Tag: #Equality

RULE OF EQUALITY IN PUBLIC EMPLOYMENT IS A FUNDAMENTAL FEATURE NOT TO BE EXPLOITED: MUMBAI HC

Posted on

-Report by Arunima Jain

The Mumbai High Court on Thursday upheld the Maharashtra Administrative Tribunal’s judgement that is related to the reinstatement and absorption in service of a wrongly terminated woman for the post of lecturer. The court has supported the judgement in the case of Sachin Dawale v. The State of Maharashtra while stating that ‘adherence to the rule of equality in public employment is a fundamental feature of our Constitution, and because the rule of law is at the heart of our Constitution, a Court would be barred from upholding a violation of Article 14 or ordering the disregard of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Moreover, unless the appointment of a government servant is made in accordance with the relevant rules and following proper competition among qualified candidates, the appointee will not have any rights. It is not open to the court to prevent regular recruitment in the case of temporary employees whose period of employment has expired or ad hoc employees who, by definition, do not have any rights.’

FACTS

In the matter at hand, the State had imposed a ban on the recruitment of various departments in the educational sector. Upon upliftment of the ban, through a policy decision in July 2002, the respondent was instituted as a Lecturer on a contract basis for a period of two years or till

the availability of an MPSC-selected candidate, whichever was earlier. By subsequent government policies and resolutions after the completion of the two years of the contractual agreement, the respondent was reinstated as a Lecturer in a different university till October 2012. In lieu of an administrative ground against vacancy generated by contract lecturer transfer, the respondent’s employment was terminated in September 2012 before the end of her tenure. After the passing of the judgement in the case of Sachin Dawale v. The State of Maharashtra, the respondent filed an application challenging her termination before the Tribunal. The Tribunal directed reinstatement and absorption back into the service of the respondent as a Lecturer in the Government Polytechnic. The State Government has filed this case in order to challenge the Tribunal’s judgement and order.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the Tribunal should not have entertained the original application owing to the fact that the respondent had accepted the termination of her services as a lecturer without a predicament, as and when it occurred. Moreover, the original application that challenged the termination was sought after 4 years of the respondent being relieved of her duties. The counsel for the respondent further stated that during the initial contract, it was made clear to the respondent that according to the law at the time, the contractual agreement existed till the specified date or till the availability of an MPSC-selected candidate. Since the termination was in lieu of the selection of an MPSC-selected candidate, the respondent was rightly relieved of her duties. Therefore, according to the petitioner’s counsel, the current contentions of the respondent are absurd and cannot be relied upon.

Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that all contractual lecturers instituted in service along with the respondent have been regularized in their jobs, with just the exception of the respondent. On top of that, the candidate employed in replacement of the respondent was not an MPSC-selected candidate, but a transferee to the Government Polytechnic. In addition, it is submitted that the job vacancy created through the transfer did not require the termination of the respondent’s post. As far as the limitation act condones the delay in filing the Original Application, the respondent’s counsel contends that the Court shall be awry in interfering with the interpretation of the Tribunal in the same regard.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended by the hon’ble court that this was a proper instance in which the Tribunal should have excused the delay in filing the application and the appellants should have been awarded relief in the same terms as the Full Bench of the Tribunal. As a result, the appeal is granted, the contested Tribunal judgement is reversed, the delay in filing the order is excused, and the application is granted. The Tribunal made no mistakes in overturning the order freeing the respondent from service or directing her regularisation.

Because of the unique facts and circumstances of the current case, the bench has also mentioned that it is inclined to maintain the Tribunal’s ruling directing the Respondent’s regularisation. As a result, no errors were detected in the Tribunal’s judgement and order. It was further directed to the petitioner to comply with the Tribunal’s instructions. The writ petition filed was thereby dismissed.

READ FULL JUDGEMENT: https://bit.ly/40T1C1H

RIGHT TO EQUALITY IN USA AND INDIA

Posted on

This article provides readers with an insight into the concept of the Right to Equality in India and the United States, how the provisions in both countries are applied, and the significant differences in both views.

