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Sunday, September 25, 2011

Q. What is meant by right to equality before law as provided in the Constitution and what are its exceptions?

Ans. Article 14 of the Constitution states, “The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.”
This provision contains the following three elements—
(1) equality before law;
(2) equal protection of laws; and
(3) it covers any person including foreign nationals staying in India.

(1) Equality Before Law—The term ‘equality before law’ is derived from the ‘Rule of Law’ propounded by British thinker A. V. Dicey. It means all individuals, high and low are subject to the provisions of law; no individual is considered above law; and there are common laws and courts for all individuals, both private persons and government officials. It also means that laws are enacted incorporating notion of equality of treatment in equal situations,

(2) Equal Protection of Laws— This notion is inspired by the American Constitution. It means equal enforcement of laws for all individuals in equal conditions. In fact, this notion is concerned with the practical aspect of implementation of laws by public authorities. It means law should be enforced equally to all and no one should be discriminated against or given privilege on the ground of their caste, creed or higher social status. In other words, all persons are subject to the, same punishment in the same conditions.

Exceptions—The following exceptions have been provided in the Constitution to the principle of equality before law—
(1) The President and the Governors shall not be answerable to courts, with respect to the actions done in the course of exercise of their powers or in discharging their constitutional responsibilities.
(2) A criminal proceeding cannot be initiated against the President or the Governor during his term of office.
(3) With respect to civil proceedings against the President or the Governor for an action done by him in his personal capacity it is mandatory to give two months notice to him before initiating such proceeding (Article 361).

(4) Besides, the Ministers, members of Parliament and the Legislators of the States are also given certain privileges and immunities in order to enable them to discharge their responsibilities without any hindrance..
(5) The diplomatic representatives of foreign countries and the personnel employed in the embassies are also extended certain privileges and protections from the ordinary course of law. This is based on the mutual understanding among nations or the provisions of international law governing their behavior,
Besides the above exceptions, the Legislature, while enacting a law, makes distinctions on the grounds of nature, circumstances and abilities of individuals affected by law. However, such distinctions—

(1) should be based on a reasonable criteria and
(2) there should be logical correlation between such criteria of distinction and the purpose of law.
Thus, Article 14, permits reasonable distinctions among distinct categories of individuals within the orbit of equality of law. But such distinctions should not be arbitrary and unjustified.
Grounds of Reasonable Distinctions
(1) Age of persons —The age of affected individuals such as children or aged persons. becomes a ground of distinction, while enacting a law. In Radhacharan Vs. State of Orissa (1968), the Supreme Court held that prescribing age limit of 35—45 years for the candidates to become eligible for direct appointment to the post of District Judge, is justified on the ground of maturity of persons required to hold such posts.

(2) Sex—The state can make reasonable distinctions in favour of girls or women, while enacting a law which affects them. In the case of Giradhar Vs. State of Madhya Pradesh (1963), the Supreme Court upheld the validity of Section 497, which makes provision for prosecuting a male for committing the crime of adultery but at the same time absolving the female partner of such criminal prosecution. But in another case, Padhacharan Patnaik Vs State of Orissa, the Supreme Court held that the married status of women cannot be a reasonable ground to make them ineligible for the recruitment to the post of District and Session Judge, as it would go against the spirit of right to equality under Article 14.
(3) Geographical conditions-— The peculiar geographical conditions of a region may become a reasonable ground of distinction, while enacting a law with respect to that region. For example, the Supreme Court in the case of Krishan Sing Vs. State of Rajasthan (1955) declared that the Marwar Land Revenue Act, 1949 is valid, which is applicable only in Marwar region of Rajasthan, not in the whole State.

(4) Nature of special categories of persons—In a case, State of Bombay Vs. Balsara (1951), the Supreme Court decided that the distinction maintained in favour of personnel of armed forces and diplomatic mission as against civilian population in the laws relating to prohibition is a reasonable distinction and does not go against the provisions of Article 14.
(5) Profession—Sometimes, distinctions based on the ground of professional activities, become reason able distinctions to be incorporated in the law. In Mohammad Qureshi Vs. State of Bihar (1958), the Supreme Court held that while restrictions imposed on cow slaughter are justified, while such restrictions cannot be imposed on slaughtering goats and hens. Similarly, the Supreme Court, in the case of Western India Theatres Vs. Cantonment Board (1959) ruled that it is justified to impose more taxes on the big Cinema Houses. Also, in Katra Educational Society Vs. State of U.P. (1966) case, the Supreme Court ruled that law can maintain reasonable distinctions between the government owned establishments and the privately owned establishments.
(6) Distinctions with respect to separation of unified services—It was ruled by the Supreme Court in the case of State of Kerala Vs. Krishna Nair (1978) that the unified judicial service may he divided into two services-criminal judicial service and civil judicial service and that will not violate the right to equal opportunity in employment.
(7) Special circumstances The government constituted special courts in 1978 for the speedy disposal of criminal cases reported during Nation al Emergency (June 25, 1975 to March 27, 1977). The Supreme Court upheld the validity of Special Courts Bill in 1979 on the ground that the constitution of special courts is valid and required for the proper functioning of democracy.
The foregoing discussion demonstrates that the reasonable distinctions can be made by the law on certain valid grounds. However, the reasonableness of those distinctions can be determined in the court of law. This further indicates that the law is not a dead wood or a blind notion but it is a living and dynamic notion.

 

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