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Article 14: A Flawed Argument

The use of Article 14 in criticising the CAA is a reductionist exercise

For close to a month now, ever since the Citizenship (Amendment) Bill, 2019 was cleared by the Union Cabinet for introduction in the Parliament, the passionate yet constitutionally and logically untenable opposition to the then CAB and now the CAA has primarily been mounted on grounds of alleged violation of Article 14 of the Constitution. It has been argued over and over again by the opponents of the CAA that since the Indian State cannot deny to “any person” equality before the law or the equal protection of the laws within the territory of India, the CAA fails to pass Constitutional muster owing to its limited and specific scope.

Before proceeding to address this argument, it is imperative to understand that a targeted intervention through CAA was necessitated, in part, by the fact that India does not have a specific law which deals with refugees or grant of citizenship to refugees. By now, it is a well-known fact that currently India follows a Standard Operating Procedure (SOP) dated December 29, 2011 for dealing with foreign nationals who claim to be refugees. Under this SOP, cases, which are prima facie justified on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by State Governments/Union Territory administrations to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification. Given this ad hoc state of affairs, the CAA must be seen as a limited amendment to the Citizenship Act, 1955 to grant expedited citizenship to those refugees who belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Pakistan, Bangladesh and Afghanistan. Therefore, it a specific amendment bestowing a limited benefit to address a specific issue which applies to a specific class of people from an identified set of countries having a common character. This does not in any way alter the fundamentals of the Citizenship Act, which is set out below.

Contrary to the myth that been pushed deliberately, the CAA does not automatically grant citizenship to members of the six communities from the said three countries. Following are the limited benefits that flow from the CAA to its beneficiaries:

1. Thanks to the newly inserted proviso to Section 2(1)(b), those members of the six communities from the three countries who entered India on or before December 31, 2014 and who have been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrants for the purposes of the Citizenship Act;

2. As a corollary, any proceeding pending against any beneficiary of the CAA in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him from the date of commencement of the CAA;

3. Importantly, exemption from the definition of “illegal migrant” does not translate to grant of citizenship to beneficiaries of the CAA. A combined reading of the newly inserted Section 6B, Section 18(2)(eei) of the Citizenship Act 1955 and the proviso to Clause (d) of the Third Schedule to the Act makes it abundantly clear that such members will have to apply for naturalisation and satisfy “the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B”.

The only difference between beneficiaries and non-beneficiaries of the CAA is that while the latter has to show an aggregate period of residence in India or service of Government in India for “not less than eleven years”, the former has to show “not less than five years”.

Hence, the author is justified is stating that the CAA does not automatically bestow citizenship on its beneficiaries, but merely facilitates the expeditious grant of citizenship.

Set in this limited and specific factual and legal backdrop, putting aside all the rhetorical arguments which are being employed both by the proponents and opponents of the CAA, let’s attempt to understand the grievance as dispassionately as possible and examine if it holds water Constitutionally and legally, both being subtly different. For the sake of clarity and to give the opponents of the CAA the concession that their views are not monolithic, the varying shades of opposition to the CAA, if at all they exist, can perhaps be put in the following baskets:

Basket A- That the CAA violates Article 14 because it is not all encompassing and limits its scope only to six persecuted religious minorities from the three countries identified in it. This is the position of the “Global Citizen”, one who believes that her religion is “humanity” and that India’s doors must be open to everyone from any part of the world regardless of who they are and why they wish to enter the country;

2. Basket B- That the CAA violates Article 14 because it is not all encompassing and limits its scope only to six persecuted religious minorities from the three countries identified in it, instead of addressing all the countries and groups in India’s immediate neighbourhood. This is the position of the “South Asian Citizen”, who believes that India owes a responsibility to everyone living in its immediate neighbourhood;

3. Basket C- That the CAA violates Article 14 not because it is not all encompassing, but because it limits its scope only to six persecuted minorities in the three countries who have been identified on the basis of religion, thereby excluding by implication and intent other persecuted groups in the said countries. This is the position of those who believe that India must open its doors to all persecuted groups at least from the said three countries;

4. Basket D- That the CAA violates Article 14 not because it is not all encompassing, but because it limits its scope only to six persecuted minorities in the three countries who have been identified on the basis of religion, thereby excluding by implication and intent persecuted Muslim groups in the said countries. This is the position of those who believe that the CAA is slyly anti-Muslim;

5. Basket E- That the CAA expressly excludes persecuted Muslims, groups and individuals, coming from any country. This is the position of those who believe that the CAA is overtly anti-Muslim;

6. Basket F- That the CAA excludes persecuted Muslims, groups and individuals, coming from the said three countries. This too is the position of those who believe that the CAA is overtly anti-Muslim;

Baskets E and F are, without a doubt, factually incorrect and have no basis in the express language of the CAA. Therefore, anyone who is pushing the narrative that the CAA expressly prevents Muslims from any part of the world or specifically from Pakistan, Bangladesh or Afghanistan from applying for Indian citizenship, is either thoroughly ill-informed or is deliberately pushing a malicious narrative to foment trouble within the country.

That leaves us with Baskets A-D. The common thread that ties these Baskets is that they are premised on the broad assumptions that (a) Article 14 prohibits the kind of targeted intervention which the CAA undertakes and (b) Article 14 mandates that the standard the Indian State applies with respect to its citizens is the standard it must apply to those who seek its citizenship since Article 14 speaks of “persons” and not merely “citizens”.

A perusal of Articles 5-11 and 19 is warranted before accepting these contentions based on Article 14. Let’s start with Article 19, which is in the same part of the Constitution as Article 14, namely Part III which deals with Fundamental Rights. It is critical to note that Article 19 expressly limits the scope of rights enumerated under it only to “citizens”, and does not extend it to “non-citizens” or “persons”. Amongst the bundle of fundamental rights guaranteed by the said Article to “citizens”, the rights to freely move throughout the territory of India, and to reside and settle in any part of the Indian territory are expressly envisaged in Sub-clauses (d) and (e) of Article 19(1) respectively.

Even an average student of Constitutional law will tell you that it is a well-settled position that no fundamental right is absolute and is subject to the reasonable restrictions permitted by the Constitution. One need not go beyond Article 19 to make good this position since Article 19(5) expressly states as follows:

“ Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe .”

It is, therefore, evident that the right to move freely throughout India, and the right to reside and settle in any part of India, which is available only to citizens is clearly capable of being restricted reasonably in the interests of the general public or for the protection of the interests of any Scheduled Tribe, both of which are broadly worded categories of purposes.

Importantly, the right to move freely throughout India must also include within its ambit the very right to enter India. Consequently, the right to enter India is a fundamental right which is available only to citizens, and is capable of being limited in accordance with Article 19(5). Surely, it cannot be any sane person’s case that non-citizens have more rights than citizens, especially in matters of entry into India. The law in this regard was laid down by a Constitution Bench of the Supreme Court in as early as 1955 in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors , wherein it was held as follows: “The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is any law in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him. Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right “to move freely throughout the territory of India” and “to reside and settle in any part of India”, subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by article 21 which is in the following terms: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Entries 9, 10 17, 18 and 19 in the Union List confer wide powers on the Centre to make laws about among other things, admission into and expulsion from India, about extradition and aliens and about preventive detention connected with foreign affairs. Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is expressly conferred; also, it is to be observed that extradition and expulsion are contained in separate, entries indicating that though they may overlap in certain aspects, they are different and distinct subjects.”

In the very same judgement, the Apex Court went on hold further as follows:

“The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”

This position was reiterated by the Supreme Court in 1991 in Mr. Louis De Raedt & Ors vs Union of India And Ors , wherein it held as under:

“13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors, [1955] 1 SCR 1284 that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner. ”

In view of these decisions of the highest Court of the land, which recognise the near-absolute discretion of the Government with respect to admission and expulsion of foreigners, the crude reliance on Article 14 of the Constitution by opponents of the CAA is clearly a position which lacks nuance and goes against the express dicta of the Supreme Court. To avoid any misinterpretation, it must be clarified that it is not the author’s position that Article 14 is completely irrelevant to the issue, however, it is certainly the author’s position that the extent of application of the said Article is limited in matters of admission and expulsion of foreigners given the extraordinary discretion vested in the Union by the Constitution. After all, the application of Article 14 to an issue must vary and varies with the extent of prerogative vested in the Executive by the Constitution in relation to the issue.

