Equating Equals With Unequals

In one line

Formal equality gives everybody the same rule, substantive equality gives everybody the same chance, and the Constitution chose the second while keeping the first as the default.

In the wording a student can write in an exam: the proposition that equating equals with unequals perpetuates inequality is the foundation of the doctrine of reasonable classification and of the whole scheme of compensatory discrimination. Article 14 guarantees equality before the law and the equal protection of the laws, which means equal treatment of persons SIMILARLY SITUATED; it does not require identical treatment of persons who are not. Accordingly the Constitution itself carries provisions permitting differential treatment where the difference is real: article 15(3) for women and children, article 15(4) for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, article 16(4) for backward classes not adequately represented in the services, and article 38(2) directing the State to minimise inequalities in income and to eliminate inequalities in status, facilities and opportunities. In State of Kerala v. N.M. Thomas the Court held that if equality of opportunity means EFFECTIVE MATERIAL EQUALITY then article 16(4) is not an exception to article 16(1) but an emphatic way of putting the extent to which equality of opportunity may be carried; and in Indra Sawhney v. Union of India nine judges affirmed that clause (4) is not an exception but an instance and illustration of the classification inherent in clause (1).

What the sentence means

Two propositions are packed into it, and both must be brought out.

One: identical treatment of the unequal is not equality. If a race is run from different starting lines, giving everyone the same rule about the finishing line does not make the race fair. Applying one law to a person who has had schooling and to one who was excluded from schooling produces inequality by operation of the law itself.

Two: differential treatment of the equal is inequality. If two persons are similarly situated and the law treats them differently, that is precisely what article 14 forbids. The maxim is not a licence to differentiate; it is a statement about WHEN differentiation is required and when it is forbidden.

And the doctrine of classification is the instrument that decides between them. It asks whether the persons grouped together really are distinguishable by an intelligible differentia, and whether that difference matters to what the law is trying to do. Answer both questions and you have decided whether the case is one of equating unequals or of separating equals.

Formal and substantive equality

Formal equality is the same rule for everybody. Its virtue is that it is impartial, predictable and cannot be manipulated. Its vice is that it takes the existing distribution of advantage as given.