Articles 14 to 18: Right to Equality in Indian Polity

Vanshika29 Sept 202619 min read

Complete UPSC notes on Right to Equality (Articles 14-18). Covers Rule of Law, affirmative action, reservations, EWS quota, and abolition of untouchability.

Right to Equality

It is defined in Article 14 to 18 of Indian Constitution

Article 14: Equality Before the Law

The state shall not deny to any person equality before the law or equal protection of law within the territory of India.

The concept is premised upon the British concept of Rule of Law, which was popularized by A.V. Dicey. Equality before the law postulates that everybody shall be equal in the eyes of the law. A.V. Dicey's rule of law postulates:

No man can be punished except for breach of law i.e., absence of arbitrary power.
Equality before the law i.e., equal subjection of all citizens.
Primacy of the rights of individuals i.e., the constitution is the result of rights of individuals as defined and enforced by the court of law.

This concept is not applicable in India but it is applicable in a modified way because in India the Constitution is the source of right rather than right being the source for Constitution.

Equality Before the Law is Negative

Some laws cannot be made applicable to every individual because individuals sometimes differ individually. Therefore sometimes this concept of equality is called negative equality.

It is also considered very negative because it has various exceptions.

Article 361: Protection to President and Governor
- Article 361(1): President and Governor shall not be answerable to any court in the exercise or performance of their duties of office or an act done.
- Article 361(2): No criminal proceeding whatsoever shall be initiated or continued against the President or Governor in any court during his tenure in office.
- Article 361(3): No process for arrest and imprisonment for the president and governor of a state shall be issued from any court during the tenure of a vice-chair. Civil proceedings can be initialized after giving two months of notice.
Article 361A
- This was aided by the 44^th Constitution Amendment Act 1978.
- It mandates for protection of publication of proceedings of Parliament or State Legislature. No civil or criminal charges be levied on the basis of publication.
Article 105
- Same as Article 194. In short these two articles provide immunities to MPs and MLAs and special protection in certain circumstances.
Article 31C
- Directive Principle of State Policy to give effect to Article 39(b) and 39(c) and can violate Article 14 and 19. This is given in Article 31 added by 25^th Constitutional Amendment Act 1972.
United Nations ambassadors, rulers, diplomats, officials of foreign organizations also enjoy certain immunities and these protections are guaranteed.

Equal Protection of Law

this concept has been taken from the USA. It is a positive concept. It does not mean the same law should not be made available for every person in the concept of equality. Therefore because every individual differs from individual to individual, equal protection has to be ensured. Therefore this equal protection is explained for different treatment in different circumstances. It advocates our famous saying that alike should be treated alike and alike should not be treated a like.

Therefore equality of treatment is only possible in equal circumstances. The concept of reservation in India is premised upon this philosophy. Therefore ensure equity in approach. It advocates equality cannot be achieved without equity in the true sense.

Article 15: Prohibition of Discrimination

Prohibition of discrimination on the grounds of religion, race, caste, sex, and place of birth.

Article 15(1)

The state should not discriminate on the basis of religion, race, caste, sex, place of birth or any of them.
Article 15(2)

No citizen on the grounds of race, religion, caste, sex, place of birth be subjected to disability, liability, restriction or condition with regard to

(a) access to Show Public Restaurants, Hotels, Place of Public Entertainment

(b) for the use of wells, tents, bathing hubs, roads, public resorts, only or partially maintained out-of-state funds or dedicated to use of the general public.
Article 15(3)

Nothing in this article shall prevent the state from making special provisions specific for women and children.
Article 15(4) This was added through the 1^st Constitution Amendment, 1951

Nothing in this article or Article 29(2) shall prevent the State from making special provision for the advancement of socially and educationally backward classes of citizens of ST/SC community.
Article 15(5) This was added through the 93^rd Constitution Amendment, 2005

Mandates special provision can be made for advancement of socially and educationally required class of citizens for SC/ST that is related to their admission in educational institution, including private educational institution, whether aided or unaided (other than minority institutions).

Article 15(6) This was added through the 103^rd Constitution Amendment, 2019

Provides special provision for economically weaker section of society

1^st Constitutional Amendment 1951

When the Government Order was passed highlighting the application for the weaker section in educational institutions under Art. 46, the person approached the Supreme Court in the landmark case State of Madras v. Champakam Dorairajan, 1951. The Honorable Supreme Court of India, the petitioner, approached that it violated her right under Article 15 and Article 29(2). The question became important where the Supreme Court of India was to evaluate whether the directive principle of state policy can be implemented and violated Fundamental Rights.