The very same conclusion can be arrived at through another route i.e. through a combined reading of Articles 5-11, the Citizenship Act, 1955 and the Foreigners Act, 1946. Articles 5-11, which are contained in Part II of the Constitution, expressly and specifically deal with the issue of Citizenship. The Citizenship Act was enacted pursuant to the express power vested in the Parliament by Article 11 which allows it to “make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship” without being fettered by Articles 5-10. After all, this was the intent of B.R. Ambedkar, which is reflected in his deliberations in the Constituent Assembly’s debate of August 10, 1949 with respect to the draft Article 6, which corresponds to Article 11 of the Constitution. The relevant extract of the debate is as follows:

“The business of laying down a permanent law of citizenship has been left to Parliament, and as Members will see from the wording of article 6 as I have moved the entire matter regarding citizenship has been left to Parliament to determine by any law that it may deem fit … The effect of article 6 is this, that Parliament may not only take away citizenship from those who are declared to be citizens on the date of the commencement of this Constitution by the provisions of article 5 and those that follow, but Parliament may make altogether a new law embodying new principles. That is the first proposition that has to be borne in mind by who will participate in the debate on these articles. They must not understand that the provisions that we are making for citizenship on the date of the commencement of this Constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being. ”

This is the extent of discretion and prerogative vested in the Parliament which explains why matters of expulsion and admission into India and matters relating to citizenship are present in the Union List. It is clear that the history of Articles 5-11 only strengthens the argument that the scope for application of Article 14 in matters of citizenship is limited.

The sheer untenability of the manner in which Article 14 is being employed by the opponents becomes starker when the Citizenship Act is read with the Foreigners Act. While the use of “persons” in Article 14 forms the basis of the position of the opponents, they fail to take into account the Foreigners Act which defines “Foreigners” as under:

“foreigner” means a person who is not a citizen of India.

In other words, if the argument of the opponents based on Article 14 were to be accepted, the very existence of the concept of foreigners would be violative of Article 14, thereby rendering the Foreigners Act unconstitutional. The ludicrous effect of this position would also extend to the definition of “illegal migrant” under Section 2((1)(b) of the Citizenship Act, 1955, which defines illegal migrants as those foreigners who have entered India without valid documents or those whose documents are no more valid or those who have overstayed the permitted period.

Simply put, the opponents’ argument based on Article 14 would render useless and unconstitutional the concepts of foreigners and illegal migrants because, according to them, “all persons” must be treated equally before the law and must receive equal protection of Indian laws. Consequently, the citizen, the foreigner, the illegal migrant and the refugee are all the same in law, according to the opponents. There couldn’t have been a more glaring example of the utterly destructive, illogical and unconstitutional use of Article 14 as an argument.

Let’s take the Article 14 enquiry further. Every law, including the Constitution, applies only to its sovereign territory, unless there is an express provision to the contrary. After all, it is the Constitution of India, not the world. This is part of the accepted jurisprudence on territoriality of laws and Constitutions. This is further strengthened by Article 245(1) of the Constitution, which states that “subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State”. While under Article 245(2), the Parliament may pass laws which have an extra-territorial application, it is not the norm, and extra-territoriality being an exception, needs to be express.

Therefore, given that Article 14 itself uses the words “within the territory of India” in guaranteeing equality before the law or equal protection of laws, is it possible to contend that foreigners who are yet to enter Indian territory can legally invoke rights under Article 14? At best, Indian citizens residing abroad are exception to the rule of territoriality in specific circumstances. But surely it cannot be reasonably argued that such rights are available to foreigners in alien territory to which the Indian Constitution does not apply.

Thus far, with respect to citizenship, it hasn’t been legally demonstrated by opponents of CAA that Article 14 applies to foreign citizens who reside outside the territory of India, especially in matters of grant of citizenship. Merely because a foreigner seeks entry into India to acquire its citizenship, it cannot be argued that she or he is entitled to invoke rights under Article 14. Therefore, Article 14 is not even available as an argument to those foreigners who are not present within the territory of India. As a sequitur, it could be argued that the Indian Government’s discretion to deal with them may not even be fettered by Article 14, except to the extent of dealing with them with dignity.

As regards those foreigners who are present within the territory of India, they could be classified under two categories- foreigners who are not illegal migrants, and foreigners who are illegal migrants. In so far as illegal migrants are concerned, they do not have the right to expect to be granted citizenship nor the status of refugees since, as stated earlier, that is entirely within the prerogative of the Union Government, as laid down in the Constitution and endorsed by the Supreme Court. The Indian State has the right to consider the security aspects and other implications of granting refugee status or citizenship to any group or individual on a case-to-case basis. It is not to be treated as an entitlement, no matter how mercenary this may sound to bleeding hearts. Therefore, again Article 14 is of little help in supporting the grant of citizenship to illegal migrants or refugees, or grant of refugee status to illegal migrants, without applying India’s discretionary filters. In fact, in light of the law laid down by the Supreme court in this regard, it may be possible to even contend that the Supreme Court’s jurisdiction to examine the validity of the CAA is limited to the issue of competence and due process, and does not extend to the scope of the CAA.

Having said the above on the room available to the Executive in matters of admission into and expulsion from India, it must be appreciated that the Indian State’s exercise of discretion can certainly be questioned if it exercises such discretion to the detriment of India’s integrity by facilitating influx of groups whose presence could be inimical to the interests of Indians. This line of argument is supported by the decision of the Supreme Court in Sarbananda Sonowal vs Union Of India & Anr (2005), the first Sarbananda Sonowal judgement which was delivered in the context of the challenge to the validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 on the ground that it violated Articles 14 and 355 of the Constitution, among other things. Article 355, in particular, casts a duty on the Union to protect States against external aggression and internal disturbance. The Court struck down the IMDT Act, among other things, on the ground that its provisions and Rules negated the mandate of Article 355 by impeding the process of deportation of illegal migrants from Assam despite ostensibly claiming to expedite deportation. Therefore, should the Indian Government choose to facilitate or turn a blind eye to influx of groups at the expense of Indian interests, its prerogative to do so can be Constitutionally challenged.

That said, in the context of the CAA and its beneficiaries, the opponents of the CAA would be hard-pressed to make the argument that by facilitating the grant of expedited citizenship to members of such groups, which is a fulfilment of a promise that was expressly made in the Constituent Assembly debates, the Government has breached its mandate under Article 355. Since the Government has assured that the legitimate concerns of the people of the Northeast, including Assam, and the promises made under the Assam Accord shall be respected to protect the indigenous identity of Assam and the Northeast, it may not be possible for the opponents to challenge the CAA by riding on the coattails of the Northeast. The fact that the CAA expressly states that it does not apply to tribal areas in Assam, Meghalaya, Mizoram or Tripura and Manipur (later added) as well as areas covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873, only makes it difficult for motivated parties to incite passions against the CAA in the Northeast.

While it remains to be seen how the Apex Court will deal with petitions challenging the CAA, this much is clear- Article 14 is not the strongest of arguments against the CAA and thus far no other ground of challenge has been credibly presented. One sincerely hopes that in their desperation, the opponents of CAA do not end up depriving Article 14 of all its nuance and run aground the rich jurisprudence that has been evolved over decades to benefit those who truly deserve the protection guaranteed by the said Article.

Finally, when someone advocates for indiscriminate dilution of standards for grant of Indian citizenship, it may not make them anti-national, but it certainly speaks volumes of their commitment to protecting the integrity and identity of this land.

