Equality is the prime principle and absolute source of all other liberties.
Indian Constitution contains Code of Equality
i.e. through Article 14 it
engrafts, "State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India". In the case of Chairman, railway
Board v. Chandrima Das
A.I.R. 2000 S.C. 988 : (2000) 2 S.C.C. 798 , Apex
court held that, the rights guaranteed under part III of the constitution are
not absolute in terms.
They are subject to reasonable restrictions and, therefore, in case of
non-citizen also, those rights will be available subject to such restrictions as
may be imposed in the interest of the security of the state or other important
considerations. This particular case derives that, this Article 14 is not only
for Indian citizens but also applicable for non-citizens.
The ambit of 'Code of Equality
' is wide, which does not ensure mere formal
equality before the law but also highlights the concept of substantive equality
depending upon the socio-economic stability. Article 14 not only provides
equality before law or equal protection of laws it strikes arbitrary and
discriminatory state action. 'Code of Equality' not only prohibits unequal
treatments but also demands equal treatment.
The first objectivity of Article 14 is 'Equality before Law', that basically
means Law is equal for everyone, precisely the treatment of law must be equal
for everyone,itself this object has a negative approach, because all persons are
not equal by their nature, or attainment. The varying needs of different classes
of persons often require separate treatment. That's why there are chances this
particular doctrine would permit arbitrary and capricious exercise of power.
However, the doctrine of 'Equal Protection of law' is part of the first section
of the Fourteenth Amendment to the United States Constitution, this doctrine
refers the concept of subjection of equal laws applying to all in the same
circumstances , in general parlance this doctrine says if two people are not
same in manner (economically, socially) for them treatment of law will not be
same, it also engrafts the concept of special treatment by laws. For this kind
of modified structure which promotes the concept of natural justice and not only
that, which always protect the natural or inherent rights, this doctrine has a
The 'Code of Equality' is not only stated in Article 14 of Indian Constitution
but also it has exaggerated through Article 15 and 16. And not only the concept
of equality before the law but also equal protection of law is also mentioned
over these articles. Whereas, along with these proportions of equal protection
of law, 'reservation' is there , for the implementation of equal protection of
laws and by which equality before law can be established. In Indian Constitution
'reservation' implies to 'representation'.
It is not given to anyone depending upon individual capacity or individual
crisis, it is given to uplift a group of people by promoting their
representation, basically it is given to individual as a representative of the
under privileged community. And the person who benefited by reservation is
expected to help his or her community to come up, this is the main objectivity
of the concept of 'reservation'.
In the discussion of 'reservation', the reference of 'representation' is there
as well as the concept of representation connotes one term that is 'inclusive
social order'. In general parlance 'inclusive social order' is a kind of a
political arrangement where representation of several sections of society is
there is in governing body or in law making body.
There are two major objects behind this 'inclusive social order' first one is,
participatory social order is conducive to peaceful and sustainable development
of society and second one is, this oder augments pool of human right
development. There are two kinds of reservation ; vertical and horizontal.
Social reservation in favour of schedule caste, schedule tribe and O.B.C. under
Article 16(4) of Indian Constitution are vertical reservation, whereas, special
reservation in favour of physically handicapped, woman etc. under Article 16(1)
and 15(3) of Indian Constitution are horizontal reservations.
In the year 1979 Prime Minister Morarji Desai established Mandal Commission
also known as 'The Socially and Educationally Backward Classes
Commission' (SEBC). This Commission is lead by B.P. Mandal who was also the
Member of Parliament. The main object of this Commission is, "to identify the
socially and educationally backward classes of India and to consider
reservations as a means to address caste inequality and discrimination".
This Commission submitted its report on 31 st December 1980.After India got
Independence, it has started its action towards the backward classes, basic
motive was to uplift them and connect them with the main stream of social
life. But main obstacle was 'how to address '. However, there are several SC/ST
groups, who are not socially or politically backward but still they are
marginalized in society and for the betterment of these classes or groups a major
upliftment was needed.
To address this problem, nation's first Backward class commission was set up in
the year 1953 lead by Kaka Kalelkar, which was also known as Kalelkar
Commission. In the year 1955 this Commission submitted its report and mentioned
that there were 2399 backward groups in the nation and out of this 2399 groups
837 were 'most backward'. However, Union Govt rejected its recommendations.
