void. Also a Constitutional Amendment can be challenged if attempt to change ‘basic structure of constitution’ as awarded by SC in Kesavananda Bharti case (1973).
- Here law includes any law passed by Parliament or state legislature, Ordinance, order, rule, regulation, notification or custom in force under territory of India.
- Right to Equality before Law – every citizen of India is subjected to ordinary law (no person is above Rule of Law). It means no special privilege to any individual on basis of rich or poor etc (-ve concept).
- Equal Protection of Law – right to equality of treatment in equal circumstances (+ve concept).
- Exception – The fundamental right under Article 14 ensures right to equality among all classes and prohibits class legislation but allowed ‘classification for purpose of legislation’ or in other words no prohibition on reasonable classification which is rational in nature such as:-
- President/Governor enjoys immunity from all criminal/civil offences (not subjected to any law) either of official or personal in nature during term of office.
- Different taxation classification for different persons as per there earnings.
- Different laws for military personnel, diplomats, judiciary etc.
- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Also no citizen can put any restriction or condition with regard to use of well, tanks, public property and to access shops, hotels etc. on any of above grounds. So fundamental right under article 15 ensures right to equality among all persons irrespective of caste, religion, status, race or sex.
- Exception – The scope of fundamental right under article 15 is subject to exceptions that are as follows:-
- Nothing prevents State from making any special provisions or laws for security and development of women, children, any of backward classes either socially or educationally, SC, ST’s to provide reservation in education/jobs/legislature etc.
- Example – Man shall be punishable for adultery but woman will not under section 497 of IPC.
- 93rd Constitutional Amend 2005 – State is empowered to make special provisions for SC, ST, Social and educationally backward classes in educational institutions including private ones except minority institutions. This was enacted to nullify SC decision in Inamdar case (2005) which states that reservation in minority and unaided institutions is unconstitutional.
- Right to Equality of Opportunity in Public Employment – no citizen shall be discriminated on grounds only of religion, race, sex, caste, descent, place of birth in matters of employment in any office of state i.e. every citizen has fundamental right to equality of opportunity in employment without any discrimination on above grounds.
- Exception – reservation to backward classes (OBC, SC, ST) in public employment but this shall be restricted to 50% of total strength (applied to each year included unfilled vacancies of previous year). But Tamilnadu can provide reservation up to 69% (not subject to judicial review) as per 76th constitutional amendment.
- Abolition of Untouchability – the constitution forbids the practice of untouchability and enforcement of any ability arising out from untouchability shall be punishable offence in accordance with law.
- The SC held that fundamental right under article 17 is available against private citizens and it is constitutional obligation of State to protect citizen against untouchability. The Protection of Civil Rights Act provides legal remedies to citizens against the practice of untouchability.
- Abolition of Titles – it abolishes titles (of Nobility) such as Maharaja, Rai Sahab, Dewan etc. and make provisions such as prohibit a citizen from accepting any title from foreign state and debarred state from conferring any title to any citizen including foreigner. The fundamental right under article 18 ensures right to equality among all citizens against nobility or persons with titles whom consider themselves supreme over common man.
- It doesn’t prevent state to honour persons in area of art, literature, science and social service from awards such as Bharat Ratna, Padam Vibhushan, Padam Bhushan, Padam Shri etc. The SC (1996) upheld the constitutional validity of these awards as mandate of merit.