NHRC Project

Equality before Law and Equal Protection of Law
Project Work
NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

Project Topic:
Equality before Law and Equal protection of Law
-With special reference to:
a)Child Laws and
b) Gender Inequality.

Prepared By:
Sheikh Khurshid Alam,
B.A.LL.B, Dept. Of Law,
University of Calcutta.


INDEX
Topics Page No:
Index 01
Acknowledgement 02
Overview of the Project 04
Introduction 10
The Concept of Equality 11
Natural Justice and its essential elements 13
Rule of fair hearing 15
Components of right to fair hearing 17
Equality before the Law and Discrimination 21
1. Critical analysis of provisions relating to Children 26
under Indian Constitution: In the light of equality
before law and equal protection of law
Gender Inequality 29
Conclusion 36

Acknowledgement
I take this opportunity with much pleasure to first of all thank the Almighty Allah for
giving me this life to serve my fellow beings and then thank all the people who have
helped me through the course of my journey towards producing this Project Work. I
sincerely thank my Project supervisor, Shri M.L.Aneja, for his guidance, help and
motivation. Apart from the subject of my research, I learnt a lot from him, which I am
sure, will be useful in different stages of my life.
I would like to thank Mr. S.K.Jain and his caring staff members – Miss Rekha, Br.
Sanjeet, Br. Pankaj, Br. Prashant and others whom I don’t know by name. They have
been a constant source of encouragement throughout the internship programme.
My special thanks to Mr. Rawat, Mr.Om Prakash & his library staff, Mr. Sharma & his
canteen staff for being so supportive.
My sincere gratitude also goes to all those who instructed and taught me throughout the
Internship Programme.
Finally, this project would not have been possible without the confidence, endurance
and support of my Head of the Department, Dr.J.K.Das and other faculty members
from the Department of Law, University of Calcutta, who approved and encouraged my
participation in the internship programme.
The views expressed here are solely of the authors and not necessarily of NHRC. The
Intern shall be obliged if any such error or omission is brought to his knowledge for
possible correction in future.
Sheikh Khurshid Alam,

B.A.LL.B 4th Year.
[email protected]
Department of Law,
University of Calcutta.
NHRC Intern- Winter’09.

- SPEECH BY HON'BLE PRESIDENT OF INDIA SMT. PRATIBHA DEVISINGH

PATIL AT THE INTERNATIONAL CONFERENCE OF JURISTS ON THE RULE OF
LAW
New Delhi, 24th November 2007
Differing theories and the current ongoing debates do not permit a clear jurist's
definition of what the "Rule of Law" means internationally. However, the concept
in simple terms translates itself to mean not only the need to abide by the rulebook
but also the need to guarantee that while the rule is being interpreted, the law
should not be seen as unjust, inequitable, discriminatory and arbitrary. These
principles have guided many democratic nations in their efforts to establish
responsible and responsive governing systems.
In fact, a democratic form of government must have its foundations on a rule of
law that advocates the absence of arbitrary power, equality before law and
protection of individual liberties. The Constitution of India provides a powerful
framework for the protection and enforcement of basic rights of the individual
and rejects the arbitrary use of power; its provisions reflect a commitment to
promote the rule of law. Article 14 of the Indian Constitution specifically provides
for equality before law and the equal protection of the laws. Parliament and the
State Legislatures are democratically elected on the basis of adult suffrage. There
is independence of judiciary and the power of judicial review. All these provisions
together constitute a firm commitment to the rule of law.

Overview of the Project

“The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India.”1
Fundamental Rights
 England – Individual Rights

 USA – Fundamental Rights – Bill of Rights
 India – Fundamental Rights
1
Article 14, the Constitution of India.

 History of the demand for Fundamental Rights

1) Government of India Act, 1935
 Simon Commission
 Joint parliamentary Committee
- Rejected Fundamental Rights
2) Nehru Report
 In favour of Fundamental Rights
3) Makers of Constitution
 Adopted Rejected Fundamental Rights
and Directive Principles
 Taken from USA – but a compromise
between Parliamentary Sovereignty and
Judicial Supremacy
 Article 13 – Courts have Power to declare Void laws contravening

Fundamental Rights
Therefore followed American model, but Indian Legislature stronger
than Judiciary:
a) Power to impose reasonable restriction
b) Power to amend constitution
E.g. Right to Property – Janata Government
c) Exceptions – Article 31A, B, C, D – Enactments under the said
Articles cannot be struck down as violative of Fundamental
Rights
d) Fundamental Duties under Article 51A – Curtailing Effect
e) List of Fundamental Rights under Part III exhaustive
 Other Rights also available under Constitution but no Writ

Jurisdiction
Eg. Article 265 – ‘No tax shall be levied or collected except by

Authority of Law’
 Concept of ‘Fundamental’
 Immune to all constitutional amendment
 Article 368 – All parts of constitution can be amended
 SC -> Golak Nath Case – ‘Fundamental Rights’ cannot
be amended under Article 368
 Article 368 itself amended
 Kesavananda Bharati’s Case – Judge Bench
– Parliament can amend
Fundamental Rights
 42nd Amendment - Fundamental Rights can be amended and
referendum
 Article 14 – Equality before law and Equal Protection of Laws
A. Equality before law

