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.

In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the Right to Equality in India.

Meaning of Right to Equality

The term Right to Equality is originally taken from the constitution of England and as explained in that test the term means;

I. First and foremost, this means that any person irrespective of gender, religion, caste, or creed will be treated equally in the eyes of law. The legal system will be completely blind and unbiased towards the person standing before it.

II. The legal system or any law will be equally applicable towards all the people entitled to it. That is to say, two persons will be similarly punished in the eyes of law for committing the crime of the same nature.

III. Last but not the least, no person will be above the legal system or the laws in force of the country. From the lawmakers to servants, from rich to poor everyone will be equally entitled to the law in force.

Equity and Equality

There is a thin line of difference between Equality and Equity. Equality means equal treatment to all the people irrespective of any other present factors. Whereas, Equity means treating different people differently based on the other factors present so that everyone can be at the same position at the end.

Illustration

A has Rs. 40, B has Rs. 30, C has Rs. 20

According to the principles of Equality, we will give them each the same amount of money for example Rs. 40.  Now A has Rs. 80, B has Rs. 70 and C has Rs.60.

According to the principle of Equity, we will give A Rs. 10, B Rs.20 and C Rs. 30, and now everyone has Rs. 50.

In reality and in the actual practice of the principle of equality does not mean a similar treatment to everybody. As no two individuals are equal in all regards, a similar treatment to them in each regard would bring about unequal treatment. As no two people are equivalent in all respects, a comparable treatment to them in each respect would achieve inconsistent treatment. For example, a comparative treatment in all views to an adolescent as an adult, or to an incapacitated or genuinely hindered individual with respect to an individual liberated from any medical issues, or to a princely individual as to poor, will realize inconsistent treatment or treatment which nobody will legitimize.

Thus, the essential standard of equality isn’t the consistency of treatment to everything thought about being equivalent, yet rather to give them a comparative treatment in such matters where they are similar and assorted treatment in such matters in which they are not the same. Essentially, it is communicated: Equals are to be managed along these lines while Unequal must be managed in an alternate manner. For genuine utilization of the rule of equity, taking everything into account, we should, thus, segregate between the people who are comparable and the people who are not comparable among each other based on the circumstances and other factors involved.

Right to Equality under the Indian Constitution

Under the Constitution of India, the Right to Equality is embodied under article 14-18 and exactly what rights and liberties these articles provide is stated hereunder.

Under Article 14 of the constitution of India, it is stated that all people shall be equally treated under the law and shall be equally protected by the laws of the country. It means that the State will treat the citizens of this country or even otherwise any person subjected to the laws of this country in the same way if the circumstances and other determining factors are alike and they shall be treated differently if the circumstances and other determining factors are different.

Under Article 15 of the Constitution of India, it is stated that no citizen of India shall be subjected to any sort of discrimination upon their rights under the laws of this country based on religion, race, caste, sex or place of birth. However, this provision does not constrain the State to make any special provision for women or children or any socially or educationally backward class or scheduled castes or scheduled tribes for their own upliftment in the society.

Under Article 16 of the Constitution of India, it is laid down that the State cannot discriminate among the citizens of the country in the matters of employment in Public Sector. However again this provision does not constrain the State to make any special provision to reserve certain posts or job profiles or a certain percentage of jobs in the public sectors for women or children or any socially or educationally backward class or scheduled castes or scheduled tribes for their own upliftment in the society.

Under Article 17 of the constitution, it abolishes the practice of untouchability to be performed anywhere in this country by either the Citizen of this country or any people subjected to the laws of this country. The practise of untouchability is also an offence and anyone doing so is punishable by the provisions laid down under the Untouchability (Offences) Act, 1955.

Under Article 18 of the Constitution of India, it prohibits the State from conferring any titles. It states that Citizens of India cannot accept any titles such as Rai Bahadurs and Khan Bahadurs given by the British during their rule, from a foreign State. However, titles and awards to recognize the excellence in the field of Military force, Academic, Entertainment etc. can be conferred on the citizens of India.

Leading Case Laws

Here is a list of leading cases on the principle of Equality as embodied in the Constitution of India chronologically to also point out the changes happened to the applicability of such principle in modern times according to the changing people and their needs in the society.

In the case of P. Rajendan v. State of Madras[1], the district-wise distribution of seats in state medical colleges on the ground of proportion of the population of a district to the total population of the state was in question. Now any classification will be valid under article 14 if there is a relation between the classification and the object sought to be achieved from that classification. For any selection process of admission, the main goal should be that the best possible candidates get selected, but here due to this rule, a less deserving candidate from one district can get selected whereas a more deserving candidate from the other district will not which is unreasonable and not fair and hence it was declared to be violative of the principle of equality under Article 14.

In the case of Maneka Gandhi v. Union of India[2], Justice P.N.Bhagwati, pronounced the new concept relating to the principle of Equality which states;

“Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality, or non- arbitrariness pervades Article 14 like a brooding omnipresence.”

In Air India v. Nargesh Meerza[3] Regulation 46 of Indian Airlines regulations was in question. The said provision states that an air Hostess will be made to resign by the administration from her position after accomplishing the age of 35 years or on marriage inside 4 years of Service or on first pregnancy and otherwise they could continue their services till the age of 45 years if they are proved to be medically fit.

It was held by the court that compulsory resignation on the ground of pregnancy was totally arbitrary and unreasonable and discretionary, it was the infringement of article 14 under the Constitution of India.

In D.S Nakara v. Union of India[4], in this case, the supreme court said that Rule 34 of the central services( pension) rules, 1972 as unconstitutional on the ground that the classification made by it between pensioners retiring before a certain date and retiring after that date did not depend upon any rational principle it was arbitrary and the infringement of article 14 of Indian constitution law.

Conclusion

From the above-mentioned judgements passed by the Court, it is clear that Article 14 of the Constitution of India ensures equal rights without discrimination of any manner. It also makes sure that everyone is treated equally in the eyes of law and most importantly there is no discrimination on the basis of caste, religion, race or social status.  Being said that, right to equality is indeed one most indispensable rights among the fundamental rights prescribed in the Constitution and a part of the basic structure of the same.  


[1] 1968 AIR 1012

[2] 1978 AIR 597

[3] 1981 AIR 1829

[4] 1983 AIR 130