CHAPTER-III

RIGHT TO EQUALITY AS A RULE OF LAW

I. In-corporation of Right to Equality in Constitution:
As it has been discussed in earlier chapters that in the Constituent
Assembly, provisions pertaining to the Right of Equality were discussed
in great detail. The advisory committee on Fundamental Rights provided
only for the ‘equal treatment of the laws’ and combined it with the ‘ due
process’ clause regarding the Right to life and liberty.1 The Drafting
Committee, replaced the words ‘the Equality before the law’ and added a
new clause namely ‘equal protection of the laws’. But even in the Draft
Constitution, the Right to Equality before the law and the Right to
personal liberty were combined in one article. However, after the second
reading stage, it was decided to incorporate the Right to Equality before
law in a separate article. The members unanimously approved this
provision which has been incorporated in article 14.
Article 14 embodies the principle rule of Equality which prohibits
the state from denying to all persons, whether citizens or foreigners,
Equality before the law or the equal protection of the laws. ‘Equality
before the law’ is an expression of English Common Law and according
to Dicey,
“as the equal subjection of all persons to the
ordinary law of the land administered by the
ordinary law courts”.2
Equality before the law does not mean absolute Equality but it
postulates that there shall not be any special privilege by reason of birth,
religion, race or the like in favour of an individual. It means further, that
among equal the law shall be equal and shall be equally administered and

1
Advisory Committee, Fundamental Rights: Interim Report C1.21 Delhi, 1948.
2
A. V. Dicey, Law of the Constitution 202 (1964).
 57

that the alike should be treated alike. Absolute Equality among human
beings is an impossibility.
The phrase ‘equal protection of the laws’ occurs in section I of the
Fourteenth Amendment to the U.S. Constitution. It reads:
“ No State shall deny to any person within its
jurisdiction the equal protection of the laws”.3
It means that there shall not be arbitrary discrimination made by
the laws themselves in their administration.
II. Article 14 and its Statutory Provision :
Article 14 reads as under:
The State shall not deny to any person Equality before the law or the
equal protection of laws within the territory of India.
If this term is closely looked then it appears that in essence both
terms mean ‘Equal Justice’. Everybody from the President downwards to
the poorest citizens or person in India, is subject to the Rule of Law which
is enshrined in our Constitution. The Right to Equality is conferred on
every person and not merely on citizens. It was held in State of W. Bengal
v. Anwar Ali Sarkar4 that ‘law’ in article 14 is not confined to the law
enacted by legislature but includes any order or notification. Such an
interpretation makes the protection provided in article 14 complete
available to every person.
Article 14 does not mean that all laws must be uniform and must
universally be applicable. It only prohibits improper and individual
distinctions created by conferring Rights or privileges upon a particular
group to the exclusion of other group without any valid reason. Thus
under this article, there cannot be unfair discrimination between one

The Supreme Court and Individual Rights, Congressional Quarterly Inc. 24

(1980).
State of W. Bengal V. Anwar Ali Sarkar AIR 1952 SCR 284.
 58

group of citizens and another in relation to the same matter or between

citizens and foreigners.
Since all persons are not by nature, attainment or circumstances
equal and the varying needs of different classes of persons often require
separate treatment and therefore, the protecting clause has been construed
as a guarantee against discrimination amongst equals only and not as
taking away from the state the power to classify persons for the purpose of
legislation.
Seervai says,
“If all men were created equal and remained
throughout their lives, then the same laws
would apply to all men”.5
But we know that men are unequal, consequently a Right conferred
on persons that they should not be denied the equal protection of the Laws
cannot mean the protection of the same laws for all. It is here that the
doctrine of classification steps in, and gives content and significance to
the guarantee of the equal protection of laws. Equal protection of the
laws must mean the protection of equal laws for all persons similarly
situated. The Constitution emphasis upon the principle of Equality as
basis to the Constitution. This means that even a Constitutional
amendment offending the Right to Equality will be declare invalid.
Neither parliament nor any state legislature can transgress the principle of
Equality, which has also been observed by Supreme Court in Keshav Nand
Bharti’s case.6 This principle has been reiterated by the Supreme Court
in M. G. Badappanavar’s case in the following words
“Equality is a basic feature of the Constitution
of India and any treatment of equals unequally

H. M. Seervai, Constitutional Law of India.

Keshav Nand Bharti v. State of Kerla AIR 1973 SC 1461.
 59

or unequal as equal will be violation of the

basic structure of the Constitution of India”.7
The Right to Equality has been declared by the Supreme Court as
the basic feature of the Constitution. It is rightly observed by the Supreme
Court in relation to Right to Equality in M. Nagaraj,8 “there can be no
justice without the equality”.
The Constitution is wedded to the concept of Equality. The
Preamble to the Constitution emphasizes upon the principle of Equality of
basic to the Constitution. This means that even a Constitutional
amendment offending the Right to Equality will be declared invalid.
Neither Parliament nor any State Legislature can transgress the principle
of Equality.
Over the last several years the courts have been unfolded the
vast potentialities of Art. 14 as a restraint on the legislative power of the
Legislature as well as administrative power of the Administration. Art. 14
bars discrimination and prohibits discriminatory laws. Art. 14 is now
proving as a bulwark against any arbitrary or discriminatory state action.
The horizons of Equality as embodied in Art. 14 have been expanding as a
result of the judicial pronouncements and Art. 14 has now come to have
a highly activist magnitude. Art. 14 has revealed its many facets in course
of time. There are also certain limitations of the concept of Equality.
A. Limitations of the concept of Equality under Article-14:
1. The principle of Equality does not mean that every law must have
universal application for all persons who are not by nature, attainment or
circumstances in the same position, as the varying needs of different
classes of persons often require separate treatment. It would be
inexpedient and incorrect to think that all laws have to be made
uniformly applicable to all people in one go. The mischief or defect
7
M.G. Badappanavar v. State of Karanataka AIR 2001 SC 260.
8
M. Nagaraj v. Union of India SCC 2006 Vol 8,p248.
which is most acute can be remedied by process of laws at stages. The
Supreme Court in Pannalal’s case9 held that the Act singling out the
religious and charitable institutions and endowments of Hindu religion,
which is the major religion of the country, leaving out such institutions
and endowments of other religions for the purpose of regulating their
administration is not violative of Arts. 14, 15(1) and 24.
The principle does not take away from the State the power of
classifying persons for legitimate purposes. The legislature is competent
to exercise its discretion and make classification which is held in Anukul
Chandra pradhan’s case.10
2. Every classification is in.some degree likely to produce some
Inequality, and mere production of Inequality is not enough. It is held in
Ameeroonissa Begum’ case11 that differential treatment does not per se
constitute violation of Art. 14. It denies equal protection only when there
is no reasonable basis for the differentiation.
3. If a law deals equally with members of a well-defined class, it is
not obnoxious and it is not open to the change of denial of equal
protection on the ground that it has no application to other persons. In this
regard the Supreme court in Sasadhar Chakravarty’s case held that the
pensioners form a class, distinct to those in service, and again in Anukul
Chandra Pradhan’s case, held the prisoners forms a class distinct to non­
prisoners, and the employees stationed within a project area and the
employees stationed outside. Legislation enacted for the achievement of a
particular object or purpose need not be all embracing. It is rightly held
by Supreme Court in Sakhawat Ali’s case14

Pannalal Bansilal Pitti v. State ofA.P, AIR 1996 SC1023.

Anukul Chandra pradhan v. Union of India, 1997 (6) SCC 1.
Ameeroonissa Begum v. Mehboob Begum, AIR 1953 SC 91.
Sasadhar Chakravarty v. Union of India, AIR 1997 SC 336.
(1997)6SCC1.
Sakhawat Ali v. State ofOrrisa, AIR1955 SC166.
 61

“It is for the Legislature to determine what

categories it would embrace within the scope
of legislation and merely because certain
categories which would stand on the same
footing as those which are covered by the
legislation are left out would not render the
legislation which has been enacted in any
manner discriminatory and violative of Art.
14”.
No service rule can satisfy each employee, its reasonableness should be
considered from the standpoint of Justice to the majority of employees.
4. Article 14 does not prevent the Legislature from introducing a
reform gradually, that is to say, at first applying the legislation to some of
the institutions or objects having common features or particular areas
only, according to the exigencies of the situation.
5. No economic measure has yet been devised which is free from
iscriminatory impact and that in such a complex arena in which no perfect
alternatives exist, the court does well not to impose to rigorous a standard
of criticism, under the equal protection clause, reviewing fiscal services
1S
which is held in Sociedade De Fomento Industrial case.
B. Co-relation of concept of Equality with Rule of Law
Equality before law is co-relative to the concept of rule of law for
all round evaluation of healthy social order and to provide justice in the
society . A basic postulate of the rule of law is that “Justice should not
only be done but it must also be seen to be done.” If there be a basis
which cannot be treated as unreasonable for a litigant to expect that his
matter should not be heard by a particular Judge and there is no
compelling necessity, such as the absence of an alternative, it is

15
Sociedade De Fomento Industrial Pvt. Ltd v. Mormugao Dock Labour Board.
 62

appropriate that the learned Judge should rescue himself from the Bench
hearing that matter. This step is required to be taken by him not because
he is likely to be influenced in any manner in doing Justice in the case,
but because his hearing the matter is likely to give rise to a reasonable
apprehension in the mind of the litigant that his mind may be
subconsciously has been influenced by some extraneous factor in making
the decision, particularly if it happens to be in favour of the opposite
party. In a case of P K Ghosh16 it is held by Supreme Court that in
Credibility in the functioning of Justice delivery system and the
reasonable perception of the affected parties are the relevant
considerations to ensure the continuance of public confidence in the
creditability and impartially of the judiciary.
Judicial review of administrative action is an essential part of rule
of law and so is independence of judiciary. Non-arbitrariness is a
necessary component of the rule of law.
It has been held by the Supreme Court in case of Central Board of
Secondary Education17 that when the High Court itself became conscious
that the decision regarding admission of an ineligible student was wrong
and the precedent was not worth repeating, still it was repeated time and
again, it amounted to a mockery of “ Rule of Law” and promotes rather
the “Rule of Man”.
C. Relation of article 14 with other provisions of the Constitution
1. Article 14 is a general provision and has to be read subject to the other
provisions included within the Part on Fundamental Rights. Hence, any
law making special provision for women ( or children) under Art. 15(3)
cannot be challenged on the ground of contravention of Art. 14 as also held
by the Supreme Court in Yusuf Abdul Aziz’s case.18

16
P K Ghosh v. J G Rajput, AIR1996 SC 513.
17
Central Board of Secondary Education v. Nikhil Gulati, AIR1988 SC1205.
18
Yusuf Abdul Aziz v. State of Bombay AIR1954 SC321.
 63

Thus, a 54(4) of the Representation of the People Act, 1951, which

confers a double advantage upon members of the Scheduled Castes or
Tribes to be returned to the general seats even though seats have been
reserved for them under the Constitution, being sanctioned by Art. 15(4) ,
cannot be held to be void for contravention of Art. 14.
2. Where the Constitution itself makes a classification, the charge of
discrimination cannot be leveled against such separate treatment. Thus the
special treatment of Government servants in the matter of their tenure (
Art. 310(1)) or an order made by the President under Art. 311(2), Proviso
(c) or the taxation by a State of road transport ( Entry 56, List II) cannot
be challenged as violative of Art. 14.
But The special treatment authorized by these other provisions must be
kept within reasonable limits and should not be made so excessive as to
render nugatory the general Equality professed to the members of all
communities by Art. 14 Hence, the special provision for the advancement
of the backward classes or Scheduled Castes and Tribes under Art. 15(4)
or the reservation of posts for the backward classes under Art. 16(4) will
be unconstitutional because of contravention of Art. 14, if it is carried to
an unreasonable extent.(the discussion on Art. 15 and 16 is done in next
three chapters.)
D. Arbitrariness as a test under Art. 14.
While the American interpretation of the ‘Equal Protection Clause’
as well as the earlier decision of our Supreme Court took the view that
the test of violation of Art. 14 was the absence of a reasonable
classification, while under Art.l9(Protection of certain rights regarding
freedom of speech etc), a restriction was to be considered unreasonable if
it was arbitrary or not founded in any rational principle, in cases, the
Supreme Court appears to have mingled up the two concepts in
broadening the sweep of Art. 14, thus setting up a ‘dynamic
 64

concept of Equality’. An arbitrary action may not always be mala fide as

held by the Supreme Court in Angarki Cooperative Housing Society Ltd’s
case.19
Even if arbitrariness is not found ex facie, the same can be gathered
on wholesome reading of the statute and rules, regulations, orders or
notifications issued there under. Actions of the State or its
instrumentality, uninformed by reason, may amount to being arbitrary and
be liable to be questioned. The Supreme Court held in Me Dowell and
Co’s case20 that an Act which is discriminatory is liable to be labeled as
arbitrary.
It has thus been held that if the classification is not reasonable, the
impugned legislative or executive action would be arbitrary and violative
of Art. 14; but “the content and reach of Art. 14 must not be confused
with the doctrine of classification”, The object of Art. 14 is wider and is
to ensure fairness and Equality of treatment. Extending a benefit the
class of establishments and denying to the other class enumerated in the
same para of an Act was held to be arbitrary and bad as held by the
Supreme Court in Indian Express News Papers(p) Ltd.’s case.21
The Govt, policy, unless shown manifestly arbitrary or wholly
unreasonable cannot be held vioative of Art. 14. An Act of legislature
cannot be struck down merely by saying that it is arbitrary. Tests of
arbitrary action which apply to executive action do not necessarily apply
to delegated legislation. In order that delegated legislation can be struck
down, it must be manifestly arbitrary so as not to be in conformity with
the statute. Termination of temporary serviced of an employee on
administrative grounds while retaining his juniors and cancellation of
appointment on temporary basis of the employees having no Right to
19 Angarki Cooperative Housing Society Ltd v. State of Maharastra AIR 1997 SC
764.
20
State ofA.P. v. Me Dowell and Co AIR1996 SC 1627.
21
Indian Express News Papers(p)Ltd. v. Union of India AIR1995 SC 965!
 65

appointment and the appointment made contrary to policy decision.

Making a clause in the appointment letter for an appointment purely on
temporary basis that the services could be terminated by giving a notice of
a certain period or pay in lieu of and ignoring of commuted portion of
pension to compute subsequent increase in pension is not violative of Art.
14, as held by the Supreme Court in Common cause A Registered Society
case. 22
Where the Selection Committee was required to recommend only
four names for promotion and it recommended three persons junior to the
appellant on the basis of superior rating (“very good”) and a fourth one
who was senior to him in such circumstances, super session of the
appellant was held to be not arbitrary as held by Supreme Court in
'j'l

Chabungam Ibohal Singh’s case. For deciding whether a particular

decision was arbitrary or reasonable, the existing circumstances at the
time of taking the decision had to be examined and not those prior to the
decision.
III. Equality before Law and Equal Protection of Laws:
As it has been discussed earlier that two concepts are involved in
Art. 14 viz, ‘Equality before law’ and ‘equal protection of laws.’
The main aim of Equality before law and Equal protection of laws
guaranteed by Art. 14 in its proper spectrum encompasses social and
economic Justice in a political democracy.
The Supreme Court has explained these two concepts of Equality
under Article-14 in Sri Srinivasa Theatre v. Govt, of Tamil Nadu,24 “that
the two expressions ‘Equality before law’ and ‘equal protection of law’
do not mean the same thing even if there may be much in common
between them.

