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.

Article 14 of the Indian Constitution ensures equality before the law, it 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 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” 

Article 14 deals with the principles of equality before the law and equal protection of the law, both of which aim to provide equal status to all the citizens of the country. It is important to understand these two principles in order to understand Article 14. The principle of equality before the law means that everyone would be treated equally under the law and no one would be given any special privileges on the basis of their religion, caste, gender, etc. On the other hand, the principle of equal protection of law aims to provide equal treatment in all circumstances, that is, whether the person is a prime minister or ordinary man, both of them should be treated equally under the ordinary law.

The essence of the Article lies in the doctrine of Rule of Law. Rule of law guarantees the principle of equality before the law, it means that no person is above the law, what so ever his post is, he is bound to the jurisdiction of the courts and law. It also states that no person shall be harassed or discriminated against and shall be treated equally before the law. There are three meanings to rule of law:

  • Absence of supremacy of law

This is means that no absolute power is given to the law. A person can only be punished for not adhering to or violating the law but not in any other circumstances. 

  • Equality before law

Every individual is to be treated equally and protected equally under the law and is bound to the jurisdiction of the ordinary courts.

  • Individual liberty

Even though there is mention of individual liberty in the fundamental rights, like in Article 21 which ensures personal liberty, and Article 19 which rights to freedom, this meaning of personal liberty is not applicable in the Indian context (the third meaning of rule of law given by Dicey is however applied in other countries like the United Kingdom). This is because the source to the right of individuals is the Constitution of Indian and then Constitution is the law of the land. 

But, the concept of equality under rule of law is not absolute, there are few exceptions to the principle of rule of law, 

  • The public officials and an ordinary man are not on the same level having the same power. A police officer for example, has the power to arrest an ordinary man for breach of law, whereas an ordinary man does not have the power to arrest another ordinary man or a police officer for the breach of law. 
  • Rule of law does not mean that every class of individuals would be bound to the same set of rules. There are special rules for people of a certain class. For example, the individuals in the armed forces are bound to the military rules. 

Now that we have understood the main doctrines behind Article 14, we shall now look into the underlying principle of the Article. Equality before law or equal protection under the law does not amount to equal treatment to everyone. Because no two individuals can be equal or the same in all aspects, and so treating them both equally in all aspects would not amount to a fair trial. For example, an adult and a child are two individuals in a society, but can both of them be treated equally in all aspects? In the aspect of crimes committed, is it fair that the child is given the same amount of punishment as to what would be given to any adult? No. That is why the system of punishment is different for both children and adults under the IPC. Hence, it is important to note that ‘equal treatment’ should be justifiable and fair. Therefore, the meaning of equality under the Article does not mean uniform treatment to all, it means to provide the same treatment in aspects where the individuals are similar and different treatment in the aspects where the individuals are different. In order to differentiate between the equals and the unequal’s, the doctrine of reasonable classification is applied. 

Article 14 is applicable when there are two equal individuals treated differently, then the equality before the law comes inapplicable. But, in the case where an equal and an unequal individual is treated differently, the Article is not applicable. Class legislation is that which makes improper discrimination by providing privileges for certain classes. However, Article 14 is forbidden Class legislation and promotes reasonable classification. 

The reasonable classification should be on real and substantial difference, bound to a reasonable relation. Hence, there are tests to reasonable classification, 

  • The classification should be intelligible differentia. That is, it has to be able to distinguish people from a group to those who aren’t part of the group. 
  • There should be a rational relation between the objects.

Now, we will look into the points that hold a valid classification under Article 14. In the case of Ram Krishna Dalmia v. Tendolkar, the court explained the true meaning of Article 14 as follows,

  • If there are some special reasons or circumstances that apply to an individual, which is not applicable other individuals, then that person can be considered as a class.
  • There is always an assumed favour constitutionally on an individual and the burden is on the one who attacks this to show that there has been a transgression of the principles of constitution. 
  • This assumption can be taken away by showing that there is no difference or to a particular class.
  • It has to be assumed the law or the legislature will only do things for the need of the people and no discrimination to take place.
  • To keep the constitutional presumption, the court may consider the common knowledge, the history, the reports on the same, etc.
  • The legislation has the power to identify harms and also put restrictions to those case. 
  • The legislation is presumed to work on good knowledge and a good faith. 
  • The classification can be made on any basis, individual, geographic, etc.
  • The classification made does not have to be logically perfect or equality perfect.
  • Discrimination can be there in substantial and procedural law and the Article applies to both of these. 

In the case of Madhu Limaye v. Supdt. Tihar Jail Delhi, the Indian and European prisoners were not treated equally. The court held this is to be a case of discrimination and applied the principle of Article 14 to provide equal treatment for both the prisoners. In the case of D.S. Nakara v. Union of India, there was a memorandum given by the government, where the pension for retired officials was divided into two classes depending on their retirement date. The court held that this classification was not rational, as the classification of the retirement dates was in the difference of just two days. These cases show how the application of the principle of Article 14 and also on the legislature who analyses the application of the Article. 

Therefore, Article 14 aims to have equal treatment, that is fair and justifiable to all individuals and to remove any kind of discrimination. It gives fair treatment between the equals and unequal. 

References

  • Constitution of India, V.N Shukla
  • Indian Kanoon
  • Jstor
  • Ram Krishna Dalmia v. Tendolkar.
  • Madhu Limaye v. Supdt. Tihar Jail Delhi
  • D.S. Nakara v. Union of India

This article is written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

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