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The New Equality Doctrine

The Indian Constitution guarantees the right to equality vide Articles 14 to 18. Equality is one of the magnificent corner-stones of Indian democracy.[1] The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the Indian Constitution.[2]

Article 14[3] guarantees equality before laws and equal protection of laws to all persons.

A constitutional bench of the Supreme Court of India (hereinafter, the Apex Court) has declared that equality is a basic feature of our constitution and although the emphasis in earlier decisions revolved around discrimination and classification, the content of Article 14 got expanded conceptually and has recognised the principles to comprehend the doctrine of promissory estoppel non arbitrariness, compliance with rules of natural justice eschewing irrationality etc.[4]

Article 14 bars discrimination and prohibits any laws that are discriminatory in nature. The horizons of equality as embodied in Article 14 have been expanding as a result of the judicial pronouncements and the provision has now come to have a highly activist magnitude.[5]

Two concepts are involved in Article 14, viz., equality before law and equal protection of laws. The first is a negative concept that ensures that there is no special privilege in favour of any one, that all are equally subject to the ordinary law of the land and that no person, whatever may be his rank or condition, is above the law.[6] The second concept is positive in content. It doesn’t mean that identically the same law applies to all persons, or that every law must have a universal application within the country irrespective of circumstantial differences. Equal protection of laws doesn’t postulate equal treatment of all persons without discrimination rather the application of same laws alike and without discrimination to all persons similarly situated.

Article 14 prescribes equality before the law. But the fact remains that all the persons are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality before the law may result in injustice. Thus the guarantee against the denial of equal protection of the law doesn’t mean that identically the same rules of law should be made applicable to all persons in spite of difference in circumstances or conditions.[7]

Thus, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law is based on rational classification it is not regarded as discriminatory.[8]

Classification to be reasonable should fulfil two tests viz., (a) It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it. (b) The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.[9]

The Supreme Court has observed:
It is settled law that differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution.[10]

A new bench mark was set by the landmark verdict of the Apex Court in E.P. Royappa v. State of Tamil Nadu[11]. A Bench comprising of Chief Justice A.N. Ray, Justice D.G. Palekar, Justice Y.V. Chandrachud, Justice P.N. Bhagwati and Justice V.R. Krishnaiyer, held:
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 the 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 Art. 14.

On the basis of this new theory, many decisions were made by the Supreme Court.

Ultimately it was unanimously agreed in Ajai Hasia v. Khalid Mujib[12]. After reiterating that equality is a dynamic concept with many aspects which could not be confined to traditional limits and bounds, J. Bhagwati in Maneka Gandhi v. Union of India observed:
t is indeed the pillar on which rests securely the foundation of our democratic republic and, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its magnitude.

Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch.

Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive.

In the matter of Shrilekha Vidyarthi v. State of Uttar Pradesh[13], the Apex court observed, It can no longer be doubted at this point that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.[14]

In Air India v. Nergesh Meerza[15], a case involving arbitrary appointment and retirement of air hostesses, the Apex Court held, It is undisputed that what Art. 14 prohibits is hostile discrimination and not reasonable classification. If equals and unequals are differently treated, there is no discrimination so as to amount to an infraction of Art. 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Art. 14.

It was further held:
Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.

It was held that in the instant case the Corporations have placed good material on record to show justification for keeping the age of retirement at 35 (extendable upto to 45 years) but the regulations seems to arm the Managing Director with uncanalised and unguided discretion to extend the age of air hostesses at this option which appears to suffer from the vice of excessive delegation of powers.[16]

Conclusion
The Indian Constitution is a living document and the Indian judiciary has been the pivot of breathing life into this document time and again. Fundamental rights under the Indian Constitution are its soul. They are the proof that this country belongs to the people of this country and hence their interests are paramount. However, to effectuate these provisions under the Constitution and to apply them in day to day life, the legislature, the executive and the judiciary have to come forward to apply these provisions effectively without prejudice otherwise the entire purpose of a fair and just Constitution is lost.

And this is exactly what these institutions have done over the years strengthen the base of Indian constitutional structure. The New Equality Doctrine as laid down by the Apex court is just another example of how the judiciary has time and again protected this document from withering away over these years and it would be important for it to continue doing so.

End-Notes:
  1. Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India).
  2. Ashutosh Gupta v. State of Rajasthan, A.I.R. 2002 S.C. 1533 (India).
  3. 14. Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  4. M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71 (India).
  5. M.P. Jain, Indian Constitutional Law 929 (Justice Ruma Pal et al, 6th ed. 2010).
  6. M.P. Jain, Indian Constitutional Law 930 (Justice Ruma Pal et al, 6th ed. 2010).
  7. Chiranjeet Lal v. Union of India, A.I.R. 1951 S.C. 41 (India).
  8. Supra Note 3.
  9. Laxmi Khandari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 873 (India).
  10. Union of India v. M.V. Valliappan, A.I.R. 1999 S.C. 2526 (India).
  11. A.I.R. 1974 S.C. 555 (India).
  12. (1981) 1 S.C.C. 722 (India).
  13. A.I.R. 1991 S.C. 537 (India).
  14. Ibid.
  15. A.I.R. 1981 S.C. 1829 (India).
  16. Ibid.

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