22
Common cause A Registered Society v. Union of India AIR1999 SC 2979.
23
Chabungam Ibohal Singh v. Union of India (1995) SCC (Supp2)83.
24
Sri Srinivasa Theatre v. Govt, of Tamil Nadu A.I.R1992 SC,at1004.
 66

“Equality before law” is a dynamic concept

having many facets. One facet is that there
shall be no privileged person or class and that
none shall be above law. Another facet is the
obligation upon the State to bring about,
through the machinery of law, a more equal
society.........for Equality before law can be
predicted meaningfully only in an equal
society.....”
Art. 14 prescribes Equality before law. But the fact remains that all
persons are not equal by nature, attainment or circumstances, and
therefore, a mechanical Equality before the law may result in Injustice.
Thus, the guarantee against the denial of equal protection of the law does
not mean that identically the same rules of law should be made applicable
to all persons kin inspite of difference in circumstances or conditions.
The varying needs of different classes or sections of people require
differential and separate treatment. The Legislature is required to deal
with diverse problems arising out of an infinite variety of human
relations. It must, therefore, necessarily have the power of making laws
to attain particular objects and, for that purpose, of distinguishing,
selecting and classifying persons and things upon which its laws are to
operate.
To understand the meaning of both the terms, ‘Equality before
Law’ and ‘Equal Protection of Laws’ of the concept of Article-14 in more
refined and easy manner, it is necessary to deal both the terms separately.
A. Meaning of Equality before Law
Equality before the law means that all persons are equally subject
to the law of the land. It ordains that there shall not be any differentiation
among persons in sharing the benefits and burdens except through laws.
 1 67

There shall be equal treatment of persons in the allocation of legal duties,

material benefits, liabilities and opportunities as a consequence of
exclusive application of law and law alone. Thus, the principle that law
shall rule, and not men, flows directly from the principle of Equality. The
straight mete-wand of law should always be preferred to the crooked
discretion of human mind because law gives a form and direction to the
social world. Since the Constitution of any democratic nation protects
Rights and interests of people by controlling abuse of public power,
Constitutionalism becomes a foremost precept in the well-being of people.
Rule of law connotes absolute supremacy of law, an assertion of majesty
of Constitutionalism, and bedrock of administrative legality.
1. Equality of status and equal Justice for all
As per Dicey,
“Equality before the law denies any special
privilege, status or disability of any person in
the sphere of enforcement of law”.
this denial of special privilege of any person is by reason of the
characteristics such as birth, creed, colour and the like. As Sir Ivor
Jennings has explained,
“The Right to sue and be sued, to prosecute
and be prosecuted for the same kind of action
should be the same for all citizens of full age
and understanding and without distinction of
race, religion, wealth, social status or political
influence.”26
This notion of equal Justice for all is given an affirmative content
in the modern times by the extension of free legal aid, liberal bail for the
poor, award of monetary compensation and imposition of officer liability

25 AV.Dicey, Introduction to the study of the Law of the Constitution, p-193.

26 Ivor Jennings, The Law and the Constitution.
 68

and activist approach of the judiciary in relation to Constitutional

remedies. In fact, every violation of Right leads to unequal consequence
and unjust position. Persistence on Equality leads to promotion of Rights
and liberties. Undeniably, existence of effective means of redressing the
grievances about violations of Rights goes a long way in the protection of
liberty and Equality.
The Equality before law is a negative concept which ensures that
there is no special privilege in favour of any one, that all are equally
subject to the ordinary law of the land and that no person, whatever be his
rank or condition, is above the law. This is equivalent to the second
corollary of the Dicean concept of.the Rule of Law in Britain, which is
observed in Wade & Phillip, Const. & Adm. Law.27 This however, is not
an absolute rule and there are a number of exceptions to it e.g.
a. foreign diplomats enjoy immunity from the country’s judicial process:
b. Art. 361 extends immunity to the President of India and the State
Governors;
c. public officers and judges also enjoy some protection, and some special
groups and interests, like the trade unions, have been accorded special
privileges by law.
Overall it can be said that this doctrine of Equality before Law is a
dynamic and evolving concept which has many facets. It is embodied
along with the Equal Protection of Laws in Art. 14. The object of all
these provisions is to attain ‘Justice, social, economic and political’,
which is indicated in the Preamble.
B. The meaning of Equal protection of Laws:
Equal protection of the laws aims to establish that among equals
the law should be equal and should be equally administered, that like

27
Wade & Phillip, Const & Adm. Law, 87(1977).
 69

should be treated alike. The application of the ideological principle of

Equality in the world of natural and man made differences needs a balance
between egalitarian goal and practical reality. Obviously, laws cannot be
universally applied.
Now the question comes, ‘Equality of What?’ it is a big challenge
to the policy maker. Equality in terms of one variable entails a non­
egalitarian approach with respect to another variable, since the two
perceptions often conflict. As Amartya Sen suggests,
“What requires to be done is adherence to
Equality in ‘central’ social exercise with
acceptance of Inequality in the remoter’
90
peripheries”
The present work projects that such core sphere comprehends
dignity of life, liberty with order and welfare of all.
As a purposeful normative enterprise, each law is addressed to a
definite legislative audience, which exclusively possesses distinct
characteristics. Inevitably, all legislations make numerous distinctions and
classifications between persons, things and situations in order to render to
each person his due. What the principle of Equality demands is that, the
protection of the laws shall be proportionate to equal or unequal
characteristics the persons possesses in the State.
In this sense, equal protection of laws means
application of relevant legal inequality upon
factual inequality to attain a comfortable, just
and fair consequence.30
The line of distinction between the equals and unequals should not
be arbitrary, but be based on relevant and justifiable reasons reflecting the
28
Poiyvios G. Polyviou, The Equal Protection of the Laws p-4.
29
Amartya Sen, Inequality Re-examined p-10.
30
Tussman and Ten Broek, The Equal Protection of Laws, 37 California Law
Review, 341, 364-1949.
 70

actual differences in characteristics. In this regard, different schools of

thinking have emphasized different methods of categorization, as
utilitarian, Fabian socialist and communist philosophies reflect the
approaches viz.
“To each according to his ability.”
“To each according to his work” and
-j |

“To each according to his needs”

One important factor to be remembered is that, equal protection of
the laws is not concerned with Equality of consequences, but with equal
treatment of equals pure an simple.
The concept, ‘equal protection of laws’, is positive in contents. It
does not mean that identically the same law should apply to all persons,
or that every law must have a universal application within the country
irrespective of differences of circumstances. Equal Protection of laws
does not postulate equal treatment of all persons without distinction.
What is postulates is the application of the same laws alike and without
discrimination to all persons similarly situated. It denotes equally of
treatment in equal circumstances. It implies that among equals the law
should be equal and equally administered that the like should be treated
alike without distinction of race, religion, wealth social status or political
influence.
1. Equal Protection and the Privileges offered by the State:
As the guarantee of equal protection embraces the entire realm of
‘State action’ it would extend not only when an individual is
discriminated against in the matter of exercise of his Rights or in the
matter of imposing liabilities upon him, but also in the mater of granting
privileges, as held by Supreme Court in Kasturi Lai’s case32 e.g. granting
licenses for entering into any business, inviting tenders for entering into a
31
Francis M. Wilhoit, Quest for Equality in Freedom p-39-44.
32
Kasturi Lai Lakshmi Reddy v. State ofJ.K. A.I.R1980 SC 1992.
 71

contract relating to Government business or issuing quotas giving jobs

Equal protection requires affirmative action by the state towards unequals
by providing facilities and opportunities.
In all these cases, the principle is the same, viz,
a. that there should be no discrimination between one person and another
if as regards the subject-matter of the legislation their position is the
same,
b. its action must not be arbitrary but must be based on some valid
principle which itself must not be irrational or discretionary.
In a case Union of India v. Paliwal Electricals (P)Ltd33 the
Supreme Court held that the Provision excluding the goods affixed with
brand name or trade name of a person who was himself ineligible for
exemption, from the benefit of exemption to the specified goods from the
excise duty subject to the condition that the annual turnover was within
the limit prescribed, was held to be not violative of Art. 14.
In nutshell equal protection means the Right to equal treatment in
similar circumstances, both in the privileges conferred and in the
liabilities imposed.
Equal treatment of un equals is not liable to be struck down as
discriminatory unless there is simultaneous absence of a rational relation
to the object intended to be achieved by the law.
C. The Indian experience of Relation between Equality before law and
Equal protection of the laws
As we have studied article 14 incorporates both the English
doctrine of Equality before the law and American principle of equal
protection of the laws, in order to be fully comprehensive. Article 14
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.” In

33
Union of India v. Paliwal Electrical (P)Ltd AIR1996 SC 3106.
 72

England, Equality before the law could not beget equal protection of the
laws in the form of doctrine of classification although it could
comprehend other facets of equal protection. In American, although equal
protection clause could beget Equality before the law, in absence of a
specific guarantee of the latter, the doctrine of classification became
rudderless especially when it upheld the ‘separate but equal’ approach or
could not neutralize substantive due process approach. Thus, although
there is some overlap between the content or characteristics of these two
concepts, there is distinction between the two, and Art. 14 does not create
a tautology.
However, in State of West Bengal v Anwar Ali Sarkar,34 Das J. has
observed to the effect that Art. 14 resembled 14th Amendment of the US
Constitution and addition of the words ‘Equality before the law’ has
made no ‘substantial difference in the practical application.’ Prof. P.K.
Tripathi has supported this viewpoint with a reasoning that the
incorporation of the phrases was only to avoid doubts and distinctions
about these concepts and that any one of them alone would have been
sufficient.35
It is submitted, although the distinction between the two concepts
is often blurred by the common desiderata of reasonableness, Justice, and
control of power that underscore them, the distinction between the two
concepts is manifest and significant. The tradition of Equality before the
law in England, ruled out its application against legislative classification.
While Madras High Court was influenced by this approach in V.G. Row,36
such an approach is not valid in India because of the comprehensive
application of Arts. 13 and 14, and is Rightly rejected by the Supreme

(AIR)1952 SC 75.
P.KTripathi, Some Insights into Fundamental Rights(Bombay University Press).
V.G. Row v. State of Madras AIR(1951) Mad147.
 73

in

Court. The most notable feature of Equality before the law is its
emphasis on equal recognition of all human beings as human beings
possessing common psycho-biological urges, needs, and equal individual
worth. The fraternal shade is explicit here. On the other hand, equal
protection of the laws concentrates on proportionality in the application of
power, in conferring benefits or in imposing burdens. Thus, the difference
lies in the objectives chosen in these concepts for an egalitarian treatment
and hence prevalence of one concept over another causes imbalance to
the value framework of Art. 14.
Durga Das Basu, by extending the principle of Constitutional
interpretation that all the phrases in the Constitution should be given
distinct meaning rather than allowing redundancy, puts forward a
proposition that the doctrine of classification is an exemption to the
in

general principle of Equality before the law. The minority view of K.

IQ

Subba Rao, J. in Lachman Das is also cited in support of this viewpoint.

In Lachman Das, K. Subba Rao, J. observed that
“A citizen is entitled to a Fundamental Right
of Equality before the law and the doctrine of
classification is only a subsidiary rule evolved
by courts to give a practical content to the said
doctrine.”
Basu also gathers support for his view from the observation of
Subba Rao, J. in Deoman case,40 that Equality before law is a negative
concept and equal protection of the laws is a positive concept.
It is submitted, the above view of Basu is not convincing for the
following reasons. In Lachman Das, Subba Rao, J. attempted to treat
equal protection clause only as subsidiary rule to fulfill the goal of
37 State of Madras v. V. G. Row AIR(1952) SC196.
38 Durga Das Basu.Commentary on the Constitution of India.
39 Lachman Das v. State of Punjab AIR1963 SC222.
40 State of U.P.\i. Deoman AIR1960 SC1125.
 74

Equality before the law, but not as an exception to the latter. The doctrine
of classification enables rational selection and application of legal
inequality upon factual inequality so that Justice or Equality will be the
ultimate result(Supra). What Subba Rao, J. emphasized was that the
nexus test should not be handled mechanically; but the goal of attaining
Equality, Justice or reasonableness should be properly heeded. Since the
nexus test lays adequate emphasis on rational criterion that rejects both
over-inclusion and under-inclusion, and takes into consideration the
relation between the criterion of classification, and the purpose of statute,
it is submitted, there is an in built orientation towards the result of
equality before the law. But what is.lacking in the nexus test is a fraternal
shade of man-to-man element of Equality or the glorious content of
humanism, which is asserted by Equality before the law. Thus, the
proposition of Subba Rao, J, would mean, without disturbing the doctrine
of classification, an additional inquiry namely, whether the statutory
classification is really promoting the egalitarian spirit and harmonise the
thrust of these two concepts. This would avoid the doctrine of
classification from becoming rudderless.
Further, the textual frame of Art. 14 does not support the approach
of treating Equality before the law as negative concept, and equal
protection of the laws as positive; but on the other hand, such an approach
confuses the issues. Prof. P.K. Tripathi has criticized this approach as
erroneous for these reasons.41 Basically, there is no inconsistency between
the two concepts, and treating the one as an exception to the later is not
sound. As P. Jagnmohan Reddy, J, points out, the Supreme Court, by
giving a wider content to Equality before the law than in England, has
applied the equal protection clause cumulatively.42 This analysis does not

41
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
42
P. Jagnmohan Reddy, Liberty, Equality, Property and the Constitution (Calcutta
University Press).
 75

deny positive responsibility of state to provide protection to the have-nots

in the matter of access to those Rights, which they previously were
powerless to exercise.
D. American experience of Relation between Equality before law,
equal protection of the laws.
The desegregationist policy and the realization of the need for a
compassionate and preferential or remedial treatment of the classes which
were subjected to past discriminations, made the State agencies,
educational institutions, employers and businessmen to employ
affirmative actions for the benefit of such classes. Although these were
aiming at attaining substantive Equality, the policy of reverse
discrimination was nevertheless a kind of discrimination. Hence, the
tension between equal protection of the laws and the policy of reverse
discrimination was bound to arise. As the Constitutional developments
show, the way of resolution of such tension consisted in the application
of man-to-man spirit of Equality, and the egalitarian underpinning of
Justice and procedural fairness.
In regents of the University of California v Allan Bakke,43 a
landmark decision, the Supreme Court upheld the policy of affirmative
action in principle, but struck down the special minority admission
programme of the University, which was race-based and quota-oriented,
as violative of the Fourteenth Amendment, and Civil Rights Act of 1964.
According to Powell, Whose J. opinion reflected the majority opinion on
both the points,
“The state certainly has a legitimate and
substantial interest in ameliorating, or

43
438 US 265(1978).
 76

eliminating where feasible, the disabling

effects of identified discrimination.”44
But State should employ lawful means” towards its attainment. As
an illustration, the majority judges were inclined to favour Harvard’s
approach which provided for a “plus” advantage for applicants having the
handicap of racial or ethnic background, as the scheme was not insulating
any candidate from competition with other candidates.
The Court found fatal flaw in the Davis programme because of its
disregard of individual Rights. Powell J. considered ‘the denial to
respondent of his Right to individualized consideration without regard to
his race” as the principal evil. Since the race-based and quota-oriented
programme offended the requirement of treating each. “ applicant as an
individual without insulting from comparison, competition • and
consideration with others, it suffered infirmity.” Powell, J. invoked the
concept of ‘fairness to the individual’ as the ultimate value of Equality,
“Indeed, in a broader sense, an underlying assumption of the rule of law is
the worthiness of a system of Justice based on fairness to the individual”
The benign purpose of aiding others cannot impose deprivation on any
person, as a price of membership in the dominant majority. Hence, reverse
discrimination programme is limited or controlled by the ‘fairness to the
individual’ shade of Equality.
Secondly, the Court focused on the requirement of procedural
fairness or structural Justice in the means adopted for benign
discrimination. The compelling justification for inflicting harm on any
class in the name of aiding another should be forthcoming through
legislative policy decision, which was not there in the present case.
Justice Powell wrote,

ibid).

