Module 2

Right to Equality
Democracy can only thrive and flourish where the individuals in the society are treated equally
and without discrimination. Thus, it was felt by the framers of the Constitution to incorporate
such provision to remove the hurdle of existing social and economical inequalities and enable the
diverse communities of the country to enjoy the rights and liberties guaranteed under the
constitution. It was believed to be essential to remove inequalities based on religion, social
norms, age-old traditions practiced in parts of India, like untouchability, casteism, race
discrimination, etc.

 The Right to equality means the absence of legal discrimination only on grounds of caste,
race, religion, sex, and place of birth and ensures equal rights to all citizens.
 It is considered basic feature of the Indian Constitution.
 The Right to equality is both a positive equality as well as a negative right.

‘The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.’

 Article 14 tries to achieve ‘equality of status’ for all people.

 It aims at establishing the ‘rule of law’ in India.
 This guarantee available to both citizens and non- citizens.
 It applies to all persons, natural as well as juristic.

Equality before law

1. It is taken from English Common law.

2. This implies the absence of any special privileges in any person.
3. Implies no discrimination before the law on inapposite grounds like rank, office, etc.
4. It means that “the law should be equal and should be equally administered, that like should
be treated alike.” (JENNINGS)
5. States that every individual is subject to the jurisdiction of ordinary courts irrespective of
their rank or position.

Equal protection of the laws

1. It is corollary from equality before the law.

2. It is based on the last clause of the first section of the 14th Amendment of the US
Constitution.
3. It directs that equal protection should be secured to all persons within the territorial
jurisdiction.
4. This implies that such protection should be without any favor and discrimination.
5. This implies equal treatment in similar circumstances, both in the privileges and liabilities
imposed by the law.
6. It is a positive obligation of the state which it should achieve by bringing about necessary
social and economic changes, to ensure every person enjoys such equal protection.

Rule of law

The principle of Article 14, ‘equality before the law’ to a large extent based on the concept of
Rule of law as coined by A. V. Dicey. It states that all individuals, government and other
institutions should obey and be governed by law and not by any arbitrary action by an individual
or group of individuals. Whatever be the rank or position of a person, he should come under the
jurisdiction of ordinary courts and not of any special courts. It also states that governmental
decisions should be based on legal and moral principles embedded in the supreme law, in the
case of India, the Indian Constitution. This theory of Dicey has three pillars, they are:

1. Supremacy of law

There should be an absence of arbitrary power and that no person should be punished except for
a breach of law. An offense should be proved by the authorities of the country before the
ordinary courts to punish him according to legal procedure.

2. Equality before law

All individuals, irrespective of their rank or position (poor or rich, officials or non-officials, etc.)
should be subjected to ordinary law of land which is administered by ordinary courts. It seeks to
ensure that law is administered and enforced in a just and fair manner. It has also been embedded
in Preamble and Article 7 of the Universal Declaration of Human Rights. It implies ‘law gives
equal justice to all’.

3. The Predominance of legal spirit

Dicey believed that there should be an enforcing authority to enforce effectively the above two
principles. According to him, such enforcing authority should be ‘courts’.

Constitutional, Judicial and Legislative efforts towards:

Right to Food
The Constitution of India expressly does not guarantee the right to food of the people. However,
there are various provisions in the Constitution which indicate the intention of the Constituent
Assembly to provide to the people a guarantee of protection of the nutritional health of the
people.

(a) Right to Food and Preamble of the Constitution

Socialism is one of the signature tunes of the Constitution. The concept of democratic socialism
aims to put an end to poverty in India. The principle of socialism is also embodied in the various
provisions of the Part III and Part IV of the Constitution.

Socialism should be implemented in India in its true spirit. According to John Rawls a society is
said to be socialist when the egalitarian principles are followed, rights are valued and the dignity
of each individual is upheld. Socialism operates as an important tool in the campaign towards
realizing the right to food of the people living below the poverty line.

