Equality Before the Law and Equal Protection

In one line

Article 14 carries two formulas, one English and negative, one American and positive, and the second is what makes reservation possible.

In the wording a student can write in an exam: article 14 provides 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. The first expression is taken from English constitutional law and is a negative concept, implying the absence of any special privilege in favour of any person and the equal subjection of all to the ordinary law administered by the ordinary courts. The second is taken from the Fourteenth Amendment to the United States Constitution and is a positive concept, implying the right to equality of treatment in like circumstances, that is, that among equals the law should be equal and equally administered. The two are not the same, and the difference matters: equality before the law forbids the State to confer a privilege, while the equal protection of the laws permits, and may require, that persons differently situated be treated differently.

The two limbs

Equality before the law. Dicey's formula, and it has three parts in his account: the absence of arbitrary power, so that a person may be punished only for a breach of law established in the ordinary manner; equality before the law, meaning the equal subjection of all classes to the ordinary law administered by the ordinary courts; and the proposition that the general principles of the constitution are the result of judicial decisions determining the rights of private persons.

Only the second of Dicey's three is what article 14 means by the phrase, and even that has to be qualified for India: the Constitution itself confers immunities, notably on the President and the Governors under article 361, and on members of the legislatures under articles 105 and 194. Those are constitutional exceptions to the equal subjection Dicey described, and an answer should name them rather than pretend the formula is absolute.

The equal protection of the laws. The positive limb. It does not require that the same law apply to everybody. It requires that persons in like circumstances be treated alike, which necessarily means that persons in unlike circumstances may be treated differently. This is the limb that makes classification lawful, and therefore the limb from which reasonable classification is derived.

Why the Constitution has both. The negative limb alone would forbid privilege but say nothing about whether the State may distinguish between groups. The positive limb alone would permit distinction but say nothing about privilege. Together they say: no special privilege, and no identical treatment of the unalike.