Introduction

India and USA are two countries that share many similarities. Both countries are affluent in their diversified culture in society, emphasizing a democratic form of government with separation of powers and many other similarities. Even though the provisions and explanations of the term’ Right to Equality’ are quoted in the Constitution of both countries, the principle that things might differ when observed closely works here. The applications given to the same concept and the scope are significantly different in both countries.

The United States did not initially have the ‘Right to Equality’ in its Constitution. The Declaration of Rights from the Bill of Rights expanded this concept of the ‘Right to Equality’ in the United States. It was added as part of the 14th Amendment Act of 1868 in the Bill of Rights, whereas India’s scenario is entirely different. The ‘Right to Equality’ concept was intended to be added to the Constitution in the initial stages, resulting in it being a part of the country’s fundamental rights.[1] This was the initial point of difference between both countries regarding this concept. The main reason for the difference is the category of people in society and the rate of development in various fields.

Even though the application of the concept is different in both countries, where India considers it as a necessity while a country like the USA considers it from the aspect of quality, some basic features of equality are to be implemented in both countries irrespective of the scope. This article gives a deeper analysis of differentiating the right to equality on various grounds in both countries and the areas of development in implementing this provision.

Analysis

  • The difference based on provisions:

Similar to the provision under the Bill of Rights in the US, Article 14 in India is the foundation for providing the right to equality in the Indian Constitution. Article 14 has further introduced the concept of ‘reasonable classification,’ which states that people belonging to similar circumstances should be treated equally. Whereas in the United States, the mode for promoting equality is not based on fixing quotas. It is based on passing time-to-time legislation for the underprivileged like women and children and other minorities. In India, Article 14 protects against discrimination based on religion, caste, race, sex, or place of birth. In the case Shayara Bano v. Union of India.,[2] triple talaq was struck down, stating that it is violative of Article 14, whereas the US constitution does not promote social equality per se in this manner. The concept of social equality was not a part of the American Constitution at the time of its framing. For example, the rights of black people were protected only after passing the 14th and 15th Amendments.

Traits of Right to Equality in the US in that of Indian affirmative action

The words stated under the equal protection clause of the 14th amendment were directly applied in the Indian Constitution concerning the right to protection of life and personal liberty. The concept of the rational basis test introduced in the US constitution to check the validity of legislation passed was also applied in India through the judicial review process to check the arbitrariness of a law.

The US influence in Indian society is evident when India started framing the Constitution. Dr B.R. Ambedkar, the chairman of the Constitution assembly, was greatly influenced by the US constitution and its frameworks. He belonged to the category of untouchables in India. When he was in Columbia, he highly appreciated the framework of the 14th amendment act, which protected the rights of the black people of the United States and enhanced their livelihood. Clearly, he also had the same vision to uplift the lives of untouchables and other minority groups in India. He also idolized the famous black reformer and educator Booker T Washington. On the other hand, B.N Rao, the advisor to the constitutional assembly, inspired the Indian Constitution from the views and ideologies of many famous American judges and jurists.

One of the primary reasons for applying US affirmative reforms in India was that both countries political scenarios and cultural backgrounds had similarities. Both the countries and people belonging to different communities in the society. Both countries were federal. At the same time, society’s reaction regarding affirmative action was also the same. Indian states faced opposition from the people over affirmative action even after there was support by the government similar to the United States, where rights provided to black communities were largely opposed by whites.

  • Children’s Rights:

When considering the matter of children’s rights, there is no significant difference in provisions between both countries. Both countries have implemented the provision for providing compulsory education to children. The only difference is the age group. In India, compulsory education is 14 years, whereas, in the USA, it is 16 years. Children at 14 years will be way too young to attain sufficient maturity and take up jobs to sustain themselves. Therefore, considering the age of 16 is a better approach to implementing equality in education.