The concept of socialism empowers the Government to adopt measures to diminish the
difference between the rich and the poor. Such measures will end poverty in India to a large
extent. The reduction of poverty shall lead to a reduction in hunger and malnourishment and help
realization of the right to food of the people. The Indian Constitution promotes social
engineering.

The economic resources of the country are not utilised as per the spirit of socialism. The
economic growth of the country should lead to upliftment of the condition of life of the
vulnerable section of the society. Therefore improvement in rate of economic growth should lead
to decline in the percentage of people affected by malnutrition and starvation resulting in
improvement in their development indices. However in India the growth of the economy has
been utilised to benefit the rich.

(b) Right to Food as a Fundamental Right

The Constitution guarantees the fundamental right to a dignified life. The right to life under the
Constitution does not merely means animal existence. Life guaranteed under this Constitution
does not only include physical existence. It includes the right to live with human dignity. Since
the need for food to satisfy hunger is the basic necessity of life and without food life becomes
impossible, the right to food is thus protected under the right to life.

In a number of judgments the judiciary has recognised the right to food as a right flowing from
the right to life guaranteed under the Constitution of India. The right to life imposes upon the
Nation State the Constitutional obligation to ensure that there is no violation of the right to food.

(c) Right to Food as Integral Component of Basic Structure of the Constitution

The Constitution consists of certain basic features or framework which cannot be altered through
the process of amendment. The essential elements of individual freedom like immunity from
starvation constitute the basic structure of the Constitution.

Freedom from hunger is one of the most elementary needs for human existence, therefore the
right to food is an integral part of the basic feature of the Constitution and is protected from all
legislative interference that aims to dilute or abrogates the right. The mandate of the Constitution
to build a welfare state and an egalitarian society is another basic feature of the Constitution. An
egalitarian society ensures equality in distribution of the food produced in the country as well as
the equal distribution of the wealth of the country therefore, its mandate protects the right to food
of the people.

The rights guaranteed under the golden triangle consisting of the right to equality, right to
freedom, and right to life, is the basic feature of the Constitution as the provisions stands for
equality and rule of law. The rights flowing from the fundamental right to life constitute the core
value and if such rights are allowed to be abrogated it shall alter the very nature of the
Constitution. The right to food is one of the rights flowing from the bundle of rights guaranteed
under the right to life.

(d) Right to Food and Directive Principles

The directive principles are non justiciable policies which the Nation State is required to provide
to its people with the development of the economic resource of the country. The directive
principles are inserted in the Constitution for the guidance of the Nation State. These policies are
fundamental in the governance of the country. They impose an obligation on the Nation State to
apply these policies in law making. The directive principle consists of the fundamental features
of the Constitution.

The fundamental rights like the equality clause and the right to life can be used as a means to
implement the directive principles. Part IV of the Constitution is as important as any other
fundamental right in the governance of the country. It has now attained the status of a
fundamental right. The directive principle and fundamental right supplements each other and
both together form the conscience of the Constitution. With the economic development, to
further social justice a superior position to that of the fundamental right was given to the
directive principles. The directive principles could curtail the fundamental rights. The directive
principle calls upon the Nation State for establishment of a Welfare State in India.

A Welfare State promotes a just socio economic order and thereby aids the realization of the
right to food of the people. The directive principles of state policy directs the Nation State to
ensure to its people in course of time a social order based on justice social, economical and
political. In order to provide economic justice the directive principle calls upon the Nation State
to minimize the inequalities of income, status, facilities opportunities amongst individuals and
groups. It can be utilised harmoniously with the right to equality, right to freedom and the right
to life to redress the sufferings of the poor and enforce their economic rights. Thus, the directive
principles promote the realization of the right to food of the people.