!
 77

“ .....isolated segments of our vast

governmental structures are not competent to
make those decisions, at least in the absence of
legislative mandates and legislatively
determined criteria,”45
This is another control upon reverse discrimination by the concept
of general Equality.
Thirdly, the majority viewed. Although the educational diversity
valued by the First Amendment is to be respected, the sole focus on
ethnic diversity as done in Davis programme, would hinder rather than
further attainment of genuine diversity. But, if race conscious remedies
have benign goal and potentiality of attaining genuine diversity, race can
be one of the criteria of classification. This inquiry into the possibilities
of genuine diversity a result-oriented concept of Equality also provides a
leeway of control on reverse discrimination. On the whole, as Laurence
Tribe viewed, Bakke made significant contribution to a heightened
awareness of process and structures as independently significant
dimensions of Constitutional validity. The levers forged in this process
articulated the relation between Equality and reverse discrimination.
Equal protection of the laws is both a source for, and a regulator of
reverse discrimination.
In the post-Bakke period, these relations became more manifest. In
the United Steel Workers v Weber46 the Supreme Court upheld a business
plan that reserved half of the openings in an in-plaint training programme
for the minorities for a temporary period without unnecessary trammeling
of the interests of White employees but with the purpose of eliminating
manifest racial discrimination.

Ibid.
46
443 US 193 (1979).
 78

In Johnson v Transportation47 the Court upheld a temporary plan

that authorised consideration of gender in promotion decision. In
Fullilove v Klutznick,48 the Court upheld Congress power to use race
conscious remedies in its efforts to eradicate the effects of past and
present racial discrimination and to prevent its recurrence. In Firefighters
Local Union v. Stotts49 the Court quashed a consent decree terminating the
employment of Whites to increase representation of minorities. In
Wygant,50 and Richmond v Croson51 cases relating to affirmative action,
the Supreme Court consistently applied the strict scrutiny standard of
Equality to ensure that ends do not justify the means, and the interests of
dis-preferred are not unduly affected. A significant point of balancing
between individual Right and group Right was made in Richmond by
stating that while dealing with the affirmative action taken in favour of
African-Americans, the Equal Protection clause which Conferred
individual Rights had to be kept in mind by the courts. Reiterating the
view taken in Shelly v Kraemer,52 Sandra Day O’Connor held that the
Right created by the Fourteenth Amendment was individual or personal
Right. There are also several cases wherein the District Courts, in
exercise of discretionary remedy under Title YII of the Civil Rights Act of
1964, awarded monetary compensation to the dis-preferred or victims of
affirmative action. In W.R. Grace and Co. v Local Union the Supreme
Court upheld an arbitrator’s award of damages to the benefits for female
employees. This notable development has taken care of some of: the oft-
neglected issues concerning the use and impact of preferential remedies,

480 US 616 (1987).

448 US 448 (1980).
467US561 (1984).
Wygant v. Jackson Board of Education 476 US 267(1986).
488 US 469(1989).
334 US1(1948).
461 US 757(1983).
 79

by searching for norms of Equality in response to the challenges of

affirmative action. As Hault Verkerke observes,
“ Compensation to dis-preferred employees
acknowledges the saliency of both the
discrimination victim’s remedial entitlement
and the incumbent employees’ legitimate
expectations”.54
On the whole, the general principles of Equality of opportunity,
fairness to individual, genuine diversity and structural controls operate as
limits on affirmative actions favouring the black and the women.
IV. Classification
Equality permits classification and prohibits class legislation. As it
has been discussed earlier that Art. 14 means ‘equals should be treated
alike’, it does not mean that unequals ought to be treated equally’. Persons
who are in the like circumstances should be treated equally. On the other
hand, where persons or groups of persons are not situated equally, to treat
them as equals would itself be violative of Art. 14 as this would itself
result in Inequality. As all persons are not equal by nature or
circumstances, the varying needs of different classes or sections of people
require differential treatment. This leads to classification among different
groups of persons and differentiation between such classes. Accordingly,
to apply the principle of Equality in a practical manner, the courts have
evolved the principle that if the law in question is based on rational
classification it is not regarded as discriminatory.
A. Meaning of Reasonable classification
In the sphere of contractual relations, the State, its
instrumentalities, public authorities or those whose acts bear insignia of
public element, action to public duty or obligation are enjoined in a
54
J.Hoult Verkerke, Compensating Victims of Preferential Employment
Discrimination Remedies, 98Yale LJ 1479(1989).
 80

manner that is fair, just and equitable, after taking objectively all the
relevant options into consideration and in a manner that is reasonable,
relevant and germane to effectuate the purpose for public good and in
general public interest and it must not take any irrelevant or irrational
factors into consideration or appear arbitrary in the decision.
The Legislature is entitled to make reasonable classification for
purposes of legislation and treat all in one class on an equal footing. The
Supreme Court has underlined this principle in Western U. P. Electricity
Power and Supply Co Ltd’s case as ‘Western U. P. Electricity Power and
Supply Co Ltd v. State of U.P.55 :
“Art. 14 of the Constitution ensures Equality
among equals; its aim is to protect persons
similarly placed against discriminatory >
treatment. It does not however operate against .
rational classification. A person setting up a
grievance of denial of equal treatment by law
must establish that between persons similarly
circumstanced, some were treated to their
prejudice and the differential treatment had no
reasonable relation to the object sought to be
achieved by the law.”
In a case of Rooplal56 it has been held by the Supreme Court that
where the provision in the Executive instructions denying the benefit of
service rendered by a deputationist on an equivalent post in his parent
department was contradictory to the law declared by the Supreme Court,
the offending portion was declared unreasonable and was struqk down.
In another case in Malpe Vishwanath Acharya57 it has been held by the

55
AIR 1970 SC 21, 24
56
Sub-Inspector Rooplal v. Lt. Governer, (2000)1 SQC644.
57
Malpe Vishwanath Acharya v. State of Maharastra, AIR 1998 SC 602.
 81

Supreme Court that determination and fixation of standard rent by

freezing or pegging down of rent as on 1.9.1940 or as on the date of first
letting is arbitrary and unreasonable in view of constant escalation of
prices due to inflation and corresponding fall in money value with the
passage of time and rent control legislation should be just both to the
tenant and the landlords, striking a balance between their rival interests.
Where a corporation handed over a park of historical importance to a
builder to build a palika bazaar without following the proper procedure
and keeping in mind the public purpose, the act of the corporation was
held to be unreasonable, arbitrary, unfair, opposed to public policy, public
interest and public trust doctrine. The construction was directed to be
demolished as held by the Supreme Court in M.I.Builders case.
The period of three years continuous service of an ad hoc appointee
for regularization of his services as prescribed under Regulation Rules has
been held to be reasonable in Khagesh Kumar’s case.59 It was discussed in
V.P. Malik’s case60 by the Supreme Court that implementation of Tikoo
Committee report recommending new and more beneficial criterion of
eligibility for promotion of specialists in Central Health Services from a
date almost one year later from its date of submission has been held to be
reasonable as the report is only recommendatory and the final decision
rests with Govt., besides it involves huge financial implication and sorting
out of service problems. Procedure of making promotion and fixing
seniority according to roster points is just and reasonable. In another case
of Mohandutt Sharma,61 Supreme Court held that an employee with a low
seniority in his cadre, in view of his qualifications and experience was
promoted on an ad hoc basis in a post specially created for him on the
condition that he would not be entitled to claim seniority over his seniors
58 M.l.Builders Pvt. Ltd v. Radhey Shyam Sahu, AIR1999 SC 2468.
59 Khagesh Kumar v. Inspector General of Registration AIR1996 SC 417
60 V.P. Malik v. Union of India A.I.R1996 SC1048.
61 Mohandutt Sharma v. Chief Justice, Pb & Hr. High Court AIR 1997 SC 3094.
 82

in the general category or preference for the next promotion. Similar

conditions were placed while giving him the next promotion which were
held to be fair and reasonable. In another case of Calcutta Iron Merchant’s
Association62 the Supreme court held that the Rule 89A(2) of the Rules
framed under the Bengal Finance (Sales Tax) Act, 1941, placing a
statutory obligation on the consignor/vendor to issue and the
consignee/purchaser to carry the declaration form is neither unreasonable
nor oppressive. It was also held by the Supreme Court in Jayanti Lai’s
case,63 that time specified for exchange of high denomination banknotes
under the High Denomination Bank Notes ( Demonetisation) Act, 1978,
having regard to the purpose sought to be achieved by the Act, has been
held to be not unreasonable. In other case of State of U.P64 the Supreme
court held that three months cut-off period given to the Govt, employees
sent on deputation to Corporation for giving notice of option to Govt,
against being absorbed in the Corporation service is appropriate and
reasonable. In case of Sri Divi Kodandarama Saram,65 the Supreme Court
held that the Government proposal to permit the ‘Archakas;’(Phjaris) to
retain the lands in their possession in lieu of remuneration for rendering
services, to determine cadre strength on case to case basis as in case of
other religious institutions taking into account all the parameters like
income, activity level, the actual needs of the ‘mult,’ etc. and to pay
additional remuneration for extra services rendered by ‘Archakas’ during
Brahmatsavams and special festivals in temples having no fixed scales on
the basis of circumstances of each case and when such remuneration was
paid to secular staff, was reasonable.

Calcutta Iron Merchant's Association v. Commissioner of Commercial Taxes

AIR1996 SC 3166.
Jayanti Lai Ratanchand Shah v. Reserve Bank of India AIR 1997 SC 370.
State of U.P v. Roadways Ministerial Staff Association AIR1996 SC 3415.
Sri Divi Kodandarama Saram v. State of AP(1997) 6SCC 189.
 83

Mere possibility of abuse of a statutory provision by those in

charge of administering it, cannot be a round for holding it procedurally
or substantively unreasonable. In case of Ahmedabad Municipal
Corporation,66 the Supreme Court held that it would amount to just, fair
and reasonable procedure to remove the encroachment by pavement
dwellers but if they are well-settled for a long time action can be taken by
giving two weeks’/ten days’ notice. In case of Ram Beti, the Supreme
Court held that procedure of removal of Gram Pradhan by Gram
Panchayat, a smaller body, instead of by Gaon Sabha which elects him, is
not unreasonable as the Gram Panchayat is the representative body of
Gaon Sabha.
As has been already stated, what Art. 14 prohibits is class
legislation and not reasonable classification for the purposes of
legislation, which is also observed by Supreme Court in Budhan
Chaudhary’s case.68 If the Legislature takes care to reasonably classify
persons for legislative purposes and if it deals equally with all persons
belonging to a ‘well-defined class’, it is not open to the charge of denial
of equal protection on the ground that the law does not apply to other
persons. In the case of Indian Charge Chrome,69 the Supreme Court held
that the classification of power generation into “power project” for
generation and distribution of electricity generally and “power plant” set
up by industrial units to generate electricity for captive consumption, has
been held to be well-defined; so also the classification of carriages into
inter-state and intra-state contract carriages. In the case of Parents
Association70 the Supreme Court held that the classification of the

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan: AiR 1997 SC

152.
Ram Beti v. District Panchayat Raj Adhikari: AIR 1998 SC 1222.
Budhan Chaudharyv. State of Bihar AiR 1955 SC191.
Union of India v. Indian Charge Chrome, (1999)7 SCC 314
Parents Association v. Union of India AIR 2000SC 845.
 84

residents of Andaman and Nicobar Islands into settlers prior to 1942 and
settlers after 1942 was reasonable as the former had to suffer much and
the later were brought under rehabilitation schemes. In another case of P.
V. Sundara Rajan71 the Supreme Court held that the government servants
absorbed in public sector undertakings and commuting only one-third of
the pension forms a separate category.
B. Relation between classification and the reasonableness.
There is a view that much of the development of law under Art. 14
has taken place as an elaboration, explanation, and illustration of the
doctrine of classification and its different methods of application. The
unique sway of the doctrine of classification, after a quarter of a century,
was however, subject to some underplaying by a recourse to the doctrine
of reasonableness. In reality, the latter was supplemental to the former.
The doctrine of classification was evolved in India as a narrower
and specific method of inquiry rather than with a comprehensive setting
of adjudging reasonableness by examining the entire social and legal
milieu in which the differential treatment was devised. The wider test
propounded by Patanjali Shastri, CJ, namely
“ Whether the degree of disparity goes beyond what the reason for
its existence demands.”72
Was not received by the Supreme Court, although the Shastri
approach could additionally deal effectively, the problems of selective
application and unreasonable exercise of discretion. However, it was the
nexus test propounded by S. R. Das. J., which became “well established in
the beginning”. In Anwar Ali Sarkar, S.R.Das, J. observed,
“In order to pass the test, two conditions must be satisfied, namely
(1) that the classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others and
71
P. V. Sundara Rajan v. Union of India (2000)4 SCC 469.
72
State of West Bengal v Anwar Ali Sarkar, AIR1952 SC 75.
 85

(2) the differentia must have rational relation to the object sought
to be achieved by the Act.”73
According to P.K. Tripathi, while the test concentrates on ‘Why’
and ‘Whom’ elements by ignoring the ‘What’ element, i.e. the type of
special treatment for the selected class, it gives rise to the possibilities of
confusion and wrong result.74 In Anwar Ali Sarkar, the ‘Why element was
not properly identified but it was confused for ‘What’ element. Such
errors occurred in other cases also.
Apart from the defect in the formulation or application of the nexus
test, P.K. Tripathi seriously doubts the suitability or relevancy of the test
in some significant areas. For example, in the circumstances of selective
application of things or persons for specialized treatments it is not
suitable. In Vajravelu Mudaliar case, when the Supreme Court applied
nexus test to quash selective acquisition of land for urban housing there
was an absurdity because devising a differentia in such circumstances
was not logical or practical. Testing of reasonableness of exercise of
power under the Act in the circumstances of the case was a suitable line of
inquiry, but the Court applied the nexus test as it if was anal-care formula.
In a number of cases relating to statutes, which conferred discretionary
power of selective application with adequate legislative guidelines, the
application of the nexus test was experience to be hardly rewarding, but
still it was applied as though there was no alternative.
As viewed by Prof. P.K. Tripathi about Kothi Ranning Rawat77 and
other cases,
“The only relevant inquiry from the point of
view of Art. 14 here also, is whether actual

73
Ibid.
74
P.KTripathi, Some Insights into Fundamental Rights(Bombay University Press),
75
ibid.
76
Vajravelu Mudalia v. Spl.Deputy Collector,Madras AIR1967 SC637.
77
Kothi Ranning Rawat v. State of Saurashtra AIR1952 SC123.
 86

selection made can be reasonably regarded to

have been made in pursuance of the disclosed
legislative policy. The nexus test is
inapplicable.”78
In another set of circumstances like Ram Krishna Dalmia,79 the
statute might be providing for a type of differential treatment without
pointing out any criterion or classification or even object of the statute.
The Commission of Inquiry Act did not say for what purposes, nor in
what sort of cases, an inquiry might be made. A rational relation can
hardly be said to subsist between an object, which is not there, and a
differentia, which is also not there.. . .
In Lachman Das,80 Subba Rao, J. raised a voice against
overemphasis on the doctrine of classification, which was encompassing
the whole theme of Art. 14. According to Subba Rao, J.
“Overemphasis on the doctrine of classification
or an anxious and sustained attempt to discover
some basis for classification may gradually and
imperceptibly deprive the article of its glorious
content. That process would inevitably end in
substituting the doctrine of classification for
the doctrine of Equality.”81
O

In M.R. Balaji, the Supreme Court went beyond the shackles of

the nexus formula and reached the heart of the Constitutional problem
involved by touching the question of reasonableness. As Prof. P.K.
Tripathi views.

