CL Project

CONSTITUTIONAL LAW-II

CONSTITUTIONAL LAW-IICONSTITUTIONAL LAW-II

PROJECT REPORTPROJECT REPORT

ONON

EQUALITY BEFORE LAW ANDEQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWSEQUAL PROTECTION OF LAWS

SUBMITTED TO:

Dr. Shruti Bedi,

Professor, University Institute of Legal Studies,

Panjab University, Chandigarh.

SUBMITTED BY:

Anshul Singhal,

127/13, 4th Semester,

Section-C, B.Com L.LB,

University Institute of Legal Studies,

Panjab University, Chandigarh.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWSEQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS


ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from

many people and I am extremely fortunate to have got this all along the completion of my project

report. Whatever I have done is only due to such guidance and I would never forget to thank

them.

I am thankful to and fortunate enough to get constant encouragement, support and guidance

throughout the completion.

I am very much thankful to Dr. Shruti Bedi for her support and guidance, without which I won’t

be able to accomplish this project work. I am thankful to my friends who helped me in collection

of material.

Lastly and most importantly, I would like to thank my parents and the almighty for moral

support and constant supervision.

Anshul Singhal,

127/13.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWSEQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS Page i


Table of contents

S. No. Particulars Page no.

ACKNOWLEDGEMENT (i)

TABLE OF CASES (iv)

1. FUNDAMENTAL RIGHTS

o Introduction

o History

o Fundamental Rights and Human Rights

o Fundamental Rights and Preamble to the Constitution

1

2. STATE

o Judiciary as a State

o Justiciability of Fundamental Rights

5

3. RIGHT TO EQUALITY

o Introduction

o Right to Equality as Basic Structure

o Preamble Ensuring Equality

o Right to Equality as Basic Human Right

9

4. EQUALITY BEFORE LAW AND EQUAL PROTECTION OF

LAWS

o Article 14

o Introduction

o Right to Equality under US Constitution

o Who may claim protection under Article 14?

o Equality Before Law

o Equal Protection of Laws

o Distinction between the two Phrases

o Exception to the Rule of Equality

12

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o Reasonable Classification but not Class Legislation

o Reasonable Classification-Permitted

o Class Legislation-Prohibited

o Tests for Reasonable Classification

o Principles for determining Reasonableness of Classification

o Article 14 strikes at Arbitrariness

o Instances of Classification

o Oral Interview Test and Article 14

o Judicial Adjudication and Article 14

o Rules Of Natural Justice and Article 14

o Article 14 and Reasoned Decisions

o Gender Equality and the Rule of Harmonious Construction

o An Action of State Per Se Arbitrary

o Equality Clause cannot be invoked to Perpetuate Illegality

o Basis of Classification

o Laws Applicable to Single Individual

o Tax Laws and Article 14

o Special Courts and Procedural Classification

o Wednesbury Principle

o Article 14 and Policy Decisions

o Admission to Educational Institutions

o Horizontal and Vertical Reservation

o Need for Common Entrance Examination

o Belated/Midstream Admissions

o Standard of Education

o Right of the Examinee to have Access to Evaluated Scripts

REFERENCES (xi)

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Table of cases

S. No. Name of the Case Citation

A.

1. A.C.C. v. State of Chhattisgarh AIR 2007 (NOC) 669

2. A.L. Kalra v. P. & E. Corpn. AIR 1984 SC 1361

3. A.N. Bhati v. State of Gujarat AIR 2005 SC 2115

4. A.P.B.C. Sangh v. J.S.V. Federation AIR 2006 SC 2814

5. Air India v. Nargesh Meerza AIR 1981 SC 1829

6. Ajay Hasia v. Khalid Mujib AIR 1981 SC 487

7. Anil Kumar Gupta v. State of U.P. (1995) 5 SCC 173

8. Ashutosh Gupta v. State of Rajasthan AIR 2002 SC 1533

9. Associated Provincial Picture House v. Wednesbury

Corporation

(1947) 2 All ER 640

B.

10. B.D.D.S.W. Association v. State of W.B. AIR 2010 (NOC) 498

(W.B.)

11. B.I.C. v. Collector, Central Excise AIR 1963 SC 104

12. B.P. Corpn. Ex-employees’ Association v. Bharat

Petroleum Corporation Ltd.

AIR 1995 SC 1126

13. Baburao v. Bombay Housing Board AIR 1954 SC 153

14. Behram Khurshid v. State of Bombay AIR 1955 SC 123

15. Bihar Public Service Commission v. Kamini (2007) 5 SCC 519

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16. Brind v. Secy. of State of Home Deptt. [1996] 3 All E.R. 720

(H.L.)

17. Budhan v. State of Bihar AIR 1955 SC 191

C.

18. Chiranjit Lal Choudhary v. Union of India AIR 1951 SC 41

19. Clarence Pais v. Union of India AIR 2001 SC 1151

D.

20. D.G. Rly. Protection Force v. K.R. Babu AIR 2008 SC 1958

21. D.S. Nakara v. Union of India AIR 1983 SC 130

22. Damoh Panna Sugar R.R. Bank v. Munna Lal Jain AIR 2005 SCW 95

23. Dev Dutt v. Union of India, AIR 2008 SC 2513

24. Dharam Dutt v. Union of India AIR 2004 SC 1295

25. DTC v. DTC Mazdoor Congress AIR 1991 SC 101

E.

26. E.P. Royappa v. State of T.N. AIR 1974 SC 555

27. E.V. Chinnaiah v. State of Andhra Pradesh AIR 2002 SC 361

28. East Court Railway v. Madhav Appa Rao AIR 2010 SC 2794

G.

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29. G.K. Mohan v. Union of India AIR 2008 SC 305

30. G.M., Uttranchal Jal Sansthan v. Laxmi Das AIR 2009 SC 3121

31. Gauri Shankar v. Union of India AIR 1995 SC 55

32. Githa Hariharan v. Reserve Bank of India AIR 1999 SC 1149

33. Golak Nath v. State of Punjab AIR 1967 SC 1643

34. Government of Andhra Pradesh v. P. Laxmi Devi AIR 2008 SC 1640

35. Gulam Ahmed v. State of Bombay AIR 1962 Bom. 96

H.

36. Hemani Malhotra v. Delhi High Court AIR 2008 SC 2103

I.

37. I.R. Coelho v. State of T.N. Judgment dated Sept. 4

2010

38. Indian Airlines Ltd. v. Prabha D. Kanan AIR 2007 SC 548

39. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299

40. Indra Sawhney v. Union of India AIR 1993 SC 477

J.

41. Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 1245

42. Jasbir Kaur v. Union of India AIR 2004 SC 293

43. Javed v. State of Haryana AIR 2003 SC 3057

44. Joydev Sen v. State of W.B. AIR 2010 (NOC) 256

(CAL)

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K.

45. K.C. Sarkar v. Rajesh Rajan (2005) 3 SCC 307

46. K.L. Tripathi v. State Bank of India AIR 1984 SC 273

47. Kasualata v. M.U.N.T. Employees Association AIR 2002 SC 1223

48. Kedar Nath Bajoria v. State of W.B. AIR 1953 SC 404

49. Kerala S.E. Board v. Saratchandran AIR 2009 SC 191

50. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

51. Krishena Kumar v. Union of India AIR 1990 SC 1782

M.

52. M.C.Mehta v. Union of India (1987) 1 SCC 395

53. M.G. Badappanavar v. State of Karnataka AIR 2001 SC 260.

54. M.P. Oil Extraction and Fur v. State of M.P. AIR 1998 SC 145

55. M/s. Vishal Properties (P) Ltd. v. State of U.P. AIR 2008 SC 183

56. Mangilal v. State of M.P. AIR 2004 SC 1280

57. Marri Chandra Shekhar Rao v. Dean, Seth G.S.

Medical College

1990 (3) SCC 130

58. Matajog Dobey v. H.C. Bhari AIR 1956 SC 44

59. Medical Council of India v. Madhu Singh AIR 2002 SC 3230

60. Mehmood Alam Tariq v. State of Rajasthan AIR 1988 SC 1451

61. Mithu v. State of Punjab AIR 1983 SC 473

62. Mohanlal Jain v. Man Singhji AIR 1962 SC 73

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63. Municipal Committee, Patiala v. Model Town

Residents Association

AIR 2007 SC 2844

N.

64. N.R. Nair v. Union of India AIR 2000 Ker. 340

65. Nair Service Society v. State of Kerala AIR 2007 SC 2891

66. National Human Rights Commission v. State of

Arunachal Pradesh

AIR 1966 SC 1234.

67. Neelu Arora v. Union of India AIR 2003 SC 1082

P.

68. P. Rajendra v. State of Madras AIR 1968 SC 1012

69. P.S.T. Bar Association v. State of U.P. AIR 2003 SC 1115

70. Pradeep Jain v. Union of India AIR 1984 SC 1420

71. Preeti Srivastava v. State of M.P. AIR 1999 SC 2894

72. Premier Enterprises, Secundrabad v. C.T.O. AIR 2003 SC 4449

73. President, B.S.E., Orissa v. D. Suvankar (2007) 1 SCC 603

74. Punjab Tin Supply Co. v. Central Government AIR 1984 SC 84

R.

75. R. Kaaruppan v. Government of India AIR 2008 Mad. 264

76. R.K. Daria v. Rajasthan Public Service Commission AIR 2007 SC 3127

77. Ram Chandra v. State of Orissa AIR 1956 SC 298

78. Ramrao v. A.I.B.C.B.E.W. Association AIR 2004 SC 1459

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79. Re Special Courts Bill, 1978 AIR 1978 SC 478

S.

