NHRC Project

Equality before Law and Equal Protection of Law

Project Work

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10



Project Topic:Equality before Law and Equal protection of Law

-With special reference to:a)Child Laws andb) Gender Inequality.

Prepared By:

Sheikh Khurshid Alam,B.A.LL.B, Dept. Of Law,University of Calcutta.


INDEX

Topics Page No:

1. Index 01

2. Acknowledgement 02

3. Overview of the Project 04

4. Introduction 10

5. The Concept of Equality 11

6. Natural Justice and its essential elements 13

7. Rule of fair hearing 15

8. Components of right to fair hearing 17

9. Equality before the Law and Discrimination 21

10.Critical analysis of provisions relating to Children 26under Indian Constitution: In the light of equality before law and equal protection of law

11.Gender Inequality 29

12.Conclusion 36



Acknowledgement

I take this opportunity with much pleasure to first of all thank the Almighty Allah for giving me this life to serve my fellow beings and then thank all the people who have helped me through the course of my journey towards producing this Project Work. I sincerely thank my Project supervisor, Shri M.L.Aneja, for his guidance, help and motivation. Apart from the subject of my research, I learnt a lot from him, which I am sure, will be useful in different stages of my life.

I would like to thank Mr. S.K.Jain and his caring staff members – Miss Rekha, Br. Sanjeet, Br. Pankaj, Br. Prashant and others whom I don’t know by name. They have been a constant source of encouragement throughout the internship programme.

My special thanks to Mr. Rawat, Mr.Om Prakash & his library staff, Mr. Sharma & his canteen staff for being so supportive.

My sincere gratitude also goes to all those who instructed and taught me throughout the Internship Programme.

Finally, this project would not have been possible without the confidence, endurance and support of my Head of the Department, Dr.J.K.Das and other faculty members from the Department of Law, University of Calcutta, who approved and encouraged my participation in the internship programme.

The views expressed here are solely of the authors and not necessarily of NHRC. The Intern shall be obliged if any such error or omission is brought to his knowledge for possible correction in future.

Sheikh Khurshid Alam,B.A.LL.B 4th [email protected] of Law,University of Calcutta.NHRC Intern- Winter’09.



- SPEECH BY HON'BLE PRESIDENT OF INDIA SMT. PRATIBHA DEVISINGH

PATIL AT THE INTERNATIONAL CONFERENCE OF JURISTS ON THE RULE OF

LAW

New Delhi, 24th November 2007

Differing theories and the current ongoing debates do not permit a clear jurist's

definition of what the "Rule of Law" means internationally. However, the

concept in simple terms translates itself to mean not only the need to abide by the

rulebook but also the need to guarantee that while the rule is being interpreted,

the law should not be seen as unjust, inequitable, discriminatory and arbitrary.

These principles have guided many democratic nations in their efforts to

establish responsible and responsive governing systems.

In fact, a democratic form of government must have its foundations on a rule of

law that advocates the absence of arbitrary power, equality before law and

protection of individual liberties. The Constitution of India provides a powerful

framework for the protection and enforcement of basic rights of the individual

and rejects the arbitrary use of power; its provisions reflect a commitment to

promote the rule of law. Article 14 of the Indian Constitution specifically

provides for equality before law and the equal protection of the laws. Parliament

and the State Legislatures are democratically elected on the basis of adult

suffrage. There is independence of judiciary and the power of judicial review. All

these provisions together constitute a firm commitment to the rule of law.



Overview of the Project

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”1

Fundamental Rights

England – Individual Rights USA – Fundamental Rights – Bill of Rights India – Fundamental Rights

1 Article 14, the Constitution of India.



History of the demand for Fundamental Rights1) Government of India Act, 1935

Simon Commission Joint parliamentary Committee

- Rejected Fundamental Rights2) Nehru Report

In favour of Fundamental Rights

3) Makers of Constitution Adopted Rejected Fundamental

Rights and Directive Principles Taken from USA – but a compromise

between Parliamentary Sovereignty and Judicial Supremacy

Article 13 – Courts have Power to declare Void laws contravening Fundamental RightsTherefore followed American model, but Indian Legislature stronger than Judiciary:a) Power to impose reasonable restrictionb) Power to amend constitution

E.g. Right to Property – Janata Governmentc) Exceptions – Article 31A, B, C, D – Enactments under the said

Articles cannot be struck down as violative of Fundamental Rights

d) Fundamental Duties under Article 51A – Curtailing Effecte) List of Fundamental Rights under Part III exhaustive

Other Rights also available under Constitution but no Writ JurisdictionEg. Article 265 – ‘No tax shall be levied or collected except by

Authority of Law’

Concept of ‘Fundamental’ Immune to all constitutional amendment Article 368 – All parts of constitution can be amended SC -> Golak Nath Case – ‘Fundamental Rights’ cannot

be amended under Article 368 Article 368 itself amended Kesavananda Bharati’s Case – Judge Bench

