FUNDAMENTAL RIGHTS | RIGHT TO EQUALITY | (PART 3: ARTICLE 14 – 18)
ARTICLE 14 : - EQUALITY BEFORE LAW :
• Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• This provision confers rights on all persons whether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.
• The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution.
• The first concept connotes: (a) the absence of any special privileges in favour of any person, (b) the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.
• The second concept, on the other hand, connotes: (a) the equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws, (b) the similar application of the same laws to all persons who are similarly situated, and (c) the like should be treated alike without any discrimination. Thus, the former is a negative concept while the latter is a positive concept.
RULE OF LAW :
• The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects:
1. Absence of arbitrary power, that is, no man can be punished except for breach of law.
2. Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts.
3. The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights.
• The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights. The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.
EXCEPTIONS :
• The President of India and the Governor of States enjoy the following immunities (Article 361):
i. The President or the Governor is not answerable to any court.
ii. No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
iii. No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
iv. No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after heentered upon his office, until the expiration of two months next after notice has been delivered to him.
v. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).
vi. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).
vii. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194).
viii. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
ix. The UNO and its agencies enjoy the diplomatic immunity.
ARTICLE 15 - PROHIBITION OF DISCRIMINATION ON CERTAIN GROUNDS :
• Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are ‘discrimination’ and ‘only’.
• The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
• The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.
• There are three exceptions to this general rule of non-discrimination:
i. The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.
ii. The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes4. For example, reservation of seats or fee concessions in public educational institutions.
iii. The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes
ARTICLE 16 - EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT :
• Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
• There are three exceptions to this general rule of equality of opportunity in public employment:
1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority.
2. The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
3. A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.
MANDAL COMMISSION :
• Government appointed the Second Backward Classes Commission under the chairmanship of B P Mandal, a Member of Parliament, to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement.
• The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs).
• The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%.7 It was after ten years in 1990 that the V P Singh Government declared reservation of 27% government jobs for the OBCs.
CREAMY LAYER :
• The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).
• In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the ‘creamy layer’ (advanced sections) among the OBCs while implementing the law.
1. Persons holding constitutional posts like President, Vice- President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
2. Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India,
3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.
4. Professionals like doctors, lawyers, engineers and so on.
5. Persons engaged in trade, business and industry.
6. People holding agricultural land above a certain limit
7. Persons having gross annual income of more than 6 lakh
ARTICLE 17 – ABOLITION OF UNTOUCHABILITY :
• Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
• In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent.
• The act defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution.The term ‘untouchability’ has not been defined either in the Constitution or in the Act.
• Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine upto 500 or both.
• The act declares the following acts as offences:
a) preventing any person from entering any place of public
b) worship or from worshipping therein;
c) Justifying untouchability on traditional, religious, philosophical or other grounds;
d) denying access to any shop, hotel or places of public entertainment;
e) insulting a person belonging to scheduled caste on the ground of untouchability;
f) refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;
g) preaching untouchability directly or indirectly; and refusing to sell goods or render services to any person.
ARTICLE 18 – ABOLITION OF TITLES :
• Article 18 abolishes titles and makes four provisions in that regard:
a) It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner.
b) It prohibits a citizen of India from accepting any title from any foreign state.
c) A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
• From the above, it is clear that the hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of all.
• In 1996, the Supreme Court upheld the constitutional validity of the National Awards— Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri.
• It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18 that prohibits only hereditary titles of nobility. Therefore, they are not violative of Article 18 as the theory of equality does not mandate that merit should not be recognised.
 | Mandal Commission |){kind=link}
0 Comments