'Code of Equality' is extended through Ar.15 and 16 also,whereas Ar.14 derives
the basic formulation of it. Article 15 mainly deals with the concept
of "Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth". Clause 1 of this article says, the state shall not discriminate any
citizen on the grounds of religion, race, caste, sex ,place of birth or any of
them. However, on the basis of relevant consideration ,discrimination is valid.
Article 15(2) lays down that no individual shall be subjected to any disability
,restriction or any other form of discrimination with regard to: In access of
shops, parks, restaurants, hotels or any other public place.Each and every
individual have the right to use wells, tanks, bathing ghats, roads and any other
place which are maintained by government authority for general public.
Article 15(2) was invoked in the case 'Nainsukhdas v. State of U.P
this case ,the state had set up different electoral boards, for different
religions. The apex court held that, such differentiation on electoral boards
based on religion is unconstitutional as per Article 15(2) . Clause 3,4,5,6 of
article 15 discusses about the provisions made by the government to empower
certain classes in society. Article 15(3) empowers the state to make special
laws for women and children.
In the case of 'Yusuf Abdul Aziz v. State of Bombay
' a judgement was
passed by court which stated, under section 497 of Indian Penal Code,1860 only
men can commit the crime of adultery and be punished for the same. However, in
the case of 'Joseph Shine v. UOI' ,adultery was decriminalized since it was
violating Article 14,15 and 21 of Indian Constitution.
Hence, no longer treated as a crime ,rather it can only act as a ground of
divorce. Artcle 15(4) empowers the state to make special provisions for socially
and educationally backward classes. This clause 4 of article 15 inserted in 1st
Constitutional Amendment. 'State of Madras v. Champakam Dorairajan
Madras Govt. passed one act, according to this act in every medical college in
Madras every community will get reservation . Court held that, the govt. cannot
give any reservation on the ground of caste or religion. Apex Court striked out
Clause 4 says that ,state has the power to make special provisions for the
advancement of the educationally and socially backward groups. 'M.R. Balaji
v. Sate of Mysoore'
, Sate of Mysoore regulated one Govt. order, thats says,
there will be reservation in every medical and engineering colleges, [Backward
class - 28%,More backward Class- 22% and SC - 15%,ST - 3%] total 68% seats were
under reservation. This Govt. order was challenged in this case.
Supreme Court Stricked out this Govt. order and said that:
- Backwardness must be both social and educational,
- Caste cannot be sole Dominant Test,
- Reservation should be less than 50% [carry forward rule and backlog
- Backward to more backward this concept is not valid ,that means further
is not valid.
Whenever, State will
adopt positive discrimination ,State cannot overlook the concept of 'Society at
large advancement'. In 'Indra Sawhney v. UOI
' court held opposite verdict of 'M.R.
Balaji' case. Court held that , State can define Backwardness only on the basis
of caste. And also held that Backward class and more Backward class both are
valid. Clause 5 of Article 15 inserted by the 93rd Amendment Act,2005.
clause specifically for admissions in the educational institute,special
provisions must be there for backward classes in the case of admission ,not only
in Govt. colleges but also in private institutions. In the year 2006,in the case
of 'M.Nagraj v. UOI
' , Apex court ordered parliament to enable the reservations
even in 'promotion' i.e. reservation for SC's and ST's in further promotion
process as well.
However, the Court did lay down some principles which made it
difficult for both Centre and State Govt. to grant such reservation. This case
was decided as per the 77th and 81 st Amendment Act.
Discussed earlier that, 'Code of Equality
' promotes discrimination ,it connotes
that on the basis of relevant consideration discrimination is valid. There are
several suits which are in issue regarding 'Constitutional Dilemma', one of
those dilemmas is discussed here, which begins with two terminologies:
- Place of Birth
- Place of Residence.
lace of Birth refers to 'from where the person belongs' ,whereas Place of
Residence refers to 'Where the person resides' its also ascertain the domicile
identification. In the case of D.P. Joshi v.
State of Madhya Bharat
, there was a medical college which was established in Indore and it was under the control of M.P. Govt.
The Govt. had made a rule
which stated that all the domicile students residing in Madhya Bharat would not
be required to pay any capitation fees. This rule was challenged by filing a
writ in Supreme Court under Article 32 claiming that it had violated the
Fundamental Rights guaranteed under Article 14 and 15(1). The Court has passed a
judgement stating that, this rule does not violates Article 15(1) since 'Place
of Birth' and 'Place of Residence' are two distinct terms.