Supreme Court said that the Directive Principles of State Policy are subsidiary and the Fundamental Rights are supreme. Parliament cannot evade the Fundamental Rights just for the sake of implementing the Directive Principles of State Policy. The Supreme Court said that there is no bar that Parliament cannot amend the Constitution. Parliament can do so and therefore this amendment was followed.

Economically Weaker Section

As per the 103^rd Constitution Amendment Act, 2019 a person would be entitled to get reservation on the basis of a government notification. The entire deployment for EWS is notified by the government from time to time.

Person who is not covered under the Scheme of Reservation and whose family has a gross annual income below Rs 8 lakhs and is to be identified as EWS for the benefit of regeneration. Income shall also include income from all the sources, i.e., salary, agriculture, business, profession, etc., for the financial year prior to the year of application.

There are certain exclusionary criteria. If a person is found to have these exclusionary criteria he would not be entitled for reservation:

If he holds 5 acres of agricultural land and above
If the residence is of 1,000 sq ft and above
If the residential plot is of 100 sq yds and above in a notified municipality
If he plot 200 sq yds and above, other than those in a notified municipality

Article 16: Equality of Opportunities

Article 16(1)

There shall be equality of opportunity to all citizen in matters relating to employment and appointment to any office under the state
Article 16(2)

No citizen shall, on grounds of race, religion, caste, sex, place of birth, residence, or descent, or any of them, be ineligible or discriminated in respect of any employment or office under the state.
Article 16(3)

Nothing in the article shall prevent Parliament from making any law prescribing, in any regard to a class or classes of employment or appointment to an office under the government or any local/other authority within a State or Union Territory, any requirement as to residents within the State or Union Territory prior to such employment or appointment.
Article 16(4)

Nothing in this Article shall prevent the State from making the reservation for classes or posts in favour of any backward class of citizens which, in the opinion of the State, are not adequately represented under the service of the State.
Article 16(4a) * Added by the 77^th Constitution Amendment Act 1995*

Nothing in this Article shall prevent the State from making special provisions with regard to reservation in promotion of (consequential Seniority Added by the 85^th Constitution Amendment Act 2001) to any class or classes or posts in a service under the State in favour of SC and ST which in the opinion of the State are not adequately represented in the service.
Article 16(4b) Carry forward rule ended by 81^st Constitution Amendment Act 2000

Nothing in the Article shall prevent the State from considering any unfilled vacancy of a year which is reserved for being filled up in that year in accordance with any provision for reservation made under Clause 4a. As a separate class of vacancies shall not be considered together with the vacancy coming out that year in which they are filled for determining the criteria for 50% reservation of the total number of sick vacancies of that year.
Article 16(5)

Nothing in this Article shall affect the operation of any law which provides for incompetence of an office in connection with the affairs of any religious denomination or any member of governing or theirs of shall be a person prophesying a particular religion or belonging to a particular denomination.
Article 16(6) * Added by the 103^rd Constitutional Amendment Act 2019*

A special provision can be made for EWS for public employment.

As per aspirations ensigned in Article 335 at the commencement of Constitution, SC and ST were given reservation, that is, 15% and 7.5% respectively. Also the aspiration, ensigned under Article 3.4.0, outlines the commitment for the Commission to investigate the condition of backward classes other than SC and ST.

It has been mandated that the President, by order, appoint a commission to investigate the condition of socially and educationally backward classes. As a result in 1953 under PM Jawaharlal Nehru, the first backward class commission was constituted under the chairmanship of Kaka Kalelkar, who recommended 60-70% reservation and some places even 90% also for those classes which would be called OBC.

However the Government back then did not comprehensively accept the recommendation. Also the Supreme Court in MR Balaji vs. State of Mysore, 1962 reserved the reservation quota to 50%. That means they kept the reservation for 50%. Howsoever the Kaka Kalelkar commission could not be materialised.

Post-Emergency period, later that first non-Congress government was formed and Morarji Desai became the Prime Minister. Morarji Desai appointed in order to fulfil Article 340, Second Backward Class Commission, under the chairmanship of B.P. Mandal, famously called Mandal Commission.

This Mandal Commission approximately identified 3,000 castes to be categorically placed under Socially and Educationally Backward Class (i.e. New OBC castes were identified in this category). During the Prime Ministership of Indira Gandhi they submitted the Report House. However it still could not be implemented.