80. Saurabh Chaudri v. Union of India AIR 2004 SC 361

81. Shalendra Nath v. State Bank of India AIR 2007 Pat. 44

82. Shri Ram Krishna Dalmia v. Shri Justice S. R.

Tendolkar & Others

1958 AIR 538

83. Soloman v. Commr. of Custom and Excise [1991] 1 All E.R. 871.

84. Srinivasa Theatre v. Government of Tamil Nadu AIR 1992 SC 999

85. State of A.P. v. N.R. Reddi AIR 2001 SC 3616

86. State of H.P. v. Sada Ram (2009) 4 SCC 422

87. State of Haryana v. Jai Singh AIR 2003 SC 1696

88. State of Haryana v. Mohinder Singh AIR 2000 SC 890

89. State of Haryana v. Ram Kumar Mann JT 1997 (3) SC 450

90. State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794

91. State of Rajasthan v. Amrit Lal Gandhi AIR 1997 SC 782

92. State of Rajasthan v. Sohan Lal AIR 2004 SC 4520

93. State of T.N. v. S.V. Bratheep AIR 2004 SC 1861

94. State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75

95. State of W.B. v. Subodh Gopal Bose AIR 1954 SC 92

96. Swati Gupta v. State of U.P. (1995) 2 SCC 560

97. Syndicate Bank v. Gen. Secy., Syndicate Bank staff AIR 2000 SC 2199

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Association

T.

98. T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355

99. T.N. Godavarman v. Ashok Khot (2006) 5 SCC 1

100. The Secretary & Curator, Victoria Memorial Hall v.

Howrah Ganatantrik Nagrik Samity

AIR 2010 SC 1285

101. Transport & Dock Worker’s Union v. Mumbai Trust

Board

Decided on 15th

November, 2010

U.

102. Union of India v. P.N. Menon AIR 1994 SC 2221

103. Unni Krishnan v. State of Andhra Pradesh AIR 1993 SC 2178

V.

104. V. Revathi v. Union of India AIR 1988 SC 835

105. V.M. Syed Mohd. & Co. v. State of Andhra Pradesh AIR 1954 SC 314

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FUNDAMENTAL RIGHTS

INTRODUCTION

It is generally accepted that the Constitution comprises rules that regulate the organization and

exercise of State power, on the one hand, and the relations between the State and its citizens, on

the other. The rules that stipulate and regulate the relations between the State and its citizens and,

more generally, the relations between the controlling and the controlled are characterized as

public freedoms or fundamental rights or human rights.

“Fundamental Rights” are the modern name for what have been traditionally known as “natural

rights”. As one author puts it, “they have simply because of the fact that in contradiction with

other human beings, he is rational and moral.” They are the primordial rights necessary for the

development of human personality. They are the rights which enable a man to chalk out his own

life in the manner he likes the best.1

It would also be useful to clarify that fundamental rights, when formulated in the Constitution,

have increased formal power. This means that they cannot be abrogated or changed by a formal

law or any regulatory deed of the executive power, but they lay down the limits and the legal

framework within which State agents should act as regards their relations with the citizens. In

this sense, fundamental rights have an interdisciplinary legal character, since they lay down the

principal rules of administrative law, criminal law, labour law, civil law, as well as overall

procedural law.

The fundamental rights were included in the constitution because they were considered essential

for the development of the personality of every individual and to preserve human dignity. The

writers of the constitution regarded democracy of no avail if civil liberties, like freedom of

speech and religion were not recognized and protected by the State. Most of these rights are

enforceable against the State by the way of their language, while some others are directed both

against the State and private individuals. The most important feature is that the fundamental

rights gave the higher judiciary a clear set of criteria to regulate relations between citizens and

the government as well as among citizens themselves. Furthermore, Indian Courts have

1 Golak Nath v. State of Punjab, AIR 1967 SC 1643.

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interpreted these rights not only in a negative dimension (i.e. in the terms of protection against

violation) but also in a positive dimension (i.e. in the terms of entitlements to benefits).

Fundamental rights recognise the importance of the individual in the affairs of the state and seek

to assure to every citizen full freedom to enjoy life, liberty and happiness as he likes. The

development of a citizen’s personality, the pursuit of his profession or vocation, and the manner

in which he seeks to enjoy the pleasure and comforts of life are basically his individual concern

and the State can interfere the basic right only if the consideration of public good justify the

interruption.2

Rights are claims that are essential for the existence and development of individuals. In that

sense there will a long list of rights. Whereas all these are recognized by the society, some of the

most important rights are recognized by the State and enshrined in the Constitution. Such rights

are called fundamental rights. These rights are fundamental because of two reasons:

1. First, these are mentioned in the Constitution which guarantees them and,

2. Second, these are justiciable, i.e. enforceable through courts. Being justiciable means

that in case of their violation, the individual can approach courts for their protection.

If a government enacts a law that restricts any of these rights, it will be declared

invalid by courts.

Such rights are provided in Part III of the Indian Constitution. The Constitution guarantees six

fundamental rights to Indian citizens as follows:

(i) Right to Equality,

(ii) Right to Freedom,

(iii) Right against Exploitation,

(iv) Right to Freedom of Religion,

(v) Cultural and Educational Rights, and,

(vi) Right to Constitutional Remedies.

While these fundamental rights are universal, the Constitution provides for some exceptions and

restrictions.

2 P.B.Gajendragadkar: The Indian Parliament and the Fundamental Rights (T.L.L.), p.39.



Originally, there were seven Fundamental Rights in the Constitution. Besides the above

mentioned six rights, there was the Right to Property also. Since this Right created a lot of

problems in the way of attaining the goal of socialism and equitable distribution of wealth, it was

removed from the list of Fundamental Rights in 1978 by 44th constitutional amendment.

However, its deletion does not mean that we do not have the right to acquire, hold and dispose of

property. Citizens are still free to enjoy this right. But now it is just a legal right and not a

Fundamental Right.

HISTORY

Demand for Fundamental Rights by Indians can be traced down the course of history. Firstly,

demanded in the Swaraj Bill in 1895 by Lokmanya Tilak, then in the Congress Resolution in the

period of First World War, further, in the Commonwealth of India Bill by Annie Besant, then in

1927 by the means of Madras Resolution of Congress, then in 1928 by the Nehru Committee,

then in 1931 the Karachi Session of Congress adopted a Resolution on Fundamental Right, and

in 1945 Sapru Committee Report made distinction between -justifiable and non justifiable rights.

Finally, it was adopted under Part III of the Indian Constitution.

Part III of the Constitution contains a long list of fundamental rights. This chapter of the

Constitution of India has very well been described as the Magana Carta of India. As early as

1214 the English people exacted an assurance from King John for respect of their ancient

liberties. The Magna Carta is the evidence of their success which is a written document. This is

the first written document relating to the fundamental rights of citizens. Thereafter from time to

time the King had to accede to many rights to his subjects. In 1689 the Bill of Rights was written

consolidating all important rights and liberties of the English people. In France Declaration of

Rights of Man and Citizen (1789) declared the natural, inalienable and scared rights of man.

Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man

and Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. The

Americans were the first to give the Bill of Rights a Constitutional status. Thus when the

Constitution of India was being framed the background for the incorporation of the Bill of Rights

was already present. The framers took inspiration from this and incorporated a full chapter in the

Constitution dealing with Fundamental Rights. But the declaration of Fundamental Rights in the

Indian Constitution is the most elaborate and comprehensive yet framed by any State.



FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

If one compares the Universal Declaration of Human Rights 1948 with Pats III and IV of the

Constitution of India, one finds remarkable similarities in the two. It is significant that the

Committee on Fundamental Rights in India was deliberating when the third committee of United

Nations was deliberating on the Universal Declaration of Human Rights. Both are manifests of

man’s inviolable and fundamental freedoms. The applicability of UDHR and the principles

thereof may be read into domestic jurisprudence. In Soloman v. Commr. of Custom and Excise3

and Brind v. Secy. of State of Home Deptt.4 It has been held that in construing any provision in

domestic legislation which is ambiguous and/or in conflict with the International Convention, the

courts would presume that Parliament intended to legislate in conformity with the convention

and not in conflict with it. Some of the Human Rights are: Equality before Law, Freedom from

Discrimination, Right to Life, Liberty and Personal Security, Right to Free Movement, Right to

Education, Right to Marriage and Family, Freedom of Thought, Conscience and Religion, Right

to Peaceful Assembly and Association and Right to Participate in the Cultural Life of the

Community.

FUNDAMENTAL RIGHTS AND PREAMBLE TO THE CONSTITUTION

The rights described as fundamental rights are a necessary consequence of the declaration in the

Preamble that the people of India have solemnly resolved to constitute India into a sovereign

democratic republic and to secure to all its citizens justice, social, economic and political; liberty

of thought, expression, belief, faith and worship; equality of status and of opportunities.5

3 [1991] 1 All E.R. 871.4 [1996] 3 All E.R. 720 (H.L.).5 Behram Khurshid v. State of Bombay, AIR 1955 SC 123.



STATE

Like many other concepts and ideas, the concept of fundamental rights also developed in the

West. Under the concept unlike other legal rights, which are the creation of the state, the

fundamental rights are claimed against the state. Therefore, whether a constitution says it or not,

it is generally assumed that the fundamental rights given in it are available only against the state.

For this reason the Constitution of the United States, first amongst the modern written

constitutions to provide for the fundamental rights, applied those rights only to state action even

though the constitution does not say so. The same conception has played a role in the application

of fundamental rights in our constitution though some of them are, expressly applicable to non-

state action and some other are not expressly confined to state action.

In the case of State of W.B. v. Subodh Gopal Bose6 it was observed by Patanjali Sastri, C.J. that,

“The whole object of Part III of the Constitution is to provide protection for the freedom and

rights mentioned therein against arbitrary invasion by the state”.