– Parliament can amend Fundamental Rights



42nd Amendment - Fundamental Rights can be amended and referendum

Article 14 – Equality before law and Equal Protection of Laws

A. Equality before law

Negative Concept – Implies absence of special privileges Taken from Second Corollary from Dicey’s Concept of

the Rule of Law, that is, No man is above Law Exceptions

1) Governor and Presidenti) Not answerable to any Court of Lawii) No Criminal Proceedingsiii) No Civil Proceedings – not applicable to

impeachment and other appropriate proceedings against Government

B. Equal Protection of Laws

Equal treatment in similar circumstances Providing for ‘Classification’ by State

1) Based on Intelligible differentia



Therefore classification can be based on:i) Geographical differentiaii) Timeiii) Nature of trade, calling or occupationEg. Taxationi) Exemption from taxation – Charities, librariesii) Different taxes for different tradesiii) Real tax and Property tax

Applies to Substantive and Procedural Law Hits at arbitrariness of State Action in any form Article 14 – General Equality Articles 15 and 16 – Specific Equality

Article 15 - Prohibition of discrimination on grounds of Religion, Race, Caste, Sex or Place of Birth

In access to public places and facilities but does not

prevent state from:i) From making special provision for childrenii) And for backward classes – Schedule Castes and

Schedule Tribes

Article 16 - Equality of opportunity in matters of public employment



No person can be excluded from state service exceptions:Reservation can be made for:i) Backward class of citizensii) Religious or denominated institution officersiii) Schedule Castes and Schedule Tribes (Article

335)

Article 17 - Abolition of Untouchability

Punishable Untouchability

(offences) Act 1955

Protection of Civil Rights Act, 1955

No definition of Untouchability

i) Refusal of admission to public institutions

ii) Prevention of worship in public placesiii) Subjecting person to disability

Act in 1976i) Insulting member of Supreme Courtii) Justifying untouchability

Penaltyi) 1 to 2 years imprisonmentii) Cannot stand for election



Article 18 - Abolition of Titles

To eradicate imperialistic tendencies exceptions:i) Ban operates only against stateii) State not debarred from awarding military or

academic distinctionsiii) State can award distinctions

Eg. Bharat Ratna, Padma Vibhusha, Padma Bhushan, Padma Sri

Criticism

Articles 17 and 18 – Social Justice



Introduction

Democracy is premised on equality. The American and French revolutions of the late

eighteenth century were fought in the name of liberty and equality and, since then,

these values have been central to western democracy. Since the two values do not

always pull in the same direction, it has often been necessary to find an

accommodation between them; but, whether in harmony or in competition, they have

underpinned the relationship between the individual and the state and have

determined the choice and formulation of many human rights norms.

Nowadays the constitutions of most of the Nations contain guarantees of equality

before the law, and the guarantee is included in international human rights texts,

notably the International Covenant on Civil and Political Rights to which India is

party

In the words of the Universal Declaration of Human Rights, equality as a human right

means that all human beings are equal in dignity and rights. This simple statement,

however, belies the elusive nature of the concept and its often difficult application to

particular circumstances.

This Project work will deal with the subject of equality before law and equal

protection of law in the context of India with little reference to other democratic

nations.

The concept of equality



Equality is a measure of how society treats difference. It does not mean that

differences should be ironed out in pursuit of uniformity or homogeneity. Rather it

seeks to ensure that differences between people are not unjustly used to favour or to

disadvantage some in relation to others and that disadvantage unjustly suffered by

some persons as compared with others is rectified. A complex notion, it is

nevertheless generally understood to comprise several dimensions.

In India, there is no particular statute, laying down the minimum standard, which the

administrative bodies must follow while exercising their decision making powers.

There is, therefore, a bewildering variety of administrative procedure. In some cases,

the administrative procedure is controlled by the statute under which they exercise

their powers2. But in some cases, the administrative agencies are left free to device

their own procedure3. But the courts have several times reiterated that the

Administrative agencies must follow a minimum of fair procedure, while exercising

their powers. This fair procedure is called the principles of natural justice.

The principles of natural justice have been developed by the courts, in order to

secure fairness in the exercise of the powers by the administrative agencies. The

principles of natural justice are the Common Law counterpart of the ‘due process of

law’ in the Constitution of the United States. However wide the powers of the state

and however extensive discretion they confer, the administrative agencies are always

under the obligation to follow a manner that is procedurally fair.

In a case before the United States Supreme Court, a JACKSON J. said:

‘Procedural fairness and regularity are of the indispensable essence of liberty. Severe

substantive laws can be endured if they are fairly and impartially applied’.

22http://www.esatclear.ie/~dejames/CRGEquality.htm

33http://www.esatclear.ie/~dejames/CRGEquality.htm


http://www.esatclear.ie/~dejames/CRGEquality.htm

http://www.esatclear.ie/~dejames/CRGEquality.htm


However the applicability of the principles of natural justice depends upon the facts

and circumstances of each case.

In India, the Supreme Court has reiterated that the principles of natural justice

are neither rigid nor they can be put in a straight jacket but are flexible. In the case of

R. S. Dass v. Union of India , the Supreme Court observed that:

“It is well established that rules of natural justice are not rigid rules, they are flexible

and their application depends upon the setting and background of statutory provisions,

nature of the right which may be affected and the consequences which may entail, its

application depends upon the facts and circumstances of each case”. 4

The reason for the flexibility of natural justice is that the concept is applied to a wide

spectrum of the decision-making bodies.

