The Constitutional Conundrum of Equality: Examining the Impermissibility of Treating Unequals Equally under Indian Law

The Constitutional Conundrum of Equality: Examining the Impermissibility of Treating Unequals Equally under Indian Law

Introduction

The principle of equality, enshrined in Article 14 of the Constitution of India, is a cornerstone of Indian democracy. It guarantees to all persons equality before the law and the equal protection of the laws. While the more commonly understood facet of discrimination involves treating equals unequally, a more nuanced and complex dimension of equality jurisprudence concerns the situation where unequals are treated equally. This article delves into the legal proposition that treating dissimilar individuals or groups with a uniform standard, without acknowledging their inherent differences and disadvantages, can itself constitute a violation of the constitutional mandate of equality. Such an approach, often termed formal equality, may perpetuate or even exacerbate existing inequalities, thereby negating the constitutional aspiration for substantive justice. This analysis draws upon key judicial pronouncements and legal principles to explore how Indian courts have navigated this intricate aspect of equality.

Article 14: The Bedrock of Equality

Article 14 of the Constitution of India states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." This provision is not merely a declaration but an active command to the State. "Equality before the law" is a negative concept implying the absence of any special privilege in favour of any individual, while "equal protection of the laws" is a positive concept, signifying that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.[5]

The Supreme Court in E.P Royappa v. State Of Tamil Nadu And Another[4] expanded the traditional understanding of equality, holding that equality is antithetical to arbitrariness. Any action that is arbitrary must necessarily involve a negation of equality. Thus, Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.

The Doctrine of Reasonable Classification

Article 14 permits reasonable classification for the purpose of legislation or State action but prohibits class legislation. The classification, to be valid, must satisfy two conditions:

  1. It must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.
  2. The differentia must have a rational relation to the object sought to be achieved by the statute or action in question.[5, 12]

In State Of West Bengal v. Anwar Ali Sarkar, the Supreme Court struck down a provision empowering the State government to refer individual "cases" to Special Courts without stipulated criteria, holding that such unfettered discretion led to arbitrary classifications violating Article 14.[5] Similarly, in D.S Nakara And Others v. Union Of India, classifying pensioners based on an arbitrary date of retirement for the purpose of a liberalized pension scheme was held to violate Article 14, as the classification lacked an intelligible differentia and rational nexus to the objective.[3]

The Fallacy of Formal Equality: Treating Unequals Equally

The core of the present discussion lies in the judicial recognition that applying a uniform rule or standard to individuals or groups who are fundamentally unequal in their circumstances can lead to manifest injustice and violate the spirit of Article 14. As observed by the Supreme Court in Murthy Match Works And Others v. Asstt. Collector Of Central Excise, And Another, citing earlier decisions like K.T Moopil Nair v. State of Kerala and State of Kerala v. Haji K. Haji Kutty Naha, Article 14 may be violated even though the law may, on its face, be equal if in substance unequal things are treated equally.[16, 23] The Court noted, "Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality."[23]

The Supreme Court in Nidamarti Maheshkumar v. State Of Maharashtra And Others eloquently articulated this principle:

"Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action..."[7]

This sentiment is echoed in Union Of India (Uoi) And Anr. v. Ms. Amita Sood And Ors., where the Delhi High Court, referencing Indra Sawhney, observed, "Conversely, when unequal are treated equally, the mandate of equality before law is breached."[21] The Gauhati High Court in Sumeet Enterprises v. Union Of India further clarified, "Subjecting unequals to equals is really denying equality to the unequal..."[10] The Allahabad High Court in Rajveer Sharma v. State Of U.P. also noted that "unequal cannot be treated equally."[24] Similarly, the Karnataka High Court in MR. ABDUL AZEEM v. STATE OF KARNATAKA reiterated that "unequal cannot be treated equally".[22]

Substantive Equality: The True Mandate

The Indian judiciary has increasingly moved from a formalistic interpretation of equality to a more substantive one. Substantive equality recognizes that true equality cannot be achieved by merely applying the same rules to everyone, regardless of their differing circumstances. It acknowledges historical and systemic disadvantages faced by certain groups and permits, or even mandates, differential treatment to ensure genuine equality of opportunity and outcome.

The Delhi High Court in Naz Foundation v. Government Of Nct Of Delhi And Ors stated:

"Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full and effective equality, it is necessary to treat people differently according to their different circumstances, to assert their equal worth and to enhance their capabilities to participate in society as equals.”[6]

In Sumeet Enterprises, the Gauhati High Court contrasted formal (sameness) and substantive (pluralist) approaches to equality, noting that the substantive equality approach "questions the wisdom of the neutral policies on the basis of its impact on the disadvantaged group. Substantive equality approach believes that neutral legislation can violate equality guarantee and may have adverse impact on disadvantaged group."[10]

The Supreme Court in State Of Kerala And Another v. N.M Thomas And Others emphasized that "equality is not merely formal but substantively ensures that historically marginalized communities receive adequate opportunities to compete on equal footing."[1] This aligns with the reasoning in Nidamarti Maheshkumar: "Equality in law must produce real equality; de jure equality must ultimately find its raison d'etre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas."[7]