Right to Work
Leaving aside the factors which make life livable, it is the practical truth of the economic world
that one must earn a living to be able to live. In other words, work to maintain an adequate
standard of living. Leave aside the labour power, economic assets are unevenly distributed
therefore making each one of us interdependent. Consequently, one must work otherwise the
basic necessities of life shall remain unfulfilled. The world has been moving forward based on
the policy of give and take. And as we have come a long way from the barter system, the
present-day medium which enables such exchange of resources, for which one must ‘work’, is
money.

The ‘right to work’ hence is the most essential element of life to be able to live. To enable the
fulfilment of the basic need for food, water, clothing and shelter and also something more than
just the basic requirements of life one must work to earn.

The Universal Declaration of Human Rights and the International Covenant on Economic, Social
and Cultural Rights, both of which were acceded by India, in Article 23 and Article 6
respectively, recognise the right to work in an employment of one’s choice and the State’s
responsibility to safeguard this right.

However, the Indian Constitution does not explicitly recognise the ‘right to work’ as a
fundamental right. It is placed in Part IV (Directive Principles of State Policy) of the Constitution
under Article 41, which hence makes it unenforceable in the court of law. Despite the absence of
an express wording of the ‘right to work’ in Part III (Fundamental Rights) of the Constitution, it
became a ‘fundamental right’ through a judicial interpretation.

All thanks to the wider interpretation of Article 21 made by the Hon’ble Supreme Court through
its judgement in Olga Tellis & Ors. v Bombay Municipal Corporation & Ors.- ‘right to work’
was recognised as a fundamental right inherent in the ‘right to life’.

Olga Tellis & Ors. v Bombay Municipal Corporation & Ors. (AIR 1986 SC 18)

1. Right to work is a Fundamental Right.

Coming on to the question of the ‘right to livelihood’ as claimed by the petitioners the Court had
observed that to make living life meaningful there had to be a means of living, i.e. the means of
livelihood. That, if the right to livelihood was not treated as a part of the right to life, the easiest
way of depriving a person of his right to life would be to deprive him of his means of earning a
living.

The Court held- that, which makes life possible to live, must be deemed to be an integral
component of the right to life. For if a person is deprived of his right to livelihood he shall be
consequently deprived of his right to life, for life- as enshrined under Article 21, meant more
than mere animal existence.

2. DPSP and Fundamental Right.

‘Right to work’ was recognised in light of the supplementary and complementary characteristic
of the Fundamental rights and DPSP with respect to each other. Right to life must include the
right to work as has already been explained above as per the judicial interpretation. The DPSP,
on the other hand, provides for the state’s responsibility to ensure that all citizens have the right
to an adequate means of livelihood. Keeping in mind the non-enforceable nature of the DPSPs
the Court had held that DPSPs reflect the vision of the State and thus possible steps should be
taken in furtherance of it.

Hence, ‘Right to work’ is an outcome of a harmonious interpretation of both the fundamental

rights and directive principles of state policy.

3. Right to work v. Right to demand employment from the government.

It should, however, be understood that the State cannot be compelled to provide adequate means
of livelihood or work to the citizens by acting affirmatively. In others words, no person can sue
the State for not providing him with a job. But if any person is deprived of his right to livelihood
except according to just and fair procedure established by law, he can challenge the deprivation
as offending the right to life conferred by Article 21.

The landmark judgement of the Supreme Court in the Olga Tellis case thus recognised the right
as being inherent in Article 21. Though ‘right to work’ is not a fundamental right explicitly
mentioned in Part III of the Constitution of India, it is now read along with the ‘right to life’
under Article 21.

When is the ‘right to work’ violated?

The first and foremost thing to be kept in mind is, leave alone the exceptions, since it is the State
which enforces the existence of fundamental rights, the same can only be claimed against the
State and not against any private institution. In other words, the right to work can only be
claimed against the State and not against any private institution.