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12 Discrimination Law and the Human Rights Act 1998

• Published: December 2001
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The Human Rights Act 1998 incorporates into British Law Article 14 of the European Convention on Human Rights (ECHR), which provides that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. Article 14 has been widely, and rightly, criticised for its parasitic nature, the ECHR containing no free-standing prohibition on discrimination. This chapter examines the implications of incorporation of Article 14 for discrimination law in the United Kingdom. Currently, statute regulates discrimination on grounds of sex (including gender reassignment); race; disability; and (in Northern Ireland alone) religion and political opinion. In addition, specific statutory prohibitions are imposed in relation to some forms of work-related discrimination on grounds of trade union membership, enforcement of employment rights, etc. Discrimination on grounds of political or other opinion, social origin, property, birth, or other status is not generally prohibited.

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• Constitutional law

Right to Equality under Article 14

This Article is written by Adarsh Singh Thakur , 3rd-year student, Indore Institute of Law. He discusses Article 14 of the Indian Constitution in detail.

Introduction

Every human being is born equally and therefore the makers of the Indian Constitution had also made provision for equality of the people. Article 14 is one of the most important Articles of the Indian constitution and it is also regarded as part of the golden triangle of the Constitution along with Article 19 and 21.

In India, this right is very important because there has been a widespread socio-economic difference which has been in existence from a long time. People have been discriminated on the basis of their gender or the religion they follow, therefore Article 14 was included in the Constitution to remove such inequalities and bring all the people under the equal protection of the law.

Article 14 is the embodiment of equality which has been provided in the Preamble. Another important point about this Article is that it not only imposes a duty on the State to abstain from discriminating people but it also puts a positive duty to take such action by which the inequalities can be bridged between the people.

According to Article 14, the State cannot deny equality before law and equal protection of law to any person within India. The expression ‘equality before law’ is a negative concept and the State has a duty to abstain from doing any act which is discriminatory in nature.

Under it, there is an absence of any special privilege to any particular group of people and regardless of the rank of a person, he is subject to the same provisions of law. Thus, no person is above the law of the land/lex loci and all have to abide by it.

The term ‘equal protection of law’ is based on the 14 th Amendment of the US Constitution. It directs that equal protection of the law should be provided to all the people of India for the enjoyment of their rights without any privileges or favouritism towards any person. This is a positive concept because it implies a duty on the State to take actions for ensuring this right to all the citizens.

Thus both these expressions make the provision of equal treatment binding on the State. In the case of Sri Srinivas Theatre v. Government of Tamil Nadu , the Supreme Court explained that both these expressions may appear to be same but they have different meanings. The term equality before the law is a dynamic concept with many aspects, one such aspect being that there should be an absence of any privilege or a person being above the law.

Equality before Law

Under equality before the law, the principle of like should be treated alike is followed. It means that the right to sue and be sued for the same cause of action should be the same for the people who are equals i.e. the people who are in similar circumstances and such right should be available to them without any discrimination on the basis of religion, sex, caste or any other such factor.

In the case of State of West Bengal v. Anwar Ali Sarkar , the court held that the term ‘equal protection of law’ is a natural consequence of the term ‘equality before law’ and thus it is very difficult to imagine a situation in which there has been a violation of equal protection of law is not a violation of equality before law. So, while they have different meanings, both the terms are interrelated.

Rule of Law

Dicey had given the concept of the rule of law. Rule of law means that no person is above the law. Equality of law is part of the Rule of Law which has been explained by Dicey.

Dicey had given three meanings to this term:

• The supremacy of law: It means that the law is supreme and the Government cannot act arbitrarily. If a person has violated any law, he can be punished but he cannot be punished for anything else at the whim of the Government.
• Equality before Law: It means that all the people should be subject to the same provisions of law which is administered by the ordinary courts of the land. Thus, no person is above the law and has to follow the law. Dicey had given an exception to the Monarch under this rule because in England it is believed that the King can do no wrong.
• Constitution originates from the ordinary law: It means that the rights of the people is not granted by the constitution but instead it is the result of the law of the land which is administered by the courts.

In India, the first and second rule has been adopted but the third rule has been omitted because the Constitution is the supreme law of the land and the rights of the people originate from it and all the other laws which are passed by the Legislature should not violate the provisions of the Constitution.

An exception to Equality before Law

There is some exception to the rule of equality which has been provided under the Indian Constitution. Under Articles 105 and 194, the Members of the Parliament and the State Legislatures respectively are not held liable for anything which they say within the House.

Under Article 359 when there is a proclamation of Emergency, the operation of Fundamental Rights including Article 14 can be suspended and if any violation of this right is done during such proclamation, it cannot be challenged in the Courts after the proclamation ends.

Under Article 361 the President and the Governors are not liable to any court for any act which is done by them in exercising their power and duties of the office.

Equal Protection of Laws

It imposes a duty on the State to take all the necessary steps to ensure that the guarantee of equal treatment of people is followed. Like people being treated alike is followed under this rule and another important point under this rule is that unlike should not be treated alike. Thus, even if people who are under different position and circumstances are governed by the same rule then it will also have a negative effect on the rule of equality.

Article 14 and Reasonable Classification

Article 14 has provided the provision for equality of all people before the law but every person is not the same and therefore it is not practically possible to have a universal application of equality. Thus, the laws cannot be of a general character and some classification is permitted under Article 14.

Thus, the legislature has been allowed to identify and classify different people in groups because it has been accepted that treating the unequal in the same manner is likely to cause more problems instead of preventing them. So for the society to progress, classification is important.

This classification cannot be done arbitrarily because in such case, there will be no justification, so even though Article 14 allows for classification such classification should not confer special privileges to any group arbitrarily and such a classification has to be done on a rational basis. For e.g. the Legislature cannot pass a law which favours a particular caste of people without any rational basis for it and if such a law is passed, it is bound to be held unconstitutional by the Judiciary.

Such arbitrary classification by the legislature is known as class legislation ad it is forbidden by the Constitution but it allows for reasonable classification in which the legislation is passed on a rational basis for the purpose of achieving some specific objectives.

Test of Reasonable Classification

For determining whether a classification made by the legislature is a reasonable one or not, a test is used and when a classification fulfils the conditions of the test, it is held to be a reasonable one.

The following are the tests for identifying the reasonable classification:

he classification should not be arbitrary, evasive and artificial in nature. This is the first test for checking the reasonability of a classification. This test is used to check whether the classification is based on some substantial distinction or not. The classification should be based on an intelligible differentia (which can be understood) and should not be some made up the distinction. For e.g. classification of people based on their income is a reasonable classification for the purpose of Article 14.

• The differentia which has been applied in the classification should have some real and important connection with the objective which is sought to be achieved by the classification. For e.g., if the legislature has classified the people on the basis of their income, one of the objectives can be to provide some benefits to the people with low incomes such as exemption from tax.
• Here the differentia for classification is connected with the objective of providing some benefits to the people earning low income and therefore, this classification is valid.

But the Supreme Court in Re Special Courts Bill , had warned against overemphasizing the classification. The court observed that the doctrine of classification is a subsidiary rule which has been used by the court to facilitate the doctrine of equality. If there is an overemphasis on the doctrine of classification it would inevitably result in the doctrine of equality under Article 14 to erode and will lead to the substitution of equality by classification.

The New Concept of Equality

After several cases, the concept of equality under Article 14 has gone through many changes and now the present concept of equality has a greater scope as compared to its scope at the time of Constitution’s enactment.

In the case of Air India v. Nargesh Meerza , the regulation of the Indian Airlines provided that an Air Hostess had to retire from their services on attaining the age of 35 or if they married within 4 years of their service or on their first pregnancy whichever occurred earlier. The court held that terminating the services of an air hostess on the grounds of pregnancy amounted to discrimination as it was an unreasonable ground for termination. The regulations provided that after 4 years of service the air hostess could marry therefore the grounds of pregnancy was not reasonable. Thus, it was held that this regulation flagrantly violated Article 14 and such termination would not be valid.

Similarly in the case of D.S. Nakara v. Union of India , Rule 34 of the Central Services rules was held to be violating Article 14 and thus unconstitutional. Under this rule, a classification was made between the pensioners who retired before a specific date and those who retired after that date. Such classification was held irrational by the Court and it was arbitrary. Thus it was an infringement of Article 14 and as a result, was set aside.