 Negative Concept – Implies absence of special privileges

 Taken from Second Corollary from Dicey’s Concept of the
Rule of Law, that is, No man is above Law
 Exceptions
1) Governor and President
i) Not answerable to any Court of Law
ii) No Criminal Proceedings
iii) No Civil Proceedings – not applicable to
impeachment and other appropriate proceedings
against Government
B. Equal Protection of Laws
 Equal treatment in similar circumstances

 Providing for ‘Classification’ by State
1) Based on Intelligible differentia

Therefore classification can be based on:

i) Geographical differentia
ii) Time
iii) Nature of trade, calling or occupation
Eg. Taxation
i) Exemption from taxation – Charities, libraries
ii) Different taxes for different trades
iii) Real tax and Property tax
 Applies to Substantive and Procedural Law
 Hits at arbitrariness of State Action in any form
 Article 14 – General Equality
 Articles 15 and 16 – Specific Equality
 Article 15 - Prohibition of discrimination on grounds of Religion,

Race, Caste, Sex or Place of Birth

 In access to public places and facilities but does not

prevent state from:
i) From making special provision for children
ii) And for backward classes – Schedule Castes and
Schedule Tribes
 Article 16 - Equality of opportunity in matters of public

employment
 No person can be excluded from state service

exceptions:
Reservation can be made for:
i) Backward class of citizens
ii) Religious or denominated institution officers
iii) Schedule Castes and Schedule Tribes (Article
335)
 Article 17 - Abolition of Untouchability

 Punishable
 Untouchability
(offences) Act 1955
Protection of Civil
Rights Act, 1955
 No definition of Untouchability
i) Refusal of admission to public institutions
ii) Prevention of worship in public places
iii) Subjecting person to disability
 Act in 1976
i) Insulting member of Supreme Court
ii) Justifying untouchability
 Penalty
i) 1 to 2 years imprisonment
ii) Cannot stand for election
 Article 18 - Abolition of Titles

 To eradicate imperialistic tendencies exceptions:

i) Ban operates only against state
ii) State not debarred from awarding military or
academic distinctions
iii) State can award distinctions
Eg. Bharat Ratna, Padma Vibhusha, Padma
Bhushan, Padma Sri
 Criticism
 Articles 17 and 18 – Social Justice

Introduction
Democracy is premised on equality. The American and French revolutions of the late
eighteenth century were fought in the name of liberty and equality and, since then,
these values have been central to western democracy. Since the two values do not
always pull in the same direction, it has often been necessary to find an accommodation
between them; but, whether in harmony or in competition, they have underpinned the
relationship between the individual and the state and have determined the choice and
formulation of many human rights norms.
Nowadays the constitutions of most of the Nations contain guarantees of equality
before the law, and the guarantee is included in international human rights texts,
notably the International Covenant on Civil and Political Rights to which India is party
In the words of the Universal Declaration of Human Rights, equality as a human right
means that all human beings are equal in dignity and rights. This simple statement,
however, belies the elusive nature of the concept and its often difficult application to
particular circumstances.

This Project work will deal with the subject of equality before law and equal protection
of law in the context of India with little reference to other democratic nations.
The concept of equality
Equality is a measure of how society treats difference. It does not mean that differences
should be ironed out in pursuit of uniformity or homogeneity. Rather it seeks to ensure
that differences between people are not unjustly used to favour or to disadvantage some
in relation to others and that disadvantage unjustly suffered by some persons as
compared with others is rectified. A complex notion, it is nevertheless generally
understood to comprise several dimensions.
In India, there is no particular statute, laying down the minimum standard, which the
administrative bodies must follow while exercising their decision making powers.
There is, therefore, a bewildering variety of administrative procedure. In some cases,
the administrative procedure is controlled by the statute under which they exercise their
powers2. But in some cases, the administrative agencies are left free to device their own
procedure3. But the courts have several times reiterated that the
Administrative agencies must follow a minimum of fair procedure, while exercising
their powers. This fair procedure is called the principles of natural justice.
The principles of natural justice have been developed by the courts, in order to
secure fairness in the exercise of the powers by the administrative agencies. The
principles of natural justice are the Common Law counterpart of the ‘due process of
2
2http://www.esatclear.ie/~dejames/CRGEquality.htm
3
3http://www.esatclear.ie/~dejames/CRGEquality.htm

law’ in the Constitution of the United States. However wide the powers of the state and
however extensive discretion they confer, the administrative agencies are always under
the obligation to follow a manner that is procedurally fair.
In a case before the United States Supreme Court, a JACKSON J. said:
‘Procedural fairness and regularity are of the indispensable essence of liberty. Severe
substantive laws can be endured if they are fairly and impartially applied’.
However the applicability of the principles of natural justice depends upon the facts and
circumstances of each case.
In India, the Supreme Court has reiterated that the principles of natural justice
are neither rigid nor they can be put in a straight jacket but are flexible. In the case of
R. S. Dass v. Union of India , the Supreme Court observed that:
“It is well established that rules of natural justice are not rigid rules, they are flexible
and their application depends upon the setting and background of statutory provisions,
nature of the right which may be affected and the consequences which may entail, its
application depends upon the facts and circumstances of each case”. 4
The reason for the flexibility of natural justice is that the concept is applied to a wide
spectrum of the decision-making bodies.
4
R. S. Dass v. Union of India

