Article 14: Equality Before Law and Equal Protection of the Laws

In Ramana Dayaram Shetty v International Airport Authority of India, AIR 1979 SC 1628. Facts. The Authority accepted a tender from a party who did not satisfy the eligibility standard the Authority had itself published. Held. Accepting such a tender was DISCRIMINATORY, because it excluded others similarly situated from tendering, and it was ARBITRARY AND WITHOUT REASON; the acceptance was invalid as violating the equality clause. Bhagwati J. held that the published eligibility condition was an objective test, and that the State could not escape it by saying it might have rejected all tenders and negotiated directly, because it had not done that. On article 12 the Court asked when a statutory corporation becomes an instrumentality or agency of government, and answered that there is NO CUT AND DRIED FORMULA, the relevant factors including the holding of the entire share capital, financial assistance meeting almost the whole expenditure, a monopoly status conferred or protected by the State, deep and pervasive State control, and functions of public importance closely related to governmental functions. Why it matters here is that article 14 reaches State action in the field of contract, and not merely legislation.

And the test was completed a year later. In Ajay Hasia v Khalid Mujib Sehravardi, AIR 1981 SC 487. Facts. Whether a society registered under the Societies Registration Act, running a college, was "State" within article 12. Held. The society IS "State" and is bound by article 14: its composition is dominated by nominees of the Central and State Governments, the money to run the college comes entirely from those Governments, its rules need their prior approval, its accounts go to them, it must comply with their directions and it cannot dispose of immovable property without their approval; that control is so deep and pervasive that the society is merely a projection of the Governments. The tests are THE SAME whether the body is a statutory corporation or a society registered under an ordinary Act, because the form in which the State chooses to act cannot alter the character of the body. Why it matters here is that it makes the enquiry functional rather than formal, and it is the case to cite for the proposition that the State cannot escape article 14 by choosing a private legal form.

The right cannot be waived

In Basheshar Nath v Commissioner of Income-tax, Delhi, AIR 1959 SC 149. Facts. A settlement under the Taxation on Income (Investigation Commission) Act was covered by an earlier decision holding the relevant provision violative of article 14, and the question was whether the assessee, having entered the settlement, had waived his right. Held. The settlement was violative of article 14. On waiver, Bhagwati and Subba Rao JJ. held that THERE CAN BE NO WAIVER of the right in article 14 or of ANY fundamental right in Part III: the Constitution draws no distinction between rights enacted for an individual's benefit and rights enacted in the public interest, and article 13(2) is a MANDATE ADDRESSED TO THE STATE which no citizen can relieve it of. S.K. Das J. took the narrower view that waiver might apply to a right primarily meant for an individual's benefit, so the Court was not unanimous on the width of the proposition, and the standard modern statement is Bhagwati J.'s. Why it matters here is the reason: article 13(2) prohibits the STATE from making a law which takes away or abridges a fundamental right, and a citizen's consent cannot enlarge the State's power.

Equality and arbitrariness

In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Facts. A Chief Secretary complained that his transfer to another post was mala fide and violated articles 14 and 16. Held. On the facts the plea of mala fides failed; the importance of the case is the reasoning. Article 16 is an instance of the application of the concept of equality in article 14: ARTICLE 14 IS THE GENUS AND ARTICLE 16 A SPECIES. Equality is a DYNAMIC CONCEPT with many aspects and dimensions and cannot be cribbed, cabined and confined within traditional and doctrinaire limits. And, in the passage every answer should carry: "From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are SWORN ENEMIES; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14." Why it matters here is that it opened a second route to article 14 which does not require any comparison at all, worked in the chapter on arbitrariness.

And the first route was already there. In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. Facts. Section 5(1) of the West Bengal Special Courts Act 1950 allowed the State Government to refer "any case" to a Special Court following a special procedure. Held. The section was discriminatory and VOID under article 14 so far as it allowed the reference of "any case". The special procedure itself was not on its face calculated to prejudice a fair trial, and the need for a SPEEDIER TRIAL could form the basis of a reasonable classification, so the section was unobjectionable in authorising the reference of offences, classes of offences or classes of cases. What was fatal was the vesting of an ABSOLUTE AND ARBITRARY POWER to pick out an individual case, with NO PRINCIPLE STATED IN THE ACT to guide the choice. Why it matters here is that it is the foundation of both doctrines at once: a classification must rest on a principle, and an untrammelled discretion is itself a denial of equality.