78
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
79
Ram Krishna Dalmia AIR1958 SC538.
80
Lachman Das v. State of Punjab AIR1963 SC222.
81
Ibid.
82
M.R. Balaji v. State ofMaysore AIR1963 SC649.
 87

“In that case (Balaji), if the court contented

itself merely with locating the differentia,
which was there in the form of caste groupings,
and its relations with objects of making
reservations of seats in educational institutions
for the backward communities which
relationship also, after all, did exist, it could
never have reached the. vital question of the
unduly large and excessive proportion of the
reservations, which as the court held violated
the principles of Equality. Thereby the court
not only accomplished the triumph of
substance over form but also opened out new
vistas of Constitutional development.”
These developments show that the nexus test has limited area of
application, and unless the doctrine of reasonableness is added to the
field, there would be a severe lacuna. Neither of the two is a substitute
for the other. Genesis of this idea is traceable to the shades of Shastri,
Subba Rao and Gajendragadkar thoughts, and its most vocal assertion took
place in E.P.Royappa84 and R.D. Shetty.85
In E.P. Royappa P.N. Bhagwathi, J. observed for the Court.
“Equality is a dynamic concept with many
aspects....from a positivistic point of view,
Equality is antithetic to arbitrariness. In fact,
Equality and arbitrariness are sworn
enemies....where an act is arbitrary, it is
implicit in it that it is unequal both according

83
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
84
E.P.Royappa vs State of Tamil Nadu AIR1974 SC555.
85
R.D. Shetty v. LA.Authority AIR1979 SC1628.
 88

to political logic and Constitutional law and is

therefore, violative of Art. 14.”86
The Court was inclined to give Right to Equality, highly activist
magnitude instead of confining it into doctrinaire limits. The principle of
reasonableness was considered as the brooding omnipresence pervading
Art. 14. In R.D. Shetty87 this was reiterated and applied. In Ajay Hasia,
Bhagwathi, J. for he Court spoke about the limited scope of the doctrine
of classification as follows:
“The doctrine of classification which is
evolved by the courts is not paraphrase of Art.
14 nor is it the objective and end of that
Article. It is merely a judicial formula for
determining whether the legislative or
executive action in question is arbitrary and
oo
therefore constituting denial of Equality.”
H.M. Seervai has scathingly attacked this approach on the ground
(i) that rejection of traditional doctrine by this ‘new doctrine’ is clearly
wrong;
(ii) that the ‘new doctrine’ hangs in the air and
(iii) that whatever violates Equality is not necessarily arbitrary although
RQ
arbitrary actions ordinarily violate Equality.
It is submitted, in none of the above cases there was any intention
of overruling the old doctrine and replacing it by the new. The concern of
P.N. Bhagwathi,J. as explicit from the judgments, was to avoid truncating
the scope of Art. 14 to the doctrine of classification. This means that in
addition to the doctrine of classification, there should be set into service,
the principle of reasonableness. The very fact that in a number of
86 AIR1974 SC555at580.
87 AIR1979 SC1628.
88 Ajay Hasia v. Khalid Mujib Shehrvardi AIR1981 SC487.
89 H.M. Seervai, Constitutional law of India 4th Ed.,Vol.1.
 89

subsequent case the Court applied nexus test shows that it is not overruled
by the doctrine of reasonableness but only supplemented by the latter.
Secondly, Mr. Seervai’s analysis that the principle of
reasonableness is not specifically anchored into the concept of Equality
before the law or equal protection of the laws appears to be superficial
because, basically, reasonableness means proportionality, and hence
reflects the philosophy underlying both the concepts. Its locus in the
thrust of equal treatment of equals is quite logical. The third point made
out by Seervai is, as M. P. Singh points out, not logically reject able
because all inequalities are not unreasonable.90 But such microscopic
exception does not upset the soundness of Bhagwathi approach. As M.P.
Singh points out,
“.....Bhagwathi’s argument is reasonable if on
the lines of Kant and Dworkin one argues that
Equality of human worth or equal respect for
every individual is the sine qua non of a just
order and that any system that disregards
Equality of human worth or respect is unjust or
unreasonable.”91
The doctrine of classification and the principle of reasonableness
are two alternatives, but mutually consistent and complementary
instruments of the same egalitarian philosophy. There is commonness in
their origin, doctrinal base, benign ethos and noble mission. The
difference is in their mode of operation sweep and the reach. But
prevalence of one at the cost of the other disturbs the egalitarian
framework.

90
M.P.Singh The Principle of Reasonabless.
91
Ibid.
 90

C. Test of reasonable classification

As per discussion made above in order, to pass the test of
permissible classification two conditions must be fulfilled, namely,
(a) that the classification must be founded on an intelligible differential
which distinguishes persons or things that are grouped together from
others left out of the group and
(b) that, that differential must have a rational relation to the object sought
to be achieved by the statute in question.
What is however necessary is that there must be a substantial basis
for making the classification and that there should be a nexus between
the basis of classification and the object of the statute under
consideration. In other words, there must be some rational nexus between
the basis of classification and the object intended to be achieved.
Therefore, mere differentiation or Inequality of treatment does not per se
amount to discrimination within the inhibition of the equal protection
clause. To attract Art. 14, it is necessary to show that the selection or
differentiation is unreasonable or arbitrary; that it does not rest on any
rational basis having regard to the object which the Legislature has in
view in making the law in question. As the Supreme Court has explained
in Special Courts Bill,1978.92 “The differentia which is the basis of the
classification and the Act are distinct things and what is necessary is that
there must be a nexus between them.” As also the Supreme Court has
GT
observed in Thimmappa:
“When a law is challenged to be discriminatory
essentially on the ground that it denies equal
treatment or protection, the question for
determination by the Court is not whether it

AIR 1979 SC 478. i

K. Thimmappa v. Chairman Central Board of Directors AIR 2001 SC 467.
 91

has resulted in inequality but whether there is

some difference which bears a just and
reasonable relation to the object of legislation.
Mere differentiation does not per se amount to
discrimination within the inhibition of the
equal protection clause. To attract the
operation of the clause it is necessary to show
that the selection or differentiation is
unreasonable or arbitrary, that it does not rest
on any rational basis having regard to the
object which the legislature has in view.”
Again, the Supreme Court has observed in Valliappan case:94
“It is settled law that differentiation is
not always discriminatory. If there is a
rational nexus on the basis of which
differentiation has been made with the
object sought to be achieved by
particular provision, then such
differentiation is not discriminatory and
does not violate the principles of Article
14 of the Constitution.”
The Supreme Court has however warned against over-emphasis on
classification. The Court has explained in L.I.C of India95 that “the
doctrine of classification is only a subsidiary rule evolved by the courts
to give practical content to the doctrine of Equality, over-emphasis on the
doctrine of classification or anxious or sustained attempt to discover some
basis for classification may gradually and imperceptibly erode the
profound potency of the glorious content of equality enshrine in Art. 14
94
Union of India v. M. V. Valliappan, AIR1999 SC 2526.
95
LlC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
 92

of the Constitution. The over-emphasis on classification would inevitably

result in substitution of the doctrine of classification for the doctrine of
Equality...Lest, the classification would deny Equality to the larger
segments of the society.”
Whether a classification adopted by a law is reasonable or not is a
matter for the courts to decide. The question of reasonableness of
classification has arisen in innumerable cases. The twin tests applied for
the purpose are, however, quite flexible. The courts, however, show a
good deal of deference to legislative judgment and do not lightly hold a
classification unreasonable. A study of the cases will show that many
different classifications have been upheld as Constitutional. There is no
closed category of classification; the extent, range and kind of
classification; the conditions of the country, the economic, social and
political factors do work at a particular time.
It is not necessary that for a classification to be valid, its basis must
always appear on the face of the law. To find out the reasons and the
justification for the classification, the court may refer to relevant material,
e.g. objects and reasons appended to a Bill, parliamentary debates,
affidavits of the parties, matters of common knowledge, the background
circumstances leading to the passage of the Act, etc.
When a person seeks to impeach the validity of a law on the
ground that it offends Art. 14 , the onus is on him to plead and prove the
infirmity. If a person complains of unequal treatment, the burden lies on
him to place before the court sufficient material from which it can be
inferred that there is unequal treatment. A mere plea that he has been
treated differentially is not enough. He must produce necessary facts
and figures to establish, that he has not only been treated differently from
others, but that he has been so treated from persons similarly situated and
circumstanced without any reasonable basis and that such differential
 93

treatment has been made unjustifiably. The initial presumption is in

favour of the validity of the law, and if the person fails to adduce
sufficient evidence in support Of his challenge to the law in question, his
plea of the provision in question being violative of Art. 14 cannot be
entertained. The state can lean on the initial presumption of validity of the
law.
The Supreme Court has explained the principle of initial
presumption of validity as follows in Ashutosh Gupta v. State of
Rajasthan:96
“There is always a presumption in favour of
the Constitutionality of enactment and the
burden is upon him who attacks it to show
that there has been a clear transgression of the
Constitutional principles. The presumption of
Constitutionally stems from the wide power of
classification which the legislature must, of
necessity possess in making laws operating
differently as regards different groups of
persons in order to give effect to policies. It
must be presumed that the legislature
understands and correctly appreciates the need
of its own people.”
The Supreme Court has explained the rationale underlying this
rule in Deena as follows : “many a time, the challenge is based on the
allegation that the impugned provision is discriminatory as it singles out
the petitioner for hostile treatment, from amongst persons who, being
situated similarly, belong to the same class as the petitioner. Whether

Ashutosh Gupta v. State of Rajasthan, (2002)4SCC 41.

Deena v. Union of India, AIR1983 SC 1154.
 94

there are other persons who are situated similarly as the petitioner is a
question of fact. And whether the petitioner is subjected to hostile
discrimination is also a question of fact. That is why the burden to
establish the existence of these facts rests on the petitioner. To cast the
burden of proof in such cases on the state is really to ask it to prove the
negative that no other persons are situated similarly as the petitioner and
that the treatment meted out to the petitioner is not hostile.”
Thus, in Nachane,98 when the employees of the Life Insurance
Corporation were exempted from the provisions of the Industrial Disputes
Act, (IDA) by a law of Parliament, and these employees challenged the
law as discriminatory, the Supreme Court stated that the burden of
establishing hostile discrimination was on the petitioner (L. I. C.
employees); it was for them to show that they and the employees of other
establishment to whom the provisions of the IDA applied were similarly
circumstanced to justify the contention that by excluding ,the LIC
employees from the purview of the IDA they had been discriminated
against. No materials had been produced before the Court for the purpose.
On the other hand, if discrimination is writ large on the face of the
legislation, the onus may shift to the state to sustain the validity of the
legislation in question.
In Deepak Sibal v. Punjab University.99 the Supreme Court has
pointed out that a classification need not be made with “mathematical
precision.” But, if there is little or no difference between the persons or
things which have been grouped together and those left out of the group,
then classification cannot be regarded as reasonable. The Court has also
pointed out that to consider reasonableness of classification it is necessary
to take into account the objective for such classification.

A.V. Nachane v. Union of India, AIR1982 SC1126.1132.

Deepak Sibal si. Punjab University, AIR 1989 SC 903.
 95

“If the objective be illogical, unfair and unjust,

necessarily the classification will have to be
held as unreasonable.”
The, surrounding circumstances may be taken into consideration in
support of the Constitutionality of a law which may otherwise be hostile
or discriminatory in nature. “But the circumstances must be such as to
justify the discriminatory treatment or the classification sub serving the
object sought to be achieved.”
D. Classification where a single individual is as class
A single individual may constitute class itself on the following grounds:
i If there are some special circumstances or reasons applicable to him (or
it) alone and not amicable to others, a single individual is treated as a
class and that classification may be reasonable though constituted by
single individual.
ii The Legislature can also classify a single individual as a class where he
possesses real and substantial features different from other individuals in
relation to the object of the legislation in question. It was held by the
Supreme Court in Ramparshad Narayan Sahi case that100 Art. 14 would
not tolerate any discriminatory legislation against a single named
individual or individuals which simulates a Bill of Attainder, and no
reasonable basis for the classification appears on the face of the
legislation nor is deducible from the surrounding circumstances or
matters of common knowledge.
iii Where a law is of general application, it cannot be challenged as
discriminatory merely because the object of its enactment was to benefit
a particular individual as also held by the Supreme Court in Atlas Cycle
Co case.101

100
Ramparshad Narayan Sahi v. State of Bihar, A1R1953 SC 215.
101
Atlas Cycle Co v. Workmen, AIR1962 SC 945.
 96

iv. On the other hand in the name of classifying individuals on the ground
of special features, the Legislature cannot assume the jurisdiction to
adjudicate disputes regarding private Rights and thus deprive named
individuals of their Right to go to the duly constituted courts a Right of
access to which for the determination of private legal Rights belongs to
every person. It has been held by the Supreme Court in Sikender’s case
that102 the principle is not, however, applicable where the individual who
complains against the ad hoc legislation had no legal Right enforceable in
a court, e.g., an interest in property held at the discretion of the owner.
E. Judiciary and the basis of reasonable classification
It is not possible to exhaust the circumstances or criteria which may
afford a reasonable basis for classification in all cases. It depends on the
objects of the legislation in view and whatever has a reasonable relation
to the object or purpose of the legislation is a reasonable basis for
classification of the object coming under the purview of the enactment.
Age may form a rational basis in relation to the objects of legislation.
Thus persons who have not attained majority may be incapacitated from
entering into contracts. The classification may be based on the
difference in the nature of the persons, trade, calling or occupation,
which is sought to be regulated by the legislation, e.g., admission to
degree of public harm.
The reasonableness of classification lightning Art.l4 and the
principle given by the courts in a large number of cases are given below:-
1. Matter relating to Army.
It is valid to exempt military and naval messes and canteens from
restrictions on use or consumption of liquor, as military has its own
traditions and mode of life and, therefore, there is an understandable basis
for classification.

102
Sikenderv. A.P State Govt., AIR 1952 SC 91.
 97

2. Allotment of shops.
Stalls run by roadside stall-holders for more than three decades
were acquired for a public purpose of widening the road. The Govt,
decided to induce the said staff-holders to move out of the area by
reserving shops for them in a new marketing complex at a concessional
license fee and without trade zoning restrictions. Others were not to be
given this benefit. The Supreme Court held in Gurusharan Singhs case103
that the reservation and allotment to the staff-holders was made treating
them as a separate class on a reasonable and rational basis without any
partially or bias.
3. Accommodation
It has been held by the Supreme Court in State of West Bengal v.
Rabinder Nath Sen Gupta104 that the government employees provided with
government accommodation stand on different footing from the
employees not provided with such accommodation in respect of house
rent allowance.
4. Ban on cattle slaughter
In a legislation imposing a ban on the slaughter of animals for the
preservation and improvement of livestock, it is legitimate to classify
animals into different categories according to their usefulness to society
from different standpoints, e.g., usefulness for agriculture, yielding milk
and the like, as held by the Supreme Court in Hanif Quareshi’s case.105
Thus the Legislature may legitimately ban the slaughter of cows without
prohibiting the slaughter of goats and sheep, or differentiate between
cows and buffaloes. The butchers who slaughter the animals belonging to
these different categories may also be classified on the same basis.

Gurusharan Singh v. New Delhi Muncipal Committee, AIR1996 SC 1175.

AIR 1998 SC 1738.
Hanif Quareshi Mohd v. State of Bihar, AIR 1958 SC 731.
 98

5. Company
a. In view of the financial interest of a larger number of citizens
in the affairs of a company, it would be reasonable to classify the
problem of misappropriation by persons in chare of companies from
ordinary cases of misappropriation. It is not, therefore, unreasonable to
deny the protection, afforded to witnesses under s.132, Evidence Act, to
persons in charge of companies in an investigation under section 239 and
240 of the Companies Act, 1956 as held by the Supreme Court in
Narayanlal Bansi Lais Case.106
b. It has been held by the Supreme Court in Arora R.L’s case107
that in a law providing for compulsory acquisition of property, it would
not be unreasonable to differentiate between acquisition for the purposes
of a Government company and for other companies, or between
acquisition for companies and for individuals.
c. In another case of Shashikant Laxman Kale the Supreme
Court held that Private sector and public sector undertakings are treated
differently and are known to be different classes. Hence, granting
exemption to payment received by an employee of public sector
company at the time of his voluntary retirement is valid Exclusion of
private sector employees from the benefit is permissible.
6. Control of rent.
The Supreme Court held in Baburao Shantaram More case109 that
in a Rent Control Act, it would be reasonable to exempt buildings
belonging to Government, or a local authority who are not likely to be
actuated by any profit-making motive.

Narayanlal Bansi Lai v. Maneck Phiroj Mistry, AIR1961 SC 29.