NATURAL JUSTICE AND ITS ESSENTIAL ELEMENTS.
The principles of natural justice have been developed and followed by the judiciary to
protect the right of the public against the arbitrariness of the administrative authorities.
Natural Justice implies fairness, reasonableness, equity and equality. It is the concept of
the Common Law, which stands on the same footing as the concept of “procedural due
process” of America. According to HEGDE J., the aim of natural justice is to secure
justice; to prevent miscarriage of justice and to give protection to the public against the
arbitrariness.
• Roman law. In Roman law the concept of natural justice consists of two
essential rules:
1. audi alteram partem,- the person, who has to be effected by a decision has
a right to be heard; and
2. nemo judex in re sua – the authority deciding the matter should be free from
bias.
• Common law. From the medieval era, the English Common Law consists of the
principles of natural justice. The rules requiring impartial adjudications and fair
hearings can be traced back to the medieval precedents and indeed they were
not unknown in the ancient world. In Dr. Bonham's Case (1610)5, COKE J. held
that an Act of the Parliament is void if it makes a person judge in his own cause
5

or was otherwise against common right or reason. Coke then made the
following general statement:
“And it appears in our books, that in many cases, the common law will control acts of
parliament, and sometimes adjudge them to be utterly void: for when an act of
parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such act to be void; and,
therefore, in ... Thomas Tregor's case [Judge] Herle said, some statutes are made
against law and right, which those who made them perceiving, would not put them in
execution…”
But the year 1963 proved to be watershed in the development of concept of
natural justice in common law world. With the expansion of the administrative process,
the wide abuse of the power of the administrative authorities became evident. In the
case of Ridge v. Baldwin , the applicability of natural justice to the quasi-judicial bodies
took place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The
judgment of LORD REID widened the ambit of natural justice.
Position in India.
Article 14, 19, 21 of the Indian Constitution lay down the cornerstone of natural justice
in India. In the case of E P Royappa v. State of Tamilnadu6 , the apex court held that a
properly expressed and authenticated order can be challenged on the ground that
condition precedent to the making of order has not been fulfilled or the principles of
natural justice have not been observed. In another landmark case of Maneka Gandhi v.
Union of India7 , the apex court held that law which allows any administrative authority
to take a decision affecting the rights of the people, without assigning the reason for
6
AIR, 1974 SC 555.
7
(1978) 1 SCC 248: AIR 1978 SC 597.

such action, can not be accepted as a procedure, which is just, fair and reasonable,
hence violative of Articles 14 and 21.
RULE OF FAIR HEARING.
The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that
no one should be condemned unheard. It is the first principle of the civilised
jurisprudence that a person facing the charges must be given an opportunity to be
heard, before any decision is taken against him. Hearing means ‘fair hearing’.
The norms of reasonableness of opportunity of hearing vary from body to body
and even case to case relating to the same body. The courts, in order to look into the
reasonableness of the opportunity, must keep in mind the nature of the functions
imposed by the statute in context of the right affected8. The civil courts, in India, are
governed in the matter of proceedings, through the Civil Procedure Code and the
criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the
adjudicatory bodies functioning outside the purview of the regular court hierarchy are
not subject to a uniform statute governing their proceedings.
The components of fair hearing are not fixed but are variable and flexible. Their
scope and applicability differ from case to case and situation to situation9. In Mineral
Development v. State of Bihar10, the apex court observed that the concept of fair hearing
is elastic and not susceptible of a precise and easy definition. The hearing procedures
vary from the tribunal, authority to authority and situation to situation. It is not
necessary that the procedures of hearing must be like that of the proceedings followed
by the regular courts.
8
Govt. of Mysore v. J V Bhat, (1975) 1 SCC 10: AIR 1975 SC 596.
9
Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65.
10
AIR 1960 SC 468: (1960) 2 SCR 609.

The objective of the giving the accused an opportunity of fair hearing is that an
illegal action or decision may not take place. Any wrong order may adversely affect a
person. The maxim implies that the person must be given an opportunity to defend
himself. LORD HEWART rightly observed that “ it is merely of some importance, but
is of fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seem to be done”11. In this regard the Dr. Bentley case12
needs to be elaborately discussed. In this case the Court of King’s Bench condemned
the decision of the Cambridge University, of canceling the degree of the scholar,
without giving him the opportunity to be reasonably heard.
Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow
completely the principles of natural law exists. But the cases which are classified as the
‘administrative’, the duty on the administrative authority is to act justly and fairly and
not arbitrarily. In the 1970 case of A. K. Karaipak v. Union of India13, the Supreme
Court made a statement that the fine distinction between the quasi-judicial and
administrative function needs to be discarded for giving a hearing to the affected party.
Before the Karaipak’s case, the court applied the natural justice to the quasi-judicial
functions only. But after the case, the natural justice could be applied to the
administrative functions as well.
11
R. v. Sussex Justices, ex p. McCarthy, (1924) 1 KB 256, 259.
12
R. v. University of Cambridge, (1723) 1 Str. 757: 93 ER 698.
13
AIR 1970 SC 150: (1969) 2 SCC 262.