For that reason and more than that for the reason that some of the fundamental rights are

expressly guaranteed against the State, a definition was necessary. But the definition of State

cannot and must not be used for restricting the application of fundamental rights only against the

state while its contents and nature a right is not so restricted. Fundamental Rights may be

violated by the state as much directly as indirectly. While in the former case its officials and

agencies violate them, in the latter it may let them be violated by others either through its

inaction or active connivance. The latter violation may be as injurious as former. In such cases

State cannot escape its responsibility or liability for the protection of fundamental rights on the

plea that they are actions of private individuals and not of state. In several cases the courts have,

therefore, given relief to the petitioner without going into question whether the violator of

fundamental right was state.7

In enacting fundamental rights in Part III of our Constitution (Arts. 12 to 35) the founding fathers

showed that they had the will, and were ready to adopt the means, to confer legally enforceable

fundamental rights. But against whom were fundamental rights to be enforced? Broadly

6 AIR 1954 SC 92.7 M.C.Mehta v. Union of India, (1987) 1 SCC 395.



speaking, against “the State”, not as ordinarily understood but as widely defined by Article 12:

“In this part, unless the context otherwise requires, the State includes the Government and

Parliament of India and the Government and the Legislature of each of the States and all local or

other authorities within the territory of India or under the control of the Government of India.”

Thus the following are included in the definition of the State:

1. The Government and Parliament of India: Definition provided under Art. 12 of the

State provide that the Government of India and Parliament of India are to be regarded as

the State. Government of the country is the Executive organ and Parliament is a

Legislative organ. Thus, article 12 includes the executive and legislative wings of the

Union in all their possibilities and these organs can be held liable for violation of Part III

of the Constitution.

2. The Government and Legislature of each of the States: Similarly, under the definition

provided under Art. 12 of ‘the State’ provide that the Government of the states and

Legislatures of the states are to be regarded as the State. Both the executive and

legislative wings of the state in all their possibilities fall within the ambit of Article 12.

3. All Local Authorities: First two expressions of the provision were quite specific and

self-explanatory. But the expression ‘all local authorities’ is not so specific and requires

some explanation. The local authorities are under the exclusive control of the State by the

virtue of entry 5 of List II of the 7th Schedule. That entry contains a list of some local

authorities. The General Clauses Act, 1897 provides that “Local authority" shall mean a

municipal committee, district board, body of port commissioners or other authority

legally entitled to, or entrusted by the Government with, the control or management of a

municipal or local fund.

4. Other Authorities: The interpretation of the term ‘other authorities’ has caused a good

deal of difficulty, and judicial opinion has undergone changes overtime. Today’s

government performs a large number of functions because of prevailing philosophy of a

social welfare state. The government acts through natural persons as well as juridical

persons. Some functions are discharged through traditional government departments and

officials while some are discharged through autonomous bodies existing outside the



departmental structure. In Ajay Hasia v. Khalid Mujib,8 the Supreme Court laid down the

following tests to adjudge whether a body is an instrumentality of the government or not

and whether it is included in the term other authorities or not:

(i) If the entire share capital of the body is held by the government, it goes a long

way towards indicating that the body is an instrumentality of the government.

(ii) Where the financial assistance given by the government is so large as to meet

almost entire expenditure of the body, it may indicate that the body is impregnated

with government character.

(iii) It is relevant factor if the body

enjoys monopoly status which is conferred or protected by the state.

(iv)Existence of deep and pervasive state control may afford an indication that the

body is a state instrumentality.

(v) If the functions performed by the body are of public importance and closely

related to the governmental functions, it is a relevant factor to treat the body as an

instrumentality of the government.

JUDICIARY AS A STATE

In the United States, a judicial decision is included in the concept of State action for the purposes

of enforcement of the fundamental rights.

In India, the definition of the term ‘State’ in Article 12 is not specifically mentioned. Therefore,

the judgments of the Courts cannot be challenged on the ground that they contravene

fundamental rights.

But, so far as the right to equal protection is contained in Article 14 was concerned, the Supreme

Court in the case of Budhan v. State of Bihar,9 held that any state action, executive, legislative or

judicial, which contravenes Art. 14 is void. But it was limited to application of Article 14 to

judicial decisions by the qualifications that they will be hit by the Article only when they

involved a ‘willful and purposeful discrimination’.

8 AIR 1981 SC 487.9 AIR 1955 SC 191.



“Judiciary” while exercising its rule-making power would be covered by the expression “State”

within the meaning of Article 12, but while performing its judicial function, it is not so included

within the expression “State”.

JUSTICIABILITY OF FUNDAMENTAL RIGHTS

Article 13 provides teeth to the fundamental rights. It makes these rights justiciable, i.e.,

enforceable in the Courts.



RIGHT TO EQUALITY

INTRODUCTION

The constitution of India guarantees the Right to Equality through Articles 14 to 18. “Equality is

one of the magnificent corner-stones of Indian democracy.”

The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the

Indian Constitution.10

Art. 14 outlaws discrimination in a general way and guarantees equality before law to all

persons. In view of a certain amount of indefiniteness attached to the general principle of

equality enunciated in Article 14, separate provisions to cover specific discriminatory situations

have been made by subsequent Articles. Thus, Art. 15 prohibits discrimination against citizens

on such specific grounds as religion, race, caste, sex or place of birth. Art. 16 guarantees to the

citizens of India equality of opportunity in matters of public employment. Art. 17 abolishes

untouchability and Art. 18 abolishes titles, other than a military or academic distinction.

In this series of constitutional provisions, Art. 14 is the most significant. It has been given a

highly activist magnitude in recent years by the courts and, thus, it generates a large number of

court cases. In recent days, Art. 16 has also assumed great significance because of the problems

of reservation in public services. Art. 14 is the genus while Arts. 15 and 16 are the species. Art.

14, 15 and 16 are constituents of a single code of constitutional guarantees supplementing each

other. In situations not covered by Arts. 15 to 18, the general principle of equality embodied in

Art. 14 is attracted whenever discrimination is alleged.11

Right to equality is very important in a society like ours. The purpose of this right is to establish

the rule of law where all the citizens should be treated equal before the law. It has five provisions

(Articles 14-18) to provide for equality before law or for the protection of law to all the persons

in India and also to prohibit discrimination on the grounds of religion, race, caste, sex or place of

birth.

10 Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.11 Prof. M.P. Jain, “Indian Constitutional Law”, Wadhwa & Company, Nagpur, 5th edition, 2003, p. 855.



1. Equality before Law: The Constitution guarantees that all citizens will be equal before

law. It means that everyone will be equally protected by the laws of the country. No

person is above law. It means that if two persons commit the same crime, both of them

will get the same punishment without any discrimination.

2. No Discrimination on the basis of Religion, Race, Caste, Sex or Place of Birth: The

State cannot discriminate against a citizen on the basis of religion, race, caste, sex or

place of birth. This is necessary to bring about social equality. Every citizen of India has

equal access to shops, restaurants, places of public entertainment or in the use of wells,

tanks or roads without any discrimination. However, the State can make special

provisions or concessions for women and children.

3. Equality of Opportunity to all Citizens in matter of Public Employment: The State

cannot discriminate against anyone in the matter of public employment. All citizens can

apply and become employees of the State. Merits and qualifications will be the basis of

employment. However, there are some exceptions to this right. There is a special

provision for the reservation of posts for citizens belonging to Scheduled Castes,

Scheduled Tribes and Other Backward Classes (OBCs).

4. Abolition of Untouchability: Practising untouchability in any form has been made a

punishable offence under the law. This provision is an effort to uplift the social status of

millions of Indians who had been looked down upon and kept at a distance because of

either their caste or the nature of their profession. But, it is really very unfortunate that

despite constitutional provisions, this social evil continues even today. Can you find any

difference when you see a nurse cleaning a patient, a mother cleaning her child and a lady

cleaning a toilet in the illustration? Why do people consider the cleaning of a toilet in a

derogatory manner?

5. Abolition of Titles: All the British titles like Sir (Knighthood) or Rai Bahadur which

were given to the British loyalists during the British rule, have been abolished because

they created distinctions of artificial nature. However, the President of India can confer

civil and military awards to those who have rendered meritorious service to the nation in

different fields. The civil awards such as Bharat Ratna, Padma Vibhushan, Padam

Bhushan and Padma Shri and the military awards like Veer Chakra, Paramveer Chakra,



Ashok Chakra are conferred. Do you know that these awards are not titles? Educational

and military awards can be prefixed with one’s name?12

RIGHT TO EQUALITY AS BASIC STRUCTURE

In Indira Nehru Gandhi v. Raj Narain13, the majority of the Supreme Court has held that the

right to equality conferred by Article 14 is a basic structure of the Constitution and an essential

feature of the democracy or rule of law. It has been held to be “a right which more than any other

is a basic postulate of our Constitution”.14

The Constitution is wedded to the concept of equality. The Preamble to the Constitution

emphasizes upon the principle of equality as basic to the Constitution. This means that even a

constitutional amendment offending the right to equality will be declared invalid. Neither the

Parliament nor any State Legislature can transgress the principle of equality.15 This principle has

been recently reiterated by the Supreme Court in M.G. Badappanavar v. State of Karnataka,16 by

stating, “Equality is a basic feature of the Constitution of India and any treatment of equals

unequally or unequals as equals will be violation of basic structure of the Constitution of India.”

PREAMBLE ENSURING EQUALITY

The goal set out in the Preamble to the Constitution regarding status and opportunity is embodied

and concretized in Arts. 14 to 18. Thus, Preamble too ensures that the Right to Equality.

RIGHT TO EQUALITY AS BASIC HUMAN RIGHT

It may be worthwhile to know that Art. 17 of the Universal Declaration of Human Rights

declares that all are equal before the law and are entitled without any discrimination to the equal

protection of laws. By and large the same concept of equality inheres in Art. 14 of the Indian

Constitution.

12 Fundamental Rights and Fundamental Duties, available at: http://www.nios.ac.in/media/documents/secsocscicour/english/lesson-16.pdf, assessed on 11 March, 2015 at 11:39 p.m.13 AIR 1975 SC 2299.14 Prof. Narendra Kumar, “Constitutional Law of India”, Allahabad Law Agency, Faridabad, 8th edition, 2011, p. 107.15 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.16 AIR 2001 SC 260.



EQUALITY BEFORE LAW AND EQUAL PROTECTION

OF LAWS

ARTICLE 14

It provides: “The State shall not deny to any person equality before the law or equal protection of

laws within the territory of India.”