Affirmative Action: A Manifestation of Substantive Equality

Affirmative action policies, such as reservations, are a direct consequence of the pursuit of substantive equality. They involve treating unequals differently to ameliorate historical injustices and ensure adequate representation. In State Of Kerala And Another v. N.M Thomas And Others, the Supreme Court upheld Rule 13-AA of the Kerala State and Subordinate Services Rules, which granted temporary exemptions to SC/ST members from departmental tests for promotion. The Court found this to be a reasonable classification aimed at ensuring adequate representation, consistent with Articles 16(1), 16(4), 46, and 335 of the Constitution.[1]

The landmark decision in Indra Sawhney And Others v. Union Of India And Others extensively dealt with reservations for backward classes, affirming the permissibility of such measures under Article 16(4) but also laying down certain limitations, such as the 50% ceiling rule (as a rule of prudence) and the exclusion of the "creamy layer".[2] The Court recognized that Article 16(4) is not an exception to Article 16(1) but an emphatic statement of equality of opportunity. However, it struck down the 10% reservation for "other economically backward sections" not covered by existing schemes, indicating that classifications must adhere to constitutional parameters.[2]

Judicial Scrutiny and the Limits of Differential Treatment

While differential treatment is often necessary to achieve substantive equality, it is not unbridled. The classification must still adhere to the twin tests of intelligible differentia and rational nexus. Arbitrariness remains a key ground for challenging State action.[3, 4]

The Supreme Court in Coimbatore District Central Coop. Bank v. Employees Assn. explicitly stated the converse and the direct principle:

"It is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of ‘equal protection clause’ enshrined by Article 14 of the Constitution."[17]
This case involved differential treatment of employees based on whether they accepted a settlement and resumed work, which the Court found permissible as they formed different classes.[17]

In Virendra Krishna Mishra v. Union Of India And Others, the Supreme Court found discrimination where individuals in the same feeder cadre, with similar professional content, status, and pay scale, were treated differently for encadrement based on fortuitous postings, directing all posts to be encadred.[11] This illustrates the principle that equals cannot be treated unequally without justification.

A crucial limitation arises when differential treatment, initially designed to correct inequality, risks perpetuating it. In Reserve Bank Of India And Others (s) v. A.k. Nair And Others (s), the Court cautioned that once disadvantaged persons are brought to par and form one class, "any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."[8]

Furthermore, the concept of "negative equality" dictates that Article 14 cannot be invoked to perpetuate an illegality. If a wrong has been committed in favour of an individual, others cannot claim the same benefit on the grounds of equality. As held in Rajesh Kumar Jhanji v. State Of Himachal Pradesh And Others and Manish And Others v. Lala Lajpat Rai University Of Veterinary And Animal Sciences And Others, "two wrongs do not make one right," and the concept of equal treatment presupposes a similar legal foothold.[13, 14]

The Patna High Court in Anand Mohan Jha v. Union Of India found it irrational and arbitrary to deny revised pay scales (effective retrospectively) to those who had taken voluntary retirement before the notification date but after the effective date of revision, as they were similarly circumstanced on the effective date.[20] This was a case of equals being treated unequally due to a subsequent event, deemed violative of Article 14.

The Supreme Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union Of India, referencing Dworkin, distinguished between the "right to equal treatment" and the "right to treatment as an equal," the latter being more fundamental. This implies that decisions must be made with equal respect and concern for the interests of all, even if the outcome (distribution of benefits) is not identical.[9]

In Rambrikash Singh And Ors v. State Of Arunachal Pradesh And Ors, the Gauhati High Court highlighted the judiciary's responsibility to ensure that "every one is equal before the law does not remain as a mere philosophy, but translate into practice in everyday life," particularly when addressing exploitative practices even by the State.[15] This underscores the practical dimension of achieving real equality.

The principle of permissible classification extends to various domains, such as insolvency law, where creditors can be classified differently based on the nature of their debt or security, as seen in Committee Of Creditors Of Essar Steel India Limited v. Satish Kumar Gupta And Others.[18] This is a recognition that different classes of creditors are inherently unequal in their rights and risks.

In service jurisprudence, the principle was applied in Sheela Devi v. State Of H.P. And Others, where the Himachal Pradesh High Court, following Supreme Court precedent, held that services rendered as work-charged employees should be counted for qualifying service for pension, recognizing the substantive contribution and preventing arbitrary denial of benefits by treating them differently from regular employees without adequate justification for pensionary purposes.[19]

Conclusion

The jurisprudence surrounding Article 14 of the Indian Constitution has evolved to embrace a nuanced understanding of equality. It is now firmly established that equality does not mean sameness of treatment for all. Treating unequals as equals, by applying a uniform standard without regard to their inherent differences and disadvantages, can itself be a potent form of discrimination, undermining the constitutional goal of substantive equality. The Indian judiciary, through a catena of decisions, has emphasized that to achieve true equality, it is often necessary to treat people differently based on their circumstances, ensuring that legal frameworks and State actions are not merely formally neutral but are substantively fair and just. This requires a careful balancing act, ensuring that classifications are reasonable and non-arbitrary, and that measures designed to promote equality do not inadvertently perpetuate new forms of inequality. The journey towards realizing the full potential of Article 14 involves a continuous endeavor to ensure that the law serves as an instrument of empowerment and justice for all, particularly for those who have been historically marginalized or disadvantaged.

References