NATURAL JUSTICE AND ITS ESSENTIAL ELEMENTS.

4 R. S. Dass v. Union of India



The principles of natural justice have been developed and followed by the judiciary to

protect the right of the public against the arbitrariness of the administrative

authorities. Natural Justice implies fairness, reasonableness, equity and equality. It is

the concept of the Common Law, which stands on the same footing as the concept of

“procedural due process” of America. According to HEGDE J., the aim of natural

justice is to secure justice; to prevent miscarriage of justice and to give protection to

the public against the arbitrariness.

Roman law. In Roman law the concept of natural justice consists of two

essential rules:

1. audi alteram partem,- the person, who has to be effected by a decision has

a right to be heard; and

2. nemo judex in re sua – the authority deciding the matter should be free

from bias.

Common law. From the medieval era, the English Common Law consists of

the principles of natural justice. The rules requiring impartial adjudications and fair

hearings can be traced back to the medieval precedents and indeed they were not

unknown in the ancient world. In Dr. Bonham's Case (1610)5, COKE J. held that an

Act of the Parliament is void if it makes a person judge in his own cause or was

otherwise against common right or reason. Coke then made the following general

statement:

“And it appears in our books, that in many cases, the common law will control acts of

parliament, and sometimes adjudge them to be utterly void: for when an act of

5



parliament is against common right and reason, or repugnant, or impossible to be

performed, the common law will control it, and adjudge such act to be void; and,

therefore, in ... Thomas Tregor's case [Judge] Herle said, some statutes are made

against law and right, which those who made them perceiving, would not put them in

execution…”

But the year 1963 proved to be watershed in the development of concept of

natural justice in common law world. With the expansion of the administrative

process, the wide abuse of the power of the administrative authorities became evident.

In the case of Ridge v. Baldwin , the applicability of natural justice to the quasi-

judicial bodies took place. Ridge v. Baldwin is regarded as the Magna Carta of natural

justice. The judgment of LORD REID widened the ambit of natural justice.

Position in India.

Article 14, 19, 21 of the Indian Constitution lay down the cornerstone of natural

justice in India. In the case of E P Royappa v. State of Tamilnadu6 , the apex court

held that a properly expressed and authenticated order can be challenged on the

ground that condition precedent to the making of order has not been fulfilled or the

principles of natural justice have not been observed. In another landmark case of

Maneka Gandhi v. Union of India7 , the apex court held that law which allows any

administrative authority to take a decision affecting the rights of the people, without

assigning the reason for such action, can not be accepted as a procedure, which is just,

fair and reasonable, hence violative of Articles 14 and 21.

RULE OF FAIR HEARING.

6 AIR, 1974 SC 555.7 (1978) 1 SCC 248: AIR 1978 SC 597.



The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that

no one should be condemned unheard. It is the first principle of the civilised

jurisprudence that a person facing the charges must be given an opportunity to be

heard, before any decision is taken against him. Hearing means ‘fair hearing’.

The norms of reasonableness of opportunity of hearing vary from body to

body and even case to case relating to the same body. The courts, in order to look into

the reasonableness of the opportunity, must keep in mind the nature of the functions

imposed by the statute in context of the right affected8. The civil courts, in India, are

governed in the matter of proceedings, through the Civil Procedure Code and the

criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the

adjudicatory bodies functioning outside the purview of the regular court hierarchy are

not subject to a uniform statute governing their proceedings.

The components of fair hearing are not fixed but are variable and flexible.

Their scope and applicability differ from case to case and situation to situation9. In

Mineral Development v. State of Bihar10, the apex court observed that the concept of

fair hearing is elastic and not susceptible of a precise and easy definition. The hearing

procedures vary from the tribunal, authority to authority and situation to situation. It is

not necessary that the procedures of hearing must be like that of the proceedings

followed by the regular courts.

The objective of the giving the accused an opportunity of fair hearing is that

an illegal action or decision may not take place. Any wrong order may adversely

affect a person. The maxim implies that the person must be given an opportunity to

defend himself. LORD HEWART rightly observed that “ it is merely of some

8 Govt. of Mysore v. J V Bhat, (1975) 1 SCC 10: AIR 1975 SC 596.9 Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65.10 AIR 1960 SC 468: (1960) 2 SCR 609.



importance, but is of fundamental importance that justice should not only be done, but

should manifestly and undoubtedly be seem to be done”11. In this regard the Dr.

Bentley case12 needs to be elaborately discussed. In this case the Court of King’s

Bench condemned the decision of the Cambridge University, of canceling the degree

of the scholar, without giving him the opportunity to be reasonably heard.

Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow

completely the principles of natural law exists. But the cases which are classified as

the ‘administrative’, the duty on the administrative authority is to act justly and fairly

and not arbitrarily. In the 1970 case of A. K. Karaipak v. Union of India13, the

Supreme Court made a statement that the fine distinction between the quasi-judicial

and administrative function needs to be discarded for giving a hearing to the affected

party. Before the Karaipak’s case, the court applied the natural justice to the quasi-

judicial functions only. But after the case, the natural justice could be applied to the

administrative functions as well.