The Commission submitted the report but no action with regard to implementation was seen. In 1989-90, after 10 years approximately, VP Singh government declared 27% government jobs for OBC category and implemented the Mandal Commission report.

Indira Sawhney vs Union of India 1992

Again in 1991, as there were social apprehensions within society, as society was much fragmented, Narasimha Rao government again introduced a 10% government job for the poor section who are not covered by any existing reservation. The society was polarized. Apprehension with regard to social discrimination was also seen to be rising. As a result these social challenges lead to legal challenges. All this thing was challenged in the landmark case Indira Sawhney vs Union of India 1992, famously called the Mandal case.

In this aspect, with regard to Article 16(4), was challenged, discussed, and examined in length and breadth. Therefore the Supreme Court favoured the government and disagreed with the government on a few lines, considered to be a balanced judgment. The recommendations were

The advance among OBCs i.e. Creamy layer should be excluded from the list of beneficiaries of preservation.
No reservation and promotion should not only be confined to the initial appointment. That means it may continue for the existing group of people. That too after five years will be over.
The total reserve quota should not be more than 50% except in some extraordinary circumstances.
Carry forward ruling in left over vacancy is valid but should not be violating the 50% rule.
A permanent body must be established for inclusion and exclusion in the list of OBC.

Therefore with regard to the above ruling, the Ram Nandan Committee was formed, which suggested creating a national commission for backward classes and it was created by the statutory body in India. Later by 102^ndConstitution Amendment Act. This National Commission for Backward Classes has been included in the Constitution as a constitutional body under Article 338B.

To notify the judgment and recommendation made by the Supreme Court in the Indira Sawhney case, the Parliament did the 77th Constitution Amendment Act 1995 and included Article 16(4)(a), that is, preservation and promotion for SC and ST, which was challenged by the Supreme Court in Ajit Singh Vs. State of Punjab, the Supreme Court in this case invented the catch-up rule principle that is regaining the seniority at the time of promotion. This was mitigated and challenged with another amendment that is adding a clause of consequential seniority through the 85^th Constitution Amendment Act 2001.

Similarly in the same year 1995, Article 335 was reinterpreted and the Supreme Court said reservation of qualifying marks shall not be given S Vinod Kumar v. Union of India 1996 judgment.

Article 335 was amended then and added a province through the 82nd Constitution Amendment Act 2001 and thereafter Article 335 is now read as

Article 335

The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:

Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.

Later Article 16 was re-amended post-Indira Sawhney judgment and to neutralize the effect of that, added Added16(4b), that is, Carry Forward Rule of Leftover Vacancy that happened through 81^st Constitution Amendment Act 2000.

So particularly there were four amendments that were followed after Indira Sawhney's judgment, that is:

77^th Constitution Amendment Act 1995
85^th Constitution Amendment Act 2001
81^st Constitution Amendment Act 2000
82^nd Constitution Amendment Act 2001

The Supreme Court has adjudicated the matter MN Nagraj vs Union of India 2006. In this case the Supreme Court constitutionally validated all the four amendments. However for reservation in promotion the Supreme Court set and asked for the requirement of quantifiable data for reservation in promotion in public employment.

The Supreme Court set three quantifiable data conditions to be represented:

SC/ST community should be socially and educationally backward.
SC/ST community should not be adequately represented in government job.
Such a reservation policy shall not affect the overall efficiency in the administration.

In such a reservation policy if it is all implemented, the required three quantifiers, which are above explained, for promotion need to be given by states.

This caused social and legal apprehension in various High Courts. This decision was upheld, leading to mass demotions. The Supreme Court in 2018 understood that the State is not competent in providing this data, which made this judgement ineffective and the decision of the court was challenged even in the Supreme Court also.

In Jan Singh v. Laxmi Narayan 2018, the Supreme Court said no requirement of quantifiable data to prove SC/ST in promotion of public employment. However upheld the exclusion of SC/ST community who are advanced layer, that is, creamy layer in reservation in promotion although this is also under challenge.

With regard to whether, as per the 102^nd Constitution Amendment Act 2018, which makes NCBC a constitutional body in Article 338B and introduces Article 342A, it created ambiguity regarding the power to identify OBC at the state level. The Supreme Court in the Financial in Maratha Reservation case, Jai Shree Rao Patil v. State of Maharashtra 2021, held that states are within constitutional jurisdiction to identify socially and educationally backward and it is state power and state jurisdiction also. Therefore the 105^th Constitution Amendment Act 2021 Supreme Court recommendation was followed.