COMPONENTS OF RIGHT TO FAIR HEARING.
1. Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’
which means ‘being known’. Thus it connotes the sense of information,
intelligence or knowledge. Notice embodies the rule of fairness and must
precede an adverse order. It should be clear enough to give the party enough
information of the case he has to meet. There should be adequate time for the
party, so that he can prepare for his defence. It is the sine qua non of the right of
hearing. If the notice is a statutory requirement, then it must be given in a
manner provided by law. Thus notice is the starting point in the hearing. Unless
a person knows about the subjects and issues involved in the case, he cannot be
in the position to defend himself.
The notice must be adequate also. Its adequacy depends upon the case. But generally, a
notice, in order to be adequate must contain following elements:
• Time, place and nature of hearing.
• Legal authority under which hearing is to be held.
• Statements of specific charges which the person has to meet.
The test of the adequacy of the notice will be whether it gives the sufficient information
and material so as to enable the person concerned to prepare for his defence. There
should also be sufficient time to comply with the requirements of a notice. Where a
notice contains only one charge, the person cannot be punished for the charges which
were not mentioned in the notice14.
14
Govindsingh v. Subbarao, AIR 1971 Guj 131: (1970) 11 GLR 897.

The requirement of notice can be dispensed with, where the party concerned clearly
knows the case against it and thus avails the opportunity of his defence. Thus in the
case of Keshav mills Co. Ltd. v. Union of India15, the court upheld the government order
of taking over the mill for a period of 5 years. It quashed the argument of the appellants
that they were not issued notice before this action was taken, as there was the
opportunity of full-scale hearing and the appellant did not want to know anything more.
2. Right to know the evidence against him. Every person before an
administrative authority, exercising adjudicatory powers has right to know the
evidence to be used against him. The court in case of Dhakeshwari Cotton Mills
Ltd. v. CIT16, held that the assessee was not given a fair hearing as the Appellate
Income Tax tribunal did not disclose the information supplied to it by the
department. A person may be allowed to inspect the file and take notes.
3. Right to present case and evidence. The adjudicatory authority must
provide the party a reasonable opportunity to present his case. This can be done
either orally or in written. The requirement of natural justice is not met if the
party is not given the opportunity to represent in view of the proposed action.
Courts have unanimously held that the oral hearing is not an integral part of the fair
hearing, unless the circumstances call for the oral hearing. In Union of India v. J P
Mitter17, the court refused to quash the order of the President of India in respect of the
dispute relating to the age of a High Court judge. It was held that where the written
15
(1973) 1 SCC 380: AIR 1973 SC 389.
16
AIR 1955 SC 65.
17
(1971) 1 SCC 396: AIR 1971 SC 1093.

submission is allowed, there is no violation of natural justice, if the oral hearing is not
granted.
4. Right to cross-examination. The right to rebut adverse evidence
presupposes that the person has been informed about the evidence against him.
Rebuttal can be done either orally or in written, provided that the statute does
not provide otherwise. Cross examination is a very important weapon to bring
out the truth. Section 33 of the Indian Evidence Act, 1972, provides for the
rights of the parties to cross-examin. The cross-examination of the witnesses is
not regarded as an obligatory part of natural justice. Whether the oppoetunity of
cross examination is to be give or not depends upon the circumstances of the
case and statute under which hearing is held. State of Jammu and Kashmir v.
Bakshii Ghulam Mohd.18 , the Government of Jammu and Kashmir appointed a
Commissioner of Inquiry to inquire into the charges of corruption and
maladministration against the ex-Chief Minister of the state. He claimed the
right to cross-examin the witnesses on the ground of natural justice. The Court
interpreted the statute and held that only those witnesses who deposed orally
against the chief Minister can be cross-examined and not of those who merely
filed affidavits.
Similarly, in Hira nath mishra v. Rajendra medical College, Ranchi19, some male
students of medical college entered the girls hostel and misbehaved with the girls. An
enquiry committee was set up against whom the complaints were made. The
complainants were examined but not in presence of the boys. On the report of the
committee, four students were expelled from the college. They challenged the decision
of the committee on the ground of violation of the natural justice. The court rejected the
18
AIR 1967 SC 122: 1966 Supp SCR 401.
19
AIR 1973 SC 1260: (1973) 1 SCC 805.

plea and held that in presence of the boys, the girls can not be cross-examined that that
may expose them to the harassment.
5. Right to counsel. For sometime the thinking had been that the lawyers should
be kept away from the administrative adjudication, as it saves time and expense.
But the right to be heard would be of little avail if the counsel were not allowed
to appear, as everyone is not articulate enough to present his case. In India few
statutes like the Industrial Disputes Act, 1947, specifically bar the legal
practitioners from appearing before the administrative bodies.
Till recently the view was that the right to counsel was not inevitable part of the natural
justice. But this view has been almost done away

Equality Before The Law And Discrimination
Differentiation And Discrimination
Discrimination is an important public issue relevant to any analysis of human rights.
There is a great deal of discussion on discrimination (much of it rhetoric) but
inadequate rational analysis and understanding of the concept. Discrimination is a
problem which arises in relation to equality before the law.
All human beings are not equal in every respect. They are distinguishable not only by
physical and mental attributes but also by their particular circumstances. These
manifold differences must inevitably lead to acts which involve what appears to be
discrimination. Few will disagree with the proposition that a young child cannot be
given the same rights or subjected to the same duties as an adult. Likewise there are
countless situations where one human being must be treated differently from another.
What then is the freedom from discrimination? It is an aspect of equality before the law
—and should rightly be viewed in that context. 20
Legally, in India, this idea is expressed as the right of equality before the law and to
equal protection of the law. Equality before the law means that in the making of a law
every person is to be treated equally. Equal protection of the law means that in
applying or enforcing a law already made, there should be no differentiation except on
a rational and justifiable basis. But as indicated above it is impossible to treat everyone
as equal. This has been recognised by the courts of countries where this freedom is a
fundamental right.
For this reason equality has come to mean not that every person should be treated in the
20
Doctor Mark Cooray,
http://www.ourcivilisation.com/cooray/rights/chap9.htm#9.1