Arora R.L v. State ofU.P., AIR1964 SC 1230.
Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114.
Baburao Shantaram Morv. Bombay Housing Board, AIR1954 SC 153
 99

7. Co-operative Societies.
The Supreme Court held in Chitralekha. R case110 that in view of
the Directive in Art. 43 of the Constitution, co-operative societies have
been treated on a special footing as compared with other establishments or
corporations, for the purpose of exempting them from the operation of the
Employees ‘ Provident Fund Act, or a Rent Control Act, or from excise
duties on goods produced by them.
8. Court Martial.
The procedure for trial by a court martial is less beneficial to the
accused than a trial by a court of law. On this the Supreme Court in Ram
Sarup Case111 held that nevertheless, the discretion vested in the
appropriate military authorities whether a member of the armed forces
should be sent for trial to a court martial instead of an ordinary court is
not discriminatory because the Army Act indicates the policy according to
which that discretion is to be exercised.
9. Criminal proceedings.
a) On section 207A and 251 A, the Supreme Court in Hanumatha Rao
Macherla’s case112 held that section 207A and 251A of the Criminal
Procedure Code 1898 were based on a reasonable classification inasmuch
as they made a distinction between proceedings instituted on police report
and those instituted otherwise, because the object of the amendment being
to secure a speedy disposal of cases, the differential adopted for
classification is ineligible and relevant to that object, namely, whether or
not there has been a previous investigation by a responsible public servant
whose duty is to detect crime.

110
Chitralekha. R v. State of Mysore, A1R1963 SC 1623.
111
Ram Sarup v. Union of India, AIR1965 SC 247.
112
Hanumatha Rao Macherla v. State of A.P., AIR1957 SC 927.
 100

b) S. 178A of the Sea Customs Act, 1887, provides that when certain
goods such as diamonds are seized under the Act “in the reasonable belief
that they are smuggled goods, the burden of proving that they are not
smuggled goods shall be on the persons from whose possession the goods
were seized. The contention that is provision discriminated between such
persons and other litigants by laying down an onerous rule of .evidence
contrary to that under the ordinary law, was rejected on the ground that
the object of the Act was the prevention of smuggling and the differential
on the basis of which the goods were classified and a different
presumption was applied had a rational relation to and directly furthered
that object as held by the Supreme Court in Hanumatha Rao Macherla’s
case.113
c) Though the mere object of securing a speedier trial may not be a
reasonable basis for providing a discriminatory procedure for certain
offences, the Supreme Court in Anwar Ali Sarkar’s case114 held that it
would be a valid basis for classification if the need for a speedier trial has
a reasonable relation to the object sought to be achieved by the
legislation.
d) The very nature of a new offence of a serious nature, not to be found in
the existing law of crimes, may require trial under a different or special
procedure. It was held in Rehman Shagoo’s case115 by the Supreme Court
that there would be no violation of equal protection because anybody who
committed such offence would be tried under the special procedure.
e) Where as convicted person is in jail and unable to engage a pleader, it
is not unreasonable to provide that his appeal shall be decided without
hearing, the Supreme Court in Partap Singh’s case116 held that where such

Hanumatha Rao Macherla v. State ofA.P., AIR1957 SC 927.

State of West Bengal AIR1952 SC 75.
Rehman Shagoo v. State ofJ.K., AIR1960 SC 1.
Partap Singh v. State of V.P.(ncw M.P.) AIR1961 SC 568.
 101

person is in a position to engage a pleader, the appeal cannot be disposed

of without hearing the pleader.
10. Education
a. Regarding higher education qualification the Supreme Court in T. R.
Kothandraman case held that higher educational qualification is a
permissible basis of classification for promotion, acceptability of which
will depend on facts and circumstances of each case such as it having
nexus with higher efficiency on the promotional post. The criterion is
also applicable to the principle of equal pay for equal work as held by the
Supreme Court in Sita Devi’s case.118
b. For the selection of the best possible material for higher or technical
education, the Supreme Court in Chitra Ghosh case119 held that it is
legitimate for the authorities to make rules for selection for the purpose of
admission, provided the rules have a reasonable nexus with the object
in view, e.g. reservation in favour of the handicapped students. In the case
of Rajendran. P. case120 the Supreme Court held that selection, not on a
State wise basis, but on a district wise basis has been struck down as
having no reasonable nexus with this object.
e. Regarding the admission to the Higher level of education the Supreme
Court held on Jagdish Saran Dr case l2,that at the higher levels of
education, merit should be the only test for admission, when the question
of reservation of employees in the evening session in the Law faculty of
the Panjab University arises then it was held by the Supreme Court in
Deepak Sibal’s case122 that 100% reservation for a certain class of
persons would be invalid.

T.R.Kothandraman v. Tamil Nadu Water Supply (1994)6 SCC 282.

Sita Devi v. State of Haryana AIR 1996 SC 2764
Chitra Ghosh v. Union of India AIR 1970 SC 35.
Rajendran.P. v. State of Madras AIR1968 SC1012.
Jagdish Saran Dr v. Union of IndiaAIR1980 SC820.
Deepak Sibal v. Panjab University AIR1989 SC 903.
 102

d. On preference of giving weightage the Supreme Court in Sanjay

Ahalawat case123 held that preference by allotting certain weight age to
local graduates in admission to postgraduate medical courses is not
violative of Art. 14 if a rule has been framed that out of the merit list
prepared, preference is to be given for admission in the superspeciality
courses to the students of a certain university or of other universities of a
certain “State, per se it cannot be held to be arbitrary, unreasonable or
violative of Art. 14. However, the rule that the remaining vacancies were
to remain unfilled was held to be irrational which should be re-examined
by the University as held by the Supreme Court in Rajive Gopinath Bhatt
case. 124
e. Even where the power is discretionary, it should be guided by certain
norms, which are relevant to the object sought to be achieved. But the
Court would not interfere in purely academic matters, involving policy.
Thus, it would not interfere with the evaluation of merit by expert, except
where it is ultra virus or malafide as held by the Supreme Court' in Ram
Chander Iyer, PK case.125
f. The provision, empowering the private educational Institutions to admit
students in the extent of half the number of seats from among those who
have qualified in the common entrance test or the qualifying examination,
as the case may be, irrespective of their rank or merit and to charge as
much fee as they can, is violative of Art. 14 as held by Supreme Court in
Unni Krishan case.126
g. It was again held by the Supreme Court in T.R Ramesh Kumar’s case127
that the scheme framed by the Supreme Court in Unni Krishrian case

Sanjay Ahalawat v. Maharishi Dayanand University (1995) 2SCC 762.

Gujrat University v. Rajive Gopinath Bhatt AIR1996 SC2066.
Chander Iyer,PK v. Union of India AIR 1984 SC541(para 31).
Unni Krishan J.Pv. State of AP.AIR1993 SC2178(Para 173,174 and 180).
Institute of Human Resources Development v. T.R Ramesh Kumar AIR1995 SC
1587.
 103

regarding admission and fees chargeable by self-financing private and

unaided professional colleges to check commercialization and profit
making by them, would not be applicable to Govt, self-financing
institution.
11. Essential commodity.
Special public interest in an industry, e.g., that it is engaged in the
production of a commodity vitally essential to the community, may
justify the regulation of its production, supply and distribution, provided
such regulation is not arbitrary and has a rational nexus in the object
sought to be achieved as held by Supreme Court in Bishamber Dayal
Chandra Mohan’s case.128
Such regulation may include fixation of a limit it to its storage by a
dealer, control of price of ‘levy sugar’, leaving uncontrolled non levy or
‘free sugar’.
12. Examination.
a. The general rule is that when an examination is held for making a
selection on a competitive basis, and there is both a written and oral test,
and more than 15% of the total marks is allotted to oral interview, it
would be unreasonable and is hit by Art. 14, where the authority making
such selection is ‘State’ within the meaning of Art. 12 as held by the
Supreme Court in Ajay Hasia case.129
b. The general rule has however been departed from in cases where the
Court has deciphered special circumstances justifying a differentiation.
Firstly, the Court has made a distinction between an examination
held for admission to an educational institution and an examination held
for appointment to a higher post in a public service. The reason is that in
the case of admission to an educational institution, greater importance has
to be given to written examination because the personality of young
128
Bishamber Dayal Chandra Mohan v. State of U.P. A1R1982 SC 33.
129
Ajay Hasia v. Khalid, Mujib Sehravardi AIR 1981 SC 487.
 104

students have not yet been fully developed; while in the case of
appointment to public service the recruitment has to be made from persons
of mature experience and hence, greater weight must be given to the
personality test on interview .
Secondly, the weight age to be given to the personal test or
interview will differ amongst different services depending on various
factors, such as the requirements of the service in question, the minimum
qualification prescribed, the age group from which the selection is to be
made, the body to which the task of holding the viva voce test is proposed
to be entrusted.
In view of the foregoing facts involved over which the Court does
not possess any expertise, the Court would not interfere with the weight
age given to oral test in the case of selection for the public services,
unless exaggerated weight has been given with proven or obvious oblique
reasons.
Thirdly, the question of weightage to be given to viva voce would
not arise where no written test is held and the selection is made on the
basis of interview only as also held by the Supreme Court in Abid
Asghar’s case.130
13. Foreign exchange.
a) In a programme for the promotion of earning foreign exchange, it is
competent to the Government to select sugar produced by a particular
process only. It is for the Government to select those commodities which
have a demand abroad and are, accordingly, capable of earning foreign
exchange.
b) In view of the fact that exchange has peculiar features and problems of
its own, the provision for a special procedure for the investigation of

130
Abid Asghar v. State of Bihar AIR 1994 SC141.
 105

breaches of foreign exchange regulations cannot be said to be violative of

Art. 14 as held by the Supreme Court in Attar Singh case.131
14. Government Contracts
a. Even though Government has a Right to enter into a contract with
anybody of its choice and even though he is not the highest bidder, it has
no Right to discriminate between the parties and make its offer to a
limited class of persons, excluding others, similarly situated as held by the
Supreme Court in Rasbehari Panda’s case.132
b. Though no person has got any vested Right to get a lease from
Government, he has a Right to get his application disposed of fairly, the
decision should not be against public interest. The Supreme Court in Fasih
Chaudhary’s case133 held that fair play is an essential requirement, ‘free
play in the joint’ is a necessary concomitant.
15. Geographical
The basis of classification may be geographical provided there is a
nexus between the territorial basis of the classification and the object
sought to be achieved by the Act. It has been held by the Supreme Court
in Sushila Saw Mill’s case134 that Section 4 of Orissa Saw Mills and Saw
Pits (Control) Act, 1991 is a class legislation as the entire area within
prohibited zone of the reserved or protected forest is treated as a class
against other areas. Therefore, operation of ban on saw mills within that
area of the district cannot be said to be discriminatory on the ground of
geographical contiguity of the district.

Attar Singh v. State ofU.P. AIR1959 SC564.

Rasbehari Panda v. State ofOrrisa AIR1969 SC 1081.
133
Fasih Chaudharyv. DG Doordarshan A1R1989 SC 157.
134
Sushila Saw Mill v. State of Orrisa AIR1995 SC 2484.
 106

16. Government property, business, etc.

The classification of Government as a separate person for special
or favoured treatment has been approved as a reasonable classification, for
the following purposes, inter alia.
a. A longer period of limitation as a litigant as held by the Supreme Court
in Nav Rattan Mai’s case.135
b. Priority of debts due to it as held by the Supreme Court in Builders
Supply Corpn case.136
c. Summary procedure for recovery of Government dues or for eviction
from its premises, even when the Government is acting as a banker as held
by the Supreme Court in Balsara’s case.137
d. When Government enters into commercial activity it can be given
favoured treatment as held by the Supreme Court in Jhanger Bhatusha’s
case.138
17. Land reforms.
The Supreme Court held in Attar Singh’s case139 that for the
purpose of effecting the consolidation of holding in an area, a speedier
procedure for the revision of revenue than under the ordinary laws may be
provided for such area. With a view to effecting a consolidation of
holdings, the U.P. Consolidation of Holdings Act, 1954, empowered the
State Government to declare that the Government had decided to make a
scheme of consolidation for a specified area and then to prepare and
revise the revenue records of that area for this purpose under a procedure
which was shorter than the ordinary procedure for the preparation of
revenue records ( e.g. by reducing the number of appeals), which would
have been applicable if the area had not been declared to be an area for

135 Nav Rattan Mai v. State of Rajasthan AIR1961 SC 1704.

136 Builders Supply Corpn v. Union of India AIR1965 SC 1061.
137 State of Bombay v. Balsara A1R1951 SC 318.
138 Jhanger Bhatusha v. Union of India AIR1989 SC 1713.
139 Attar Singh v. State of U.P AIR 1959 SC 564.
 107

the application of the Act. Held, the object of the legislation namely,
consolidation, was a boon to the tenure holders and if it was to be put
through, there must be a more expeditious procedure than under the
ordinary law. Hence, the classification had a rationale relatable to the
object of the legislation.
18. Market value.
On market value on lands the Supreme Court in Mangatu Ram’s
case140 held that lands abutting the National highway would necessary be
granted a higher market value than the lands situated in the interior.
19. Persons.
a. A law of prohibition may differentiate between civil and
military personnel or between citizens of India and foreigners who have
no intention of permanently residing in India.
b. S.197 of the Cr. P.C. which requires sanction of the Government
to prosecute public servants for acts done or purporting to be done in the
discharge of their official duties is not discriminatory because it is based
on a rational classification, viz , the public servants have to be protected
from harassment in the discharge of their official duties while ordinary
citizens not so engaged do not require this safeguard as also held in
Matajog Dobey case.141
c. In another case of Moti Das142 the Supreme Court held that in
view of the difference between the Hindus and the Jains in matters of
faith and religious practices, there is no contravention of Art. 14 if the
Legislature provides for the Constitution of Boards for the
superintendence of Hindu and Jain religious endowments differently.
d. In view of the financial interest of a large number of citizens
in the affairs in the affairs of a company, it would be reasonable to

140
Union of India v. Mangatu Ram (1997)6 SCC 59.
141
Matajog Dobey v. Bihar H.C. AIR1956 SC 44.
142
Moti Das Mahant v. Sahi S.P. A1R1959 SC 942.
 108

classify the problem of misappropriation by persons in charge of

companies from ordinary cases of misappropriation. The Supreme Court
held in Narayan Lai Bansi Lai’s case143 that it is not, therefore,
unreasonable to deny the protection afforded to witnesses under s 132
Evidence Act, to persons in charge of companies in an investigation
under ss.239 and 240 of the Companies Act, 1956.
e. A State is not entitled to discriminate against persons coming
from another State, merely on the ground that they are residents of
another State as also held by the Supreme Court in Laxman’s case.144
20. Prostitutes
The differences between a woman who is prostitute and one who is
not, justify their being placed in different classes. There was also
differences between a prostitute carrying on her business in a secluded
locality and another carrying on her business in a busy locality or in the
vicinity of public institution, so as to justify the removal of the later or the
imposition of restrictions upon her movements as also held by the
Supreme Court in Kaushaliya’s case.145
21. Public Servants.
a. S.4(1) of the Prevention of Corruption Act,1947, provides:-
“Where in any trial of an offence punishable under s. 161 or s. 163
of the Indian Penal Code, it is proved that an accused person has
accepted or has agreed or attempted to obtain.......... any gratification
(other than legal remuneration) or any valuable thing from any person, it
shall be presumed unless the contrary is proved that he accepted or
obtained...... that gratification or that valuable thing.......as a motive or
reward such as is mentioned in the said section 161...... ”

Narayan Lai Bansi Lai v. Maneek Phiroz Mistry AIR1961 SC 29.