In the case of Bachan Singh v. State of Punjab , explaining the new dimensions of Article 14, Justice PN Bhagwati had observed that Rule of law permeated the entire fabric of the Indian Constitution and it excludes arbitrariness. According to him whenever there is arbitrariness, there is a denial of Rule of Law. So, every action of the State should be free from arbitrariness otherwise the Court will strike the act as unconstitutional.

The scope of the new concept of Article 14 is far greater than just being equated with the principle of reasonable classification. It guarantees against any arbitrariness which may exist in the actions of the State and the doctrine of classification is merely a subsidiary to this Article.

Article 14 of the Constitution is part of the Fundamental rights under Part III of the Indian Constitution and it is regarded as one of the most important Articles of the Constitution. Article 14 provides for equality to all the people and absence of any discrimination on grounds such as sex, caste, religion etc.

Under Article 14 two important aspects have been included which are equality before the law and the equal protection of the law and both of them play an important role.

Under Article 14 the concept of Rule of law has been adopted under which no person can be said to be above the law and every person has to abide to the provisions of law. But the equality which has been provided for under  Article 14 is not universal and the principle of equality among the equals is followed. This is the reason why many laws are made which some people such as laws for the benefit of children. Such classification is reasonable and not arbitrary.

The new dimensions of Article 14 have been developed by the judiciary and the main purpose of Article 14 is to remove any arbitrariness which may exist in the actions of the State and thus this Article has a much wider scope in the present time as compared to its scope at the time of enactment of the Constitution. Thus, the scope of this article has been enlarged by various judicial pronouncements.

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Article 20 of the indian constitution , article 61 of indian constitution , rai sahib ram jawaya kapur v. state of punjab (1955) : case analysis, leave a reply cancel reply.

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Varsha Rajesh

Equal Justice For All: Unveiling The Power Of Article 14

KEY TAKEAWAYS

• The preamble to our constitution, Chapter Three, discusses ensuring equality, liberty, and justice for all its residents.
• The interpretation and application of Article 14 have evolved over time through various judicial pronouncements.
• Article 14 guarantees that the state uses its power in an equitable, reasonable, and non-arbitrary manner.

INTRODUCTION

India's Constitution mentions human rights, similar to the majority of democracies worldwide. Certain rights that are essential to our existence are accorded a unique standing. We refer to them as fundamental rights. The preamble to our constitution, Chapter Three, discusses ensuring equality, liberty, and justice for all its residents. Fundamental Rights implement this assurance. They are a crucial tenet of the Indian Constitution.

According to the Constitution, no Indian citizen shall be denied equality before the law or equal protection under the law. It implies that everyone is subject to the laws in the same way, irrespective of their standing. We refer to this as the rule of law. All democracies are built on the rule of law. It implies that everyone is subject to the law. It is impossible to distinguish between a government official, a political figurehead, and a regular person.

Every citizen is bound by the same rules, regardless of rank, from small farmers in a remote village to the prime minister. It is illegal for anyone to demand special treatment or privileges simply because they are a significant individual.

Fundamental Rights – The rights that defines us!

Articles 12-35 of the Indian Constitution deal with Fundamental Rights. These human rights are conferred upon the citizens of India and the Constitution tells that these rights are inviolable. Right to Life, Right to Dignity, Right to Education, etc. all come under one of the six main fundamental rights. All Indian people are entitled to fundamental rights, which are the fundamental human rights recognized in the Indian Constitution. They are implemented without regard to factors such as gender, colour, or religion. Importantly, the courts can uphold fundamental rights—if certain requirements are met.

The way that fundamental rights are upheld distinguishes them from regular legal rights. If a legal right is violated, the aggrieved person cannot directly approach the SC bypassing the lower courts. He or she should first approach the lower courts. 

While certain fundamental rights apply to all citizens, others are universally applicable to all people. There are limitations to fundamental rights. Due to their realistic limitations, they are governed by laws pertaining to public decency, morality, and state security as well as amicable ties with other nations. 

The Parliament may amend the Constitution to modify fundamental rights, but only if the alteration does not change the fundamental framework of the document. 

In the event of a national emergency, the Indian Constitution's Fundamental Rights may be suspended. However, Articles 20 and 21's guarantees of rights cannot be suspended. 

When martial law or military authority is imposed, there may be limitations on the application of fundamental rights.

HISTORICAL BACKGROUND OF ARTICLE 14

The interpretation and application of Article 14 have evolved over time through various judicial pronouncements. Before the law, the idea of equality was once considered to indicate that no one should be given any special rights or be subjected to discrimination. Equal treatment under the law is another guarantee provided by the equal protection of laws principle, which applies to all people, regardless of their status or position.

The theory of classification—which permits the State to differentiate within acceptable bounds to accomplish societal objectives—is a key component of Article 14. However, the Supreme Court's set requirements must be met for such designation. 

Any classification must be based on understandable differentia and have a reasonable relationship to the goal that the legislation seeks to achieve, according to the traditional Nexus test, which was established in the Anwar Ali Sarkar case.

As objections to the Nexus test surfaced over time, Article 14 came to be interpreted in a more dynamic way. The Supreme Court progressively adopted a more aggressive and positivist stance, highlighting the idea that equality is incompatible with arbitrariness. This strategy, which was presented in court cases like E.P. Royappa v. State of Tamil Nadu and Ajai Hasia v. Khalid Mujib, was centered on making sure that laws are not passed arbitrarily, and that equality is upheld.

• In the landmark Maneka Gandhi case, the Supreme Court emphasized that Article 14 embodies a guarantee against arbitrariness. This new doctrine recognized the importance of reasonable classification while ensuring that governmental actions are not arbitrary or discriminatory.

EQUALITY BEFORE LAW & EQUAL PROTECTION OF LAW

A pillar of the essential rights that every person in India is entitled to is Article 14 of the Indian Constitution. It guarantees that everyone has the right to equality before the law and equal protection under the law, irrespective of their citizenship status. These ideas have important global and historical origins. Equal protection under the law and equality before the law form the basis of Article 14 of the Indian Constitution. This principle guarantees that every person has the right to fair and equal treatment under the law, irrespective of their rank, wealth, caste, creed, religion, gender, or socioeconomic background. 

Originating in English common law, the idea of "equality before law" emphasizes that all people should be bound by the same set of legal rules, regardless of their social standing, financial standing, or level of authority. This idea guarantees that everyone is subject to the law and that justice is served fairly.

Equality before the law, in Dr. Jennings' opinion, simply means that everyone must be treated equally when it comes to the application and enforcement of the law. All subjects of majority and maturity age must have the same right to sue and be sued for the same action, without distinction based on race, religion, caste, social standing, income, influence, or any other factor.

Exceptions to equality before law:

The Indian Constitution's Article 361 lists a few of these exclusions, which include the following: 

• It is not the responsibility of any court to hold the President or a State Governor accountable for using their official authority. 
• There shall be no criminal actions brought against the Governor or the President of a state. 
•  No court may order the President or the Governor of a state to be arrested or imprisoned while they are in office. 
• During their terms, the President or the Governor of a state may not be sued without providing two months' notice in advance in a civil action requesting relief.

Conversely, the phrase "equal protection of law" originates from the United States Constitution's 14th Amendment. This amendment forbids states from denying the equal protection of the law to anybody who is under their authority. This idea guarantees that the law is applied equally and without bias.

It is important to remember that Article 14 not only upholds these ideals but also conforms to the more expansive definition of equality stated in the Indian Constitution's preamble. In keeping with the goal of establishing a just and equitable society, the preamble places a strong emphasis on equality of position and opportunity. It basically indicates that there should be no discrimination among equals and that they should be treated equally. It is impossible to treat equals and unequals equally and without prejudice. 

• In A.K. Gopalan v. State of Madras (1950), the Indian Constitution's Article 22 was invoked to challenge preventive detention legislation. According to the Supreme Court, Article 14 upholds the English common law tradition's concept of equality before the law. It made it clear that "equality before the law" refers to all classes being equally subject to the ordinary law and not receiving any special treatment.
• State of West Bengal v. Anwar Ali Sarkar (1952): In this decision, the Supreme Court made it clear that the equal protection of laws concept mandates that laws must apply consistently and equitably to all people in comparable circumstances. It was underlined that although the equal protection principle forbids discriminatory treatment, it does not require uniform treatment in cases where there are variations in conditions.