COMPONENTS OF RIGHT TO FAIR HEARING.

11 R. v. Sussex Justices, ex p. McCarthy, (1924) 1 KB 256, 259.12 R. v. University of Cambridge, (1723) 1 Str. 757: 93 ER 698.13 AIR 1970 SC 150: (1969) 2 SCC 262.



1. Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’

which means ‘being known’. Thus it connotes the sense of information, intelligence

or knowledge. Notice embodies the rule of fairness and must precede an adverse

order. It should be clear enough to give the party enough information of the case he

has to meet. There should be adequate time for the party, so that he can prepare for his

defence. It is the sine qua non of the right of hearing. If the notice is a statutory

requirement, then it must be given in a manner provided by law. Thus notice is the

starting point in the hearing. Unless a person knows about the subjects and issues

involved in the case, he cannot be in the position to defend himself.

The notice must be adequate also. Its adequacy depends upon the case. But generally,

a notice, in order to be adequate must contain following elements:

Time, place and nature of hearing.

Legal authority under which hearing is to be held.

Statements of specific charges which the person has to meet.

The test of the adequacy of the notice will be whether it gives the sufficient

information and material so as to enable the person concerned to prepare for his

defence. There should also be sufficient time to comply with the requirements of a

notice. Where a notice contains only one charge, the person cannot be punished for

the charges which were not mentioned in the notice14.

The requirement of notice can be dispensed with, where the party concerned clearly

knows the case against it and thus avails the opportunity of his defence. Thus in the

case of Keshav mills Co. Ltd. v. Union of India15, the court upheld the government

order of taking over the mill for a period of 5 years. It quashed the argument of the

14 Govindsingh v. Subbarao, AIR 1971 Guj 131: (1970) 11 GLR 897.15 (1973) 1 SCC 380: AIR 1973 SC 389.



appellants that they were not issued notice before this action was taken, as there was

the opportunity of full-scale hearing and the appellant did not want to know anything

more.

2. Right to know the evidence against him. Every person before an

administrative authority, exercising adjudicatory powers has right to know the

evidence to be used against him. The court in case of Dhakeshwari Cotton Mills Ltd.

v. CIT16, held that the assessee was not given a fair hearing as the Appellate Income

Tax tribunal did not disclose the information supplied to it by the department. A

person may be allowed to inspect the file and take notes.

3. Right to present case and evidence. The adjudicatory authority must

provide the party a reasonable opportunity to present his case. This can be done either

orally or in written. The requirement of natural justice is not met if the party is not

given the opportunity to represent in view of the proposed action.

Courts have unanimously held that the oral hearing is not an integral part of the fair

hearing, unless the circumstances call for the oral hearing. In Union of India v. J P

Mitter17, the court refused to quash the order of the President of India in respect of the

dispute relating to the age of a High Court judge. It was held that where the written

submission is allowed, there is no violation of natural justice, if the oral hearing is not

granted.

4. Right to cross-examination. The right to rebut adverse evidence

presupposes that the person has been informed about the evidence against him. 16 AIR 1955 SC 65.17 (1971) 1 SCC 396: AIR 1971 SC 1093.



Rebuttal can be done either orally or in written, provided that the statute does not

provide otherwise. Cross examination is a very important weapon to bring out the

truth. Section 33 of the Indian Evidence Act, 1972, provides for the rights of the

parties to cross-examin. The cross-examination of the witnesses is not regarded as an

obligatory part of natural justice. Whether the oppoetunity of cross examination is to

be give or not depends upon the circumstances of the case and statute under which

hearing is held. State of Jammu and Kashmir v. Bakshii Ghulam Mohd.18 , the

Government of Jammu and Kashmir appointed a Commissioner of Inquiry to inquire

into the charges of corruption and maladministration against the ex-Chief Minister of

the state. He claimed the right to cross-examin the witnesses on the ground of natural

justice. The Court interpreted the statute and held that only those witnesses who

deposed orally against the chief Minister can be cross-examined and not of those who

merely filed affidavits.

Similarly, in Hira nath mishra v. Rajendra medical College, Ranchi19, some male

students of medical college entered the girls hostel and misbehaved with the girls. An

enquiry committee was set up against whom the complaints were made. The

complainants were examined but not in presence of the boys. On the report of the

committee, four students were expelled from the college. They challenged the

decision of the committee on the ground of violation of the natural justice. The court

rejected the plea and held that in presence of the boys, the girls can not be cross-

examined that that may expose them to the harassment.

18 AIR 1967 SC 122: 1966 Supp SCR 401.19 AIR 1973 SC 1260: (1973) 1 SCC 805.



5. Right to counsel. For sometime the thinking had been that the lawyers

should be kept away from the administrative adjudication, as it saves time and

expense. But the right to be heard would be of little avail if the counsel were not

allowed to appear, as everyone is not articulate enough to present his case. In India

few statutes like the Industrial Disputes Act, 1947, specifically bar the legal

practitioners from appearing before the administrative bodies.