Laxman v. State ofM.P.AIR1983 SC 656.
State of U.P v. Kaushaliya AIR1964 SC 461.
 109

It was contended that the above provision raised a statutory

presumption against public servants which was not applicable to other
classes of persons accused of the same offence under s. 161 I.P.C.
Repelling this contention, the Supreme Court in Emden C.I observed146:-
“Legislature presumably realized how difficult it was to being
home to the accused persons the charge of bribery, evidence which is and
can generally be adduced in such cases in support of the charge is apt to
be treated as tainted, and so it is not very easy to establish the charge of
bribery beyond a reasonable doubt Legislature felt that the evil of
corruption amongst public servants posed a serious problem and had to be
effectively rooted out in the interest of clean and efficient administration.
This is why the Legislature decided not to enact S. 4(1) with a view to
require the raising of the statutory presumption as soon as the condition
precedent prescribed by it in that behalf is satisfied. The object which
the Legislature thus wanted to achieve is the eradication of corruption
from amongst public servants, and between the said object and the
intelligible differentia on which the classification is based there is a
rational and direct relation.”
b. A Rule which, not being discriminatory as between members of the
same service, authorizes Government to resort to departmental
proceedings instead of launching criminal prosecution even in cases where
criminal offence is alleged to have been committed by the delinquent
public servant, does not offend against Art. 14, in view of the special
position of public servants as also held by the Supreme Court in Partap
Singh’s case.147
22. Regulation of business.
a. There may be circumstances where the size of the business may be a
reasonable index for classification, and in such cases, the Legislature is
146
Emden C.I v. State of UP. AIR1960 SC 548.
147
Partap Singh v. State of VP (now M.P.) A1R1961 SC 586.
 110

entitled to make distinction according to the degree of the civil e.g., a

bye-law charging higher license fee upon wholesale traders as compared
with retailers, a law exempting from excise duties goods produced by
small power-loom weavers as held by the Supreme Court in Orient
Weaving Mills case.148
b. The Coir Industry Act, 1953, was enacted for taking the coir industry
under control of the Union. Rule 18 of the Rules framed under the Act
provides that a person could be registered as an exporter of coir products
only if he had during the period of three years preceding the
commencement of the Rules exported the prescribed minimum quantity of
coir products.
It was urged that the Rule was discriminatory against the small
traders without any reasonable basis for the classification. Rejecting this
contention, the Supreme Court held in Sivrajan P. V. case.149
that the Act was passed in order to put a stop to the malpractices in
and loss of reputation of the export trade in coir owing to the fact that
exporters often accepted orders beyond their capacity, leading to the non­
fulfillment of such contracts or the supply of inferior commodities By
prescribing a quantitative minimum standard, and at the same time
providing for the exemption of co-operative societies, the Rule aimed at
putting the trade on a firmer basis. The differentia adopted by the Rule
had thus a rational relation to the object sought to be achieved by the Act.
c. Similarly since ‘hedging’ in cotton trading requires experience and
stability, there is no violation of Art. 14 if Government treats the older
cotton association differently from the newer ones, as regards permission
to enter into such transactions as held by the Supreme Court in M. B.
Cotton Association case.150

148
Orient Weaving Mill Ltd v. Union of India AIR 1963 SC 98.
149
Sivrajan P.V. v. Union of India AIR1959 SC 556.
150
M.B.Cotton Association v. Union of India AIR1954 SC 634.
 Ill

23. Reorganization of territories

In a scheme of reorganization some disparity is bound to take place
in the process of adjustment to a system of uniformity of laws. Such
disparity, by continuing the existing laws in some areas, as a temporary
measure, cannot be held to be violative of Art. 14 as held by the Supreme
Court in Bhopal Sugar Industries case.Isl
24. Scheduled Castes and Tribes
a. In view of the provisions in Arts 15(4), 16(4) and 46, Scheduled Castes
and Scheduled Tribes must be considered to constitute a separate class, so
that legislative measures for their benefit must be upheld as valid and
enforced as held by the Supreme Court in Manchegowda case.132
b. There is no contravention of Art. 14 to refuse to include within the
Scheduled Castes Order erstwhile Scheduled Caste members after
conversion to Christianity, for the foundation of protection for ‘Scheduled
Castes’ is that they belong to the Hindu or for classes amongst the Sikhs
i r-5

as held by the Supreme Court in Soosai’s case.

25. Services
The requirements in various services being different, it would
not be discriminatory to provide for different conditions of service ( e.g.
private practice) or different age for superannuation, where the duties and
function of the two Services in question are different as held by the
Supreme Court in Sukumar’s case.154 In another case of Vanugopala Rao155
the Supreme Court held that appointment of the senior most employee in
the provisional list as interim in-charge of the promotional post pending

151 State of M.P v. Bhopal Sugar Industries Ltd. AIR1964 SC 1179.

152 Manchegowda v. State of Karnataka AIR1984 SC 1151.
153 Soosai v. Union of India AIR1986 SC 733.
154 Sukumar Mukharjee v. State of West Bengal AIR1993 SC 2335.
155 State of West Bengal v. Vanugopala Rao (1995)1 SCC 179.
 112

finalization of seniority list by the Government to avoid administrative

hardship or heart-burning among rival claimants, has been held to have a
rational and reasonable basis.
In case of S. Ramesha156 the Supreme Court held that exemption
to the candidates who stood first in the Forest Rangers College from
selection as Assistant Conservators of Forest by the Public Service
Commission, it being based on reasonable classification, is not ultra vires
Art. 14.
26. Social security and labour legislation.
a. In a legislation for the provision of employees’ provident fund, the
Supreme Court held in Mohamedali’s case,157that it is not an unreasonable
classification to exempt
(i) co-operative establishment
(ii) establishments having been in existence for a period of less than 3
years.
(iii) establishments where the employees are already enjoying benefits
not less favourable than those provided by the Act.
b. Different minimum wages may be fixed for different industries or in
different localities, according to difference in economic conditions.
27. Tax, evasion
a. Taxation law is no exception to the doctrine of Equality under Art-14.
The taxation will be struck down as violative of Art. 14 if there is no
reasonable basis behind the classification made by it, for example, where
differentiation is made between tax evaders belonging to the same class
merely because the evasion was detected by different methods, or, if the
same class of property, similarly situated, is subjected to unequal taxation.
It is held by the Supreme Court in Ramji Lai’s case158 that if there is no

156
S. Ramesha v. State of Karnataka A1R1996 SC 718.
157
Mohamedali v. Union of India AIR1964 SC 980.
158
Ramji Lai v. I.T.O. AIR1951 SC 97.
 113

reasonable basis for the classification, the law will be struck down and it
is not necessary, to establish that the tax has been imposed with a
deliberate intention of differentiating between individual and individual.
b. But if the taxation, generally speaking, imposes a similar burden on
every one be with reference to that particular kind and extent of property,
on the same basis of taxation, the Supreme Court in Kunnathat’s case 159

held that the law shall not be open to attack on the ground that the result
of the taxation is to impose unequal burdens on different persons.
In a law imposing a sales tax
i. The Supreme Court held in United Motor’s case160 that the State may
not consider it administratively worthwhile to tax sales by small traders
who have no organizational facilities for collecting the tax from their
buyers and turn it over to the Government. Each State must, in imposing a
tax of this nature, fix its own limits below which it does not consider it
administratively feasible or worthwhile to impose the tax.
ii. The Supreme Court held in Syed Mohammed’s case161 that if a
particular commodity has peculiar features in a State (e.g., the business of
untanned hides and skins), the Legislature may impose the tax on the
purchasers of that commodity, while in the case of sales of all other
commodities, the tax is levied upon the sellers.
c. In the matter of taxation laws, the Court permits a greater latitude to
the discretion of the Legislature in the mater of classification. It has been
held by the Supreme Court in Khyerbari’s case that in tax matters, “the
State is allowed to pick and choose districts, objects, persons, methods
and even rates for taxation if it does so reasonably”. State has wide
discretion in respect of classification of objects, persons and things for the
proposes of taxation. The legislature can devise classes for the purpose of

159 Kunnathat Thatunni Moopil Nair v. State ofKerla AIR1961 SC 552.

160 State of Bombay v. United Motor AIR1953 SC 252.
161 Syed Mohammed v. State of Madras AIR191954SC314.
162 Khyerbari Tea Co Ltd v. State of Assam AIR 1964 SC 925.
 114

taxing or not taxing exempting or not exempting, granting incentives and

prescribing rates of tax, benefits or concessions.
Thus:
i. Where there is more than one method of assessing a tax and the
Legislature selects one out of them, the Court will not be justified to
strike down the law on the ground that the Legislature should have
adopted another method which, in the opinion of the Court, is more
reasonable, unless it is convinced that the method adopted is capricious,
fanciful, arbitrary or clearly unjust.
ii. When a statute divides the objects of tax into groups or categories, so
long as there is Equality and uniformity within each group, the tax cannot
be attacked as violative of Art. 14, although due to fortuitous
circumstances or a particular situation some included within a group may
get some advantage over others, provided of course they are not sought
out for special treatment as held by the Supreme Court in Vrindavan Lai
Pittie’s case.163
The classification between small and large manufacturers or the
classification of goldsmiths, for the purpose of exemption from sales tax,
into those who make, the ornaments by their personal labour or by paid
artisans and those who sell ornaments produced by artisans on a
commission basis, has been held to be reasonable as held by the Supreme
Court in Epari Chinna Krishna Moorthy’s case.164
iii. On the same need for flexibility in the matter of taxation, a provision
empowering the Executive to exempt particular goods from a duty is
valid. Even the delegation of the power to determine the rate of a tax is
valid where the policy is laid down in the statute and the subordinate
authority (e.g. a Municipal Board) is required to follow a quasi-judicial

163
Vrindavan Lai Pittie v. Union of India AIR 1986 SC 1168.
164
Epari Chinna Krishna Moorthy v. State of Orrisa (1964)15 STC 461.
 115

procedure in determining the rate as held by the Supreme Court in Gopal

Narain’s case.165
iv. The freedom of the Legislature is conceded not only in the choice of
the articles to be taxed but also as regards the manner and rate of
taxation, e.g., to prescribe different rates for different categories of
persons, transactions or objects.
v. So also the Court would be slow to interfere with the legislative
discretion in the matter of choice of a date for determining the basis of or
commencement of liability for a tax, even if no reasons are disclosed for
choice of that particular date, unless it is shown to be capricious or
whimsical, in the circumstances of the case as held by the Supreme Court
in Gouse’s case.166
In short, in the field of taxation, the Legislature has an extremely wide
discretion to classify items for tax purposes, so long as it refrains from
clear and hostile discrimination against particular persons or classes.
28. Trade Unions.
a. The classification of unions as “representative” and “qualified”
according to the percentage of their membership and giving a
“representative union” having a prescribed higher percentage of
membership the Right to represent the interest of the entire body of
workers in the industry concerned, is a reasonable classification and
involves no discrimination case as also held by the Supreme Court in
1 fxl
Kulkarni Raja’s case.
b. The grant to a representative union of the exclusive Right to represent
an industry does not discriminate against members of a non-representative
union because the privileges or obligations resulting from a settlement
with a representative union would be equally binding against all workmen

165
Gopal Narain v. State of U.P. AIR 1964 SC 370.
166
Gouse D.G and Co v. State of Kerala AIR 1980 SC 271.
167
Kulkarni Raja v. State of Bombay AIR 1954 SC 73.
 116

in the industry, whether member or non-member of the representative

union as held by the Supreme Court in Balmer Lawrie Workers Union’s
case.168
29. Time
The classification may be according to difference in time. It has
been held by the Supreme Court in Inder Singh Sardar’s case169 that it is
matter exclusively for the Legislature to decide from what date1 a (civil)
law should be given operation and the law cannot be challenged as
discriminatory in not affecting prior organization, if it applies generally
to all persons coming within its ambit as from the date on which it
becomes operative.
It has been held by the Supreme Court in another case of Union
of India v. K.G Radhakrishana Panickar1/0 that the classification would
be unreasonable where the time factor is irrelevant to new set of
employees with effect from a particular date.
30. Degree of Public Injury:
The special treatment or classification may be based on the degree
of public injury or harm or of the urgency of the remedy or regulation.
Thus:
a. The Legislature may regulate only the aggravated forms of a mischief
or confine its restriction only to particular area “where the needs are
deemed to be clearest”. In the reference on Kerla Education Bill the
Supreme Court held that the introducing compulsory education, the
provision for earmarking certain areas as ‘compulsion areas’ is not
discriminatory even though such classification may affect certain
educational institution in such compulsion areas without affecting
similar institution in the other areas.
168 Balmer Lawrie Workers Unions/. B.L and Co. AIR 1985 SC 311.
169 Inder Singh Sardars/. State of Rajasthan AIR1957SC510.
170 AIR 1998SC 2073.
171 AIR 1958 SC 956.
 117

b. The Legislature is similarly competent to reform, gradually, i.e.

applying the legislation, in the first instance, to some of the institutions or
objects or particular areas only, according to the exigencies of the
situation.
c. A legislation cannot be said to be discriminatory merely because it
cannot provide for the acquisition of all the estates in the State at one and
the same time, owing to administrative and financial difficulties as also
held by the Supreme Court in Amar Singh’s Case.172 On the whole, the
courts show reluctance to void legislation on the ground of its
incompatibility with Art. 14. This judicial self-limitation has been take to
such length that, at times, voices of protest have been raised from the
bench itself against too much judicial anxiety “to discover some basis for
classification.” A warning has been sounded that such an approach would
substitute the doctrine of classification for the doctrine of Equality and
deprive it of much of its content. The Supreme Court has stated in Mohd
Shujat Ali’s Case : “Over emphasis on the doctrine of classification or an
anxious and sustained attempt to discover some basis for classification
may gradually and imperceptibly deprive the guarantee of Equality of its
spacious content.” But the fact remains that many a time the Supreme
Court itself has ignored this warning and upheld legislation, as state
above, by finding some policy within the law.
V. Judiciary and the Facets of Equality
The facets of Equality are discussed as under:
A. Procedural laws and the Equality
The guarantee of equal protection applies against substantive as well as
procedural laws. From the standpoint of the latter, it means that all
litigants, who are similarly situated, are able to avail themselves of the
same procedural Rights for relief and for defense, without discrimination.
172
Amar Singh Thakurv. State of Rajasthan AIR 1955 SC 504.
173
Mohd Shujat Ali v. Union of India AIR1974SC1631.
-
 118

Of course, if the differences are of a minor or unsubstantial character,

which have not prejudiced the interests of the person or persons affected,
there would not be denial of equal protection.
In order to find out whether there has been a substantial departure from
the normal procedure, the test to be applied is not the degree of
Inequality, but the reality of it. It has been held by the Supreme Court in
Anwar Ali's case174 that if there is a substantial difference in the
procedural Right of the accused to Equality of treatment where the
Impugned Act deprives the accused, inter alia, of
(i) the safeguards of committal procedure,
(ii) the trial with the help of jury or assessors,
(iii) the Right to de novo trial in case of transfer,
(iv) the Right to redress in higher Courts, which are offered, to her
accused of the same class, under the general law of criminal procedure.
But a procedure difference that laid down by the ordinary law can be
prescribed for a particular class of persons if the discrimination;is based
upon a reasonable classification having regard to the objective which
the legislation has in view and the policy underlying it. Thus, in a law
which provides for the excrement of undesirable persons who are likely to
jeopardize the peace of the locality, it is not an unreasonable
discrimination to provide that the suspected persons shall have no Right
to cross-examine the witnesses who depose against them, for the very
object of the legislation which is an extraordinary one would be defeated
if such a Right were given to the suspected persons as held: by the
1 7*5
Supreme Court Quasim Razvi’s case.
If persons who are similarly situated in relation to the object of the
impugned legislation may be made subject to a procedure which is
substantially different from the ordinary procedure, the Supreme Court in
174
State of W.B. AIR 1952 SC 75.
175
Quasim Razvi Syed v. State of Hyderabad AIR1953 SC 156.
 119