  • Gender inequality:

Equality for women regarding education, job opportunities, etc., is a widely debated topic in both nations. Thus, both nations have separate provisions to protect and safeguard women’s rights. Women’s equality and rights protection laws have gained more attention in the USA than in India among various countries because these laws were framed and implemented decades before India’s independence. The concepts like ‘liberal feminism’ and ‘radical feminism’ rose to popularity in the United States and changed people’s stereotypical attitudes and resulted in women’s independence. While discussing the protection of women’s rights in the workplace, India made provisions to tackle this problem only recently through the judgment of Vishaka v. State of Rajasthan. In contrast, this provision in the United States is more enhanced and developed.

Judicial interpretation of the ‘Right to Equality in India and the US

India has derived the concept of ‘equal protection of the law’ from the US through Article 14 of the Indian Constitution. The same concept is brought into the US constitution through the 14th amendment Act. Right to equality was considered one of the fundamental features of the Indian Constitution in the case of Indra Sawhney v. Union of India.,[3] This provision applies to every individual who comes under the definition of a person, even if it is a corporation, and all people within the boundaries of India, irrespective of citizenship. Equal justice is the motive behind the concepts of equality before the law and equal protection of the law was stated in the case of Ramesh Prasad v. State of Bihar.,[4] The Constitution of India also provides provisions to make reservations for women and children in the country; nothing shall prevent them from doing so. This was to ensure the upliftment of underprivileged groups. This was stated in the case of Choki v. State of Rajasthan.[5]

Three amendments were brought into the United States constitution after the civil war. All these amendments improved the concept of equality in the country by recognizing minority groups in the United States. The 13th amendment abolished the practice of slavery; the 14th amendment played a significant role which granted citizenship to minority groups and stated that no person should be denied the right to life and personal liberty within the state and equal protection of laws. In the landmark case of Gitlow v. Newyork[6] the 14th amendment Act regarding the due process of law was given a much broader interpretation by including the bill of rights. Other essential rights and liberties, such as the right to freedom of religion, the right to a fair trial, and, the right to press, were recognized through selective incorporation. In the case, of Roe v. Wade.,[7] the right to privacy was widely recognized.

The concept of equal protection of the law was recognized through the landmark judgment of Brown v. Board of education, Topeka.,[8] in which it prohibited discrimination on basis of race in public schools. The concept of equal protection was also used to protect rights in the matter of voting, public jobs, etc.

Conclusion and Suggestions

The ideology and views regarding the concept of equality have been formed during different periods and contexts which resulted in the difference in application. India considered equality as a core subject on the other hand the US developed the concepts according to the needs of the society. But the US system and the Indian system are not different. Regarding constitutional law, Indian shares similarities with the United States more than any other country. Both countries give core values to the Constitution with a strong procedure for judicial review, to strike down inconsistent laws.

After analyzing both countries’ approaches towards the concept of equality, it can be understood that either of the approaches can be directly applied as both have positives and flaws. A purely collective approach is not advisable as it puts individuals’ rights at stake. India’s approach is to attain equality in society and protect the rights of individuals whereas, in America, it is more of an individual approach. In India, the society’s mindset should be changed while the government promotes affirmative action. The authorities can initiate a moral approach. There are still barriers to full equality for people belonging to disabled sections, women, economically weaker sections, etc. Government should frame policies to uplift these groups in particular by addressing their needs. In the US, more attention should be given to providing opportunities to attain equal success for individuals, by removing the unequal effects in social groups. While promoting equality and abolition of discrimination, the need to provide equal access to justice should not be ignored.

References:

[1]Siddharth Sehgal, Fights for equality: A comparison between India and the US, THE TIMES OF INDIA (Oct. 28, 2013, 18:47 IST), https://timesofindia.indiatimes.com/nri/citizen-journalists/citizen-journalists-reports/siddharth-sehgal/fight-for-equality-a-comparison-between-india-and-us/articleshow/24826436.cms
[2] Shayara Bano v. Union of India, A.I.R. 2017 9 S.C.C. 1 (SC).
[3] Indra Swahney v. Union of India, A.I.R 1993 S.C. 477.
[4] Ramesh Prasad v. State of Bihar, A.I.R 1978 S.C. 327.
[5] Choki v. State of Rajasthan, A.I.R 1957 Raj 10.
[6] Gitlow v. Newyork, 268 U.S. 652 (1925).
[7] Roe v. Wade, 410 U.S. 113.
[8] Brown v. Board of education, 347 U.S. 483 (1954).