same manner but that every person who is in an equal situation should be treated
equally—that those in like situations should be treated alike. Where people are treated
differently, .there must exist a rational and justifiable basis.
Will Parliament uphold equality if it imposes the same punishment for murder and for
exceeding speed limits on the highway? Obviously not, for the threat to society from
murder and speeding are not the same. Thus different penalties should be imposed in
proportion to the gravity of the offence. Again, if to be an efficient policeman, certain
physical attributes are necessary, would there be discrimination if applicants who do
not have such qualities are excluded? The commonsensical answer would be "no" and
that is undoubtedly correct. On the other hand if an advertisement says only whites and
not blacks need apply, the principle of equality will be violated. What is the difference?
The difference is that in the first case an intelligible differentiation is being made
between classes (physically strong persons and others) which also has a rational
relation to the overall purpose—which is to maintain an efficient police force. In the
second case although the differentiation is intelligible (white as distinguished from
black) it has no relation to any rational or lawful object, let alone any relation to having
an efficient police force. Therefore the principle is that not only must an actual
difference between the two classes be demonstrated; it must also be shown that
differentiation is materially necessary and rationally defensible for the realisation of a
lawful object. If these two conditions are satisfied there is a non-discriminatory
differentiation or classification.
Attempts at classification sometimes give rise to difficult questions. For example
should women be debarred from combat duty in the Army? Some persons might argue
that there are substantial differences in physical strength between men and women and

that the inclusion of women in combat ranks would weaken national defence vis-a-vis
the enemy. Others may argue to the contrary and say that the differences are too
insubstantial to warrant their exclusion. Others may argue that some women are
stronger than others—and if a woman meets existing physical tests she should be
included in combat ranks.
There are many reasons why people demand a change of this concept, particularly with
regard to differentiation between sexes. Some persons argue that the differences
between sexes are not real but only apparent, and that too only when looked at from a
male perspective. Others think that the present notion of equality enables dubious
distinctions to be drawn even where they are unnecessary and that such abuse can be
eliminated only by prohibiting any kind of differentiation. Others affirm (and common
sense is on their side) that men and women are equal but different.
There may remain in society, prejudice against women assuming non-traditional roles
even where knowledge and experience indicate that they are in no way unsuited to
undertake such activities. Some of the objections are expressed out of concern for the
effect such changes can have on the institution of the family, and in particular on the
nurturing role of the mother.
As against that objection, it is argued that to restrict women to the nurturing and related
roles is to deny women their freedom of choice and that women should be allowed a
choice between mother-hood and career/job or a combination of both. Thus far the
argument is sound from the point of view of individual freedom. Difficulties, however,
arise when the argument is taken a step further and claims are made for substantial
publicly funded assistance to enable career inclined women to effectively exercise their
choice. Demands are thus made for public child care services and for laws to protect
women from employment disadvantages that occur as a result of being also engaged in

motherhood and nurturing. If working women are helped by the state and women who
stay at home and look after children are not, this too is discrimination. But this factor is
often overlooked. These claims raise the question of the justification for affirmative
action. However, before considering affirmative action there are two further aspects of
discrimination to be examined.
The Problem of Discretion
It was stated that if the law differentiates between classes of persons, the differentiation
should be clear and should also be for the purpose of a lawful object. However there
are situations where the legislature cannot beforehand make a precise determination of
the individuals who need special treatment. The laws regarding licences provide an
illustration. It is impossible for Parliament to decide who is competent to hold a trading
licence and who is not.
In such a case it is unavoidable that some person or authority should be delegated the
power to decide individual applications. In other words the discretion to differentiate
between individuals has to be left to someone else. Would this violate the principle of
equality? Such a grant of discretion would be inherently discriminatory unless
Parliament also lays down principles and guidelines according to which the discretion
should be exercised. If there are no guidelines for the exercise of discretion, such
power is capable of being used arbitrarily or capriciously for the purpose of
discriminating against persons.
Vast numbers of laws enacted in Australia contain such inherently discriminatory
clauses. Often powers are given to bureaucratic agencies in absolute terms. For
examples one need look no further than the Human Rights Commission Act, 1981 the
very Act which established a Commission to protect the human rights of Australians.
Section 12(1) of the Act gives the power to the Commission to make an examination or

hold an inquiry into an alleged violation of human rights "in such manner as it thinks
fit". The only direction given to it is that it is not bound by the rules of evidence! These
rules of evidence have been formulated to ensure a fair trial. What it means is that the
Commission can conduct inquiries differently in different cases favouring some and not
others. It is not necessary to show that the Commission in fact indulges in such
discrimination. The fact that it has been given the power to do so makes the law
repugnant to the principle of equality.
Again, in Section 10(5) of the Act, the Commission is given power to decide "in its
discretion" whether or not a complaint received after 12 months should be investigated.
Thus the Commission may accept one belated complaint and refuse another in similar
circumstances. This section also violates the equality principle for it is capable of
selective application. 21
Critical analysis of provisions relating to Children

under Indian Constitution: In the light of equality
before law and equal protection of law.22
21
Doctor Mark Cooray,
http://www.ourcivilisation.com/cooray/rights/chap9.htm#9.1
22
Urja, http://www.articlesbase.com/law-articles/critical-analysis-of-provisions-relating-to-children-
under-indian-contitution-1270085.html