Purushottam Govindji Halai’s case176 held that at the option of the

executive, the law which authorizes the special procedure must be held to
be discriminatory, provided it offers no guidance to the Executive
authority as to when and how one of the methods or procedures will be
chosen.
But
(i) There is no discrimination if the two procedures relate to different
powers in respect of different matters or the scope of the two enactments
is different, or one of them deals with a special situation.
(ii) There is no question of a law being discriminatory unless it empowers
the administrative authority, at its discretion, to impose a more onerous
procedure than the ordinary one. Where one procedure is prescribed for
everybody but the parties are allowed to follow another procedure if
they voluntarily so elect, the law cannot be said to be discriminatory as
also held by the Supreme Court in Dhirender Kumar MandaTs case.177
(iii) Similarly, there is no violation of Art. 14 where the Legislature lays
down the principles for the guidance of the Executive as to which of the
two procedure should be adopted in a particular case.
(iv) There is no discrimination where there is only one procedure
prescribed (not alternative procedures to be applied at the discretion of
the administrative authority), but additional powers are conferred upon the
authority for the enforcement of that one procedure in some cases which
are rationally classified, e.g., for the recovery of State dues as held by the
Supreme Court in Kedarnath Bajoria’s case.178
(v) There is no discrimination in leaving it to the discretion of an officer
of high standing to choose between two procedures one of which is more
onerous, if the law gives sufficient guidance for exercise of the discretion.
176 Purushottam Govindji Haiai v. Desai B.M AIR1956 SC 20.
177 Dhirender Kumar Mandal v. Suptd.and Remembrancer of Legal Affairs of the
GovtofW.B. AIR 1954 SC 424.
178
Kedarnath Bajoria v. State ofW.B. AIR1953 SC 404.
 120

The Supreme Court in Commr. S. T. ease179 held that in such a case, the
law is not invalid but the exercise of the discretion may be struck down
where it has not been properly exercised.
(vi) There is no discrimination in providing for appeal from only some of
the decisions of an administrative authority, unless the absence of appeal
from the other decisions makes the whole procedure oppressive and
arbitrary as held by the Supreme Court in Prakash Amichand Shah’s
case.180
Such discrimination may be removed by the Legislature by
retrospectively repealing one of the two procedural laws.
B. Fair and just procedure and Equality:
The decision making process should be transparent, fair and open.
Assigning lower marks in viva voce to the candidates who had
obtained higher marks in the written test by the Interview Committee
cannot be said to be not proper and justified. Where the normal method of
auction or inviting tenders to acquire advanced technology by a Govt,
medical company from foreign companies was not feasible after
negotiation a Memorandum of Understanding was signed by the M.D. with
a leading foreign company at much less than the stipulated minimum
rental for the leasing of the plant but no mala fides or extraneous
considerations on the part of the M.D. were made out and the Board of
Directors as also acting fairly and independently, the action of the
authorities or the Govt, was held to be fair and not violative of Art. 14
tni

which has been held by the Supreme Court in G.D.Zalani’s case. The
procedure, presumption and burden of proof placed on the accused under
Ss 57A and 57 B of (Kerala) Abkari Act, 1077 are not unjust, unfair or
unreasonable offending Arts. 14, 20(3) or 21 as an accused under these

179
Commr.S.T. v. Radha Krishan AIR1979 SC 1588.
180
Prakash Amichand Shah v. State of Gujarat AIR1986 SC 468.
181
G.D.Zalaniv. Union of India AIR1995 SC 1178.
 121

sections is treated as a class which has been held by the Supreme Court in
P.N.Krishna Lai’s case.182 To treat equally the regularly recruited
employees in India and those who are sought be absorbed by the bilateral
agreement between the Govt, of India and that of Nepal is to treat
unequals as equals. Hence, in Mahendra Raj Marg Karamchari union's
case, held that treating the discharged Nepal-based employees
appointed for execution of work there as fresh appointees from the date
of their absorption for the purpose of seniority is just and fair. Employing
daily wagers to do manual work at the rates under Minimum Wages Act
and regularizing them as Class IV employees on the basis of length of
service and performance as and when post is created or falls vacant, is a
fair procedure as held by the Supreme Court in Madhyamic Shiksha
Parishad Shramik Sangh’s case.184
For selection of candidates separate marks were awarded for
ACR, experience and ability test Non-recommendation for consideration
all those who secured highest in aggregate of the three heads and
excluding those securing 33% or less marks in ability test only was
unjust and unfair criterion violative of Art. 14 and 16. The practice of
imposing ban on recruitment and making massive ad hoc appointments de
bars the rules, giving a go by to make recruitment in accordance with the
rules and then resort to regularisaiton of such appointments exercising
power under the Art. 320(2) proviso or Art. 16(2) is violative of the
mandates of Arts. 14 and 16. The Supreme Court in Raj Kumar’s case185
held that restricting the selection only to the candidates sponsored by the
employment exchange and not advertising the post in the newspapers
having wide circulation and display on the office notice boards or
announcement on radio, television and employment news bulletins, would
182 P.N.Krishna Lais/. GovtofKerla (1995) Supp2 SCC 187.
183 Mahendra Raj Marg Karamchari union v. Union of India (1995) Supp3 SCC 511.
184 State of U.P v. Madhyamic Shiksha Parishad Shramik Sangh AIR1996 SC 708.
185 Raj Kumars/. Shakti Raj AIR1997 SC 2110.
 122

not be consistent with the principles of fair play, Justice arid equal
opportunity. Delay in initiating disciplinary proceeding is not unfair in a
case involving possession of disproportionate assets or pecuniary
resources as the Govt, may have to do a lot to collect necessary material
in this regard. Fairness/unfairness would depend upon facts of each case.
Denial of Right to be impleaded in proceedings to a person interested is
in negation of fair and just procedure offending Art. 14.
C. Special Court or tribunal and Equality
This para has been dealt with by the Supreme Court in a number of
cases, and the position resulting there from may now be stated as follows:
a. A law which authorizes the trial of any cases by Special Courts
or by a procedure which differs substantially from the ordinary procedure
to the prejudice of the accused, offends against Art. 14.
(i) Such legislation is discriminatory if it leaves it to the
uncontrolled discretion of the Executive to select particular cases under
the discriminatory procedure, the Supreme Court held in M.K.Gopalan’s
case186 that it is not so, if the Legislature itself lays down the policy and
the standards according to which the selection is to be made by the
administrative authority.
(ii) The policy may be gathered from the Preamble or even from
the general tenor of the enactment.
b. But there is no infringement of the Article if certain offences or
classes of offences are prescribed by the Legislature to be triable by a
Special Court or under such special procedure, according to a reasonable
basis of classification.
c. There is no discrimination unless the procedure prescribed by
the impugned legislation is substantially different from the normal
procedure. It has been held by the Supreme Court in Anwar Ali Sarkar’s

186
M.K.Gopalan v. State of M.P. AIR1954 SC 362.

i
 123

case 87 that minor deviations from the general standard would not
r
constitute discrimination.
d. Whether an enactment providing for special procedure for the
trial of certain offences is or is not discriminatory and violative of art. 14
of the Constitution must be determined in each case as it arises, for, no
general rule applicable to all cases of offences set out in the Schedule to
the Act to a Special Judge but is vested with a discretion in the matter, it
cannot be said that the provision offends against Art. 14 of the
Constitution. If the impugned legislation indicates the policy which
inspired it and the object which it seeks to attain, the mere fact that the
legislation does not itself make a complete and precise classification of
the persons or things to which it is to be applied, but leaves the selective
application of the law to be made by the executive authority in
accordance with the standard indicated or the underlying policy and object
disclose, is not a sufficient ground for condemning it as arbitrary and
therefore obnoxious to Art. 14.
e. As to the basis upon which offences may be classified
reasonably for trial by a Special Court or by a procedure substantially
different from the ordinary procedure, it has been held that:
(i) The necessity for a ‘speedier trial’ is too vague, uncertain and elusive
a criterion to form a rational basis for classification, particularly when the
Legislature itself does not indicate what are the offences which, in its
opinion , require a speedier trial as held by the Supreme Court in Anwar
Ali Sarkar’s case.188
(ii) The same may be said against ‘more convenient disposal’ of certain
unspecified cases.

187
State ofW.B v. Anwar Ali Sarkar AIR1952 SC 75.
188
Ibid.
 124

(iii) The mere fact that the evidence in a particular case would be
voluminous and would take a long time, would not justify a special
treatment.
But speedier trial of specified offences shall be on a rational basis
for classification if the speedy trial has an intimate rational relation to the
object of the legislation, such as ‘public safety’ or ‘maintenance of
public order’ in a dangerously disturbed area, or the effective suppression
of the widely prevalent offence of corruption and illegal gratification in
the public services during the post war period as also held by the Supreme
Court in Kangshari Haidar’s case.189
On the other hand:-
(i) Provision for ‘public safety’ or ‘maintenance of public order’ is a
rational basis for special treatment.
The Supreme Court in Gopi Chand’s case190 held that for ensuring
‘public safety and maintenance of public order’ in a ‘dangerously
disturbed area’, it is competent for the Legislature to provide that
specified offences which were ordinarily triable under the warrant
procedure should in such area be tried according to the summons
procedure.
(ii) Emergent conditions, such as the condition of Hyderabad just after the
‘police action’ in Hyderabad, may offer a reasonable basis for trial of
particular offences or classes of offences under a special procedure.
(iii) On the other hand, if there is no substantial difference in the
procedure to be followed by a Special Magistrate or Court as compared
with the normal procedure, there is no violation of Art. 14 merely
because the law empowers the Government to appoint a person as a

Kangshari Haidar v. State of W.B AIR1960 SC 457.

Gopi Chand v. State of Delhi AIR1959 SC 609.
 125

Special Magistrate to try an individual case191 as held by the Supreme

Court in M.K.Goplan’s case.192
f. But even where the classification made for the purpose of trial by a
special Court passes the test of Art. 14, the provision of a more onerous
procedure than the ordinary may offend the requirement of ‘fairness’
under Art. 21 and invalidate the law.
D. Discretionary power upon the Executive and Equality
1. A legislation which does not contain any provision which is directly
discriminatory may yet offend against the guarantee of equal protection
if it confers upon the executive or administrative authority an unguided or
uncontrolled discretionary power in the matter of application of the law.
For, where selection is left to the absolute and unfettered discretion of the
administrative authority, with nothing to guide or control its action the
difference in treatment rests solely on arbitrary selection by that authority.
Thus:-
a. The Supreme Court in Anwar Ali Sarkar’s case193 held that a law which
authorizes the Executive to select cases for special treatment or to grant
exemption from its operation without providing any definite guide or
standard for such differentiation is, on the face of its, discriminatory.
b. If the Legislature, while enacting a special law for dealing with a
special problem authorizes the Executive, at its option, to proceed against
a person either under the special law or under the general law which
would otherwise have been applicable, the conferment of arbitrary power
upon the Executive to apply the more stringent provisions of the special
law against any person at its pleasure must be held to offend against
equal protection as held by the Supreme Court in Sagir Ahmad’s case.194

e.g. s 14 of the Criminal Procedure Code.

M.K.Goplan v. State of M.P. AIR1954 SC 362.
State ofW.B v. Anwar Ali Sarkar AIR1952 SC 75.
Sagir Ahmad v. State ofU.P. AIR1954 SC 728.
 126

2.a. If, however, a law indicates the policy which inspired it, the mere
fact that it does not itself make a complete and precise classification of
the subject-matter, but leaves the selective application of the laws or the
extension of its provisions to new objects according to local conditions or
‘having regard to the circumstances of the case to be made by the
executive authority in accordance with the policy indicated, there is no
contravention of Art. 14 by the law itself, unless, of course, the policy
itself is discriminatory or capable of being used arbitrarily to favour one
party.
i) The validity of a law which provided that: “A Special Judge shall try
such offences or classes of offences or such cases or classes of cases as
the Government....may , by general or special order in writing direct”
was upheld on the ground that the law had laid down a definite legislative
policy, viz, “to provide for public safety, maintenance of public order
and preservation of peace and tranquility”, and the Executive had to
exercise its power in conformity with this legislative policy, if it failed,
the act of the Executive would be liable to be challenged, but the Act
itself could not be challenged as discriminatory.
ii) Similarly, it has been held that the Industrial Disputes Act cannot be
invalidated on the ground of contravention of Art. 14, for having
authorized the Government to refer a dispute either to a Board of
Conciliation or to a Court of Enquiry or to a Tribunal, at its discretion,
inasmuch as the policy of the Act was expressed to be for the purpose of
“investigation and ‘settlement of industrial disputes” and the Government
was to decide what step would be conducive to this end, having regard to
the exigencies of such particular case as held by the Supreme Court in
Bhikusa Yamasa Kahatriya’s case.195

Bhikusa Yamasa Kahatriya v. Kamgar Union,Sangamner Akola Taluka Bidi

AIR 1963 SC 806.
 127

iii)Where the maximum penalty that may be imposed for an offence is

laid down by statute and the authority is vested with a discretion to fix
quantum of the penalty subject to that maximum having regard to the
gravity of the offence in relation to the object of the Act, it cannot be said
that an unguided discretion has been vested in the authority.
b. Discretionary power is not necessarily discriminatory when the
legislative policy is clear from the statute, and the discretion is vested in
the Government or other high authority as distinguished from a minor
official, or when the Rules framed under the Act lay down the principles
against its improper use, such as limitation in duration, appeal as held by
the Supreme Court in Sukhwinder Pal Bipan Kumar’s case.196
c. The bare possibility that the discretionary power may be abused is no
ground for invalidating the statute, but the administrative order or act will
be struck down as discriminatory if the administrative authority minuses
the power by making an arbitrary selection without regard to the policy
laid down by the Legislature, or acts on extraneous considerations or
commits an abuse or colorable use of the power, or acts unfairly.
d. Unguided discretion in a Rule cannot be cured by supplying guideline
in supplementary executive instructions as held by the Supreme Court in
Izhar Hussain’s case. But this would not preclude the discretionary
authority to lay down intra vires guidelines or principles for the exercise
of the discretionary power, because such principles would exclude
arbitrariness and ensure fairness.
3. The vice of conferring unguided discretion on an administrative
authority, which offends against Art. 14 because it empowers arbitrary
action, is akin to the vice of unreasonableness under Art. 19 as well as of
excessive delegation or abdication on the part of the Legislature.
Therefore, decisions pertinent to those other doctrines are also relevant
196
Sukhwinder Pal Bipan Kumarv. State of Punjab A1R1982 SC 65.
197
Senior Suptd. of Post office v. Izhar Hussain AIR1989 SC 2262.
 128

for the application of Art. 14 as held by the Supreme Court in.Kaushal

P.N.’s case.198
4. In sum, neither Rule of Law nor Art. 14 will be violated unless
absolute power or discretion is vested in one individual. Discretion
implies a fiduciary duty to act with due restraint. The exercise of
discretionary power must answer the test of a ‘reasonable man’. The
exercise of discretionary of the government to grant largesses should be
open, fair, honest and completely above board.
5. Where the exercise of discretionary power is likely to affect
prejudicially, it has to be exercised in a bona fide and non-arbitrary
manner.
6. In arriving at a commercial decision the State can choose' its own
method and fix terms and conditions, which is not subject to judicial
scrutiny but the State, its corporations, instrumentalies and agencies are
bound to adhere to the norms, standard and procedures laid down by them
and cannot depart from them arbitrarily and the Court can examine the
decision making process and interfere, if found vitiated by maja fides,
unreasonableness and arbitrariness.
7. Mere apprehension of the governmental order being used against some
persons is no. ground to hold it illegal or unconstitutional particularly
when its legality or Constitutionality has not been challenged as also held
by the Supreme Court in K.Karunakaran’s case.199
E. Power to grant exemptions and Equality
a. A law which confers power on the Government to exempt any
particular person or object from its operation is not bad for contravention
of Art. 14, if the policy of the Legislature is clear from the statute.
But even though the statute may not, in such a case, offend against
Art. 14, an individual order issued under the statute may so offend if it is

