DRAFT:
ARTICLE 14:
Article 14 states 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”. This article uses the term “any
person” signifying inclusivity and including non-citizens and people of third gender, the
LGBTQ+ community under the ambit of equality.
Article 14 has two major phrases, first it states ‘equality before law’ which is an English
Common Law expression and second, ‘equal protection of laws’ which is based on the last
clause of the 1st section of the 14th amendment of the US constitution, (page 44). Both the
phrases aim to establish what is called the "equality to status and of opportunity" as
embodied in the Preamble of the Constitution.
The concept of ‘equality before law’ is considered a negative concept in the sense that it
states that every person should be treated equally and no discrimination should be allowed
or absence of any special privilege to any individual, it is negative in the sense that it asks
not to do something. This statement originally taken from the British concept of ‘rule of law’
which was first propounded by Sir Edward Coke a renowned English Jurist and later refined
and elaborated by Sir A.V. Dicey. ‘Rule of law’ basically states that no man is above the law
and that every person is subjected to the jurisdiction of the ordinary courts of law
irrespective of their status, position and rank. Dicey elaborated on this concept by stating
that Rule of Law consists of three principles:
1. Supremacy of the law: absolute supremacy of the law as opposed
to the arbitrary power of the government
2. Equality before the law: no one is above the law, everyone is
bound to obey the same law
3. The predominance of the legal spirit: it means that the
constitution originated from the ordinary law and the real source
of right of individual is not written constitution but as rules as
defined and enforced by the courts. (this is not applicable in India
as the Constitution is considered the supreme law of the land and
not the Courts)
There are certain exceptions to the rule of law as applicable in India, they are:
1. Equality of Law does not mean that the powers of private citizens are the same as
the powers of public officials. e.g. a police officer has the power to arrest which the
private citizen does not have.
2. The rule of law does not prevent certain classes of persons from being subject to
special rules, for example, the armed forces are governed by military laws.
3. Ministers and other executive bodies are given wide discretionary powers by the
statute.
4. Certain members of society are governed by special rules in their professions like
lawyers, doctors and nurses.
On the other hand, the second expression ‘equal protection of the laws’ is considered a
corollary of the first expression and directs that equal protection shall be secured to all
persons within the territorial jurisdiction of the Union in the enjoyment of their rights and
privileges without favour or discrimination. However, with changing times and social
contexts this expression has evolved into a different meaning that of a positive nature
meaning, that like should be treated like, and the alike should be treated alike or equals
should be treated equally while unequal’s should be treated differently. Discrimination is
allowed but that discrimination must be reasonable and not arbitrary.
To apply this principle in real life, one have to differentiate between those who are equal
and those who are different. To achieve this the legislative classification (legislation’s role to
make sure that equals are treated equally and unequal’s may be treated differently) must
be reasonable. This test for reasonable classification consists of two things that must be
fulfilled to allow for classification:
1. The classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left
out of the group. AND
2. The differentia must have a rational relation (or rational nexus) to the object
sought to be achieved by the classification/Act in question.
For example, in the Indian Contract Act of 1872, section 11 states that minors cannot enter
into a contract. This section classifies persons into adults and minors. The basis for this
classification is age. Age has a relation to the object of the legislation that is, the capacity to
enter into a contract. Hence section 11 satisfies both the requirements of a valid/reasonable
classification that it groups minors and adults separately and such grouping has a rational
relation to the object of legislation that is the capacity to make a contract. And if we assume
that the basis of classification is the colour of the hair, for instance all persons having black
hair may contract, this classification would fail because differentiation has no relation with
the object of the legislation that the capacity to contract.