WHY DO WE NEED ARTICLE 14?

The nation's democratic and equitable foundation is fundamentally based on Article 14. There are multiple reasons for the necessity and foundation of Article 14:

• The ideas of justice, equality, and freedom had a significant impact on India's fight for independence. The goal of the Constitution's framers was to create a society in which everyone is treated equally in front of the law, regardless of caste, creed, religion, gender, or socioeconomic background. To protect these ideals and make sure that India's independence from colonialism did not bring back the injustices of the past, Article 14 was created.
• India has a complex social structure and is a diversified country. In the past, caste, religion, and gender have all been used as excuses to exclude and discriminate against specific groups within society.
• In India, Article 14 is crucial to maintaining the rule of law. It guarantees that the state uses its power in an equitable, reasonable, and non-arbitrary manner. Article 14 guarantees that people are not treated unfairly and stops the state from acting arbitrarily by requiring equality before the law and equal protection under the law.
• Part III of the Indian Constitution guarantees the fundamental right to equality, which is based on Article 14. It establishes the guidelines for interpreting and applying other rules pertaining to equality, including Articles 15, 16, and 17. Together, these clauses seek to end prejudice and advance equality in a range of contexts.
• The Indian Constitution's preamble places a strong emphasis on justice, equality, liberty, and brotherhood. Article 14's promotion of equality before the law and equal protection under the law is in line with these fundamental principles. It shows how dedicated the Indian government is to create a fair and inclusive society in which each person has access to the same opportunities and rights.

AN IN-DEPTH EXPLORATION OF ARTICLE 14 

The concept of justice is so old that it has been discussed extensively, but it is also so modern that it shapes the constantly shifting landscape of modern society. From this angle, we might argue that justice has two distinct meanings in modern society: a traditional meaning and a more sophisticated, technical meaning. Justice has historically been viewed as both a necessary and desirable quality for a democratic system and as a moral virtue of character. Justice, according to Plato, is "giving to each person his due." In this context, justice entails treating everyone equally, morally, and impartially.

To comprehend the notion of justice in the modern era, one must grasp that it is ingrained in the Indian Constitution's preamble. The Indian constitution's authors made sure that justice was included because they understood how important it was to establish justice in a nation. The concept of justice expressed in the preamble of the Indian constitution is also reflected in Articles 14, 15, 16, and 17. Part III of the constitution, which grants every citizen fundamental rights, incorporates all these articles.

Every Indian citizen is guaranteed the right to equality by Articles 14 through 18 of the Constitution. The general principles of equality before the law are embodied in Article 14, which also forbids unjustified discrimination between individuals. The Preamble's notion of equality is embodied in Article 14. The general guidelines outlined in Article 14 are specifically applied in the ensuing Articles 15, 16, 17, and 18. The ban on discrimination based on race, religion, caste, sex, or place of birth is covered in Article 15. Equality of opportunity in things pertaining to public employment is guaranteed by Article 16. 'Untouchability' is eliminated by Article 17. Title is abolished under Article 18.

Article 14 permits classification but prohibits class legislation.

Article 14's promise of equal protection under the law does not require all laws to have a universal nature. It does not follow that everyone should be subject to the same laws. This does not imply that all laws must be applied to all people because no two people are the same in terms of their circumstances or nature.

Different classes of people frequently need different kinds of care because of their differing demands. Different laws should apply in different regions due to the very nature of society, and the Legislature sets policy and passes laws that are best for the security and protection of the State. Therefore, if society is to advance, a decent classification is not only permissible but also essential.

Therefore, class-legislation is prohibited under Article 14, but fair classification is not. However, the categorization cannot be "arbitrary, artificial, or evasive"; rather, it must be founded on a true and meaningful distinction that has a fair and reasonable connection to the goal that the legislator is trying to accomplish. For a classification to be deemed reasonable, it must meet the subsequent two requirements:

The classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group and the differentia must have a rational relation to the object sought to be achieved by the act.

• Ram Krishna Dalmia v. Justice Tendolkar: The Supreme Court explains equality before the law in this case. In this instance, the renowned "classification test" had been administered. In short, it allows the State to categorize subjects differently (which is otherwise forbidden by Article 14) if the classification is based on comprehensible differentia (i.e., objects in the class can be easily distinguished from those outside) and has a rational connection to the goal of the classification. 
• Kedar Nath v. State of West Bengal: The Court's ruling concerned the presumption that the classification is reasonable, which is based on the idea that the Legislature can make a fair choice because it recognizes the public's need. The articles of the Fundamental Rights pertaining to the right to equivalency and reasonable classifications do not require that a classification be flawless or comprehensive based on rational or scientific reasoning.

If a law is created just for one person, then that one person alone will be covered by the law. Laws intended for a single individual are enforceable under Article 14. People tend to think that laws designed for a single person are discriminatory, but this is untrue; laws are legitimate provided they are sensible and have a reasonable connection.

ARTICLE 14: OVER THE YEARS

At first, Article 14 was mainly concerned with guaranteeing equality before the law, taking its cue from the English common law system. However, the idea of equal protection under the law has been added to the ambit of Article 14 by judicial interpretation. This extension increased the scope of the right to equality and highlighted the importance of treating everyone equally before the law and without prejudice.

Theory of Reasonable Classification: Under Article 14, the Indian judiciary has acknowledged the reasonable classification theory as a valid justification for treating people differently. This concept states that the state is permitted to create appropriate categories for legislative purposes, provided that the classifications are based on comprehensible differentia and have a logical connection to the goal of the law. This approach guarantees that unequal treatment is not arbitrary nor discriminatory, while still permitting legislative flexibility.

Social and Economic Equality: The meaning of Article 14 has evolved over time to include substantive equality as well as formal equality before the law, especially when it comes to social and economic rights. The court has stepped in to make sure that state policies support social justice and substantive equality because it has acknowledged that socioeconomic disparities can sustain discrimination.

Affirmative Action: To rectify past injustices and advance social inclusiveness, affirmative action laws in India have been greatly influenced by Article 14. The judiciary has acknowledged the necessity of special provisions and reservations for disadvantaged groups, such Scheduled Castes, Scheduled Tribes, and Other Backward Classes, to assure their equal participation in society, while still respecting the ideal of equality.

Judicial Activism: Through judicial activism, the Indian court has taken the initiative to protect the right to equality under Article 14. Affirmative action has been mandated by the state to safeguard the rights of marginalized and vulnerable groups after courts have declared laws and policies that are discriminatory or arbitrary to be unconstitutional. Judges' rulings have strengthened the idea that the government must treat its citizens equally and impartially and have helped to shape the development of equality jurisprudence.

Since its creation, Article 14 has had substantial modifications and advancements that represent India's changing conception of justice and equality. The scope and applicability of Article 14 have been extended to address modern issues and advance a more inclusive and egalitarian society through judicial interpretation and legislative action. 

Article 14 and Transgender People's Rights: The Indian Supreme Court has also invoked Article 14 in recent years to defend the rights of transgender people. The Court has ruled that transgender people are entitled to equality and non-discrimination under Article 14 and that these rights apply to them.

GENDER EQUALTIY

Gender equality refers to giving men and women the same opportunities in all spheres of life, including the job, earning potential, and opportunities. Discrimination between men and women is unacceptable. A few significant articles that touch on the idea of equality are Articles 14, 15, 16, and 39 of the Indian Constitution.

Article 14 discusses the equality right. Ensuring equitable treatment of all Indian citizens before the law and preventing discrimination based on factors such as gender, caste, colour, or religion is a fundamental right. Women who are compelled to marry young find it difficult to further their education and find employment, which leaves them entirely dependent on men.