Decoding the Supreme Court ruling in Olga Tellis case right to work is violated-

1. When a person is terminated from his job against the terms of his employment. For instance,
as in the Charan Singh case (above), if a permanent employee is terminated from his job
without a reasonable cause it amounts to the violation of the ‘right to work’.
2. When a person is terminated from his job in violation of the already laid down Central or
State laws.
3. When a person is excluded from being employed based on unfair and unreasonable
classification.
4. When a person is deprived of his livelihood in violation of the just and fair procedure
established by law, as was the case in Olga Tellis & Ors. v Bombay Municipal Corporation
& Ors.

It is important to note that voluntary unemployment or unemployment due to lack of jobs or lack
of skills shall not amount to a violation of the Right to Work.
Right to Housing
Everyone has the right to housing. Adequate housing, as a component of an adequate standard of
living, is fundamental to the enjoyment of all economic, social and cultural rights. It should not
be understood as being limited only to basic shelter. Instead, States should advance appropriate
national frameworks to realise this right, including addressing immediate threats to housing,
developing policies and practices to respond to the long-term housing needs of changing
populations, and regulating housing provision by the private sector.

1. Right to shelter is a fundamental right granted under Article 19(1)(e) read with article 21 of
the Indian Constitution, it’s the duty of the state to grant house sites to the residents.
2. Shelter for human beings is not mere protection for life or limb, it provides opportunities to
human beings to grow physically, mentally, intellectually, and spiritually. The right to shelter
includes adequate space, safe and decent structure, decent surroundings, sufficient light, pure
air and water, electricity, sanitation and other civic amenities. The right to life guaranteed in
any civilized society implies the right to food, water, a decent environment, education,
medical care, and shelter.
3. According to articles 38 and 39 of the Indian Constitution imposes responsibilities on the
state to provide opportunities and promote the welfare of the people. According to article 38
and 46 efforts should be made by the state to reduce income inequalities The basic needs of
man includes three food, clothing, and shelter. Under article 21 right to life and personal
liberty, it is the responsibility of the State to construct reasonable houses for needy people.
4. No person gets the right to encroach and erect structures or otherwise on footpath pavements
or public streets or any other place which has a public utility. The state has a constitutional
duty to provide adequate facilities and make the right to life meaningful and fruitful.
5. The present petition of the respondent cannot be accepted if it infringes on the fundamental
right of the people guaranteed to them under Article 19(1) read with article 21 of the Indian
Constitution. Therefore no direction can be issued.
6. If the state authorities want to still remove the respondent they have to first allocate a suitable
allocation before removing them from their residential houses.

Various schemes of the Government which provides Shelter to the people

1. National Rural Livelihood Mission: This mission’s aim emphasises on increasing the
household income and improving the financial service of the people.
2. National urban-rural development mission: It helps create a strong grass root and create
opportunities for urban poor, helping them to set up self-employment ventures etc.
3. Pradhan Mantri Awas Yojana: Under this scheme, the objective st by the Prime Minister is to
provide Housing for all by 2022. The houses are being provided to the people at a very low
cost. The scheme also allows the people to avail 2 lakh rupees of hoam loan from the bank.

Abolition of Untouchability
ARTICLE 17 OF THE INDIAN CONSTITUTION:

Untouchability is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of Untouchability shall be an offence punishable in accordance with law.

Untouchability is neither defined in the Constitution nor in the Act. It refers to a social practice
which looks down upon certain depressed classes solely on account of their birth and makes any
discrimination against them on this ground. Their physical touch was considered to pollute
others. Such castes which were called untouchables were not to draw water from the same wells,
or use the pond/tank which is being used by the higher castes. They were not allowed to enter
some temples and suffered many other disabilities.

Inclusion of this provision in the Constitution shows the importance attached by the Constituent
Assembly towards eradication of this evil practice. Article 17 is also a significant provision from
the point of view of equality before law (Article 14). It guarantees social justice and dignity of
man, the twin privileges which were denied to a vast section of the Indian society for centuries
together.