198 KaushalP.N v. Union of India AIR1978 SC1457.

199 K.Karunakaran v. State of Kerla (2000)3 SCC 761

f
I
 129

made on grounds which are not germane or relevant to that policy

according or is otherwise mala fide which is also held by the Supreme
Court in Irani P.J.’s case.200
b. If however, the Act does not lay down any principle or policy for the
guidance of the authority in exercising the discretion, in such a situation
the Supreme Court in Kunnathat Thathunni Moopil Nair’s case201 held
that the Act itself will offend Art. 14, e.g., a taxing statute which
authorizes the Government to exempt from the tax ‘any land or class of
lands’ without indicating the policy according to which the selection for
exemption was to be made.
(i) The standard prescribed by the Act cannot be held to be vague
so as to offer no reasonable basis of classification, if its precise import
can be gathered from the history of the legislation and the circumstances
which prevailed at the time of its enactment, and to ascertain these facts,
the Court may take affidavit on behalf of the State as held by the Supreme
Court in Kathi Ranning Rawaf s case.202
F. Denial of equality by the administration of Law.
Equal protection may be denied not only by legislation but also by
administration of a law. The principles to be applied where an
administrative act is challenged should not be confused with those which
are to be applied when the law itself under which the administrative act is
purported to be done is challenged.
When the statute itself is not discriminatory and the charge of violation
of equal portion is only against the official who is entrusted with the duty
of carrying it into operation, - the charge will fail if the power has been
exercised by the officer in good faith within the limitation imposed by the
A.ct and for the achievement of the objects the enactment had in view, if,

200
Irani P.J v. State of Madras AIR1961 SC 1731.
201
Kunnathat Thathunni Moopil Nairv. State ofKerla A1R1961 SC 552.
202
Kathi Ranning Rawatv. State of Saurashtra AIR1952 SC123.
 130

however, the person who alleges discrimination succeeds in establishing

that the step was taken intentionally for the purpose of injuring him, or in
other words, that it was a hostile act directed against him, the executive
act complained of must be annulled, even though the statute itself be not
discriminatory. In short, if the Act is fair and good, the authority who has
to administer it will be generally protected. To this rule, however, there is
an exception, which comes into play when there is evidence of mala
fides in the application of the Act, as also held by the Supreme Court in
Ram Bachan Lai’s case.203
(i) In short, when a law is challenged as discriminatory, the
relevant consideration is the effect of the law and the intention of the
Legislature. But when a law is itself non-discriminatory but its
administration is challenged as discriminatory, the question of intention of
the administrative authority becomes material; in such a case, the
administrative action cannot be said to have offended against Art. 14
unless it was ‘mala fide’ or actuated by a hostile intention, as held by the
Supreme Court in Anwar Ali’s case.204 Thus, there is discrimination if an
individual is singled out from a number of persons similarly situated, for
hostile treatment.
In the result, mere violation of a law by the executive does not
amount of a violation of equal protection. i
(ii) Such mala fide administration is never presumed, but has to be
proved. On the other hand, the presumption is that public officials will
discharge their duties honestly and in accordance with the rules of law.
This presumption is heightened when the law vests a discretion in high
officials or authorities as distinguished from minor officials, of in the

203
Ram Bachan Lai v. State of Bihar AIR1967 SC 1404.
204
State of W.B v. Anwar Ali AIR 1952 SC 75.
 131

Government itself as held by the Supreme Court in Ram Krishna

Dalmia’s case.205
(iii) If, however, the Executive exercises its power in disregard of
the policy indicated by the Legislature, then the exercise of the power by
the Executive can be annulled as discriminatory and being in
contravention of Art. 14. The result is the same as if the Executive had
inflicted discrimination in the absence of legislative support altogether. In
this case, no question of reasonableness of legislative classification
arises, and the executive order is directly hit by Art. 14, and with Art. 12
as held by the Supreme Court in Bidi Supply Co.’s case.206 The
administrative order being patently ultra vires, no question of the bona
fides of the authority arises in such a case, e.g., where the licensing
authority creates a monopoly in favour of a person, by excluding all others
from the trade while the law did not authorize the creation of such
monopoly.
All administrative action is to be judged on the test of ‘fair play’, at the
same time considering the need for some ‘free play in the joints’
Non-arbitrariness would also require compliance with rules of natural
Justice where the impugned action involves civil consequences.
But in a matter where a person has no legal Right, he cannot complain of
discrimination merely because the authority has exercised its lawful
discretion as held by the Supreme Court in Jagmohan Lai’s case.207
Where an administrative action offends Art. 14 by making a
discriminatory application of a statute, by violating the policy or
standards laid down by the Legislature, the Court may, after quashing the
offending order, give proper directions as may be necessary to secure
compliance with the standards laid down by the Legislature or to remove

205
Ram Krishna Dalmia, Shri v. Tendolkar Justice AIR 1958 SC 538.
206
Bidi Supply Co v. Union of India AIR 1956 SC 479.
207
State Bank of Bikaner and Jaipur v. Jagmohan Lai Al R1989 SC 75.
 132

the discrimination, thus taking an affirmative role in affording proper

Justice to the persons aggrieved.
(i) Though no citizen has a legal Right to enter into contract with the
government and the government is entitled to refuse to enter into
relationship with anyone, it cannot arbitrarily choose any person it likes
for entering into such relationship or to discriminate between persons
similarly circumstanced as held by the Supreme Court in Erosion
Equipment’s case.208
(ii) For the same reason, even thought the government is at liberty to
reject the highest bid at a tender, the Court will strike down the
Government action where such rejection of the tender is arbitrary and
unreasonable or contrary to the public interest. Of course, there is a
presumption that the action taken by the Government is reasonable and in
public interest and the burden lies heavily upon the person to prove the
contrary.
(iii) But a distinction has been made in a case where attractive terms have
to be offered to entrepreneurs in order to persuade them to undertake new
projects in an undeveloped area.
Broadly speaking, the Court would not interfere with matters of
administrative policy, or changes made thereof, unless the Government
action is arbitrary or discriminatory, or the policy adopted has no
reasonable nexus with the object which it seeks to achieve or it is mala
fide as held by the Supreme Court in Nagaraj K’s case.209
VI. Equality and Discrimination:
The discrimination by judicial Acts and state acts is discussed as under:
A. Discrimination by Judicial Acts
While Art. 14 extends to all State actions including even acts of the
Judiciary, and would hit arbitrary or willful discrimination by a Court,
208
Erusion Equipment v. State of West Bengal AIR1975 SC 226.
209
Nagaraj K v. State of A P. AIR1985 SC 551.
 133

the Article does not guarantee uniformity of decisions or the exercise of

judicial discretion. Every judicial decision must of necessity depend on
the facts and circumstances of the particular case before the Court and
what may superficially appear to be an unequal application of the law may
not necessarily amount to a denial of equal protection of law unless there
is shown to be present in it an element of intentional and purposeful
discrimination.
No such intentional or purposeful discrimination has been held to
have been committed—
i) Where a case has been transferred from a Special Judge to the High
Court.
ii) Where owing to wrong interpretation of a statutory notification, some
producers are being exempted while others are being taxed as held by the
01 fi
Supreme Court in Eskayef Ltd.’s case.
Though the vesting of unguided discretion in the Executive to direct the
trial of particular persons under a special procedure may be
discriminatory, the Supreme Court in Budhan Chaudhary’s case211 held
that it would not be so where the discretion is vested in judicial officers
who have to exercise their discretion according to well-settled principles
and subject to revision by superior courts.
The remedy of a person aggrieved by the decision of a judicial tribunal is
to approach a superior tribunal, if there be any.
B. Discrimination in favour of the State itself
What is enjoined by Art. 14, is that the State shall not, by its acts,
discriminate as between two individuals who are similarly circumstanced.
It has no application to any possible discrimination in favour of the State
itself when the State enters into some transaction or business which is
open to private individual. The State does not cease to be a State when it
210
Eskayef Ltd v. C.C.E (1990)4 SCC 680.
211 Budhan Chaudhary v. State of Bihar AIR1955 SC 191.
 134

enters into a trade like any other trader. Thus, the Government, carrying
on the business of banking, may be given by law special facility for the
recovery of its dues,— which are, in fact, the dues of the entire people as
held by the Supreme Court in MannaLal’s case.212
In some cases, however, the reasonableness of classifying the State,
separately, from individual, has been justified on the merits, having regard
to the object of the legislation, e.g., a larger period of limitation in favour
of the State as a litigant, under Art. 149 of the Limitation Act, 1908,
special provisions or the summary recovery of money due to the
Government, including stringent action against the debtor as also held by
the Supreme Court in Erimmal Ebrahim Hajee’s case.213
On the other hand, the majority of the Court in State of W.B.v.
Corporation of Calcutta,214 has, again, held that the common law doctrine
of construction that a statute is not binding on the State would offend
against the principle of Equality, though the State can make an Act,
exempting itself from its operation.
When the Government carries on a business which private individuals
could have, its action towards individuals retains the stamp of State action
so that even when granting privileges or licenses to such individuals, it
must not practice discrimination as between such individuals, and must
observe the same standard as professed.
C. Complainant: In the violation of Right to Equality
1. Only a person who is aggrieved by the alleged discrimination, can
challenge the validity of a law on the ground of violation of Art. 14. The
payment of higher compensation to his neighboring land owner makes an
applicant an aggrieved person entitling him to claim re-determination of
compensation payable to him for his land. Thus, the person aggrieved

212
MannaLa v. Collector of Jhalawar AIR1961 SC 828.
213
Collector of Malabar v. Erimmal Ebrahim Hajee AIR1957 SC 688.
214
AIR 1967 SC 997.
 135

would mean a person who had suffered legal injury or one who has been
unjustly deprived or denied of something, which he would be interested
to obtain in the usual course or similar benefits or advantages or results in
wrongful affectation of his title to compensation as held by the Supreme
Court in Babu Ram’s case.215
Thus, Person who has never applied for license under a statute
cannot complain that the statute is discriminatory and a license would
have been refused to him if he had applied . But a person who did not
apply for license or make a tender at an auction may still contend that he
was precluded from applying by some discriminatory condition imposed
by the State for entering into the competition, and may, accordingly,
challenge the Constitutionality of such discriminatory condition imposed
on his Right to apply or to make a tender for federation as held by the
Supreme Court in Ramana Dayaram Shetty’s case.216
a. The petitioner cannot complain unless he belongs to the class of
persons who are alleged to have been discriminated against. The Supreme
17
Court held in Hans Mullar’s case.
Where the contention was that s. 3(2)(c) of the Foreigners Act,
1916, read with s. 2(a) discriminated between different classes of British
subjects inter se, it was held that a foreigner who was not a British subject
was not entitled to challenge the validity of the Act on this ground.
2. The foregoing orthodox view as to locus standi has, however, been
modified and the class of persons entitled to enforce Fundamental Rights
has been widened by the advent of the doctrine of public interest
litigation’, according to which

215
Babu Ram v. State ofU.P. (1995) 2SCC 689.
216
Ramana Dayaram Shettyv. I.A.A.I AIR1979 SC 1628.
217
Hans Mullarv. Suptt.Presidency Jail Calcutta AIR 1955 SC 367.
 136

i) Any public minded individual or action group is allowed to invoke Art.

32 or 226 to assert the violation of Rule of Law. The individual or group
may not be such as has suffered deprivation of a Right.
ii) No prejudice need be proved for enforcing the Fundamental Rights.
Right cannot be waived.
A person cannot voluntarily get discrimination or waive his
Fundamental Right against discrimination.
D. Presumption Regarding reasonableness of classification.
a. The presumption is always in favour of the Constitutionally of an
enactment, since it must be assumed that the Legislature understands and
correctly appreciates the needs of its own people, that its laws are
directed to problems made manifest by experience and its discriniinations
are based on adequate grounds.
b. The presumption is enhanced in the case of laws of taxation and laws
regulating economic activities as distinguished from laws touching civil
Rights, e.g. freedom of speech, religion, etc.
c. A legislation is not to be struck down as discriminatory if any . state of
facts may reasonably be conceived to justify it. In order to sustain the
presumption of Constitutionality, therefore, the Court may take into
consideration matters of common knowledge, matters of common report,
the history of the times and may assume every state of facts which can
be conceived as existing at the time of the legislation as also held by the
Supreme Court in Ramkrishna Dalmia’s case.218
d. But where the statute shows on the face of it that the Legislature made
no attempt at all to make a classification but singled out a particular
individual or class without having any difference peculiar to that
individual or class, the presumption of reasonableness in favour of the
Legislature is instantly rebutted and the person challenging the statute

218
Ramkrishna Daimia v. Tendulkar, Justice S.R. AIR1958 SC 538.
 137

cannot be called upon the adduce further or external evidence to discharge

his onus, the Supreme Court held in Ameeroonissa Begum’s case that
in such a case, the presumption of Constitutionality is of no avail and the
Court is bound to invalidate the statute as violating the guarantee of equal
protection.
e. The presumption would also be rebutted where the classification made
by the Legislature is patently arbitrary. From this standpoint, the
minority judgment in the Bearer Bonds case220 is unassailable and the
majority judgment condemns itself, for, by favouring persons having
‘black money’ and enabling teem to avoid a number of laws of taxation,
the impugned Act discriminated against honest tax-payers and put a
premium on persons indulging in dishonest dealings and tax evasion. No
such discrimination against honest people and in favour of offenders can
be held to be ‘reasonable.’
VII. A retrospect on classification and judicial review thereof.
The foregoing principles have been summarized
a. Where the statute itself indicates the persons or things to whom its
provisions may apply either on the face of it or to be gathered from the
surrounding circumstances known to or brought to the notice of the Court,
the Court will examine whether the classification can be deemed to rest
upon differentia distinguishing the persons or things grouped from those
left out and whether such differentia has a reasonable relation to the
object sought to be achieved irrespective of whether the statute is
intended to apply to a particular person or thing or to a certain class of
persons or things. The Supreme Court held in Harakchand Ratan Chand
Banthia’s case221 that when, therefore a statute is challenged as violative

Ameeroonissa Begum v. Mahboob Begum AIR1953 SC 91.

Garg, R. Kv. Union of India AIR1981 SC 2138.
Harakchand Ratan Chand Banthia v. Union of India AIR1970 SC1453.
 138

of Art. 14 the Court is first to determine the policy or object of the

legislation.
b. Where the statute directs its provisions against an individual person or
thing or to several individual persons or things but no reasonable basis
of classification appears on the face of it or can be deduced from the
surrounding circumstances, the Court will strike down the law as a case of
naked discrimination.
c. While the law can set apart classes according to the needs of the society
and as suggested by experience, and can recognize even degree of evil, the
classification should never be arbitrary.
d. Where the statute makes no classification for applying its provisions
but leaves it to the discretion of the Government to select and classify,
the Court will not strike down the law out of hand but will examine and
ascertain if the statue has laid down any principle or policy for guiding
the exercise of discretion by Government in the matter of selection and
classification, and if no such principle or policy is found, the statute
will be struck down as providing for the delegation of arbitrary or
uncontrolled power to the Government so as to enable it to discriminate
between persons and things similarly situated and together with it any
executive action taken under such law as held by the Supreme Court in
Ram Krishna Dalmia’s case.222
e. Where the statue has made no classification and leaves to the discretion
of the Government to select and classify the persons or things to whom the
provisions are to apply but at the same time as lays down lays down a
principle or policy for guiding the exercise of the discretion, the Court
will uphold the law as Constitutional.
f. Where the statute leaves it to the discretion of the Government t6 select
and classify the persons or things to whom the provisions shall apply, and

222
Ram Krishna Dalmia, Shri v. Tendoikar Justice AIR1958 SC538.
 139

also indicates the principles or policy to guide the exercise of the

discretion, but the Government has not followed such principle or policy,
the action of the Government will be struck down, but the statute itself
will not be condemned as unconstitutional as held by the Supreme Court
in Ram Krishna Dalmia’s case.

From the above conceptual analysis of Right to Equality as a Rule of Law,

Article 14 is discussed from every angle with the help of the judicial
decisions. It involves the principle rule of equality which prohibits the
state from denying to all persons, weather citizen or foreigner, Equality
before the law and Equal protection of laws. Article 14 only prohibits
improper and individual distinctions created by conferring rights or
privileges upon a particular group to the exclusion of other group without
any valid reason. It checks unfair discrimination between one group of
citizens and another or between one individual and other individual. The
scope of right to equality under Article 14 has been considerably
restricted by 42nd amendment of 1976. Article 14 permits classification
but prohibits class legislation. However classification must be reasonable
classification. This is broad study from incorporation of right to equality
in the Constitution to the retrospect on classification, surveying the whole
experience on right to Equality. The Constitution makers tried to give a
practical shape and content to the right to Equality in order to ensure the
social and economic justice.