• Vishaka v. State of Rajasthan (1997): This case addressed sexual harassment at the workplace and established guidelines (Vishaka guidelines) to ensure gender equality and prevent sexual harassment. It recognized that dignity and equality of women are essential components of Article 14 and other fundamental rights.
• Shayara Bano v UOI: In the Triple Talaq Case, the Supreme Court's five-judge bench decided on August 22, 2017, stating that the practice of immediate triple talaq, or Talaq-ul-biddat, was unconstitutional. The Bench noted that equality of status was a manifestation of the fundamental right to equality protected by Article 14 of the Constitution. According to Article 14, the values of gender equity, justice, and equality are inextricably linked to the protection of equality. It is completely incongruous with the language and spirit of Articles 14 and 15 of the Constitution to provide someone a social status based on patriarchal ideals, or a social status based on the kindness of males.

CURRENT SCENARIO

Even in the presence of laws protecting equality, it is still difficult to guarantee that everyone is treated equally. In many areas of life, discrimination persists based on caste, religion, gender, and socioeconomic class. Legal and cultural initiatives are necessary to address these systemic inequities to ensure the proper execution of Article 14.

The significant challenge of implementing Article 14 is posed by intersectional discrimination, which occurs when an individual experiences various forms of discrimination at the same time. Women, members of religious minorities, and LGBTQ+ people are examples of marginalized groups that frequently face compounded kinds of discrimination that limit their access to opportunities and rights. Intersectional discrimination must be addressed with a thorough and sophisticated strategy.

• Naz Foundation v. Government of NCT of Delhi (2009): In this case, the Delhi High Court decriminalized consensual homosexual acts between adults, stating that Section 377 of the Indian Penal Code violated Article 14 by discriminating against individuals based on their sexual orientation.
• Navtej Singh Jauhar v. UOI: The Indian Penal Code's Section 377, which outlawed same-sex relationships between consenting adults, was unanimously overturned by a five-judge Supreme Court bench. As of right moment, consensual sexual relations are legal for LGBT people. It was decided that the portion of Section 377 of the IPC violated same-sex couples' rights to equality. 

Human rights advocates, advocacy groups, and civil society organizations are essential in raising awareness of and pushing for the successful application of Article 14. These groups support the advancement of justice and equality in society through public interest lawsuits, advocacy campaigns, and research. The government, the judiciary, civil society, and the public must work together to effectively execute Article 14, even if it offers a strong framework for guaranteeing equality before the law and equal protection under the law. Ensuring equitable opportunities for all individuals and addressing systemic disparities are ongoing concerns that require constant attention and effort.

CRITICAL ANALYSIS

The essence of Article 14 is mirrored in the Equal Protection Clause of the United States Constitution's 14th Amendment. To prevent discrimination and guarantee that everyone is treated fairly under the law, these articles forbid states from denying anybody living under their authority the equal protection of the law. Nevertheless, Article 14 targets a wider range of equality issues, including caste, religion, gender, and socioeconomic position, reflecting India's distinct socio-cultural background. The 14th Amendment, on the other hand, largely addressed racial discrimination following the Civil War.

Equality rights are guaranteed by Section 15 of the Canadian Charter of Rights and Freedoms, which forbids discrimination based on racial, religious, and disability grounds. Like Article 14, Section 15 prioritizes the dignity and respect of every person, regardless of their qualities, and stresses equality before the law and equal protection under the law. In contrast to Article 14, which does not specifically address affirmative action but authorizes justifiable classification based on understandable differentia and rational connection, the Canadian Charter permits affirmative action measures.

SOUTH AFRICA

In addition to preserving equality before the law, Section 9 of the South African Constitution forbids discrimination on several grounds, including race, gender, and religion. The goals of promoting diversity and opposing prejudice are shared by Article 14 and Section 9. Nevertheless, unlike Article 14, which does not particularly address affirmative action but permits fair classification based on understandable differentia and rational connection, the South African Constitution expressly acknowledges affirmative action measures to correct historical injustices.

One of the fundamental tenets of the Indian Constitution, Article 14 is essential to defending the liberties and rights of Indian citizens. All Indian citizens are guaranteed equal protection under the law and equality before the law under Article 14, regardless of their gender, caste, creed, religion, or any other aspect of their personal identity. The Indian Supreme Court has invoked Article 14 to uphold the fairness and reasonableness standards in State action and to invalidate laws and practices that discriminate against and violate the right to equality.

The courts have construed and implemented the requirements of Article 14 to safeguard the rights of transgender individuals, minority groups, and equality as well as a fair trial. The fundamental tenets of equality and non-discrimination in Indian society would be strengthened by the courts' ongoing implementation and interpretation of Article 14.

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Article 14 - Critical Analysis and Contemporary Development

• Private individuals do not enjoy the powers of public officials.
• Article 361 offers immunity to the President and the Governor.
• Article 31-C offers immunity to the State for implementing Directive Principles contained in Article 39 (b) and (c).
• Article 359(1), under the President's order, the enforcement of the right is suspended till the said order is in force.
• Foreign Heads, Ambassadors, Judicial Officers, Public Officers, Armed Forces Personnel while in office enjoy immunity under various Laws.
• Magna Carta
• Constitution of India, arts 14, 15 and 16
• State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
• E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3
• Lachman Das v. State of Bombay, AIR 1952 SC 239
• Maneka Gandhi v. Union of India (1978) 1 SCC 248
• Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722
• RD Shetty v. AAI (1979) 3 SCC 489
• Chiranjit Lal Chowdhary v. UOI 1951
• A.L. Kalra v. Project & Equipment Corporation (1984) 3 SCC 316, 328
• Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212
• Rajbala and ors v. State of Haryana and ors (2015)
• H.M. Seervai, Constitutional Law of India 438 (1991)
• P.K. Tripathi, �The Fiasco of Overruling A.K. Gopalan� AIR Journal 6 (1990)
• Jagdish Swarup, Constitution of India 401
• K.K. Mathew : Democracy, Equality and Freedom,
• VK Sircar � The Old and New Doctrine, Critical Study
• Tarunabh Khaitan, �Legislative Review under Article 14� Oxford Handbook of Indian Constitutional Law
• Kent Greenawalt - How Empty Is the Idea of Equality? Columbia Law Review

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A Critical Analysis of Article 19 with latest judicial interpretation

Written by admin

Updated on: July 29, 2020

Table of Contents

A Critical Analysis of Article 19 with latest judicial interpretation or Judgments 

Our Legal World Intern Written by: PREETKIRAN KAUR

INTRODUCTION

Rightly described as the “Magna Carta” of India, The Fundamental Rights are enshrined in Part III of the Indian Constitution from Articles 12 to 35. The rights conferred under Article 19 of the Constitution are the rights of a free man. These are natural law or common law rights and not created by a statute. As such every citizen is entitled to exercise such rights provided conditions to be imposed whenever so required by the State. 1

Every citizen of India has the personal liberty and freedom to exercise his/her fundamental rights, as enshrined in the Constitution. Article 19 is one of the key Articles that guarantee freedom of speech and expression. 

According to Article 19, every citizen has the right to freedom of speech and expression, assemble peacefully (without arms), form associations or unions, move freely throughout the country, reside and settle in any part of India and practise any profession, or carry on any occupation title 19 explicitly states that the right to freedom of opinion and expression also includes the freedom to hold opinions without interference and “to seek, receive and impart

DIRECTIVE PRINCIPLE OF STATE POLICY (DPSP) with case law

information and ideas through any media and regardless of frontiers.” Article 19 (5) of the Constitution “purportedly empowers” the states to enact legislation of their own for  protecting indigenous people.

To protect the sovereignty, integrity and security of India, the states can enact any law that imposes “reasonable restrictions” on the exercise of the rights as mentioned in Article . It is to be noted that the privileges under this article remain suspended during the proclamation of emergency.

  ARTICLE 19- RIGHT TO FREEDOM  

The Constitution of India contains the right to freedom in article 19 with a view of guaranteeing individual rights that were considered vital by the framers of the constitution. These rights have been provided to all citizens. However t, the state can check or control the above rights in the interest of sovereignty and integrity of India, public order, decency, defamation or friendly relation with foreign state or any other ground which it deems fit. This is the most disputed and comprehensive fundamental right which comprises of even the right of freedom of press and right to information.