Till recently the view was that the right to counsel was not inevitable part of the

natural justice. But this view has been almost done away

Equality Before The Law And Discrimination

Differentiation And Discrimination



Discrimination is an important public issue relevant to any analysis of human rights.

There is a great deal of discussion on discrimination (much of it rhetoric) but

inadequate rational analysis and understanding of the concept. Discrimination is a

problem which arises in relation to equality before the law.

All human beings are not equal in every respect. They are distinguishable not only by

physical and mental attributes but also by their particular circumstances. These

manifold differences must inevitably lead to acts which involve what appears to be

discrimination. Few will disagree with the proposition that a young child cannot be

given the same rights or subjected to the same duties as an adult. Likewise there are

countless situations where one human being must be treated differently from another.

What then is the freedom from discrimination? It is an aspect of equality before the

law—and should rightly be viewed in that context. 20

Legally, in India, this idea is expressed as the right of equality before the law and to

equal protection of the law. Equality before the law means that in the making of a law

every person is to be treated equally. Equal protection of the law means that in

applying or enforcing a law already made, there should be no differentiation except

on a rational and justifiable basis. But as indicated above it is impossible to treat

everyone as equal. This has been recognised by the courts of countries where this

freedom is a fundamental right.

For this reason equality has come to mean not that every person should be treated in

the same manner but that every person who is in an equal situation should be treated

equally—that those in like situations should be treated alike. Where people are treated

differently, .there must exist a rational and justifiable basis.

20 Doctor Mark Cooray, http://www.ourcivilisation.com/cooray/rights/chap9.htm#9.1


http://www.ourcivilisation.com/cooray/cooray.htm


Will Parliament uphold equality if it imposes the same punishment for murder and for

exceeding speed limits on the highway? Obviously not, for the threat to society from

murder and speeding are not the same. Thus different penalties should be imposed in

proportion to the gravity of the offence. Again, if to be an efficient policeman, certain

physical attributes are necessary, would there be discrimination if applicants who do

not have such qualities are excluded? The commonsensical answer would be "no" and

that is undoubtedly correct. On the other hand if an advertisement says only whites

and not blacks need apply, the principle of equality will be violated. What is the

difference?

The difference is that in the first case an intelligible differentiation is being made

between classes (physically strong persons and others) which also has a rational

relation to the overall purpose—which is to maintain an efficient police force. In the

second case although the differentiation is intelligible (white as distinguished from

black) it has no relation to any rational or lawful object, let alone any relation to

having an efficient police force. Therefore the principle is that not only must an actual

difference between the two classes be demonstrated; it must also be shown that

differentiation is materially necessary and rationally defensible for the realisation of a

lawful object. If these two conditions are satisfied there is a non-discriminatory

differentiation or classification.

Attempts at classification sometimes give rise to difficult questions. For example

should women be debarred from combat duty in the Army? Some persons might

argue that there are substantial differences in physical strength between men and

women and that the inclusion of women in combat ranks would weaken national

defence vis-a-vis the enemy. Others may argue to the contrary and say that the

differences are too insubstantial to warrant their exclusion. Others may argue that



some women are stronger than others—and if a woman meets existing physical tests

she should be included in combat ranks.

There are many reasons why people demand a change of this concept, particularly

with regard to differentiation between sexes. Some persons argue that the differences

between sexes are not real but only apparent, and that too only when looked at from a

male perspective. Others think that the present notion of equality enables dubious

distinctions to be drawn even where they are unnecessary and that such abuse can be

eliminated only by prohibiting any kind of differentiation. Others affirm (and

common sense is on their side) that men and women are equal but different.

There may remain in society, prejudice against women assuming non-traditional roles

even where knowledge and experience indicate that they are in no way unsuited to

undertake such activities. Some of the objections are expressed out of concern for the

effect such changes can have on the institution of the family, and in particular on the

nurturing role of the mother.

As against that objection, it is argued that to restrict women to the nurturing and

related roles is to deny women their freedom of choice and that women should be

allowed a choice between mother-hood and career/job or a combination of both. Thus

far the argument is sound from the point of view of individual freedom. Difficulties,

however, arise when the argument is taken a step further and claims are made for

substantial publicly funded assistance to enable career inclined women to effectively

exercise their choice. Demands are thus made for public child care services and for

laws to protect women from employment disadvantages that occur as a result of being

also engaged in motherhood and nurturing. If working women are helped by the state

and women who stay at home and look after children are not, this too is

discrimination. But this factor is often overlooked. These claims raise the question of



the justification for affirmative action. However, before considering affirmative

action there are two further aspects of discrimination to be examined.

The Problem of Discretion

It was stated that if the law differentiates between classes of persons, the

differentiation should be clear and should also be for the purpose of a lawful object.

However there are situations where the legislature cannot beforehand make a precise

determination of the individuals who need special treatment. The laws regarding

licences provide an illustration. It is impossible for Parliament to decide who is

competent to hold a trading licence and who is not.