INTRODUCTION

Over the last several years, the courts have been unfolding the vast potentialities of Art. 14 as a

restraint on the legislative power of the legislature as well as administrative power of the

Administration. Art. 14 bars discrimination and bars discriminatory laws. Art. 14 is now proving

as a bulwark against any arbitrary or discriminatory state action. The horizons of equality as

embodied in Art. 14 have been expanding as a result of the judicial pronouncements and Art. 14

has now come to have “highly activist magnitude”17

In other constitutions right to equality is expressed as in Article 14. As such this right was

considered generally a negative right of an individual not to be discriminated in access to public

offices or places or in public matters generally. It did not take account of existing inequalities

arising even from the public policies and exercise of public power. The inequalities arising even

from the public policies and exercise of public power. The makers of India’s Constitution were

not satisfied with that kind of undertaking of right to equality. They knew of the widespread

social and economic inequalities in the country sanctioned for thousands of years of public

policies and exercise of public power supported by religion and other social norms and practices.

Such inequalities could not be removed, minimized or taken care of by a provision like article 14

alone. But even if they could be so taken care of, it would have been very slow process.

Therefore, they expressly abolished and prohibited some of the existing inequalities not only in

public but even in private affairs and expressly authorized the state to take necessary steps to

minimize and remove them. Articles 15 to 18 clearly express such intention of the constitution

makers. Even Article 14 cannot be divorced from these later articles and must draw its contents

from them though of course it is much wider and general in scope and application. Thus, the

17 Supra Note 11, p. 856.



right to equality in Constitution of India is not merely a negative right not to be discriminated

against but also a positive right to be treated as an equal. Under the later aspect of the right,

which is the essence and core of the right to equality, the State is under an obligation to take

necessary steps so that every individual is given equal respect and concern which he is entitled to

as human being.18

Two concepts are included in Article 14:

1. Equality before Law.

2. Equal Protection of laws.

RIGHT TO EQUALITY UNDER US CONSTITUTION

The provision under Article 14 of the Indian Constitution corresponds to the equal protection

clause of the 14th Amendment of the US Constitution which declares: “No State shall deny to any

person within its jurisdiction the equal protection of laws”.

WHO MAY CLAIM PROTECTION UNDER ARTICLE 14?

The obligation imposed on the State by Article 14 is for the benefit of all persons, within the

territory of India. The benefit of Article 14 is, therefore, not limited to citizens. Every person

whether natural or artificial, whether he is a citizen or an alien,19 is entitled to protection of this

article.

Though the foreigners also enjoy some fundamental rights under the Constitution of India, but,

fundamental rights, which are available only to the citizens of this country, cannot be extended to

non-citizen through Article 14.

EQUALITY BEFORE LAW

The phrase “equality before law” finds place in almost all written Constitutions that guarantee

fundamental rights. It is English in origin. It is a familiar feature of what Dicey called the “Rule

of Law”. “Rule of Law” means that no man is above the law and that every person whatever be

his rank or condition, is subjected to the ordinary law of the land and is amenable to the

18 Mahendra P. Singh, “V.N. Shukla’s Constitutional Law of India”, Eastern Book Company, Lucknow, 10th edition, p. 37.19 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1966 SC 1234.



jurisdiction of ordinary tribunals.20 He observes: “With us every official, from the Prime Minister

down to a constable or a collector of taxes, is under the same responsibility for every act done

without legal justification as any other citizen.”21

For instance, in K.C. Sarkar v. Rajesh Rajan22, a three-Judge Bench of the S.C. ruled that

MPs/Influential politicians were not above the law and while in custody, were to be kept in

prison cell like any other normal prisoner.

Dr. Ivor Jennings explains: “Equality before the law means that among equals the law should be

equal and should be equally administered, that like should be treated alike.”

“Equality before Law”, thus, means absence of any special privileges for any particular person. It

also strikes at arbitrary power on the part of the government. It is, therefore, a negative concept.23

EQUAL PROTECTION OF LAWS

The concept, ‘equal protection of laws’, is positive in content. It does not mean that identically

the same law should apply to all persons, or that every law must have a universal application

within the country irrespective of differences of circumstances. Equal protection of the laws does

not postulate equal treatment of all persons without distinction. What it postulates is the

application of the same laws alike and without discrimination to all persons similarly situated. It

denotes equality of treatment in equal circumstances. It implies that among equals the law should

be equal and equally administered, that the like should be treated alike without distinction of

race, religion, wealth, social status or political influence.24

The varying needs of different classes or sections of people require differential and separate

treatment. The legislature is required to deal with diverse problems arising out of an infinite

variety of human relations. It must, therefore, necessarily have the power of making laws to

attain particular objects and, for that purpose, of distinguishing, selecting and classifying persons

and things upon which its laws are to operate.25

20 T.N. Godavarman v. Ashok Khot, (2006) 5 SCC 1.21 A.V. Dicey, “Law of the Constitution”, Macmillan & Co. Ltd., London, 1994, p. 193.22 (2005) 3 SCC 307.23 Supra Note 14, pp. 108-109.24 Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245.25 Prof. M.P. Jain, “Indian Constitutional Law”, Wadhwa and Company, Nagpur, 5th edition, 2003, pp. 856-857.



The principle of equality of law thus means not that the same law should apply to everyone but

that a law should deal alike with all in one class; that there should be an equality of treatment

under equal circumstances. It means “that equals should not be treated unlike and unlikes should

not be treated alike. Likes should be treated alike”.26

Art. 14 thus infers that ‘equals should be treated alike’; it does not infers that ‘unequals ought to

be treated equally’. Persons who are in the like circumstances should be treated equally. On the

other hand, where persons or group of persons are not situated equally, to treat them as equals

would itself be violative of Article 14 as this would itself result in inequality. As all persons are

not equal by nature or circumstances, the varying needs of different classes or sections of people

require differential treatment. This leads to classification among different groups of persons and

differentiation between such classes. Accordingly, to apply the principle of equality in a practical

manner, the courts have evolved the principle that if the law in question is based on rational

classification it is not regarded as discriminatory.”27

DISTINCTION BETWEEN THE TWO PHRASES

The phrase “equality before law” is somewhat a negative concept for it implies absence of any

special privilege in favour of any particular individuals, while “equal protection of laws” is

positive in operation, ensuring equality of treatment to all in equal circumstances. However, the

second expression has been held to be the corollary of the first. It would, therefore, be difficult to

imagine a law, having inequality of operation may yet give equality of protection. It would be a

contradiction to say that any violation of equal protection of laws would not result in violation of

equality before law. It was thus held that both these expressions meant one and the same thing,

i.e., equality of status and of opportunity.28 The dominant idea common to both these expressions

is that of equal justice.

Later, in Srinivasa Theatre v. Government of Tamil Nadu,29 the Supreme Court held that the

expressions “equality before law” and “equal protection of laws” in Article 14, did not mean the

same thing, even though there was much in common between them. The court explained that the

term “law” in the former expression was used in generic sense, a philosophical sense, whereas in 26 Gauri Shankar v. Union of India, AIR 1995 SC 55.27 Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34.28 State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.29 AIR 1992 SC 999.



the latter expression, the word “laws” denoted specific laws in force. The court laid down that

these expressions had to be read and interpreted with regard to the context and scheme of the

Constitution of India and not in the light of the interpretations placed on them in the countries of

their origin, though their relevance was undoubtedly great.

EXCEPTION TO THE RULE OF EQUALITY

The rule of equality is, however, not an absolute one and there are a number of exceptions to it.

For instance, foreign diplomats are immune from the jurisdiction of country’s courts. Article 361

immunes the President and the Governor of a state, from the jurisdiction of the Courts. Police

Officers, Judges also enjoy some protection and some special groups like the trade unions are

accorded special privileges in certain matters. 30

REASONABLE CLASSIFICATION BUT NOT CLASS LEGISLATION

Equality secured by Article 14 does not mean absolute equality, which is a human impossibility.

It is held to be a comparative concept.31 It does not mean that all laws must be universal in

application or general in character. It does not mean that the same laws should apply to all

persons. Article 14 does not make it incumbent on the Legislature, always to make laws

applicable to persons generally.32

Explaining the concept of equality, the Supreme Court in Marri Chandra Shekhar Rao v. Dean,

Seth G.S. Medical College,33 observed:

“Equality must become a living reality for the large masses of the people. Those who are

unequal, in fact, cannot be treated by identical standards; that may be equality in law but

it would certainly not be real equality. Existence of equality of opportunity depends not

merely on the absence of disabilities, but on presence of abilities. It is not simply a matter

of legal equality. De jure equality must ultimately find its raison d’etre in de facto

equality.”

30 Supra Note 14, p. 110.31 I.R. Coelho v. State of T.N., (Judgment dated Sept. 4 2010).32Supra Note 14, p.110.33 1990 (3) SCC 130.



All persons are not equal by their nature, attainment or circumstances. The varying needs of

different classes of persons of persons often require separate treatment.34 From the very nature of

the society, there should be different laws, applying differently in different places. Application of

the same laws uniformly to all, under different circumstances, may result in violation of the

principle of equality.35 The legislature is required to deal with diverse problems resulting from an

infinite variety of human relations. It must, therefore, have power to make laws dealing with

particular problems. As a consequence, the Legislature must have power to make laws

distinguishing, selecting and classifying persons and things upon which its laws are to operate.36

In view of the inherent complexities involved in modern society, it is held that some free play

must be given to the Executive also in this connection.37 The principle of equality embodied in

Article 14, thus, permits classification.