It is a harsh reality that children are future hope and valuable asset as well as a liability
for a nation. Both at the national level and international levels greater attention is being
focused on well-being and welfare of children. Future human resource development of
a country depends on the all round development of its children.
Most of the countries have included welfare provisions in their constitutions. India also
being a democratic welfare state provides for the protection of children in its
constitution against all types of exploitations.
The framers of Indian Constitution incorporated various important provisions for
protection and betterment for children in the view of the dictum “Children are the
wealth of nation.” Such provisions of the constitution are expressly or impliedly, direct
or indirect related with the protection of childhood, child education and elimination of
child labour system in India.
• The constitution of India carries important expression of the government
policies against the abuse of child labour. Fundamentally the constitution
provides that ‘no child below the age of fourteen. It recognizes the need for
granting special protection to children. The children should also have their
distributive justice in future in free India. Therefore, special provisions ensuring
justice to children have been incorporated in part III with fundamental rights
and part IV devoted to Directive Principles of State Policy.
Children’s Right Protection under Fundamental Rights
There is wide description about fundamental rights in part III of our constitution
regarding children. Fundamental rights are limitations upon all the powers of the
Government, Executive as well as Legislative and they are essential to the preservation

of public and private rights, notwithstanding the representative character of political
institutions. The rights are regarded as fundamental because they are most essential for
the individual for the development of his full intellectual, moral and spiritual
potentialities. The negation of these rights will keep the individuals personality
underdeveloped.
The Fundamental Rights in Indian Constitution guarantees some fundamental rights
only to citizens of India while the others guaranteed to any persons, within which the
fundamental rights of the children are also implicitly included. The children have rights
to enjoy all the fundamental rights which are guaranteed to the citizens of India.
There are also some fundamental rights expressly provided for children and some other
fundamental rights which are also applicable for children. Article 14 guarantees
equality before law and equal protection of laws to all persons within the territory of
India.
Article 15 prohibits discrimination on the ground of religion, race, caste, sex, class or
place of birth or any of them. But Article 15(3) enables the state to make provisions in
its law for giving favourable treatment to make special treatment to children and
women. Though, no ground is mentioned, preferential treatment is permitted on
consideration of inherent weakness of children, Article 15(3) serves as an exception to
Article 15(1) and 15(2), Article 15 in general prohibits the discrimination on the ground
of religion, race, caste, class, sex or place of birth. H.M.Seervai is of the view that since
Article 15(1) does not make age a prohibited ground of discrimination the reference to
children in Article 15(3) appears to be pointless.
Although, our constitutional framework and national policy for child welfare take into
account very well all phases of child development. But a large number of legally

uncovered gaps due to administrative hindrances frustrate the objective of child
welfare.
In spite of all the constitutional and conventional protection accorded to the child
workers in our country; the fact remains that children of tender age are forced to take
up economic pursuits to augment the income of their family in most of the cases in the
lower income bracket.
At the time of making of the constitution, it was envisaged that within 10 years, all the
states will make primary education compulsory. But unfortunately till 1983, the
following states had no act or rule in favour of compulsory primary education-Bihar,
Manipur, Meghalaya, Nagaland, Orissa, Sikkim, Tripura, Arunachal Pradesh and
Mizoram.
The guardians of the law are very superficial regarding the rights of children. It seems
that only the vocal groups get advantage and the children will have to be vocal.23
Gender Inequality24
Man and woman are both equal and both play a vital role in the creation and
development of their families in particular and the society in general. Indeed, the
23
H. M. Seervai, Constitutional Law of India
Dr. J. N. Pandey, The Constitutional Law of India, central Law Agency
- Dr. Justice A.S. Anand, http://www.legalserviceindia.com/article/l202-

24
Gender-Inequality.html.

struggle for legal equality has been one of the major concerns of the women’s
movement all over the world. In India, since long back, women were considered as an
oppressed section of the society and they were neglected for centuries. During the
national struggle for independence, Gandhi gave a call of emancipation of women. He
wrote – :I am uncompromising in the matter of women’s rights. The difference in sex
and physical form denotes no difference in status. Woman is the complement of man,
and not inferior”. Thus, the first task in post-independent India was to provide a
constitution to the people, which would not make any distinctions on the basis of sex.
The preamble of constitution promises to secure to all its citizens- “Justice- economical,
social, and political”
The constitution declares that the equality before the law and the equal protection of
laws shall be available for all. Similarly, there shall be no discrimination against any
citizen on the ground of sex. Article 15(1) guarantees equalities of opportunities for all
citizens in matters of employment. Article 15(3) provides that the state can make any
special provisions for women and children. Besides, directive principle of state policy
which concern women directly and have a special bearing on their status directly and
have a special bearing on their status include Article 39(a) right to an adequate means
of livelihood; (d) equal pay for equal wok both men and women, (e) protection of
health and strength of workers –men, women, children and Article 42 provides for just
and humane conditions of work and maternity relief.
In India, since independence, a number of laws have been enacted in order to provide
protection to women. For instance the Dowry prohibition Act 1961, The Equal
Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu Succession Act
1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the