This article is written by Vishal Menon, a 2nd-Year student pursuing BBA LLB from Symbiosis Law School, Hyderabad.

Is Preamble a part of Constitution: An Analysis

Posted on

Introduction

In a document, a preamble is an opening statement that gives an idea about the aims and approach of the document and the objects it seeks to achieve. Therefore, the Preamble to the Constitution of India tells us about the values and aspirations for which the nation had struggled under British rule, the intention of the Constituent Assembly, and the morals and principles of the country.

It is built on the model of the Objective Resolution, which was presented by Jawaharlal Nehru. It was moved by him in the Constituent Assembly on December 13, 1946, and adopted on January 22, 1947. However, it was adopted only after the approval of the Draft Constitution.

Components of the Preamble

There are four main components of the Preamble:-

  1. The Preamble states that the people of India are the source for the authority of the Constitution. 
  2. According to the Preamble, India is sovereign, socialist, secular, democratic and a republic in nature.
  3. It states the securing of liberty, equality, and justice for its citizens and the promotion of fraternity as its objectives.
  4. It declares the date of adoption of the Constitution, i.e., November 26, 1949.

Keywords in the Preamble

Some of the keywords which are mentioned in the Preamble are described below:-

  • Sovereign – This means supreme power. Thus, this implies that India is an independent state and no other state can rule over it or dominate it. 
  • Socialist – In India, socialism means democratic socialism. It incorporates the concept of a mixed economy where both, the public sector and the private sector exist side-by-side. 
  • Secular – The concept of positive secularism is followed in India. It means that all the religions in India are equal and they receive equal respect, status, and support from the state.
  • Democratic – This means that in India, people elect their representatives who then form the government. In other words, the government derives its power from the will of its citizens expressed through elections.
  • Republic – It is a form of government in which the citizens elect the head of the state. In India, the head of the state is the President, who is elected indirectly for a term of five years.
  • Justice – The Preamble talks about social, economic, and political justice which are guaranteed through the Fundamental Rights and the Directive Principles of State Policy given in Part III and Part IV of the Constitution respectively. Social justice refers to the just and equal treatment of all citizens without any discrimination. Economic justice means the abolition of inequality in matters of wealth, income, and possessions. Political justice means all citizens have equal political rights and access to political participation.
  • Liberty – It means the absence of restrictions on an individual’s activities and to secure the freedom of expression, thought, faith, etc. However, this liberty is not absolute and is subject to certain limitations. 
  • Equality – It means the absence of any form of discrimination and the availability of equal opportunities for all.
  • Fraternity – It implies developing a sense of brotherhood among the citizens in order to maintain unity in the country and the dignity of the individual.

Is the Preamble a Part of the Constitution?

One of the main controversies related to the Preamble was whether it is a part of the Constitution or not. This question has been dealt with by the Apex Court in the following two cases:- 

  1. In re Berubari Union case:- At the time of partition between India and Pakistan, Sir Radcliffe was given the task of demarcation of boundaries between the two nations. Radcliffe awarded Thana ‘Berubari’ in Jalpaiguri district of West Bengal to India but this was not mentioned in the award’s written text. As a result, Pakistan claimed that Berubari was a part of their territory. This dispute continued till 1958 when the Nehru-Noon Agreement was signed between India and Pakistan. According to this agreement, the territory of Berubari was to be distributed equally between both countries. However, the Union Government faced criticism and its authority of transferring the territory was questioned. The matter was then referred by the President to the Supreme Court of India under Article 143(1) of the Constitution. 

The Court stated that the Parliament can diminish territory under Article 3 of the Constitution but it cannot cede the territory. Hence, to give effect to the Agreement the Parliament will have to amend the Constitution according to the provisions of Article 368. 

