Professional Documents
Culture Documents
Dr Jennings puts it :
Dicey: The guarantee of equality before the law is rule of the law.
It means that no man is above the law and that every
person,whatever be his rank or conditions, is subject to the
jurisdiction of ordinary courts.
It means that the source of the right of individual is not the written Constitution but
the rules as defined and enforced by the courts. (Not applicable to Indian
scenario COI is the supreme law of the land)
EXCEPTIONS TO THE RULE OF LAW
1. First equality before the law does not mean the power of the
private citizens are the same as the powers of the public officials
Ex: Police Officer
2. Secondly, the rule of law does not prevent certain class of persons
being subjected to special rules.
Ex: Medical Practitioner by Medical Council of India.
ARTICLE 361.
2. In Sanjeev Coke Mfg Co v Bharat Cooking Coal Ltd., the supreme Court has held that where Article 31 C
comes in, Art 14 Goes out
3. Under Article 359 (1) if the President issues an order, where a Proclamation of Emergency is in operation ,
enforcement of Art 14 may be suspended for the period during which the Proclamation is in force.
4. Article 361 lays down that the President and the Governor are exempted from any criminal proceedings
during the tenure of their office.
5. Under International law, foreign sovereign and ambassadors enjoy full immunity from any judicial process.
ART 14 permits classification but prohibits class
legislation.
The equal protection of laws guaranteed by Art 14 does not mean that all laws
must be general in character. The varying needs of different classes of person
require separate treatment.
Thus, Art 14 forbids class legislation but it does not forbid reasonable
classification.
Class legislation is that which makes an improper discrimination by
conferring particular privileges upon a class of persons, arbitrarily
selected from a large number of persons all of whom stand in the same
relation to the privilege granted, that between whom and the persons
not so favored no reasonable distinction or substantial difference can
be found, justifying the inclusion of one and the exclusion of the other
from such privilege.
Art 15 (1) - The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or
any of them.
prohibits the state form discriminating against citizens on
grounds only of religion, race, caste, sex, place of birth or any
of them.
The expression discriminate against means select for
unfavorable treatment.
Discrimination in this sense involves an element of prejudice.
If prejudice is disclosed and is based on any of the grounds
mentioned in Article 15, the law must be struck down.
Article 15 is a facet of Article 14.
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of
the general public.
Clause (2) specifies the prohibited grounds in any matter in which the
State and even private individuals have exclusive control.
Art 15(3)- empowers the state to make special
provisions for women and children.
They require special protection by virtue of their very
nature.
Art 15(3) relieves the state from the bondage of Art
15(1) and enables it to make special provisions to
accord socio-economic equality to women.
Art 15(1) and 15(3) read together- while the state may
discriminate in favour of women against men, it may
not discriminate in favour of men against women.
However the provisions made in favour of women
should be reasonable.
Dattatraya v. State- if educational institutions are established by
the state exclusively for women it will not violate art 15(1) by
virtue of art 15(3). So also if certain seats are reserved for women
in a college that does not offend art 15(1).
Yusuf Abdul Aziz v. State of Bombay- the accused challenged the
validity of sec 497 IPC which only punishes man for adultery and
exempts woman for punishment even though she may be equally
guilty as an abettor. Court held- the discrimination made by sec
497 is not on the fact that women have sex different from that of
an, but women in this country were so situated that special
legislation was required in order to protect them.
Govt. of Andhra Pradesh v. P.B. Vijay Kumar- SC held that under
art 15(3), the state may fix a quota for appointment of women in
government services. Also, a rule saying that all other things being
equal, preference would be given to women to the extent of 30%
of the posts was held valid with reference to art 15(3).
Special Provisions for Advancement of
Backward Classes
Art 15(4) another exception to clauses (1) and(2).
Any such law cannot be challenged in the court on the ground that
it violates Art 19(1) (g)
Art 16 (1)- says that there shall be equality of opportunity for all
citizens in matters relation to employment or appointment to any
office under the State.
Art 16(2)- no citizen shall, on grounds only of religion, race, caste,
sex, descent place of birth, residence or any of them, be ineligible for
or discriminated against in respect of any employment or office under
the State.
Art 16 does not prevent the State from prescribing the necessary
qualifications and selective tests for recruitment for Government
services.
The selective test must not be arbitrary. It must be based on reasonable
ground and have nexus between the qualification and the post or the
nature of employment.
ART 16(3) RESERVATION FOR RESIDENTS
Art 18(2)- prohibits the Indian Citizen from accepting any title
from any Foreign State.
Art 18(3)- a non-citizen of India who holds any office of profit under
the State cannot accept any title from any foreign state, however he
can accept any title from any foreign state with the consent of the
president of India.
Art 18(4)- a person holding any office of profit under the state cannot
accept any present, emoulment or office of any kind from or under
any state. However he can do so with the consent of the president of
India.
Balaji Raghvan v. Union of India- petitioner challenged the validity
of the National awards like the Bharat Ratna and Padma Vibhushan.
The SC held that the awards awarded by the Government of India are
not titles within the meaning of Art 18(1). the theory of equality
doesnot mandate that merit should not be recognized.- however the
awards conferred by the State are not to be used as suffixes and
prefixes.- the Prime Minister in consultation with the President should
appoint a high level committee to lay down the criteria for selection of
persons for these awards.