commission of Sati (prevention) Act 1987, Protection of the Women from Domestic
Violence Act 2005, etc. But, the laws have hardly implemented in their letter and spirit.
The sense of insecurity, humiliation and helplessness always keep a women mum. Our
whole socialisation is such that for any unsuccessful marriage which results in such
violence or divorce, it is always the woman, who is held responsible. Cultural beliefs
and traditions that discriminate against women may be officially discredited but they
continue to flourish at the grass root levels. Family relations in India are governed by
personal laws. The four major religious communities are – Hindu, Muslim, Christian
and Parsi each have their separate personal laws. They are governed by their respective
personal laws in matters of marriage, divorce, succession, adoption, guardianship and
maintenance. In the laws of all the communities, women have fewer rights than that of
man in corresponding situations. It is really that women of the minority communities in
India continue to have unequal legal rights and even the women of the majority
community have yet to gain complete formal equality in all aspects of family life. This
is basically the problem of gender inequality. But what is this problem and how this can
be solved.
As a Concept
Gender Inequalities refers to the obvious or hidden disparities among individuals based
on the performance of gender. This problem in simple term is known as Gender Bias
which in simple terms means the gender stratification or making difference between a
girl and a boy i.e. a male or a female. In making biasness among the gender India has
10th rank out of 128 countries all over the world which is shameful for us. But this
problem is increasing although government has banned the pre-natal sex examination.
In India (in the older times) this problem is mainly seen in the rural areas because many

rural people think that the girl child is burden on them. But now this is also being seen
in the urban areas i.e. in offices, institutions, schools and in society. The afflicted world
in which we live is characterised by deeply unequal sharing of the burden of adversities
between women and men. Gender Inequality exists in most part of the world, from
Japan to Morocco, or from Uzbekistan to United States of America (as stated earlier).
However, inequality between men and women can take very many different forms.
Indeed, gender inequality is not one homogeneous phenomenon, but a collection of
disparate and interlinked problems. The issue of gender inequality is one which has
been publicly reverberating through society for decades. The problem of inequality in
employment being one of the most pressing issues today. In order to examine this
situation one must try to get to the root of the problem and must understand the
sociological factors that cause women to have a much more difficult time getting the
same benefits, wages, and job opportunities as their male counterparts. The society in
which we live has been shaped historically by males.
However, in many parts of the world, women receive less attention and health care than
men do, and particularly girls often receive very much less support than boys. As a
result of this gender bias, the mortality rates of females often exceed those of males in
these countries. The concept of missing women was devised to give some idea of the
enormity of the phenomenon of women's adversity in mortality by focussing on the
women who are simply not there, due to unusually high mortality compared with male
mortality rates. In some regions in the world, inequality between women and men
directly involves matters of life and death, and takes the brutal form of unusually high
mortality rates of women and a consequent preponderance of men in the total
population, as opposed to the preponderance of women found in societies with little or

no gender bias in health care and nutrition. Mortality inequality has been observed
extensively in North Africa and in Asia, including China and South Asia.
Types Of Gender Inequalities
There are many kinds of gender inequality or gender disparity which are as follows:
1. Natality inequality: In this type of inequality a preference is given for boys over
girls that many male-dominated societies have, gender inequality can manifest itself in
the form of the parents wanting the newborn to be a boy rather than a girl. There was a
time when this could be no more than a wish (a daydream or a nightmare, depending on
one's perspective), but with the availability of modern techniques to determine the
gender of the foetus, sex-selective abortion has become common in many countries. It
is particularly prevalent in East Asia, in China and South Korea in particular, but also
in Singapore and Taiwan, and it is beginning to emerge as a statistically significant
phenomenon in India and South Asia as well.
2. Professional or Employment inequality: In terms of employment as well as
promotion in work and occupation, women often face greater handicap than men. A
country like Japan and India may be quite egalitarian in matters of demography or basic
facilities, and even, to a great extent, in higher education, and yet progress to elevated
levels of employment and occupation seems to be much more problematic for women
than for men. The example of employment inequality can be explained by saying that
men get priority in seeking job than women.
3. Ownership inequality: In many societies the ownership of property can also be
very unequal. Even basic assets such as homes and land may be very asymmetrically
shared. The absence of claims to property can not only reduce the voice of women, but
also make it harder for women to enter and flourish in commercial, economic and even
some social activities. This type of inequality has existed in most parts of the world,

though there are also local variations. For example, even though traditional property
rights have favoured men in the bulk of India.
4. Household inequality: There are often enough, basic inequalities in gender
relations within the family or the household, which can take many different forms.
Even in cases in which there are no overt signs of anti-female bias in, say, survival or
son-preference or education, or even in promotion to higher executive positions, the
family arrangements can be quite unequal in terms of sharing the burden of housework
and child care. It is, for example, quite common in many societies to take it for granted
that while men will naturally work outside the home, women could do it if and only if
they could combine it with various inescapable and unequally shared household duties.
This is sometimes called "division of labour," though women could be forgiven for
seeing it as "accumulation of labour." The reach of this inequality includes not only
unequal relations within the family, but also derivative inequalities in employment and
recognition in the outside world. Also, the established fixity of this type of "division" or
"accumulation" of labour can also have far-reaching effects on the knowledge and
understanding of different types of work in professional circles.
5. Special opportunity inequality: Even when there is relatively little difference in
basic facilities including schooling, the opportunities of higher education may be far
fewer for young women than for young men. Indeed, gender bias in higher education
and professional training can be observed even in some of the richest countries in the
world, in India too. Sometimes this type of division has been based on the superficially
innocuous idea that the respective "provinces" of men and women are just different.
Measures To Solve Gender Inequality