This right is directed against private persons. The nature of untouchability is such that it is not
possible to conceive where the State may practice untouchability. In People’s Union for
Democratic Rights v UOI, the Supreme Court held that whenever a fundamental right contained
in Arts. 17, 23 or 24 was being violated by a private individual, it would be the constitutional
obligation of the State to take necessary steps to interdict such violation and ensure that such
person should respect the right. Merely because the aggrieved person could himself protect or
enforce his invaded fundamental rights, did not absolve the State from its constitutional
obligations.

Article 35 read with Article 17 confer on the Parliament power to make laws prescribing
punishment for practicing untouchability. The Parliament enacted the Untouchability (Offences)
Act, 1955. In 1976, it was made more stringent and was renamed ‘The Protection of Civil Rights
Act, 1955. It defines ‘Civil Right’ as ‘any right accruing to a person by reason of the abolition of
untouchability by Article 17 of the Constitution.’ All offences under the Act have been made
non-compoundable. The Act prescribes punishment (1-2 years imprisonment) for preventing any
person from entering any place of public worship or from worshipping or denying access to any
shop, public restaurants, hotels or places of public entertainment or refusing to admit persons to
hospitals and refusing to sell goods or render services to any person. Also, insulting a member of
Scheduled Caste on the ground of untouchability or preaching untouchability or justifying it on
historical, philosophical, religious or other grounds is a crime.

To prevent the commission of offences or atrocities against the members of the Scheduled Castes
and Scheduled Tribes, the Parliament also enacted the ‘Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.’ The Act provides for special courts for the trial of offences
under the Act and for the relief and rehabilitation of the victims of such offences. Atrocities
committed against a Hindu SC or ST, who had converted to another religion, can be prosecuted
under the Act, if the victim is still suffering from social disability. In State of Karnataka v Appa
Balu Ingale, the Supreme Court expressing its concern on the continuance of the practice of
untouchability, held that it was an indirect form of slavery and only extension of caste system.

Equal pay for equal work

The phrase Equal pay for Equal Work means that every individual who has been employed for
the work which is allotted to him should be given sufficient pay as that of the others. There
should not be any discrimination while payment of wage. It is most commonly used in the
context of sexual discrimination, in relation to the gender pay gap.

The temporary workers who are working the shifts instead of the permanent workers should get
the same remuneration as that of the permanent workers is a rule and a right for the individual for
getting the same. Mere difference in nomenclature would not dis-entitle an employee from being
paid the same wages as permanent employees. Any act of paying less wages as compared to
others similarly situated, constitutes an act of exploitative enslavement.

The equal pay is governed under the Equality Act of 2010 which gives a right to equal pay
between women and men for equal work. This covers individuals in the same employment, and
includes equality in pay and all other contractual terms.

Statutory:

The provision in the Act states that the right of women and men to receive equal pay for equal
work applies to:

 all employees (including apprentices and those working from home), whether on full-time,
part-time, casual or temporary contracts, regardless of length of service,
 other workers (example: self-employed) whose contracts require personal performance of the
work.

The Supreme Court has given a judgement based on it in the case of State of Punjab and Ors.
v. Jagjit Singh and ors wherein it was held that an employee engaged for the same work cannot
be paid less than another who performs the same duties and responsibilities and certainly not in a
welfare state.

Such an action besides being demeaning, strikes at the very foundation of human dignity.
Anyone who is compelled to work at a lesser wage does not do so voluntarily he or she does so
to provide food and shelter to his or her family, at the cost of his or her self-respect and dignity,
at the cost of his or her self-worth, and at the cost of his or her integrity.
Any act of paying less wages as compared to others similarly situated, constitutes an act of
exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is
oppressive, suppressive and coercive, as it compels involuntary subjugation.

With the same ideology the Workmen's Compensation Act was also enacted with the aim of
providing proper financial protection to the workmen and his or her dependents in case of
accidental injury arising out of and in course of employment by means of payment of
compensation by certain class of employers. Because of the differences in bargaining power
there are chances that the women may be subject to exploitation. This act helps to avoid that risk
and also it has been amend from time to time to meet the requirements of the dynamic society.