Further, the Court held that though the Preamble shows the objective of the Constitution, it is not a  part of the Constitution.

  1. Kesavananda Bharati v. State of Kerala:- The main issue, in this case, was regarding the power of the Parliament to amend the Constitution. In Shankari Prasad v. Union of India and Sajjan Singh v. the State of Rajasthan, the Parliament was granted the power to amend any part of the Constitution. However, in Golaknath v. State of Punjab, the Court overruled the judgment given in earlier two cases and held that the Fundamental Rights were non-amendable. To neutralize the effect of the Golaknath case, the Parliament made some major amendments to the Constitution. 

In the present case, Kesavananda Bharati was the head of a Matha in Edneer, Kerala. He questioned the Kerala government’s efforts, under two-state land reform Acts, to place restrictions on the control of the property (Matha) and challenged the Constitution (29th Amendment) Act, 1972, the 24th Amendment Act (fundamental rights), 25th Amendment Act (property rights) and 26th Amendment Act (privy purses). This case was heard by a 13 Judge Bench. 

The Preamble to an Act is not considered a part of that Act because it is not introduced and passed by the legislative body like other provisions of the Act, however, the Preamble of the Constitution of India was introduced, discussed, and enacted by the same process as the other provisions of the Constitution. This distinction was not detected in the Berubari case, but it was pointed out in the Kesavananda Bharati case. 

Here the Supreme Court held that the Preamble is a part of the Constitution of India, but it is not a source of power or limitations. Also, the seven judges who constituted the majority emphasized the Preamble and stated that the Parliament does not have absolute power of amending the Constitution and it cannot alter the basic structure of the Constitution.

In LIC of India v. Union Government, the Supreme Court has again stated that the Preamble to the Constitution of India is a part of the Constitution.

Can the Preamble be Amended or Enforced

The Preamble is a part of the Constitution and so it can be amended, but its basic structure should not be modified. It has been amended only once through the 42nd Amendment Act, 1976. This Amendment added the words “Socialist”, “Secular”, and “Integrity” to the Preamble.

The Preamble is non-justifiable, i.e., orders cannot be passed by the Courts to enforce it. But it can be used for interpretation of the constitutional provisions if there is any ambiguity.  

Conclusion

The Preamble is an important component of the Constitution. Its scope might be limited but it is very helpful in cases of ambiguity. It limits the power of the legislation to avoid arbitrariness and also highlights the principles and ideals on which the Constitution is based. 

Bibliography

  1. Case Analysis: THE BERUBARI UNION CASE, Lawsisto, https://lawsisto.com/legalnewsread/OTA4MA==/Case-Analysis-THE-BERUBARI-UNION-CASE.
  2. Dr JN Pandey, Constitutional Law of India, Fifty-Seventh Edition.
  3. Om Marathe, The Preamble: What does it say, and what does it mean to India and its Constitution?, The Indian Express (Jan. 24, 2020), https://indianexpress.com/article/explained/the-preamble-what-does-it-say-and-what-does-it-mean-to-india-and-its-constitution-6232014/.    
  4. Percival Billimora, Faraz Sagar, India: Kesavananda Bharati v. State Of Kerala And The Basic Structure Doctrine, Mondaq (Oct. 02, 2017), https://www.mondaq.com/india/constitutional-administrative-law/633634/kesavananda-bharati-v-state-of-kerala-and-the-basic-structure-doctrine. 
  5. Preamble to the Constitution of India, Lawctopus, https://www.lawctopus.com/academike/preamble-constitution-india/. 
  6. The Preamble of Indian Constitution – Meaning and Significance, Enterslice, https://enterslice.com/learning/the-preamble-of-indian-constitution-meaning-and-significance/.

Why Kesavananda Bharati vs State of Kerala case is considered landmark in India’s independent history¸ India TV News, https://www.indiatvnews.com/fyi/what-is-kesavananda-bharati-case-vs–state-of-kerala-basic-structure-constitution-fundamental-rights-647544.

This article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

LATEST POSTS

ARCHIVES