Every problem has its own solution elsewhere or what ever the problem is? Like this
phenomenon this problems has many measures out of which some of the simple one are
stated below (except legislative and judicial Solutions).
1. Changes at District level mechanism: A clear cut administrative should be made
available at the district level for monitoring and reviewing the incidence of inequality
against women. This district level machinery headed by District Magistrate should
consist of representatives of police, prosecution machinery, judiciary and the
representatives of prominent individuals of women’s organizations in the Districts. This
committee should review progress of investigation and prosecution. At least one special
cell should be created at the district level for ensuring better registration and progress of
investigation and monitoring of crimes against gender equality. This special cell should
network with community groups and women’s organizations and help to create an
atmosphere in which people would feel encouraged to freely report the cases of gender
injustice. At present, most, non-reporting of the cases is due to lack of confidence in
enforcement machinery.
The reporting of violence against women from the Thana to the district level and from
district level to the state level gets obscured in the overall mass and complexities of the
currently prescribed reporting system. Specific format should be created and
implemented for reporting on gender-related crimes.
2. Changes at State level Mechanism: Similarly, like District level mechanism there
should be State level machinery at the State level in which there should be special entry
for those cases which needs prompt actions. This institution will make a full control
over the district level machinery. So that there should nit be any corruption or fraud
with innocent persons.

3. Sensitization of Criminal Justice system: The police officers, prosecutors, and
judges at all levels of hierarchy need to be exposed to the gender equality education
which would enlighten them on existing assumptions, myths and stereotypes of women
and how these can interfere with fair and equitable administration of justice. Judicial
system should comprise of all types of officers i.e. from judiciary i.e. judges, police
officers and which should take immediate action in serious cases.
Conclusion
Finally I would like to come to the conclusion of this project work with a very famous
saying of Aristotle:
"Even when laws have been written down, they
ought not always to remain unaltered."
Every civilised nation has now adhered to the principles of Equality before law and
Equal protection of Law in one form or the other. Various laws have been enacted
in India also to uphold the spirit of Equality but these laws will become meaningful
only when it is implemented in the right spirit. We, the youths of today are the
backbone of the society and the future citizens of not only this nation but the world
as a whole. It is up to us to become the messengers of Human Rights and spread
awareness wherever we go.

We should try to win the hearts and minds of everybody without making any distinction
of caste, colour, race, religion and gender. It is not only our moral duty but our
Legal duty also to care for the weaker sections of the society like the children,
women, elderly and physically challenged brethren.
Fight for gender equality is not a fight against men. It is a fight against traditions that
have chained them – a fight against attitudes that are ingrained in the society – it is
a fight against system – a fight against proverbial laxshman Rekha which is
different for men and different for women. The society must rise to the occasion. It
must recognize & accept fact that men and women are equal partners in life. They
are individual who have their own identity.

NHRC Project

Uploaded by

Copyright:

Available Formats

NHRC Project

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

NHRC Project

Uploaded by

Copyright:

Available Formats

Equality before Law and Equal Protection of Law

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

Topics Page No:

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

Sheikh Khurshid Alam,

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

- SPEECH BY HON'BLE PRESIDENT OF INDIA SMT. PRATIBHA DEVISINGH

New Delhi, 24th November 2007

should not be seen as unjust, inequitable, discriminatory and arbitrary. These

principles have guided many democratic nations in their efforts to establish

responsible and responsive governing systems.

In fact, a democratic form of government must have its foundations on a rule of

protection of individual liberties. The Constitution of India provides a powerful

together constitute a firm commitment to the rule of law.

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

Overview of the Project

 England – Individual Rights

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

 History of the demand for Fundamental Rights

 Article 13 – Courts have Power to declare Void laws contravening

 Other Rights also available under Constitution but no Writ

Eg. Article 265 – ‘No tax shall be levied or collected except by

 Article 14 – Equality before law and Equal Protection of Laws

A. Equality before law

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

 Negative Concept – Implies absence of special privileges

B. Equal Protection of Laws

 Equal treatment in similar circumstances

1) Based on Intelligible differentia

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

 Article 15 - Prohibition of discrimination on grounds of Religion,

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

 In access to public places and facilities but does not

 Article 16 - Equality of opportunity in matters of public

 No person can be excluded from state service

 Article 17 - Abolition of Untouchability

 Article 18 - Abolition of Titles

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

 To eradicate imperialistic tendencies exceptions:

 Articles 17 and 18 – Social Justice

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

formulation of many human rights norms.

Nowadays the constitutions of most of the Nations contain guarantees of equality

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

The concept of equality

should be ironed out in pursuit of uniformity or homogeneity. Rather it seeks to ensure

in relation to others and that disadvantage unjustly suffered by some persons as

compared with others is rectified. A complex notion, it is nevertheless generally

understood to comprise several dimensions.

There is, therefore, a bewildering variety of administrative procedure. In some cases,

Administrative agencies must follow a minimum of fair procedure, while exercising

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10

the obligation to follow a manner that is procedurally fair.

In a case before the United States Supreme Court, a JACKSON J. said:

circumstances of each case.

R. S. Dass v. Union of India , the Supreme Court observed that:

application depends upon the facts and circumstances of each case”. 4

spectrum of the decision-making bodies.

NHRC: Winter Internship Programme 2009, 17th Dec’09 to 15th Jan’10