  Article 19(1) guarantees to all citizens the six rights. These are: –

  a) Right to freedom of speech and expression

  Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several facets, including the right to express one’s conviction and opinions freely by words of mouth, writing, printing, pictures, photographs, cartoons or any

other mode. It means freedom of speech and expression is to express one’s convictions and opinions or ideas freely, through any communicable medium or visible representation, such as gesture, signs and the like. 2 It is one of the most basic and indivisible elements for a healthy and open-minded democracy. It allows people to freely participate in the social and political happenings of their country by opening up channels of free discussions of issues of concern. This right is available only to every citizen of India and not available to any person who is not a citizen of India i.e. foreign nationals. 3 Freedom of speech is the bulwark of a democratic Government because without its appeal to reason, which is the basis of democracy, cannot be made.

In Navtej Singh Johar v. UOI 4, it was held,

“Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression, which includes the freedom to express one’s sexual identity and personhood 3. Section 377, under the guise of targeting conduct, actually targets the identity of LGBT persons. Once it is accepted that homosexual orientation is innate, and not learned or deviant behaviour it follows that LGBT persons cannot  freely express themselves about their own sexual orientation and, therefore, their identity because they potentially become the target for criminal prosecution under Section 377. Article 19(1)(a), therefore, protects the fundamental freedom of LGBT persons to express their sexual identity, and orientation, through speech, manner of dressing, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgement of relationships, or any other means.”  

In Romesh Thapar v. The state of Madras 5   and Brij Bhushan v. the State of Delhi 6 , the Supreme Court took it for granted the fact that the freedom of the press was an essential part of the right to freedom of speech and expression. Patanjali Sastri J . in  Romesh Thapar observed that freedom of speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation.

  Freedom of speech and expression includes the following:

(i) Right to propagate one’s views as well as views of others.

(ii) Freedom of press.

In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of  India 7 court observed the importance of the press and held that “In today’s free world freedom of the press is the heart of social and politic intercourse. Press has rightly been described as the fourth pillar of democracy.

(iii) Freedom of commercial advertisements.

(iv) Right against tapping o telephonic conversation.

(v) Right to telecast, that is, the government has no monopoly on electronic media.

(vi) Right against bandh called by a political party or organisation.

(vii) Right to know about government activities.

Right to know is another facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the ambit of right to freedom of speech and expression.

(viii) Freedom of silence. In the case of Bijoe Emmanuel v. the State of Kerala 8 , the appellants were three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other.   

They refused to sing the National Anthem because they believed the singing of national anthem was against the tenets of their religious faith  They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung. However, under the instructions of Deputy Inspector of Schools, the Headmistress expelled the appellants from school. Supreme Court found their expulsion in violation both Articles 19 and 25 of the Constitution, holding that a reasonable limitation on the right to freedom of expression must be based on a “‘a law’ having statutory force and not a mere executive or departmental instruction.” 

Nature and Scope of Article 136 of the Constitution

(ix) Right against the imposition of pre-censorship on a newspaper.

(x) Right to demonstration or picketing but not right to strike.

The state can impose restrictions on the freedom to speech and expression mentioned in 19(2) on the following grounds:- 9

• Sovereignty and integrity of India
• Security of the state
• Public order
• Morality or decency
• Contempt of court
• Incitement to offence
• Friendly relations with foreign nations.

  Essential Elements of Restrictions

• Only by the authority of Law
• Judicial Review

b) Freedom of Assembly

Every citizen has the right to assemble peacefully without arms on public land. This right guarantees the right to hold public meetings, demonstrations and take out processions but not right to strike and any sort of violent, disorderly, riotous assemblies involving the use of arms and breach of public peace. Section 144 of the Criminal Procedure Code (1973) empowers a magistrate to restrain an assembly or procession if it poses a threat to human life, safety or public peace. Under Section 141 of the Indian Penal Code, an assembly of five or more people can be declared unlawful if they :

• Resist the enforcement of any law
• Forcibly occupy the property of any person
• Commit criminal trespass,
• Force an illegal act on a person
• Acting as a hindrance in the lawful working of government officials.

However, it can be restricted on the following grounds as mentioned in 19(3):-

• Sovereignty and integrity of India.

  In the recent case of Mazdoor Kisan Shakti Sangathan v Union Of India 10 , a writ petition was filed by the NGO Mazdoor Kisan Shakti Sangathan . They challenged the arbitrary imposition of police orders under section 144 of CrPC by which the  entire Central Delhi area was declared a prohibited area for holding any public meeting, dharna or peaceful protest. It was held that such a restriction was violative of Article 19(1)(a) which confers freedom of speech and expression, Article 19(1)(b) which confers right to assemble and Article 19(1)(d) which ensures right to carry out a peaceful march.

In Babulal Parate v. State of Maharashtra 11 citizens’right to take out procession or to hold da demonstration or public meetings as part of the freedom to assemble peacefully and without arms and right to move freely anywhere in the territory of India. It was also held that section 144 of CrPC was constitutional and the magistrate had the power to prevent such activities which would obstruct the public interest and peace.

  c) Freedom of Association

  All the citizens have the right to form associations or unions or co-operative societies which includes the right to form political parties, companies, partnership firms, etc. It also covers the negative aspect i.e. not to form or join an association or union.

  Aristotle has rightly said, “Man is a social animal”. They also facilitate the exchange of different ideas and convictions and also encourage the free flow of opinions in a systematic and well-organized manner. They inculcate the feeling of confidence  among the people engaged in it and give a chance to them to express their own viewpoint They serve as a latent source of information and knowledge to everyone around. Participation in these groups and clubs help an individual to survive and grow socially. But at the same time, it is pivotal to note that these organizations or political parties should not engross themselves in any kind of illegal or unlawful activities leading to resentment among people. They should aim towards harmonizing all the sections of society to work for a better tomorrow.

However, reasonable restrictions can be imposed on the following grounds mentioned in 19(4):-

i) Sovereignty and integrity of India.

ii) Public order

iii) Morality

   In O.K.A. Nair v. Union Of India 12 , an important question arose whether “ civilian’’ employees, designated as ‘ non – combatants’ such as cooks, chowkidars, lasers, barbers, mechanics, boot- makers, tailors etc . attached to the Defence Establishments

have a right to form associations or unions. The Supreme Court rejected the contentions of the appellants and held that the civilian employees of the Defence Establishments answer the description of the members of the Armed Forces within the meaning of Article 33 and, therefore were not entitled to form trade unions.

  d) Freedom of movement

  This right guarantees every citizen the right to move freely throughout the country i.e. from one state to another or from one place to another within a state. India is one entity as far as its citizens are concerned hence aims to promote a feeling of unity and  oneness. Freedom of movement has two connotations i.e.Internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). However, only the first aspect is protected by Article 19.

  Reasonable restrictions can be imposed as mentioned in 19(5):-

  i) Interests of the general public.

ii) Interests of any scheduled tribe.

  Restrictions can be imposed only by or under the authority of law.

• Restrictions cannot be imposed by the executive action without legal authority.
• Restrictions must be reasonable. Restrictions must be related to the purpose specifically mentioned in these clauses.
• Restrictions can be imposed only by or under the authority of law. Restrictions cannot be imposed by the executive action without legal authority.
• Restrictions must be related to the purpose specifically mentioned in these clauses.

   Restrictions on the movements of persons afflicted with by AIDS have been held by Bombay High Court to be valid in the case of  Lucy R. D&#39; Souza v.  State of Goa 13 .  

Restrictions to protect the interests of scheduled tribes have been stipulated for the aboriginal tribes with their distinct culture, language and customs. 14 It was held in Dhan Bahadur Ghori v. State of Assam 15 that unrestricted entry of outsiders&#39; in areas inhabited by the tribal folks might jeopardize their very nexistence and interests.

  e) Freedom of Residence

  Every citizen has the right to reside and settle in any part of the country except Jammu and Kashmir. This right has two dimensions: (a) temporarily settling at any place (b) permanently settling at a place i.e. to set up a home or domicile. Reasonable restrictions can be imposed on two grounds as mentioned in 19(5):

i) Interests of the general public.

ii) Interests of any scheduled tribes.

  The rights of outsiders to reside and settle in tribal areas are restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of the country, tribals have been given the right to protect their properties.

