Equality Before the Law and Equal Protection
Chapter Thirty-Seven
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action".
Pages 171 to 174 of 304
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.
Equality Before the Law and Equal Protection
The proposition that treating unequals alike is itself unequal
This is the single most useful sentence in the whole topic and it should be stated in every equality answer.
If equality meant identical treatment, then a law giving a blind candidate extra time in an examination would be unconstitutional, and so would a law taxing higher incomes at higher rates. Nobody thinks either result is right. The reason is that formal equality, treating everyone the same, produces substantive inequality where people are not the same to begin with.
So the guarantee is understood as substantive equality: like should be treated alike, and unlike differently in proportion to their unlikeness. The whole of the reservation jurisprudence rests on this, and so does the answer to the standard objection that reservation is itself discrimination. See [Protective Discrimination].
What article 14 forbids
Three things, and they are worth separating because a problem may involve any of them.
A law that classifies unreasonably. The classification test, in [Reasonable Classification].
A law or executive act that is arbitrary. The arbitrariness test, in [Arbitrariness].
Unequal administration of an equal law. A law fair on its face may be applied with an evil eye and an unequal hand. The law is then valid but its application is not, and the remedy is against the application. This is a distinct ground and it is often forgotten: a challenge may be to the statute, or to the executive action under it, or to both.
Article 14 binds every kind of State action
Not only legislation. Article 14 controls executive action, administrative decisions, policy, the award of contracts, and the framing of rules. That proposition comes from the same line of cases as the instrumentality test:
Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973. A Chief Secretary complained that his transfers to other posts were mala fide and offended articles 14 and 16.
Held. The plea failed on the facts, but the Court held that articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. State action must be based on relevant principles applicable alike to all similarly situated, and must not be guided by extraneous or irrelevant considerations, because that would be a denial of equality. Where the operative reason for State action is not legitimate and relevant but extraneous, it amounts to a mala fide exercise of power and is hit by articles 14 and 16.
Why it matters. It confirms that an administrative decision, not merely a statute, is measured against article 14, and it supplies the standard: relevant principles, applied alike, free of extraneous considerations.
Equality Before the Law and Equal Protection
The exceptions the Constitution itself makes
An honest answer names these, because they are the limits of the guarantee.
Article 361. The President and the Governors are not answerable to any court for the exercise of their powers, and no criminal proceeding may be instituted against them during their term.
Articles 105 and 194. Members of Parliament and of the State legislatures are not liable in any court for anything said or any vote given in the House.
Article 31C, so far as it survives, saves a law giving effect to the directive principles in article 39(b) and (c) from challenge under articles 14 and 19. See [Saving of Laws: Articles 31A, 31B and 31C].
Diplomatic and sovereign immunities recognised by international law and given effect by statute.
Article 359, under which the right to move a court for the enforcement of article 14 may be suspended during an emergency, though not articles 20 and 21 after the Forty-fourth Amendment.
A worked example
A municipal law provides that any building erected without permission may be demolished after notice, and gives the Commissioner a discretion to decide which of two procedures to follow: a summary procedure with a short notice, or an elaborate one with a hearing and an appeal. The Act states no principle for choosing between them. Two owners in identical positions are dealt with under different procedures.
Which limb of article 14 is engaged?
The classification challenge. Ask first whether the Act itself classifies. It does not: it does not say which buildings get which procedure. So this is not a case of an unreasonable classification in the statute.
The Anwar Ali Sarkar objection. A statute that confers an uncontrolled discretion to pick who is treated differently, with no principle stated to guide the choice, is bad for that reason alone, even though the differential treatment could have been justified had the Act itself drawn the line. That is the point of [Reasonable Classification].
The unequal-administration objection. Even if the Act laid down a principle, applying it to one owner and not to another identically placed is administration with an evil eye and an unequal hand, and the executive action falls though the Act stands.
The arbitrariness objection. On Royappa, State action must rest on relevant principles applied alike to all similarly situated. A choice of procedure made on no principle at all is arbitrary, and is unequal for that reason.
How to write it. Take the statute and the action separately. A student who runs them together usually loses the second point.
Quick revision
- Article 14 has two limbs: equality before the law, English and negative, no special privilege and equal subjection to the ordinary law; and equal protection of the laws, American and positive, like treated alike.
- The positive limb is what permits classification and therefore makes reservation possible.
- Treating unequals alike is as unequal as treating equals differently. Substantive, not formal, equality.
- Three things are forbidden: unreasonable classification, arbitrariness, and unequal administration of an equal law.
- Article 14 binds executive and administrative action, not only legislation: Royappa.
- Constitutional exceptions: articles 361, 105 and 194, 31C so far as it survives, diplomatic immunity, and suspension under article 359 except for articles 20 and 21.
Equality Before the Law and Equal Protection
Test yourself
1. Give the source and the sense of each of the two expressions in article 14, and explain why the Constitution needed both.
2. "If equality meant identical treatment, a progressive income tax would be unconstitutional." Explain what that shows.
3. Name the three distinct things article 14 forbids, and say why the third is often missed.
4. Does article 14 control executive action? Give the authority and the standard it lays down.
5. List five exceptions to equality that the Constitution itself makes.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.