In such a case it is unavoidable that some person or authority should be delegated the

power to decide individual applications. In other words the discretion to differentiate

between individuals has to be left to someone else. Would this violate the principle of

equality? Such a grant of discretion would be inherently discriminatory unless

Parliament also lays down principles and guidelines according to which the discretion

should be exercised. If there are no guidelines for the exercise of discretion, such

power is capable of being used arbitrarily or capriciously for the purpose of

discriminating against persons.

Vast numbers of laws enacted in Australia contain such inherently discriminatory

clauses. Often powers are given to bureaucratic agencies in absolute terms. For

examples one need look no further than the Human Rights Commission Act, 1981 the

very Act which established a Commission to protect the human rights of Australians.

Section 12(1) of the Act gives the power to the Commission to make an examination

or hold an inquiry into an alleged violation of human rights "in such manner as it

thinks fit". The only direction given to it is that it is not bound by the rules of



evidence! These rules of evidence have been formulated to ensure a fair trial. What it

means is that the Commission can conduct inquiries differently in different cases

favouring some and not others. It is not necessary to show that the Commission in

fact indulges in such discrimination. The fact that it has been given the power to do so

makes the law repugnant to the principle of equality.

Again, in Section 10(5) of the Act, the Commission is given power to decide "in its

discretion" whether or not a complaint received after 12 months should be

investigated. Thus the Commission may accept one belated complaint and refuse

another in similar circumstances. This section also violates the equality principle for

it is capable of selective application. 21

Critical analysis of provisions relating to Children under Indian Constitution: In the light of equality before law and equal protection of law. 22

It is a harsh reality that children are future hope and valuable asset as well as a

liability for a nation. Both at the national level and international levels greater

21 Doctor Mark Cooray, http://www.ourcivilisation.com/cooray/rights/chap9.htm#9.1

22 Urja, http://www.articlesbase.com/law-articles/critical-analysis-of-provisions-relating-to-children-under-indian-contitution-1270085.html


http://www.ourcivilisation.com/cooray/cooray.htm


attention is being focused on well-being and welfare of children. Future human

resource development of a country depends on the all round development of its

children.

Most of the countries have included welfare provisions in their constitutions. India

also being a democratic welfare state provides for the protection of children in its

constitution against all types of exploitations.

The framers of Indian Constitution incorporated various important provisions for

protection and betterment for children in the view of the dictum “Children are the

wealth of nation.” Such provisions of the constitution are expressly or impliedly,

direct or indirect related with the protection of childhood, child education and

elimination of child labour system in India.

The constitution of India carries important expression of the government

policies against the abuse of child labour. Fundamentally the constitution provides

that ‘no child below the age of fourteen. It recognizes the need for granting special

protection to children. The children should also have their distributive justice in future

in free India. Therefore, special provisions ensuring justice to children have been

incorporated in part III with fundamental rights and part IV devoted to Directive

Principles of State Policy.

Children’s Right Protection under Fundamental Rights

There is wide description about fundamental rights in part III of our constitution

regarding children. Fundamental rights are limitations upon all the powers of the

Government, Executive as well as Legislative and they are essential to the

preservation of public and private rights, notwithstanding the representative character



of political institutions. The rights are regarded as fundamental because they are most

essential for the individual for the development of his full intellectual, moral and

spiritual potentialities. The negation of these rights will keep the individuals

personality underdeveloped.

The Fundamental Rights in Indian Constitution guarantees some fundamental rights

only to citizens of India while the others guaranteed to any persons, within which the

fundamental rights of the children are also implicitly included. The children have

rights to enjoy all the fundamental rights which are guaranteed to the citizens of India.

There are also some fundamental rights expressly provided for children and some

other fundamental rights which are also applicable for children. Article 14 guarantees

equality before law and equal protection of laws to all persons within the territory of

India.

Article 15 prohibits discrimination on the ground of religion, race, caste, sex, class or

place of birth or any of them. But Article 15(3) enables the state to make provisions in

its law for giving favourable treatment to make special treatment to children and

women. Though, no ground is mentioned, preferential treatment is permitted on

consideration of inherent weakness of children, Article 15(3) serves as an exception to

Article 15(1) and 15(2), Article 15 in general prohibits the discrimination on the

ground of religion, race, caste, class, sex or place of birth. H.M.Seervai is of the view

that since Article 15(1) does not make age a prohibited ground of discrimination the

reference to children in Article 15(3) appears to be pointless.

Although, our constitutional framework and national policy for child welfare take into

account very well all phases of child development. But a large number of legally



uncovered gaps due to administrative hindrances frustrate the objective of child

welfare.

In spite of all the constitutional and conventional protection accorded to the child

workers in our country; the fact remains that children of tender age are forced to take

up economic pursuits to augment the income of their family in most of the cases in the

lower income bracket.

At the time of making of the constitution, it was envisaged that within 10 years, all the

states will make primary education compulsory. But unfortunately till 1983, the

following states had no act or rule in favour of compulsory primary education-Bihar,

Manipur, Meghalaya, Nagaland, Orissa, Sikkim, Tripura, Arunachal Pradesh and

Mizoram.

