Article 14: Equality Before the Law

Article 359 permits suspension of the enforcement of Part III rights during an emergency, and after the Forty-fourth Amendment articles 20 and 21 are outside that suspension.

Article 14 in human rights practice

Three uses, and they are what makes this article central to Modules III and IV.

Testing a classification in welfare legislation. Where the State extends a benefit, a protection or a document to one group and withholds it from a comparable group, article 14 asks whether the differentia is intelligible and whether it bears a rational relation to the object.

Attacking arbitrariness in an individual decision. A detention, a refusal, a removal or a denial made without reasons or without material is challengeable as arbitrary, and this is the more useful limb in practice because it does not require a comparator.

And supplying the equality element of article 21. Since the late 1970s the two articles are read together, so a procedure that is discriminatory is also not a fair, just and reasonable procedure.

The international correspondence

Article 7 of the Universal Declaration: all are equal before the law and are entitled without any discrimination to equal protection of the law. The two limbs of article 14, in one sentence, three years before the Constitution.

Article 26 of the Civil and Political Covenant is a free-standing equality guarantee, wider than article 14 in that it obliges the law to prohibit discrimination and guarantee effective protection against it.

Article 1 of the Declaration supplies the premise: all human beings are born free and equal in dignity and rights.

Worked example

Her Set 1 Q1, which needs article 14 as one of the two articles available to all persons.

Quote the article in full, because the two limbs have to be visible.

Separate the limbs and name their sources, English and American, negative and positive.

Say who holds it: any person, including a foreigner and a company.

Say that it permits classification and forbids class legislation, and give the tests in one line each.

Give the constitutional exceptions, especially articles 361, 105 and 194.

Close on the international correspondence, because her question is about the Declaration as a model code and article 7 is the model for this article.

What it does NOT mean

It does not mean identical treatment for everyone. It means like treatment for those alike in relevant respects.

It does not mean the special provisions for women, children and backward classes are exceptions to it. They are applications of it.

And it does not require a comparator in every case. The arbitrariness limb operates without one.

Quick revision

• The 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: equality before the law, English, negative, Dicey's second meaning of the rule of law; the equal protection of the laws, American, from the Fourteenth Amendment, positive, like treated alike in like circumstances.
• Held by any person, including a foreigner and a company; within the territory; against the State under article 12.
• Permits classification, forbids class legislation.
• Exceptions in the Constitution: article 361 President and Governors; articles 105 and 194 privilege; article 31C; articles 15(3) to (5) and 16(4), which are applications rather than exceptions; article 359 in an emergency, with articles 20 and 21 now outside it.
• Three human rights uses: testing a classification in welfare legislation; attacking arbitrariness without a comparator; and supplying the equality element of article 21.
• Correspondence: article 7 of the Declaration; article 26 of the Covenant, which is wider.

Test yourself

1. What are the two limbs of article 14, and why is the distinction not merely historical? 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, and that single sentence contains two guarantees drawn from different traditions. Equality before the law is the English formulation and is negative in character: no person is above the law, everyone is subject to the ordinary law administered by the ordinary courts, and no special privilege attaches to birth or rank. It corresponds to the second of Dicey's three meanings of the rule of law. The equal protection of the laws is the American formulation, taken from the Fourteenth Amendment, and is positive: it requires that persons alike in relevant respects be treated alike, in the privileges conferred on them and in the liabilities imposed on them.

The distinction is not merely historical because the two limbs test different things. A single harsh law applied without exception to the whole population would satisfy equality before the law completely, since nobody would be above it and nobody would be privileged. It would not necessarily satisfy the equal protection of the laws, because that limb asks whether the classifications the law itself makes are justifiable, and whether it visits like cases with like consequences. The second limb is therefore the one that does the work in modern litigation, and the first survives mainly as the source of the rule against privilege and as the reason the constitutional immunities in articles 361, 105 and 194 have to be written down expressly.

2. Who can claim article 14, and what exceptions does the Constitution itself make? Any person can claim it. The article is expressed as a prohibition on the State denying equality to any person, so it extends to citizens, to foreigners, to companies and to other juristic persons, and it operates within the territory of India. It runs against the State as article 12 defines it, and so does not directly bind private persons except where some other article does.

The Constitution makes several exceptions expressly. Article 361 gives the President and the Governors immunity, providing that they are not answerable to any court for the exercise of the powers and duties of their office and that no criminal proceedings shall be instituted against them during their term. Articles 105 and 194 confer parliamentary and legislative privilege, including immunity for anything said or any vote given in the House. Article 31C protects certain laws giving effect to directive principles. Article 359 permits the suspension of the enforcement of Part III rights during an emergency, though since the Forty-fourth Amendment articles 20 and 21 are outside that suspension. Articles 15(3), 15(4), 15(5), 16(4) and 16(4A), permitting special provision for women and children, for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, are conventionally listed here but are better described as applications of equality rather than exceptions to it, since treating unequals as equals is itself a form of inequality.

3. How is article 14 used in human rights litigation, and what does it correspond to internationally? Three ways. It tests classifications in welfare and administrative legislation: where the State extends a benefit, a protection, a document or a status to one group and withholds it from a comparable group, article 14 asks whether the differentia is intelligible and whether it bears a rational relation to the object the law seeks to achieve. It attacks arbitrariness in individual decisions, so a detention, a refusal, a removal or a denial made without reasons or without material can be struck down as arbitrary, and this limb is the more useful in practice because it does not require the petitioner to produce a comparator who was treated better. And it supplies the equality element of article 21, since the two articles have been read together since the late 1970s, with the result that a procedure which discriminates cannot be a fair, just and reasonable procedure.

Internationally it corresponds most closely to article 7 of the Universal Declaration, which provides that all are equal before the law and are entitled without any discrimination to equal protection of the law, and which therefore contains both of article 14's limbs in a single sentence written three years before the Constitution. Article 1 of the Declaration supplies the premise, that all human beings are born free and equal in dignity and rights. Article 26 of the Civil and Political Covenant is wider than article 14, because it is a free-standing equality guarantee that not only prohibits discrimination but obliges the law to prohibit it and to guarantee effective and equal protection against it on any ground.