REASONABLE CLASSIFICATION-PERMITTED

Article 14 permits classification. Classification is merely a systematic arrangement of things into

groups or classes, usually in accordance with some definite scheme. But, the classification

permitted by Article 14 must rest upon reasonable grounds of distinction. It must not be

“arbitrary, artificial or evasive”. It must be a reasonable classification.38

In Chiranjit Lal Choudhary v. Union of India,39 the Governor-General of India promulgated the

Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance, 1950,

empowering the Central Government to take over the management and administration of the

Sholapur Spinning and Weaving Co. Ltd., which was closed down due to disputes between the

management and the employees. The Ordinance was subsequently replaced by an Act of

Parliament, containing similar provisions. The Court upheld the constitutionality of the

impugned Act and action taken against the Company. The Court held that there was no

infringement of the provisions of Article 14 even though the legislature had proceeded against

one company only and its shareholders. The Court observed that the law would be constitutional,

34 Chiranjit Lal Choudhary v. Union of India, AIR 1951 SC 41.35 Municipal Committee, Patiala v. Model Town Residents Association, AIR 2007 SC 2844.36 R. Kaaruppan v. Government of India, AIR 2008 Mad. 264.37 Transport & Dock Worker’s Union v. Mumbai Trust Board, decided on 15th November, 2010.38 State of W.B. v. Anwar Ali, AIR 1952 SC 75.39 AIR 1951 SC 41.



even if it applied to one person or one class of persons, if there was sufficient basis or reason for

it.

In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others,40 the Central Government

appointed a Commission of Inquiry, with Justice S.R. Tendolkar as its Chairman, against one of

the Dalmia concerns, on the ground of mismanagement in the said concern, apprehending

considerable loss to the investing public. The Commission was appointed under the Commission

of Inquiry Act, 1952, which empowered Government to appoint a Commission “to enquire into

any definite matter of public importance.” The petitioners challenged the constitutionality of the

Act and the appointment of the commission and contended that the Commission of Inquiry Act,

1952 gave wide and unregulated discretion to the Government which could result in the denial of

equality. The Supreme Court rejected the contentions raised by the petitioners, and held that the

discretion conferred by the Act, was not unguided, because the Act had clearly laid down the

policy, viz., “to enquire into matters of public importance.” The Court upheld the action taken

against the petitioner and laid down that while Article 14 forbade class legislation, it did

not forbid reasonable classification for the purposes of legislation.

CLASS LEGISLATION-PROHIBITED

Article 14 as stated above, prohibits class legislation. “Class Legislation” means legislation

differentiating between the same class of persons. When persons belong to the same class or that

they are equal among themselves in certain respects, they have to be treated equally in such

matters. Law would be violative of Article 14 if it treats these persons differently. It is also said

to be “similarly situated test”. A person is treated unequally if that person is treated worse than

others, and those others (the comparison group) must be those who are similarly situated to the

complainant.41

For instance, in D.S. Nakara v. Union of India,42 the Supreme Court struck down as violative of

Article 14, a pension rule classifying between government pensioners retiring before March 31,

1979 and those retiring on or after that date, since they belonged to the same class for the

purpose of computation of their pension.

40 1958 AIR 538.41 I.R. Coelho v. State of T.N., (Judgment dated Sept. 15, 2010).42 AIR 1983 SC 130.



TESTS FOR REASONABLE CLASSIFICATION

It has been held in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &

Others,43 by a constitution bench of five judges that, “It is, therefore, not necessary to enter upon

any lengthy discussion as to the meaning, scope and effect of the article in question. It is now

well established that while article 14 forbids class legislation, it does not forbid reasonable

classification for the purposes of legislation. In order, however, to pass the test of permissible

classification two conditions must be fulfilled, filled namely,

(i) that the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of the

group and,

(ii) that that differentia must have a rational relation to the object sought to be achieved

by the statute in question. The classification may be founded on different bases,

namely, geographical, or according to objects or occupations or the like. What is

necessary is that there must be a nexus between the basis of classification and the

object of the Act under consideration. It is also well established by the decisions of

this Court that article 14 condemns discrimination not only by a substantive law but

also by a law of procedure"…..

After laying down the above two broad tests, the court propounded the following principles

which were to be borne in mind by the courts in determining the validity of a statute on the

ground of violation of Article 14.

PRINCIPLES FOR DETERMINING REASONABLENESS OF CLASSIFICATION

The following are the principles which are developed by the apex court of this country and laid

down in the Dalmia’s case:

43 1958 AIR 538



1. A law may be constitutional even though it relates to a single individual if, on account of

some special circumstances or reasons applicable to him and not applicable to others, that

single individual may be treated as a class by himself.44

For instance, Indian Military Nursing Service is a distinct separate class by itself, though

a part of Indian Army, prescription of dress code for the nurses, has been held as not

violative of Article 14.45

2. There is always a presumption in favour of the constitutionality of an enactment and the

burden is upon him who attacks it to show that there has been a clear transgression of the

constitutional principles.46 It is an accepted doctrine of American Courts. A person setting

up a grievance of denial of equal treatment by law must establish that between persons

similarly circumstanced, some were treated to their prejudice.47

3. The presumption may be rebutted in certain cases by showing that on the face of Statute,

there is no classification at all and no difference, peculiar to any individual or class, and

yet the law hits only a particular individual or class.48

4. It must be presumed that the legislature understands and correctly appreciates the need of

its own people, that its laws are directed to problems made manifest by experience and

that its discriminations are based on adequate grounds.49

5. The legislature is free to recognize degrees of harm and may confine its restrictions to

those cases where the need is deemed to be the clearest.

6. In order to sustain the presumption of constitutionality the court may take into

consideration matters of common knowledge, matters of common report, the history of

the times and may assume every state of facts which can be conceived existing at the time

of legislation.

7. While good faith and knowledge of the existing conditions on the part of a legislature are

to be presumed, if there is nothing on the face of the law or the surrounding

circumstances brought to the notice of the court on which the classification may

reasonably be regarded as based, the presumption of constitutionality cannot be carried to

44 Dharam Dutt v. Union of India, AIR 2004 SC 1295.45 Jasbir Kaur v. Union of India, AIR 2004 SC 293.46 P.S.T. Bar Association v. State of U.P., AIR 2003 SC 1115.47 B.D.D.S.W. Association v. State of W.B., AIR 2010 (NOC) 498 (W.B.).48 A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814.49 Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, 1958 AIR 538.



the extent of always holding that there must be some undisclosed and unknown reasons

for subjecting certain individuals or corporations to hostile or discriminating legislation.50

Thus, an action per se arbitrary itself, would be held to be denial of equal protection of

law.51

The above principles will have to be constantly borne in mind by the court when it is called upon

to adjudge the constitutionality of any particular law attacked as discriminatory and violative of

the equal protection of the laws.

Some more general principles propounded by the Courts, from time to time, may be summarized

as follows:

1. Classification made by a legislature need not be scientifically perfect, or logically

complete. Mathematical nicety and perfect equality are not required. Similarity and not

identity of treatment, is enough.52 Equality before law does not require mathematical

equality of all persons in all circumstances. Equal treatment does not mean identical

treatment, does not per se amount to discrimination.53

2. Classification may be made on different basis, e.g., geographical or according to object or

occupation or the like.

3. Classification should be reasonable both from substantive and procedural standpoints.

4. A legislation may not be amenable to challenge on ground of violation of Article 14,

when it is intended to give effect to principles specified under Article 15 or 16 or where

the differentiation is not unreasonable or arbitrary, but when a classification is made,

which is per se violative of constitutional provision, the same cannot be upheld.54

5. The courts always lean against a construction which reduces the Statute to a futility. A

Statute or any enacting provision therein, it is said, must be so construed as to make it

effective and operative on the principle expressed in the maxim “ut res magis valeat

quam pareat.”55

50 A.P.B.C. Sangh v. J.S.V. Federation, AIR 2006 SC 2814.51 A.L. Kalra v. P. & E. Corpn., AIR 1984 SC 1361.52 Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404.53 State of A.P. v. N.R. Reddi, AIR 2001 SC 3616.54 E.V. Chinnaiah v. State of Andhra Pradesh, AIR 2002 SC 361.55 Saurabh Chaudri v. Union of India, AIR 2004 SC 361.



6. Equality before law, being a dynamic concept, having many facets is said to be

interpreted not only on the anvil of Articles 14 and 16, but also having regard to the

International Law might not ipso facto be applied for interpretation of our domestic laws,

yet their relevance thereof, in a grey area, could not be lost sight of.56

ARTICLE 14 STRIKES AT ARBITRARINESS

This is a dynamic approach taken by the courts. The doctrine of reasonable classification has

been for long, the undisputed touchstone to determine the scope and content of Article 14. Over

the years, Article 14 has received a liberal interpretation. Its scope has also been expanded by

creative interpretation of the Courts.57 The Supreme Court in E.P. Royappa v. State of T.N.,58 has

given a dynamic connotation to the equalizing principle, enunciated in the Article. The Court

declared this equalizing principle contained in Article 14 as a “‘founding faith’, pedantic or

lexicographic approach.” Bhagwati J. speaking for himself, Chandrachud J. and Krishna Iyer J.,

propounded the new concept of equality from a positivistic point of view and observed:

“Equality is a dynamic concept with many aspects and dimensions and it cannot be

‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a

positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and

arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other,

to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in

it that it is unequal both according to political logic and constitutional law and is

therefore violative of article 14…..”

INSTANCES OF CLASSIFICATION

In Mithu v. State of Punjab,59 the Supreme Court struck down Section 303 of the Indian Penal

Code, 1860 as unconstitutional on the ground of violation of Article 14. This section provided

for mandatory death penalty for murder committed by a life convict while Section 302 of IPC

56 Nair Service Society v. State of Kerala, AIR 2007 SC 2891.57Supra Note 14, p. 116.58 AIR 1974 SC 555.59 AIR 1983 SC 473.



conferred discretion on the court to impose life imprisonment or death penalty for a murder

committed by a free man.

The Court said that a provision of law which deprived the court of the use of its wise and

beneficent discretion in a matter of life and death, without regard to the circumstances in which

the offence was committed and, therefore, without regard to the gravity of the offence, could not

but be regarded as harsh, unjust and unfair.