The guardians of the law are very superficial regarding the rights of children. It seems

that only the vocal groups get advantage and the children will have to be vocal.23

Gender Inequality 24

Man and woman are both equal and both play a vital role in the creation and

development of their families in particular and the society in general. Indeed, the 23 H. M. Seervai, Constitutional Law of India

Dr. J. N. Pandey, The Constitutional Law of India, central Law Agency

24 - Dr. Justice A.S. Anand, http://www.legalserviceindia.com/article/l202-Gender-Inequality.html.



struggle for legal equality has been one of the major concerns of the women’s

movement all over the world. In India, since long back, women were considered as an

oppressed section of the society and they were neglected for centuries. During the

national struggle for independence, Gandhi gave a call of emancipation of women. He

wrote – :I am uncompromising in the matter of women’s rights. The difference in sex

and physical form denotes no difference in status. Woman is the complement of man,

and not inferior”. Thus, the first task in post-independent India was to provide a

constitution to the people, which would not make any distinctions on the basis of sex.

The preamble of constitution promises to secure to all its citizens- “Justice-

economical, social, and political”

The constitution declares that the equality before the law and the equal protection of

laws shall be available for all. Similarly, there shall be no discrimination against any

citizen on the ground of sex. Article 15(1) guarantees equalities of opportunities for

all citizens in matters of employment. Article 15(3) provides that the state can make

any special provisions for women and children. Besides, directive principle of state

policy which concern women directly and have a special bearing on their status

directly and have a special bearing on their status include Article 39(a) right to an

adequate means of livelihood; (d) equal pay for equal wok both men and women, (e)

protection of health and strength of workers –men, women, children and Article 42

provides for just and humane conditions of work and maternity relief.

In India, since independence, a number of laws have been enacted in order to provide

protection to women. For instance the Dowry prohibition Act 1961, The Equal

Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu Succession Act


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1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the

commission of Sati (prevention) Act 1987, Protection of the Women from Domestic

Violence Act 2005, etc. But, the laws have hardly implemented in their letter and

spirit.

The sense of insecurity, humiliation and helplessness always keep a women mum.

Our whole socialisation is such that for any unsuccessful marriage which results in

such violence or divorce, it is always the woman, who is held responsible. Cultural

beliefs and traditions that discriminate against women may be officially discredited

but they continue to flourish at the grass root levels. Family relations in India are

governed by personal laws. The four major religious communities are – Hindu,

Muslim, Christian and Parsi each have their separate personal laws. They are

governed by their respective personal laws in matters of marriage, divorce,

succession, adoption, guardianship and maintenance. In the laws of all the

communities, women have fewer rights than that of man in corresponding situations.

It is really that women of the minority communities in India continue to have unequal

legal rights and even the women of the majority community have yet to gain complete

formal equality in all aspects of family life. This is basically the problem of gender

inequality. But what is this problem and how this can be solved.

As a Concept

Gender Inequalities refers to the obvious or hidden disparities among individuals

based on the performance of gender. This problem in simple term is known as Gender

Bias which in simple terms means the gender stratification or making difference

between a girl and a boy i.e. a male or a female. In making biasness among the gender



India has 10th rank out of 128 countries all over the world which is shameful for us.

But this problem is increasing although government has banned the pre-natal sex

examination. In India (in the older times) this problem is mainly seen in the rural

areas because many rural people think that the girl child is burden on them. But now

this is also being seen in the urban areas i.e. in offices, institutions, schools and in

society. The afflicted world in which we live is characterised by deeply unequal

sharing of the burden of adversities between women and men. Gender Inequality

exists in most part of the world, from Japan to Morocco, or from Uzbekistan to United

States of America (as stated earlier).

However, inequality between men and women can take very many different forms.

Indeed, gender inequality is not one homogeneous phenomenon, but a collection of

disparate and interlinked problems. The issue of gender inequality is one which has

been publicly reverberating through society for decades. The problem of inequality in

employment being one of the most pressing issues today. In order to examine this

situation one must try to get to the root of the problem and must understand the

sociological factors that cause women to have a much more difficult time getting the

same benefits, wages, and job opportunities as their male counterparts. The society in

which we live has been shaped historically by males.

However, in many parts of the world, women receive less attention and health care

than men do, and particularly girls often receive very much less support than boys. As

a result of this gender bias, the mortality rates of females often exceed those of males

in these countries. The concept of missing women was devised to give some idea of

the enormity of the phenomenon of women's adversity in mortality by focussing on


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the women who are simply not there, due to unusually high mortality compared with

male mortality rates. In some regions in the world, inequality between women and

men directly involves matters of life and death, and takes the brutal form of unusually

high mortality rates of women and a consequent preponderance of men in the total

population, as opposed to the preponderance of women found in societies with little or

no gender bias in health care and nutrition. Mortality inequality has been observed

extensively in North Africa and in Asia, including China and South Asia.

Types Of Gender Inequalities

There are many kinds of gender inequality or gender disparity which are as follows:

1. Natality inequality: In this type of inequality a preference is given for boys over

girls that many male-dominated societies have, gender inequality can manifest itself

in the form of the parents wanting the newborn to be a boy rather than a girl. There

was a time when this could be no more than a wish (a daydream or a nightmare,

depending on one's perspective), but with the availability of modern techniques to

determine the gender of the foetus, sex-selective abortion has become common in

many countries. It is particularly prevalent in East Asia, in China and South Korea in

particular, but also in Singapore and Taiwan, and it is beginning to emerge as a

statistically significant phenomenon in India and South Asia as well.

