Mains Daily Question
Oct. 28, 2020

  1. What do you understand by “equality before law” and “equal protection of laws”? Can there be exceptions to equality? Explain.

Approach:

  • Introduce with Right to equality and article 14

  • Define the core concept of” Equality before law” and “Equal protection of law”

  • Giving reference of SC, mention exceptions

  • Conclude appropriately

Model Answer

Article 14-18 of the Indian Constitution guarantees right to equality to every citizen of India. Article 14 says that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The concept of “equality before law (EBL)” is of British origin. It means that no person whether rich or poor, low or high, official or non-official is above law and all person are to be treated equally and subject to same type of court interference, irrespective of their rank/position. It is somewhat negative in concept as it is a declaration of equality of all persons within the territory of India, implying thereby the absence of any privilege by reasons of birth, creed, or like in favour of any individual. However, the concept of EBL does not involve the idea of absolute equality amongst all. Article 14 guarantees similarity of treatment and not identical treatment.

The concept of “equal protection of laws (EPL)” has been taken from the American Constitution. It means that among equals the law should be equal and equally administered. So, it is a positive concept, implying the right to equality of treatment in equal circumstances. Thus, EPL requires affirmative action by State towards unequal.

So, Article 14 itself provides for reasonable classification and the concept of equality permits rational discrimination. Thus, there are exceptions to right to equality which has been reiterated by many of the Court’s judgements and has been provided in the Constitutions as well.  Some of them are:

  1. No process for arrest or imprisonment of President or Governor shall be issued from any court during his term of office.

  2. No member of Parliament shall be liable to any proceeding of court for anything said or voted in parliament (Art 105).

  3. Article 31C - where law made by state to implement DPSPs in clause (b) and (c) of Article 39 cannot be challenged for violation of article 14.

  4. Yusuf vs State of Bombay 1954: In offences relating to women (e.g adultery), women may be placed in a more favorable position, having regard to their social status and need for protection.

  5. Balsara vs State of Bombay 1957: It would not be unconstitutional to differentiate between civil and military personnel or between foreign visitors and Indian citizens.

Hence the rule of equality before law is not absolute and it permits reasonable classification of persons, objects and transactions by the law for the purpose of achieving specific ends. But classification must not be arbitrary, artificial or evasive.

 

 

Subjects : Polity
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