In Air India v. Nargesh Meerza,60 Regulation 46 of the Air India and Indian Airlines Regulations

provided that an Air Hostess was to retire from service upon attaining the age of 35 years or on

marriage, if it took place within four years of her joining service or on first pregnancy, whichever

occurred earlier. Regulation 47 empowered the Managing Director, at his option, to extend the

age of retirement, up to the age of 45 years, if the Air Hostess was found to be medically fit.

The Supreme Court struck down the regulation providing for retire of Air Hostess on her first

pregnancy, as unconstitutional, void and violative of Article 14. The court explained that the

regulation did not prohibit marriage after four years of joining service and if an Air Hostess after

fulfilling the first condition became pregnant, there was no reason why pregnancy should stand

in the way of her continuing in service. Having taken the Air Hostess in service and after having

utilized her service for four years, to terminate her service if she became pregnant, the Court

said, amounted to compelling the poor Air Hostess, not to have any children. It was held not only

a callous and cruel act, but an open insult to Indian Womanhood, the most sacrosanct and

cherished institution.

The Regulation giving option to the Managing Director to extend the service of an Air Hostess,

conferred a discretionary power without laying down any guidelines or principles, was struck

down as unconstitutional.

However, the provision that an Air Hostess was to retire if she married within four years of

joining service was upheld as there was no unreasonableness or arbitrariness in the provision. It

was held to be a very sound and salutary principle.

60 AIR 1981 SC 1829.



In V. Revathi v. Union of India,61 the validity of Section 198(2) of Cr.P.C., 1974 read with

Section 497 of the Indian Penal Code, 1860, was challenged on the ground of violation of Article

14. Section 497 of IPC states, “Whoever has sexual intercourse with a person who is and whom

he knows or has reason to believe to be the wife of another man, without the consent or

connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of

the offence of adultery, and shall be punished with imprisonment of either description for a term

which may extend to five years, or with fine, or with both. In such case the wife shall not be

punishable as an abettor.” Section 198(2) of Cr.P.C. gives the right to prosecute the adulterer, to

the husband of the adultress and not to the wife of the adulterer. It permits neither the husband of

the offending wife to prosecute his wife, nor does it permit the wife to prosecute the offending

husband for being disloyal to her. The Supreme court has upheld the constitutionality of the

impugned provision as follows:

“The philosophy underlying…. appears to be that as between the husband and the wife

social goodwill be promoted by permitting them to “make up or break up” the

matrimonial tie rather than to drag each other to the Criminal Court…. They can either

condone the offence in a spirit of ‘forgive and forget’ and live together or separate by

approaching a matrimonial court and snapping the matrimonial tie by securing divorce.

They are not enabled to send each other to jail. Perhaps it is as well that the children (if

any) are saved from the trauma of one of their parents being jailed at the instance of the

other parent.”

ORAL INTERVIEW TEST AND ARTICLE 14

In Ajay Hasia v. Khalid Mujib,62 the Supreme Court struck down as constitutionally invalid, the

allocation of as high a percentage as 33 1/3 of the total marks for the oral interview for admission

to the Engineering College and declared it as “infecting the admission procedure with the vice of

arbitrariness”. The court firmly laid down that “what Article 14 strikes at arbitrariness because

61 AIR 1988 SC 835.62 AIR 1981 SC 487.



an action that is arbitrary must necessarily involve negation of equality”. So ruled, the court said

that not more than 15% of the total marks, should be allocated for oral interview.

In Mehmood Alam Tariq v. State of Rajasthan,63 the Supreme Court upheld the validity of the

Rule prescribing 33% as minimum qualifying marks in the viva voce test to be obtained by a

candidate for selection to Administrative and Police Services. The total marks prescribed for oral

test were 11.9% of aggregate marks.

It may, therefore, be stated that no hard and fast rule can be laid down, which would meet the

requirements of all cases in this behalf and much would depend on the nature of performance

expected for the responsibility to be handled by a candidate after his selection.64

JUDICIAL ADJUDICATION AND ARTICLE 14

In B.P. Corpn. Ex-employees’ Association v. Bharat Petroleum Corporation Ltd.,65 the Supreme

Court held that discrimination arising out of judicial adjudication could not be impugned as

violative of Article 14.

RULES OF NATURAL JUSTICE AND ARTICLE 14

In recent decisions, Article 14 has acquired a new and dynamic meaning. It has been held that

Article 14 requires not only reasonable classification but also that the classification must be just

and fair. The classification would not be reasonable if it is made without observing the rules of

natural justice. Even an administrative order, which involves civil consequences, must be made

in consonance with the rules of natural justice. It has been held that the rules of natural justice

form an essential component of Article 14.66 Even in criminal matters, it is held, that the court

while awarding compensation to the victim of an offence, must give opportunity of hearing to the

accused.67

63 AIR 1988 SC 1451.64 Hemani Malhotra v. Delhi High Court, AIR 2008 SC 2103.65 AIR 1995 SC 1126.66 Dev Dutt v. Union of India, AIR 2008 SC 2513.67 Mangilal v. State of M.P., AIR 2004 SC 1280.



In DTC v. DTC Mazdoor Congress,68 the Supreme Court held that Regulation 9(b) of the Delhi

Road Transport Authority (Condition of Appointment and Service) Regulations, 1952, which

conferred power on the Authority, to terminate the services of a permanent employee by issuing

a notice without assigning any reason and without giving him any opportunity of hearing, was

wholly arbitrary, unjust, unfair and unreasonable, violating principles of natural justice as well as

Article 14.

However, rules of natural justice are not embodied rules69 and undue reliance on these principles,

may lead to miscarriage of justice. There can be certain situations in which an order passed in

violation of natural justice need not be set aside,70 e.g., where no prejudice is caused to the

person concerned and if quashing of the order made in breach of natural justice is likely to result

in revival of another order which is in itself illegal. The Supreme Court in several cases has

developed the principle that in addition to breach of natural justice, prejudice must also be

proved.71 It may thus be said that the requirement of natural justice must depend on the facts and

circumstances of the case.72

Natural Justice is said to have an expanding content and is not stagnant.73 It is, therefore, open to

the courts to develop new principles of natural justice in appropriate cases.74

ARTICLE 14 AND REASONED DECISIONS

It is a settled legal proposition the every administrative as well as judicial order must be

supported by cogent reasons. The giving of reasons for a decision has been held to be an

essential attribute of judicial and judicious disposal of a matter before Courts.75 It has been said

to be an essential requisite of principles of natural justice.76

68 AIR 1991 SC 101.69 D.G. Rly. Protection Force v. K.R. Babu, AIR 2008 SC 1958.70 Syndicate Bank v. Gen. Secy., Syndicate Bank staff Association, AIR 2000 SC 2199.71 K.L. Tripathi v. State Bank of India, AIR 1984 SC 273.72 Indian Airlines Ltd. v. Prabha D. Kanan, AIR 2007 SC 548.73 State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794.74 Dev Dutt v. Union of India, AIR 2008 SC 2513.75 East Court Railway v. Madhav Appa Rao, AIR 2010 SC 2794.76 State of Rajasthan v. Sohan Lal, AIR 2004 SC 4520.



Reason is said to be the heartbeat of every conclusion.77 The requirement of giving reasons for a

decision has been impressed by the courts in a catena of judgments. Reason, it is said, introduces

clarity in order and without the same, it becomes lifeless. Reasons substitute subjectivity by

objectivity. Absence of reasons renders the order indefensible/unsustainable, particularly when

the order is subject to further challenge before a higher forum. Thus, reasons ensure transparency

and fairness in decision making and have been held to be hallmark of Article 14.

So ruled, a bench of three judges of the Apex Court in The Secretary & Curator, Victoria

Memorial Hall v. Howrah Ganatantrik Nagrik Samity,78 said that the rejection of the

recommendations, made by an expert committee, by the High Court without assigning valid and

good reasons was illegal. The Expert Committee was appointed by the High Court to find out

possibility of erection of new building within the same campus of VMH to enhance existing

facilities. The building replacing existing cluster of annexe building which was dilapidated. The

respondent had filed a PIL petition before the Calcutta High Court seeking large number of

reliefs, particularly, directing the respondents therein to preserve, protect and maintain historical

monument. Hearing the petition, the High Court had constituted the Expert Committee for

improving the environment of VMH. However, the court brushed aside the recommendations of

the committee without giving any reason whatsoever. Setting aside the High Court’s order, the

Apex Court allowed the application filed by the appellant for the said purpose.

GENDER EQUALITY AND THE RULE OF HARMONIOUS CONSTRUCTION

The Supreme Court in Githa Hariharan v. Reserve Bank of India,79 invoked the rule of

harmonious construction for securing constitutional guarantee of gender equality. The court ruled

that if on one construction a given statute would become unconstitutional, whereas on another

construction, which might be open, the Statute remained within the Constitutional limits, the

Court would prefer the latter on the ground that the Legislature was presumed to have acted in

accordance with the Constitution and courts generally lean in favour of the constitutionality of

the statutory provisions.