Right to Education
Education is a fundamental human right and essential for the exercise of all other human rights.
It promotes individual freedom and empowerment and yields important development benefits.
Yet millions of children and adults remain deprived of educational opportunities, many as a
result of poverty.

The right to education is a universal entitlement to education. This is recognized in the

International Covenant on Economic, Social and Cultural Rights as a human right that includes
the right to free, compulsory primary education for all, an obligation to develop secondary
education accessible to all, in particular by the progressive introduction of free secondary
education, as well as an obligation to develop equitable access to higher education, ideally by the
progressive introduction of free higher education.

The right to education also includes a responsibility to provide basic education for individuals
who have not completed primary education. In addition to these access to education provisions,
the right to education encompasses the obligation to rule out discrimination at all levels of the
educational system, to set minimum standards and to improve the quality of education.

Right to Education Act

The Right of children to Free and Compulsory Education Act came into force from April 1,
2010. This was a historic day for the people of India as from this day the right to education will
be accorded the same legal status as the right to life as provided by Article 21A of the Indian
Constitution. Every child in the age group of 6-14 years will be provided 8 years of elementary
education in an age appropriate classroom in the vicinity of his/her neighbourhood.

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution
of India to provide free and compulsory education of all children in the age group of six to
fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The
Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the
consequential legislation envisaged under Article 21-A, means that every child has a right to full
time elementary education of satisfactory and equitable quality in a formal school which satisfies
certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act
incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a
child who has been admitted by his or her parents to a school which is not supported by the
appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing elementary education. ‘Compulsory education’
casts an obligation on the appropriate Government and local authorities to provide and ensure
admission, attendance and completion of elementary education by all children in the 6-14 age
group. With this, India has moved forward to a rights based framework that casts a legal
obligation on the Central and State Governments to implement this fundamental child right as
enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE
Act.

Right to Dignity
Dignity is a universal human concern. Its moral agenda is to attempt a double kind of evaluation
of the individual community on the one hand and the entire social formation on the other. Today
various forces challenge the basic dignity of the people all over the world. To a large extent,
globalization has played a role in undermining and destroying sources of dignity like autonomy,
opportunity and rationality.

Dignity has a critical relationship with caste, class, race, religious and gender divisions. Women
are objectified after all, in order to maintain the 'dignity' of a patriarchal society. Self-perceptions
are at the very heart of dignity, and they have to be combined with a recovery of a truly
democratic state. Employment, education, health, freedom from hunger, guaranteed livelihood,
social security and related economic and social rights are crucial means of ensuring a dignified
existence to all human beings. A perspective from the point of subalterns and the marginal is also
important for ensuring minimum conditions for dignity. Dignity means freedom to live in peace,
health and hope.

In various cases supreme court interpreted 'personal dignity' in various ways, some of them are
following:-

Air India Statutory Corporation v. United Labour Union AIR 1997 Supreme Court 645

The Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life
to be meaningful and livable with human dignity. Jurisprudence is the eye of law giving an
insight into the environment of which it is the expression. It relates the law to the spirit of the
time and makes it richer. Law is the ultimate aim of every civilized society, as a key system in a
given era, to meet the needs and demands of its time. Justice, according to law, comprehends
social urge and commitment. The Constitution commands justice, liberty, equality and fraternity
as supreme values to usher in the egalitarian social, economic and political democracy. Social
justice, equality and dignity of person are cornerstones of social democracy. The concept of
social justice which the Constitution of India engrafted, consists of diverse principles essential
for the orderly growth and development of personality of every citizen.

Consumer Education and Research Centre v. Union of India AIR 1995 Supreme Court 922

Right to life includes protection of the health and strength of the worker is a minimum
requirement to enable a person to live with human dignity. The right to human dignity,
development of personality, social protection, right to rest and leisure are fundamental human
rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and
39 of the Constitution