The Equality Code
Chapter Thirty-Six
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action". The scheme, before any part of it is taken apart.
Pages 167 to 170 of 304
In one line
Articles 14 to 18 are one scheme, not five separate rights: a general guarantee, two specific prohibitions with enabling exceptions, and two abolitions.
In the wording a student can write in an exam: the equality code consists of five articles. Article 14 guarantees to every person equality before the law and the equal protection of the laws. Article 15 prohibits discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth, and by clauses (3) to (6) enables the State to make special provision for women and children, for socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes, for their admission to educational institutions, and for the economically weaker sections. Article 16 guarantees equality of opportunity in matters of public employment, with corresponding enabling clauses in (4), (4A), (4B) and (6). Article 17 abolishes untouchability and forbids its practice in any form. Article 18 abolishes titles. In E.P. Royappa v. State of Tamil Nadu the Supreme Court held that article 14 is the genus and article 16 a species of it.
How the five fit together
The order is not accidental, and describing it correctly is worth marks on its own.
Article 14 is the general guarantee, and it applies to every person, citizen or not. It states the principle in the abstract: like should be treated alike.
Articles 15 and 16 are specific applications of that principle, and both are confined to citizens. Article 15 addresses the State's dealings with citizens generally; article 16 addresses one field, public employment. Each names the grounds on which the State may not discriminate, and each then carries enabling clauses permitting positive measures.
Articles 17 and 18 are abolitions, not guarantees in the same sense. They do not say the State must treat people equally; they abolish two specific institutions of inequality, untouchability and titles.
Two structural points follow.
Article 14 remains available even where 15 or 16 does not apply. A classification that does not rest on any ground named in article 15(1) is still tested under article 14 for reasonableness and non-arbitrariness. So article 14 is the floor beneath the whole scheme.
Articles 15 and 16 are not exceptions to article 14. They are instances of it, and the enabling clauses within them are instances too. That proposition matters most for article 16(4), and it was settled in Indra Sawhney, treated in [Reservation in Public Employment].
Article 14 as the genus
Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973. A senior member of the Indian Administrative Service, holding the post of Chief Secretary of Tamil Nadu, was transferred to two posts he said were inferior, and alleged the transfers were mala fide and offended articles 14 and 16.
The Equality Code
Held. The plea of mala fides failed on the facts. On principle, article 16 is an instance of the application of the concept of equality in article 14: article 14 is the genus, article 16 a species, and the basic principle informing both is equality and the inhibition against discrimination. Equality is a dynamic concept with many aspects and dimensions which cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness, and where an act is arbitrary it is by that fact unequal and violates article 14.
Why it matters. It supplies the organising idea of the whole code, and it is the passage from which the arbitrariness doctrine grows. Cite it early in any equality answer.
Who each article protects
A table students get wrong under pressure.
Article 14: any person. Citizens, non-citizens, and legal persons such as companies. This is why a foreign company may complain of discriminatory treatment.
Article 15: citizens only, and the prohibition binds the State. Clause (2), which forbids restriction on access to shops, public restaurants, hotels, places of public entertainment, wells, tanks, bathing ghats, roads and places of public resort, is one of the few provisions of Part III that binds private persons as well.
Article 16: citizens only, and confined to employment or appointment to an office under the State.
Article 17: binds everyone, including private persons. It is the clearest instance of horizontal application in Part III.
Article 18: binds the State in clauses (1) and (2) and, in clauses (3) and (4), persons holding office of profit or trust under the State.
The two kinds of clause
Within articles 15 and 16 the clauses do two different jobs, and confusing them produces a muddled answer.
Prohibitory clauses forbid: article 15(1) and (2), article 16(1) and (2). They are commands.
Enabling clauses permit: article 15(3), (4), (5) and (6); article 16(3), (4), (4A), (4B) and (6). They confer no right on anybody and impose no duty. A citizen cannot compel the State to make a reservation, because an enabling clause enables and does not oblige. That proposition is examined in [Reservation in Public Employment], and it is the single most useful thing to know about the reservation articles.
Where the module goes
The rest of topic 3 works through the code:
- Article 14's two limbs, in [Equality Before the Law and Equal Protection].
- Its first test, in [Reasonable Classification], and its second, in [Arbitrariness].
- The prohibited grounds, in [Articles 15 and 16: The Prohibited Grounds].
- Then the reservation chapters, from [Reservation in Education] to [Economically Weaker Sections].
- The lists and the Commissions, in [The Lists, and the Commissions That Watch Them].
- The doctrine, in [Protective Discrimination], and MU's own question in [Privatisation and Affirmative Action].
- The saving provisions, in [Saving of Laws: Articles 31A, 31B and 31C].
- And the two abolitions, in [Untouchability and Titles].
The Equality Code
A worked example
A State law provides that in any prosecution under a particular Act, the accused shall be presumed guilty unless he proves otherwise, and applies only to persons carrying on a specified trade. A trader challenges it under articles 14 and 19. He is not a citizen.
Which articles are available to him?
Article 19 is not. Its rights are conferred on citizens only, and he is not one.
Article 14 is. It protects every PERSON. This is the practical reason article 14 is the floor: where the specific rights are closed to a claimant, the general guarantee is not.
On what basis is the article 14 challenge framed? Two, and both should be pleaded. First, classification: is the singling out of one trade founded on an intelligible differentia, and does that differentia have a rational nexus with the object of the Act? Second, arbitrariness: even a law that survives the classification test may be struck down if it is manifestly arbitrary, which is the Royappa line.
Would article 15 help? No, on two grounds. It protects citizens only, and trade is not one of the prohibited grounds in article 15(1), which are religion, race, caste, sex and place of birth, and those only.
The lesson. Identify the claimant before choosing the article. Half the equality problems set in examinations turn on the difference between "person" and "citizen".
Quick revision
- Five articles, one scheme: article 14 the general guarantee, articles 15 and 16 specific applications, articles 17 and 18 abolitions.
- Article 14 protects every person; articles 15 and 16 protect citizens; article 17 binds private persons too, as does article 15(2).
- Royappa: article 14 is the genus, article 16 a species; equality is a dynamic concept; equality and arbitrariness are sworn enemies.
- Articles 15 and 16 are not exceptions to article 14 but instances of it, and the enabling clauses are instances too.
- Prohibitory clauses command; enabling clauses permit, confer no right and impose no duty.
- Where a specific right is closed to a claimant, article 14 remains.
Test yourself
1. Set out the five articles of the equality code and say what job each does in the scheme.
2. Which of them protect a non-citizen, and which bind a private person?
3. What did Royappa decide about the relationship between articles 14 and 16?
The Equality Code
4. Distinguish a prohibitory clause from an enabling clause, and state the practical consequence of the difference.
5. Why is it wrong to describe article 16(4) as an exception to article 16(1)?
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.