AN ACTION OF STATE PER SE ARBITRARY

77 State of H.P. v. Sada Ram, (2009) 4 SCC 422.78 AIR 2010 SC 1285.79 AIR 1999 SC 1149.



Article 14 strikes at arbitrariness in State action executive, administration or cultural and for the

application of Article 14, one need not allege any discrimination vis-à-vis others, or that one

need not confine the denial of equality to a comparative evaluation between two persons to arrive

at a conclusion of discriminatory treatment. An action per se arbitrary, itself, would be held to

held to be denial of equality of equality of protection by law.80

EQUALITY CLAUSE CANNOT BE INVOKED TO PERPETUATE ILLEGALITY

It is well established rule that the guarantee of “equality before law” is a positive concept and it

cannot be enforced by a citizen or Court in a negative manner.81 Article 14, thus, cannot be read

to support a situation where a breach or illegality, which has been previously committed, is cited

for a subsequent breach or illegality to be committed.82

The principle of equality under Article 14, it has been ruled, does not apply when the order relied

upon is unsustainable in law and is illegal. It is ruled that two wrongs cannot make one right and

that an illegality cannot be allowed to be perpetuated under the so-called “equality doctrine”.83 It

is trite law that there is no equality in illegality.84

In a catena of cases, it is well established that Article 14 carries with it positive effect and that

“equality clause” cannot apply in a case where it arises out of illegality.85

In State of Haryana v. Ram Kumar Mann,86 the respondent’s resignation from service was

accepted for contesting election to the Legislative Assembly of the State. He, having been

defeated in the election, sought reinstatement in service, on the ground that others earlier had

been so reinstated. Rejecting the claim of the respondent, the Supreme Court held that Article 14

would apply only when invidious discrimination was meted out to equals and similarly

circumstanced without any rational basis or relationship in that behalf. A wrong decision by the

government, the Court ruled, did not give a right, to enforce the wrong order and claim parity or

80 A.L. Kalra v. Project and Equipment Corporation, AIR 1984 SC 1361.81 Kerala S.E. Board v. Saratchandran, AIR 2009 SC 191.82 Joydev Sen v. State of W.B., AIR 2010 (NOC) 256 (CAL).83 Bihar Public Service Commission v. Kamini, (2007) 5 SCC 519.84 M/s. Vishal Properties (P) Ltd. v. State of U.P., AIR 2008 SC 183.85 G.M., Uttranchal Jal Sansthan v. Laxmi Das, AIR 2009 SC 3121.86 JT 1997 (3) SC 450.



equality. The wrong order, the Court said, could not be the foundation, for claiming equality, for

enforcement of the same order.

BASIS OF CLASSIFICATION

It has been held that classification to be reasonable must be founded on some intelligible

differentia which distinguishes persons or things that are grouped together from those left out of

the group.

Geographical Basis

Article 14 does not require that uniform laws be enacted for the whole of the territory of India. A

law may be applicable to one part of the territory of India and not to the other parts depending on

particular circumstances and peculiar geographical conditions prevailing in that area.87 A

classification may be, therefore, properly made, on geographical basis.88 Thus, favoured

treatment to those situated in backward and tribal areas, cannot be held, to be illegal or

arbitrary.89

Historical Consideration

A classification may be made on the basis of historical reasons.90 Section 87-B of the Civil

Procedure Code, 1908, granted immunity from civil process to the ex-rulers of Indian Princely

states. This section was upheld in Mohanlal Jain v. Man Singhji,91 as the ex-rulers constituted a

separate class on account of historical consideration.

Nature of Business

A classification may be made depending upon the nature of business. The law providing for

fixation of minimum wages may distinguish between a business carried on in a factory and that

87 Ram Chandra v. State of Orissa, AIR 1956 SC 298.88 Kasualata v. M.U.N.T. Employees Association, AIR 2002 SC 1223.89 M.P. Oil Extraction and Fur v. State of M.P., AIR 1998 SC 145.90 Clarence Pais v. Union of India, AIR 2001 SC 1151.91 AIR 1962 SC 73.



carried on outside it.92 Animals in zoos cannot be equated with animals in circuses.93 A law may

treat differently a big and a small manufacturer.94

Time as Basis of Classification

A classification may be made with reference to time. A law may exempt the houses built after a

particular date from the operation of the Rent Control Act, for encouraging the construction of

new houses.95

Cut-off Date

It is well established that the employer has undoubted power to revise the salaries and/or the pay

scales of its employees as also terminal benefits/pensionary benefits. The power to specify a date

from which the revision shall take effect is a concomitant of the said power. In such cases, the

court said that financial implication of making the scheme retrospective was to be the sole

consideration.96 A cut-off date for granting service benefits may not necessarily tantamount to a

violation of Article 14 and will be upheld if there is some reasonable explanation in support of

that date.97 It has been held that so long as such date is specified in a reasonable manner, no

interference is called for by the court in that behalf.98 The fact that some persons or a section of

the society would hardship, by itself, cannot be a ground for holding that the cut-off date so fixed

is ultra vires Article 14.99

Classification on the Basis of Nature of Persons

Public officials and non-public officials belong to different classes. Therefore, Section 197 of

CrPC, which requires prior sanction of appropriate authority before a public servant is

prosecuted, while no sanction is needed for prosecuting private persons, has been held not

violative of Article 14.100

92 Gulam Ahmed v. State of Bombay, AIR 1962 Bom. 96.93 N.R. Nair v. Union of India, AIR 2000 Ker. 340.94 B.I.C. v. Collector, Central Excise, AIR 1963 SC 104.95 Punjab Tin Supply Co. v. Central Government, AIR 1984 SC 84.96 State of Rajasthan v. Amrit Lal Gandhi, AIR 1997 SC 782.97 Krishena Kumar v. Union of India, AIR 1990 SC 1782.98 Union of India v. P.N. Menon, AIR 1994 SC 2221.99 Ramrao v. A.I.B.C.B.E.W. Association, AIR 2004 SC 1459.100 Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44.



With a view to popularizing the family welfare/family planning programme, Section 175(1)9(q)

and 177(1) of the Haryana Panchayati Raj Act, 1994 provided for disqualifying a person for

holding the office of Sarpanch or a Panch of Gram Panchayat or a Member of a Panchayati

Samiti or Zilla Parishad, if he had more than two living children. The Supreme Court in Javed v.

State of Haryana,101 upheld the classification as well defined and well perceptible and founded

on an intelligible differentia.

Classification on the Basis of Nature of Offences

Gravity of the offence can form the basis of valid classification.102 In State of Haryana v. Jai

Singh,103 on the eve of the Independence Day, the Government of Haryana issued a Notification

dated 14-8-1995, in exercise of its power vested under S. 432 of CrPC, granting remission of

prison sentence to all convicts except those excluded in the said Notification.

Classification on the Basis of Educational Qualifications

The State, as an employer, therefore, is entitled to fix separate quota of promotion for the degree

holders, diploma-holders and certificate-holders, separately, in the exercise of its rule making

power under Article 309.104

Classification in favour of “State”

The term “person” in Article 14 does not include “State”. Therefore, a classification which treats

the State, differently from persons, may not be violative of the rule of equal protection of law.

In Baburao v. Bombay Housing Board,105 a law which exempted the factories run by the

government from operation but applied to other factories, was held not to be discriminatory.

LAWS APPLICABLE TO SINGLE INDIVIDUAL

101 AIR 2003 SC 3057.102 State of Haryana v. Mohinder Singh, AIR 2000 SC 890.103 AIR 2003 SC 1696.104 G.K. Mohan v. Union of India, AIR 2008 SC 305.105 AIR 1954 SC 153.



Laws may be made applicable to single individual. For e.g., in Chiranjit Lal Choudhary v. Union

of India,106 the Governor-General of India promulgated the Sholapur Spinning and Weaving

Company (Emergency Provisions) Ordinance, 1950, empowering the Central Government to

take over the management and administration of the Sholapur Spinning and Weaving Co. Ltd.,

which was closed down due to disputes between the management and the employees. The

Ordinance was subsequently replaced by an Act of Parliament, containing similar provisions.

The Court upheld the constitutionality of the impugned Act and action taken against the

Company. The Court held that there was no infringement of the provisions of Article 14 even

though the legislature had proceeded against one company only and its shareholders. The Court

observed that the law would be constitutional, even if it applied to one person or one class of

persons, if there was sufficient basis or reason for it.

TAX LAWS AND ARTICLE 14

The levy of tax by the state is a sovereign function and the power to tax is one of the most

extensive and searching powers. A state is not obliged to tax everything in order to tax

something. It can select districts, objects, persons, methods and even rates of taxation. The power

to levy tax includes the power to pick and choose objects and persons for the purpose of taxation

and to grant exemption.107 A tax statute is construed strictly and hardship is not relevant in

construing taxing statutes.108 It includes the power to levy it with retrospective effect.109

In V.M. Syed Mohd. & Co. v. State of Andhra Pradesh,110 the Supreme Court upheld a law

imposing sales tax on hides and skins and not on other commodities.

SPECIAL COURTS AND PROCEDURAL CLASSIFICATION

Article 14 requires that classification to be constitutionally valid, must be reasonable not only

substantially but also from the procedural standpoint.111 Thus, laws setting or authorizing the

106 AIR 1951 SC 41.107 A.C.C. v. State of Chhattisgarh, AIR 2007 (NOC) 669.108 Government of Andhra Pradesh v. P. Laxmi Devi, AIR 2008 SC 1640.109 Premier Enterprises, Secundrabad v. C.T.O., AIR 2003 SC 4449.110 AIR 1954 SC 314.111 In Re Special Courts Bill, 1978, AIR 1978 SC 478.



setting up of special courts, applying a special procedure for trial of offences, have been tested at

the touchstone of Article 14.112

The Special Courts Bill, 1978, proposed for setting up of special courts for speedy trial of

offences committed by persons holding high public or political offices during the emergency of

1975-77, was upheld In Re Special Courts Bill, 1978,113 to be constitutionally valid.

WEDNESBURY PRINCIPLE

There may be a situation where an act or a statute, instead of making the classification, confers

power on the executive in that regard. In such cases, if the Act confers unregulated discretion on

the Executive, the Act itself would be void under Article 14. It may be that the Act has laid down

some principles or policy for the guidance of the exercise of discretion by the Executive in

making classification, then in that case, the Act conferring discretion would not be void as

offending Article 14. Also, a provision cannot be held unconstitutional merely because the

authority vested with the power may abuse his authority.114 But, the executive action, taken by

the administrative authority acting arbitrarily, would be struck down.

The test of unreasonableness for judging the arbitrariness of the order was laid down in

Associated Provincial Picture House v. Wednesbury Corporation,115 and this test is known as

wednesbury test. Relying on this case, it has been ruled that the Court should not interfere with

the administrator’s decision unless it is illogical or suffers from procedural impropriety or is

shocking to the conscience of the Court, in the sense that it is in defiance of logic or moral

standards.116 It is thus held that an administrative action is subject to control by judicial review on

the following three grounds, namely:

(i) If it is illegal.

