Equality before law and equal protection of laws (Article 14)

a. Equality before Law -  This is borrowed from the English Common Law. Equality before the law is a somewhat negative concept in the sense that it denies the state to discriminate between individual, on arbitrary basis. It implies the absence of any special privilege due to birth, creed or the like, in favour of my individual and the equal subjection of all classes to the ordinary law. It means so man is above the law and every person, whatever be his rank or status, is subject to the same ordinary jurisdiction of the courts. The concept of Equality before law has got its origin in the concept of ‘Rule of Law’. Elaborated by Prof. Dicey.

Rule of Law: The concept of Rule of law is an age-old concept which has been evolving with time. Aristotle defined rule of law as “Government of law” as opposed to “Government of Man”. i.e. a government, which does not work according to the term Rule of Law. According to him, it implied three things:

1.  Absolute supremacy of law or Absence of arbitrary power- Dicey opines that justice must be done through the known principles of law, as opposed to arbitrariness or wide discretionary powers in the hands of the government.

2. Equality before law- no one is above law. Equal subjection of all persons to the ordinary law of the land as administered by the ordinary courts.

3.  The rights of the people must flow from the customs and traditions (rights have Common Law origin). Constitution is not the source but the consequence of rights of individuals as individual rights are enjoyed even before the emergence of the Constitution and the Constitution only consolidates and codifies the same for legal protection.

Rule of Law is the basic feature of all democratic constitutions including Indian Constitution, as implied in Article14.

Exceptions to rule of law: Despite provisions of equality in our Constitution, there are some exceptions to the Rule of Law in public interests:

1. The President or the Governor of a State shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

2. No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.

3. No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any court, until the expiration of two months after a notice is served on him. These immunities shall not bar impeachment of the President or suits or other proceeding against the Government of India or State.

4. Exception in favour of foreign sovereign and ambassadors.

b. Equal protection of the laws
Equal protection of the laws owes its origin to American Constitution. It is a more positive concept, implying the right to equality of treatment in equal circumstances. It means that among equal, the law should be equal and equally administered, that equals should be treated alike, both in the privileges conferred and liabilities imposed. Equal law should be applied to all persons who are similarly placed, and there should be no discrimination between one person and another. In other words, Article 14 ensures equality among equals.

This provision allows categorization of people, provided there is ‘reasonable’ basis of classification. It allows differential treatment of people. For example, classification of people based on socio-economic status and educational backwardness. It allows for providing ‘affirmative action’ to weaker section or creating differential tax rates for different income categories of people.

Are Bharat Ratna, Padma Vibhushan, Padmashree, etc. violative of Art. 18?

In 1954, the Government of India introduced decorations (in the form of medals) of four categories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri. While the Bharat Ratna is to be awarded for “exceptional services towards the advancement of Art, Literature and Science, and in recognition of public service in any field, including service rendered by Government servants”, in order of the degree of the merit of their service.

It is necessary that three should be a system of awards and decorations to recognize the excellence in performance of duties by a person. These awards merely denote the State’s recognition of good work by citizens in various fields of activities. These fit in the category of academic distinctions. They are mere decorations and not the hereditary tittles of nobility like Maharaja, Rai Bahadur, Rao sahib, etc. So, these awards are not violative of the  provisions of Art. 18. But, they cannot be used as a tittle and cannot be used as suffix or prefix. Otherwise the awards are liable to be forfeited.

It can be noted here that the Bharat Ratna awardees have been assigned a place in the ‘Warrant of Precedence’ (9th Place, i.e., just below the Cabinet Ministers of the Union), which is usually meant for indicating the rank of the different dignitaries and high officials of the State, in the interests of discipline in the administration.

RIGHT TO CONSTITUTIONAL REMEDIES

Article 32. Remedies for enforcement of rights conferred by this Part

1. The rights to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

2. The Supreme Court shall have power to issue directions or order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

A right without remedy is but a worthless declaration . Fundamental Rights would be empty words if they cannot be enforced. Article 32 provides institutional framework for the enforcement of the Fundamental Rights by the Supreme Court. Dr. B.R. Ambedkar called this as “the most important Article of the Constitution without which this Constitution would be a nullity. It is the very soul of the Constitution and very heart of it”. If the rights of an individual are not being enforced or being violated by public officers, then he must have the right to get them enforced or remedied.

This right to remedy has been provided by Article 32 which guarantees the individual right to move the Supreme Court by appropriate proceedings for enforcement of his Fundamental Rights. The Supreme Court is empowered to issue directions or order or writs including writs in the nature of Habeas corpus, mandamus, prohibition, certiorari and quo warranto, whichever it considers necessary. Further, without prejudice to the powers of the Supreme Court, the Parliament may by law, empower any other court to exercise within the local limits of its jurisdiction the power of writs; though the Parliament has not resorted to it yet. Finally, the right to constitutional remedies may be suspended as provided by the Constitution under Articles 358 and 359.