2. Professional or Employment inequality: In terms of employment as well as

promotion in work and occupation, women often face greater handicap than men. A

country like Japan and India may be quite egalitarian in matters of demography or

basic facilities, and even, to a great extent, in higher education, and yet progress to

elevated levels of employment and occupation seems to be much more problematic



for women than for men. The example of employment inequality can be explained by

saying that men get priority in seeking job than women.

3. Ownership inequality: In many societies the ownership of property can also be

very unequal. Even basic assets such as homes and land may be very asymmetrically

shared. The absence of claims to property can not only reduce the voice of women,

but also make it harder for women to enter and flourish in commercial, economic and

even some social activities. This type of inequality has existed in most parts of the

world, though there are also local variations. For example, even though traditional

property rights have favoured men in the bulk of India.

4. Household inequality: There are often enough, basic inequalities in gender

relations within the family or the household, which can take many different forms.

Even in cases in which there are no overt signs of anti-female bias in, say, survival or

son-preference or education, or even in promotion to higher executive positions, the

family arrangements can be quite unequal in terms of sharing the burden of

housework and child care. It is, for example, quite common in many societies to take

it for granted that while men will naturally work outside the home, women could do it

if and only if they could combine it with various inescapable and unequally shared

household duties. This is sometimes called "division of labour," though women could

be forgiven for seeing it as "accumulation of labour." The reach of this inequality

includes not only unequal relations within the family, but also derivative inequalities

in employment and recognition in the outside world. Also, the established fixity of

this type of "division" or "accumulation" of labour can also have far-reaching effects

on the knowledge and understanding of different types of work in professional circles.



5. Special opportunity inequality: Even when there is relatively little difference in

basic facilities including schooling, the opportunities of higher education may be far

fewer for young women than for young men. Indeed, gender bias in higher education

and professional training can be observed even in some of the richest countries in the

world, in India too. Sometimes this type of division has been based on the

superficially innocuous idea that the respective "provinces" of men and women are

just different.

Measures To Solve Gender Inequality

Every problem has its own solution elsewhere or what ever the problem is? Like this

phenomenon this problems has many measures out of which some of the simple one

are stated below (except legislative and judicial Solutions).

1. Changes at District level mechanism: A clear cut administrative should be made

available at the district level for monitoring and reviewing the incidence of inequality

against women. This district level machinery headed by District Magistrate should

consist of representatives of police, prosecution machinery, judiciary and the

representatives of prominent individuals of women’s organizations in the Districts.

This committee should review progress of investigation and prosecution. At least one

special cell should be created at the district level for ensuring better registration and

progress of investigation and monitoring of crimes against gender equality. This

special cell should network with community groups and women’s organizations and

help to create an atmosphere in which people would feel encouraged to freely report

the cases of gender injustice. At present, most, non-reporting of the cases is due to

lack of confidence in enforcement machinery.



The reporting of violence against women from the Thana to the district level and

from district level to the state level gets obscured in the overall mass and complexities

of the currently prescribed reporting system. Specific format should be created and

implemented for reporting on gender-related crimes.

2. Changes at State level Mechanism: Similarly, like District level mechanism there

should be State level machinery at the State level in which there should be special

entry for those cases which needs prompt actions. This institution will make a full

control over the district level machinery. So that there should nit be any corruption or

fraud with innocent persons.

3. Sensitization of Criminal Justice system: The police officers, prosecutors, and

judges at all levels of hierarchy need to be exposed to the gender equality education

which would enlighten them on existing assumptions, myths and stereotypes of

women and how these can interfere with fair and equitable administration of justice.

Judicial system should comprise of all types of officers i.e. from judiciary i.e. judges,

police officers and which should take immediate action in serious cases.

Conclusion



Finally I would like to come to the conclusion of this project work with a very famous saying of Aristotle:

"Even when laws have been written down, they ought not always to remain unaltered."

Every civilised nation has now adhered to the principles of Equality before law and Equal protection of Law in one form or the other. Various laws have been enacted in India also to uphold the spirit of Equality but these laws will become meaningful only when it is implemented in the right spirit. We, the youths of today are the backbone of the society and the future citizens of not only this nation but the world as a whole. It is up to us to become the messengers of Human Rights and spread awareness wherever we go.

We should try to win the hearts and minds of everybody without making any distinction of caste, colour, race, religion and gender. It is not only our moral duty but our Legal duty also to care for the weaker sections of the society like the children, women, elderly and physically challenged brethren.

Fight for gender equality is not a fight against men. It is a fight against traditions that have chained them – a fight against attitudes that are ingrained in the society – it is a fight against system – a fight against proverbial laxshman Rekha which is different for men and different for women. The society must rise to the occasion. It must recognize & accept fact that men and women are equal partners in life. They are individual who have their own identity.


NHRC Project

Documents

department of law

jan10 equality

winter internship programme

light of equality

fair hearing equality

project introduction

project supervisor

b gender inequality