(ii) That it is irrational.

(iii) That it suffers from procedural impropriety.

112 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.113 AIR 1978 SC 478.114 A.N. Bhati v. State of Gujarat, AIR 2005 SC 2115.115 (1947) 2 All ER 640.116 Damoh Panna Sugar R.R. Bank v. Munna Lal Jain, AIR 2005 SCW 95.



ARTICLE 14 AND POLICY DECISIONS

It is settled legal proposition that the policy decision taken by the State or its

authorities/instrumentalities is beyond the purview of judicial review unless the same is found to

be arbitrary, unreasonable, in contravention of the statutory provisions or violates the rights of

the individual guaranteed under the Statute.117 There is always a presumption that governmental

action is reasonable and in public interest. It is said that every activity of the Government has a

public interest element in it and it must be informed of reason and guided by public interest. If it

fails to satisfy either test, it would be unconstitutional and invalid.118

ADMISSION TO EDUCATIONAL INSTITUTIONS

It has been observed that the object of any scheme of admission should be to select the best and

most meritorious students, by providing equal opportunities to all citizens in the country. Any

departure from this rule must be justified on the touchstone of Article 14.119

Applying the above rule, the Supreme Court, in P. Rajendra v. State of Madras,120 struck down

the provision for allotment of seats in medical college in the State amongst the various districts

in the State in the ratio of the population of each district to the total population of the State. The

provision was held violative of Article 14.

In Pradeep Jain v. Union of India,121 the Supreme Court held that wholesale reservation of seats

in M.B.B.S. and B.D.S. courses, on the basis of domicile or residence within the state, was

unconstitutional and void as being in violation of Article 14.

In Unni Krishnan v. State of Andhra Pradesh,122 (Second Capitation fee case), a constitution

bench of Supreme Court evolved a scheme regulating the admission to private unaided/aided,

recognized affiliated educational institutions conducting professional courses such as medical,

engineering courses, etc., and charging capitation fee for the purpose of admission. As regards

aided institutions, it was held that they were to abide by the rules and regulations as might be

117 M.P. Oil Extraction v. State of M.P., AIR 1998 SC 148.118 Shalendra Nath v. State Bank of India, AIR 2007 Pat. 44.119 Pradeep Jain v. Union of India, AIR 1984 SC 1420.120 AIR 1968 SC 1012.121 AIR 1984 SC 1420.122 AIR 1993 SC 2178.



framed by the appropriate authority and in the matter of admission of students, they were to

follow the rule of merit and merit alone, subject to any reservation that might be made under

Article 15(4) and they were not to charge any fees higher than which is charged in governmental

institutions for similar courses. As regards un-aided institutions, which were

recognized/affiliated, the Scheme postulated that at least 50% of the seats in every professional

college, were to be filled by the nominees of the Government /University, and the students for

these seats were to be selected on the basis of merit determined on the basis of common entrance

examination and in its absence, by such criteria as might be determined by the competent

authority. The remaining 50% seats were to be filled by candidates prepared to pay the

prescribed higher fee. However, the allotment of students against such seats known as payment

seats, were to be done on the basis inter se merit determined on the same basis as in the case of

free seats. There would be no quota reserved for the management or for any family, caste or

community, which might have established such college.

This decision, in so far as it framed the scheme of “payment seats” was overruled by a bench of

eleven judges of Apex Court in T.M.A. Pai Foundation v. State of Karnataka.123 The Court held

that the scheme had the effect of nationalizing education in respect of important features, viz.,

the right of a private un-aided institution to give admission and to fix the fee. It was held neither

fair nor reasonable.

HORIZONTAL AND VERTICAL RESERVATION

The Supreme Court in Indra Sawhney v. Union of India,124 recognized the concept of horizontal

reservation and explained:

“All reservations are not of the same nature. There are two types of reservations, which

may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal

reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other

backward classes under Article 16(4) may be called vertical reservations whereas

reservations in favour of physically handicapped under Clause (1) of Article 16 can be

referred to as horizontal reservations. Horizontal reservations cut across the vertical

123 AIR 2003 SC 355.124 AIR 1993 SC 477.



reservations that is called inter-locking reservations. To be more precise, suppose 3% of

the vacancies are reserved in favour of physically handicapped persons; this would be a

reservation relatable to Clause (1) of Article 16. The persons selected against this quota

will be placed in the appropriate category; if he belongs to S.C. category he will be

placed in that quota by making necessary adjustments; similarly, if he belongs to open

competition (O.C.) category, he will be placed in that category by making necessary

adjustments. Even after providing for these horizontal reservations, the percentage of

reservations in favour of backward class of citizens remains - and should remain - the

same.”

The method of implementing special reservation, which is a horizontal reservation, cutting across

vertical reservation, was explained by the Apex Court in Anil Kumar Gupta v. State of U.P.,125 as

follows:

“The proper and correct course is to first fill up the O.C. quota (50%) on the basis of

merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third

step would be to find out how many candidates belonging to special reservations have

been selected on the above basis. If the quota fixed for horizontal reservations is already

satisfied - in case it is an over-all horizontal reservation - no further question arises. But if

it is not so satisfied, the requisite number of special reservation candidates shall have to

be taken and adjusted/accommodated against their respective social reservation

categories by deleting the corresponding number of candidates there from.”

The Apex Court in R.K. Daria v. Rajasthan Public Service Commission126 ruled that reservation

from women in the State Judicial Services, being horizontal/special reservation, would be

counted within the vertical reservation. Thus, women selected on merit within the vertical

reservation quota would be counted against the horizontal reservation for women.

In Swati Gupta v. State of U.P.,127 the Supreme Court upheld the policy of State Government

providing for horizontal reservation of seats in the medical colleges. Under this policy vertical

reservation of 50% seats, was made for SC/ST and OBC candidates with reservation of 30%

125 (1995) 5 SCC 173.126 AIR 2007 SC 3127.127 (1995) 2 SCC 560.



seats in each category for ladies. No further reservation was made in 50% quota of general

candidates. It further provided for reservation of 15% seats for candidates belonging to other

categories. These candidates on being selected on merit, were to be adjusted in general category

or reserved category depending upon, the category to which they belonged.

NEED FOR COMMON ENTRANCE EXAMINATION

The Apex Court in Preeti Srivastava v. State of M.P.,128 explaining the desirability of holding a

Common Entrance Examination (CEE), observed:

“A common entrance examination, therefore, provides a uniform criterion for judging the

merit of all candidates who come from different universities….. The purpose of such a

common entrance examination is not merely to grade candidates for selection. The

purpose is also to evaluate all candidates by a common yardstick….. the most legal and

equitable way of selecting students for admission to Post-Graduate Courses”

BELATED/MIDSTREAM ADMISSIONS

Belated/midstream admission to different courses, both pre-graduate and post-graduate, is held

undesirable.129

In Neelu Arora v. Union of India,130 the three learned judges of Supreme Court have held that

belated/midstream admissions to Medical Colleges in different courses were not desirable.

Admission of a student after the commencement of the course, the Court said, would be against

the intended object of fixing a time schedule.

STANDARD OF EDUCATION

The Apex Court in State of T.N. v. S.V. Bratheep,131 made it clear that the mere fact that there

were vacancies in the colleges would not be a matter, which would go into the question of fixing

the standard of education.

128 AIR 1999 SC 2894.129 Medical Council of India v. Madhu Singh, AIR 2002 SC 3230.130 AIR 2003 SC 1082.131 AIR 2004 SC 1861.



The Court said that although it was for an expert body to determine qualifying marks for

different categories, but there could not be a big disparity in the qualifying marks for reserved

category and general category candidates.

RIGHT OF THE EXAMINEE TO HAVE ACCESS TO EVALUATED SCRIPTS

It has been said that finality had to be attached to the result of public examination and that in the

absence of statutory provision, the Court could not direct re-assessment/re-examination of

answer scripts.132

In President, B.S.E., Orissa v. D. Suvankar,133 their Lordships observed:

“……it is in the public interest that the results Public examinations when published

should have some finality attached to them. If inspection, verification in the presence of

the candidates and revaluation are to be allowed as of right, it may lead to gross and

indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates,

besides leading to utter confusion on account of the enormity of the labour and time

involved in the process.”

The Court further observed:

“The Court should be extremely reluctant to substitute its own views as to what is wise,

prudent and proper in relation to academic matters in preference to those formulated by

professional men possessing technical expertise and rich experience of actual day-to-day

working of educational institutions and the departments controlling them.”

The Court, thus, ruled that the courts normally should not direct the production of answer scripts,

to be inspected by the examinees, unless a case was made out to show that either some questions

had not been evaluated or the evaluation had been done contrary to the norms fixed by the

examining body.

132 State of T.N. v. S.V. Bratheep, AIR 2004 SC 1861.133 (2007) 1 SCC 603.



References

BIBLIOGRAPHY:

1. Prof. M.P. Jain, “Indian Constitutional Law”, Wadhwa & Company, Nagpur, 5th

edition, 2003.

2. Prof. Narendra Kumar, “Constitutional Law of India”, Allahabad Law Agency,

Faridabad, 8th edition, 2011.

3. Mahendra P. Singh, “V.N. Shukla’s Constitutional Law of India”, Eastern Book

Company, Lucknow, 10th edition.

4. Dr. J.N. Pandey, “Constitutional Law of India”, Central Law Agency, Allahabad 42nd

edition, 2005.

5. Dr. Duraga Das Basu, “Introduction to the Constitution of India”, Lexis Nexis,

Gurgaon, 21st edition, 2013.

6. P.M. Bakshi, “The Constitution of India”, Universal Law Publishing Co., New Delhi,

12th edition, 2012.

WEBEOGRAPHY:

1. http://www.nios.ac.in/media/documents/secsocscicour/english/lesson-16.pdf, assessed

on 11 March, 2015 at 11:39 p.m.

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