A worked example

A statute empowers a State Government to direct that "such cases as it thinks fit" be tried by a tribunal from which no appeal lies. A foreign national is so directed. Advise.

First, is the claimant protected? Yes. Article 14 protects ANY PERSON, not only citizens.

Second, which limb is engaged? Both. The equal protection limb, because a class of litigants is singled out for a worse procedure; and the equality before the law limb, because the selection is at the discretion of the executive.

Third, is the classification reasonable? Anwar Ali Sarkar holds that referring OFFENCES, or classes of offences, or classes of cases is unobjectionable, since a speedier trial can found a reasonable classification. What is fatal is a power to pick out an individual case with no principle in the Act to guide the choice, and "such cases as it thinks fit" states no principle.

Fourth, is there an arbitrariness argument? Yes, and it is independent. On Royappa, where an act is arbitrary it is implicit in it that it is unequal, and equality and arbitrariness are sworn enemies.

Fifth, could the State say the claimant agreed to the tribunal? No. On Basheshar Nath there can be no waiver of a fundamental right, because article 13(2) is a mandate addressed to the State.

Sixth, what if the tribunal were run by a society and not by the Government? Then article 12 would be in issue, and on Ramana Dayaram Shetty and Ajay Hasia the enquiry would be into share capital, financial assistance, monopoly status, deep and pervasive control and the public importance of the functions, the form of the body being irrelevant.

Distinctions

What it does NOT mean

It does not mean everybody must be treated identically. Persons are not similarly situated, and the equal protection limb requires equal treatment of EQUALS.

It does not mean article 14 protects only citizens. It protects any person, natural or juristic, and any nationality.

It does not mean the State escapes by acting through a company or a society. On Ajay Hasia the tests are the same whatever the form.

It does not mean a person can contract out of it. Basheshar Nath: no waiver, because article 13(2) binds the State.

And it does not mean the only route is classification. Royappa opened the arbitrariness route, which requires no comparator at all.

Quick revision

Text: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Two limbs, English and negative, American and positive. Exceptions to the first: articles 361, 105, 194 and diplomatic immunity. "Any person": citizens, foreigners and juristic persons. "State": article 12; the tests in Ramana Dayaram Shetty and Ajay Hasia, which are functional and identical whatever the form of the body. No waiver: Basheshar Nath, article 13(2) being a mandate addressed to the State, though the Court was not unanimous. Anwar Ali Sarkar: a speedier trial can found a reasonable classification, but an untrammelled power to pick out an individual case with no principle in the Act is void. Royappa: article 14 is the genus and article 16 a species; equality is a dynamic concept; equality and arbitrariness are sworn enemies, and an arbitrary act is implicitly unequal.

Test yourself

1. Reproduce article 14 and identify the source of each limb. "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Equality before the law comes from the English rule of law; the equal protection of the laws from the Fourteenth Amendment to the Constitution of the United States.

2. Give one example of a breach of each limb. A statutory immunity from the ordinary law given to an official for no reason breaches the first. A law giving one class of litigant a shorter limitation period without any relation to the object of the Act breaches the second.

3. Whom does article 14 protect, and how does that differ from articles 15 and 16? Any person, including a foreigner and a juristic person. Articles 15(1) and 16(1) protect citizens only.

4. What was fatal in Anwar Ali Sarkar, and what was not? Fatal: the power to refer "any case", an absolute and arbitrary power to pick out an individual case with no principle in the Act to guide the choice. Not fatal: the special procedure itself, or the reference of offences, classes of offences or classes of cases, a speedier trial being a permissible basis of classification.

5. Can a fundamental right be waived? No, on the majority reasoning in Basheshar Nath: the Constitution draws no distinction between rights for an individual's benefit and rights in the public interest, and article 13(2) is a mandate addressed to the State which no citizen can relieve it of. S.K. Das J. took a narrower view.

6. State the Royappa proposition. That equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that equality and arbitrariness are sworn enemies; and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14.

7. When is a society "State" under article 12? When the tests in Ramana Dayaram Shetty as applied in Ajay Hasia are satisfied: government share capital or funding meeting almost the whole expenditure, monopoly status conferred or protected by the State, deep and pervasive control, and functions of public importance closely related to governmental functions. The form of the body is irrelevant.