In short we can conclude that the state has power to identify OBC for their own service. The centre identifies obviously for central services. For SC/ST the lists are notified by the President and cannot be altered by the Parliament. The state has no independent power to create this list.

The Supreme Court later in Janhit Abhiyan v. Union of India 2022 determined the constitutional validity of the EWS reservation (i.e. the 103^rd Constitution Amendment Act 2019).

The Supreme Court's answer, exclusion of SC/ST and OBC from EWS, is not violating the basic structure.
Breaching the 50% limit is a mandate in various cases like Indira Sawhney vs Union of India and MR Balaji vs State of Mysore. It is not violating the basic structures. This 50% limit can be breached in this case.
The Supreme Court said it is not social exclusion but rather it should be run as inclusion of the economic equal class and therefore not a violation of the basic structure.

In the state of Punjab v Devendra Singh 2024, the Supreme Court of India made an interesting observation, issued a directive, and asked the Centre with regard to the inclusion of the creamy layer concept everywhere (i.e. SC/ST). It said in future we should think of determining the possibility of the SC/ST creamy layer concept.

Creamy Layer Concept

Children belonging to different categories of citizens of the OBC category should not come under the required quota and would be considered a criminal if

A person holding a constitutional post like President, Vice President, judges of the Supreme Court, etc.
Group A or Group B employees of all India Services, Central and State Services, Bank, Insurance, etc. Person who rank colonel and above in prospective military professional like doctors, lawyers, engineers, consultants. In short a person having gross annual income of 8 lakh would be deemed to be categorized as creamy layer.
Income must be calculated collectively for the past three individuals.

The purpose of reservation is not to ensure only reservation but to ensure a bridge to social inequality. Therefore reservation is just a tool for eliminating inequality rather than ending it itself.

Article 17: Abolishment of Untouchability

"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offense according to law.

In the landmark case Devaji v Padma (1950), the Supreme Court clarified that the expression "untouchability" occurs only in Article 17 and is enclosed in inverted commas. This clearly indicates that the subject matter of this article does not mean untouchability in his literal or grammatical sense. It means untouchability is a practice which has been adopted in traditional or historical form.

As per PUDR vs Union of India 1982, the Supreme Court said the fundamental right under Article 17 is available against private individuals also. There are various articles against private individuals also. Example: Article 15(2), 17, 23, 24, 19, 21. In this case the Supreme Court widened the scope and said that some rights are not only available against a state but also for private individuals.

Untouchability in any form has been prohibited and is warranted to be punishable as per law. As a result Parliament of India has made a law, Civil Rights Protection Act 1955. Earlier the name was Untouchability of Office Act 1955 but by 42^nd Constitution Amendment Act the name was changed to Civil Rights Protection Act. The acts which are punishable are:

Preventing any person from entering the worksite place
Justifying untouchability on traditional or philosophical grounds
Denying access to any hotels or places
Insulting person belonging to SC/ST on the grounds of untouchability
Refusing a person to admit to a hospital, educational institution, hostels established for public benefit
Refusing to sell goods or render services to any person on the grounds of untouchability, etc., is punishable as per the law.

Article 18: Abolishment of Titles

Article 18(1)

No title, not being a military nor academic distinction, shall be conferred by the State.
Article 18(2)

No citizen of India shall accept any title from any foreign state.
Article 18(3)

Foreigners who hold any office of profit or any trust or state can't accept titles from any foreign state without consulting the President of India.
Article 18(4)

No citizen or foreigner holding any office of profit or trust under the state is to accept any emoluments present without the consent of the President of India.

Under clause 1 the titles which are prohibited are Sir, Lord, Raja, Maharaja, Bahadur, etc., which create artificial discrimination in the name and are prohibited.

Our military and academic titles are exempted from the provision list.

What about National Awards?

As Morarji Desai discontinued the national awards but Indira Gandhi revived them again, therefore it was a matter of question whether national awards are provision or volition of Article 18. Supreme Court in the Biology, Raagwan v. Union of India 1996, the Supreme Court said that national awards are the awards for reorganization of their service and service of the nation. These are not poetry titles. However the court pointed out there that although the name should not be used as a prefix or suffix.

What about the titles given in recognition of your service by the word or foreign state?

The Supreme Court clarified on the issue: is the title or the honor conferred by the state or a private body? If by a state does it warrant any allegiance, disregarding the loyalty of the citizen, the title would be prohibited. Allegiance, like a declaration of testimony that in the event of war the recipient of the award would work in the interest of the country which is giving it

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