  In Ibrahim Wazir v. State of Bombay 16 , the appellant was an Indian citizen who came to India without a permit and was arrested and deported to Pakistan by the Government under the Influx from Pakistan (Control) Act, 1949. Court held that the order of removal was invalid as coming of a citizen to his home country without a permit was not an offence which would justify his expulsion from the country.

In State of Madhya Pradesh v. Bharat Singh 17 , Section 3 (1) (b) of the M.P. Public Security Act, 1959 empowered the State Government to issue an order requiring a person to reside or remain in such a place as may be specified in the order to ask him to leave the place to go to another place selected by the authorities in the interests of security of the State or public order.

g) Freedom of profession

  sub-clause(g) of Article 19 (1) confers a right to all persons to do any particular type of business of their choice but this does not confer the right to do anything consider illegal in eyes of law or to hold a particular job or to occupy a articular post of the

choice of any particular person. 18 Further Art 19(1) (g) does not mean that conditions be created by the state or any statutory body to make any trade lucrative or to procure customers to the business/businessman. 19 Moreover, a citizen whose occupation of a place is unlawful cannot claim fundamental right to carry on business in such place since the fundamental rights cannot be availed in the justification of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory functions. 20

All citizens can practise any profession or carry on any occupation, trade or business. However reasonable restriction can be imposed on grounds of interest of the general public as prescribed under article 19(6). Further, the State has the right to rescribe professional or technical qualifications to practise any profession or to carry out any trade. It can also carry on a trade or business as a monopoly.

  In Luxmi Khandsari v. State of Uttar Pradesh 21 , a notification was issued under Sugar Cane control Order to stop crushers from producing khandsari so that the production of white sugar could be increased. It was ordered so to make the sugar available o consumers at a reasonable price and was held to be imposing estriction in the interest of the public on the right of persons using rushers and therefore valid.

  In the liquor trading case of Nashirwar v. State of Madhya Pradesh 22 , the Supreme court interpreted that there was no inherent right to carry on trade in liquor because it was clearly in against of interest of the general public.

  CONCLUSION

The power of words can never be underestimated since words and language are the only things that separates man from beast. It is the importance of words which helped in the exchange of ideas which led to the development of civilization. The importance was identified by the framers of the constitution hence duly protected by the Constitution. Moreover, they are justiciable. One can move to the court in case of infringement of one’s rights. 

  First amendment to Article 19 was made in the year 1951 by the Nehru government when it introduced clauses against “abuse of freedom of speech and expression”. The clauses 2, 3 and 4 of Article 19 were amended in 1963 to enable the states to make laws

as well as impose restrictions on the exercise of the rights to preserve the sovereignty and integrity of India. 

There have been cases of violation of Article 19. Recently, there have been instances of individuals being arrested under section 66A of the Information Technology (IT) Act  for posting ‘objectionable comments and caricatures’ of political figures on social media. This has led to a furore among the citizens of the country who have claimed that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution.  

Another form of violation of Article 19 that’s rampant in India is the hate speeches that we often get to hear from the political leaders.  These hate speeches come with the malicious intention of “outraging the religious feelings” and hence they incite communal violence and endanger public tranquillity, which is against the principle of Article 19.

  John Stuart Mill argued that without human freedom there can be no progress in  science, law or politics, which according to him required free discussion of opinion. Mill’s On Liberty, published in 1859 became a classic defence of the right to freedom of expression in which he recognised freedom of thought, taste and union as three basic liberties. To sum up, I would like to quote John Milton –

Can a person waive any of the Fundamental Rights?  

 “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton.

1 A.K. Gopalan v. State of Madras, AIR 1950 SC 27

2 Lovell v. City of Griffin, (1937) 303 US 444.

3 Hans Muller of Nurenburg v. Supdt., Presidency Jail, Calcutta, AIR 1955 SC 367.

4 (2018) 1 SCC 791

5 1950 SCR 594

6 1950 SCR 605

7 1986 AIR 872

10 Writ Petition (Civil) No. 1153 of 2017

11 1961 SCR (3) 423

12 AIR 1976 SC 1179

13 AIR 1990 Bom 355

14 Retrieved from &lt;https://www.telegraphindia.com/opinion/when-movement-is-not-free/cid/1451494&gt; Last

visited on 26 May 2019 at 7:30 pm.

15 AIR 1953 Gau 61

16 AIR 1954 S.C. 299

17 AIR 1967 S.C. 1170

18 Fertilizer Corporation kamgar Union, Sindri v.UOI; AIR 1981 SC 344.

19 Chaitanya Prakesh v. Board of secondary Education rajasthan; 1960 Raj L.W. 209.

20 State of Gujarat v.Dharamdass; AIR 1982 SC 781

21 1981 SCR (3) 92

22 AIR 1975 SC 1368

Kerala Government deferred the 1 percent flood cess by GST Council

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• Right To Equality

Right to Equality (Articles 14 - 18)

The right to equality provides for the equal treatment of everyone before the law, prevents discrimination on various grounds, treats everybody as equals in matters of public employment, and abolishes untouchability, and titles (such as Sir, Rai Bahadur, etc.).

Right to Equality – Indian Polity Download PDF Here

In this article, you can read all about the Right to Equality and the related constitutional provisions from the IAS exam point of view. For more on Fundamental Rights , click on the linked article.

Aspirants preparing for the upcoming CSE exam must refer to the details discussed further below in this article, important from the IAS exam perspective.

Right to Equality

Before knowing about the right to equality, aspirants should know the types of equality to get an idea of what it is. It is also mentioned in our Preamble. The types of  equality are:

The Right to Equality is one of the Fundamental Rights enshrined in the Constitution of India. It is very important to understand what this right entails and includes. This topic is a basic topic in the polity and constitution segments of the UPSC Syllabus for the civil services exam.

Below we provide the associated articles of the Constitution under the right to equality.

Equality before the law (Article 14)

Article 14 of Indian Constitution treats all people the same in the eyes of the law. Article 14 is described in two parts – which states and commands the State not to deny to any person ‘equality before the law’. Another part of it also commands the State not to deny the ‘equal protection of the laws’.

• This provision states that all citizens will be treated equally before the law and avoids any kind of discrimination. 
• The law of the country protects everybody equally.
• Under the same circumstances, the law will treat people in the same manner.

Prohibition of discrimination (Article 15)

This article prohibits discrimination in any manner. This article secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or of them. 

• Access to public places
• Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public
• The article also mentions that special provisions can be made for women, children and the backward classes notwithstanding this article.

Equality of opportunity in matters of public employment (Article 16)

Article 16 provides equal employment opportunities in State service for all citizens.

• No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent or residence.
• Exceptions to this can be made for providing special provisions for the backward classes.

Abolition of untouchability (Article 17)

Article 17 prohibits the practice of untouchability.

• Untouchability is abolished in all forms.
• Any disability arising out of untouchability is made an offence.

Abolition of titles (Article 18)

Article 18 abolishes titles.

• The State shall not confer any titles except those which are academic or military titles.
• The article also prohibits citizens of India from accepting any titles from a foreign State.
• The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.
• Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.

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Furthermore, candidates can also acquaint themselves with the information and preparation strategy of previous year  UPSC toppers  and accordingly chalk out a preparation plan to excel in the examination.

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UPSC Questions related to Right to Equality

Is equality a basic human right.

The right to equality and non-discrimination is a fundamental component of international human rights law.

What are the exceptions to the right of equality of opportunity in matters of public employment?

Under Article 16, exceptions to the right of equality of opportunity in matters of public employment are provided for to protect the interests of the weaker and vulnerable sections of society such as women, children, the backward classes (SC/ST) and minorities. The Parliament may also pass a law to the effect that a certain post be filled only by people residing in a certain area, to fulfil the conditions of the post that warrant the knowledge of the locality and the local language. The article also mentions that there can be a law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution shall be a person professing a particular religion or belonging to a particular denomination.

What does the Constitution of India say about equality?

The Constitution of India has granted the right to equality to all citizens. All are equal before the law and there can be no discrimination on the basis of religion, race, caste, gender, place of birth, etc.

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