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In The Supreme Court of India
In The Supreme Court of India
ORIGINAL JURISDICTION
WRIT PETITION NO:02 of 2024
VERSUS
The Honourable Supreme Court of INDIA has the jurisdiction in this matter
under Article 32 of the Constitution of India which reads as follows:
“32. Remedies for enforcement of rights conferred by this Part (1)The right to
move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2)The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.”
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FACTS OF THE CASE
1. The Union of Indus is a multicultural society characterized by its diverse
ethnic backgrounds, languages, and religious practices. The national motto,
"unity in diversity," epitomizes this cultural amalgamation.
2. Following the recent elections, the Central Government sought to fulfil its
election promises by introducing legislative measures aimed at protecting
individual private choices. Consequently, the Parliament enacted the "Protection
of Private Choice Act, 2023."
3. The Act allows owners of residential premises in urban areas to freely choose
their tenants and lessees. Importantly, the Act prohibits discrimination against
Scheduled Castes and Scheduled Tribes.
5. A notable incident involved a cine actress and unwed mother who sought an
apartment near her child's school. Despite her genuine need, the property owner,
influenced by the Resident's Welfare Association, refused to lease the
apartment, citing her status as a single unwed mother and a member of the film
industry.
6. The Society for Equality, an NGO led by actress Ms. Ramya Singh, filed a
Writ Petition in the Supreme Court of Indus. The petition challenges the
constitutional validity of the Protection of Private Choice Act, 2023. The
Society argues that the Act is a legislative guise for perpetuating historical
discriminations entrenched in society.
7.The petitioner contends that the Act contradicts the constitutional philosophy
of equality and undermines the progress made by laws like the Equality Act of
2010 in the UK. The petitioner emphasizes that the Act facilitates
discrimination against minorities, women, and professionals in certain
industries, violating fundamental rights enshrined in the Constitution.
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ISSUE.
1.Is write petition maintainable under law.
2.Is the protection of private choice act 2023 violating the constitutional
provision.
3.Whether the right to equality enshrined in the constitution is affected
GROUNDS
1.
2.
3.
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1. IS THE WRIT PETITION IS MAINTAINABLE
The writ petition is maintainable in the Hon’ble Supreme Court of
india because [A] Article 32 grants the right to petitioners as there is a
violation of fundamental rights, [B] Alternate remedy is no bar to the
jurisdiction of Supreme Court
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B. Alternate remedy is no bar to the jurisdiction of
Supreme Court.
1. The Counsel humbly submits that in Romesh Thappar vs
The State Of Madras 1950 AIR 124, 1950 SCR 594 2 case the
Supreme Court ruled that such a petition in which there is a
violation of fundamental rights can come straight to the
Supreme Court without going to the High Court first. The
Court stated that unlike Art. 226 and Art. 32 confer a
Fundamental Right on the individual and imposes obligation
on the Supreme Court which it must discharge when a
person complains of infringement of a Fundamental Right.
Art. 32 provides a guaranteed remedy for the enforcement of
the Fundamental Rights and constitutes the Supreme Court
as the guarantor and protector of Fundamental Rights. This
proposition has been reiterated by the Supreme Court in a
number of cases.
2. The petitioner has the locus standi in the present case and all
the requirements of instituting Writ Petition have been
fulfilled in the present case. The violation of Fundamental
Rights which are the basic structure of the Constitution also
makes this Court competent to decide the question.
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the constitutional provision
Equality Before Law (Article 14)
Article 14 declares that 'the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India'.
Thus Article 14 uses two expressions "equality before the law” and “equal
protection of the law”. The phrase "equality before the law” finds a place in
almost all written Constitutions that guarantees fundamental rights.' Both these
expressions have, however, been used in the Universal Declaration of Human
Rights.2
The first expression “equality before law' is of English origin and the second
expression has been taken from the American Constitution. Both these
expressions aim at establishing what is called “equality of status” in the
Preamble of the Constitution. While both the expressions may seem to be
identical, they do not convey the same meaning. While 'equality before the law
is a somewhat negative concept implying the absence of any special privilege in
favour of individuals and the equal subject of all classes to the ordinary law.
“Equal protectionof the law" is a more positive concept implying equality of
treatment in equal circumstances.
In State of West Bengal v. Anwar Ali Sarkar,5 Patanjali Sastri, C.J., rightly
held—the second expression is corollary of the first and it is difficult to imagine
a situation in which the violation of the equal protection of laws will not be the
violation of the equality before law. Thus, in substance the two expressions
mean one and the same thing.
Equality before law and absolute equality.—The concept of equality does not
mean absolute equality among human beings which is physically not possible to
achieve. It is a concept implying absence of any special privilege by reason of
birth, creed or the like in favour of any individual, and also the equal subject of
all individuals and classes to the ordinary law of the land. As Dr. Jennings puts
it : “Equality before the law means that among equals the law should be equal
and should be equally administered, that like should be treated alike. The right
to sue and be sued, to prosecute and be prosecuted for the same kind of action
should be same for all citizens of full age and understanding without
distinctions of race, religion, wealth, social status or political
influence".!
Equality before Law and Rule of Law.—The guarantee of equality before the
law is an aspect of what Dicey calls the rule of law in England. It means that no
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man is above the law and that every person, whatever be his rank or conditions,
is subject to the jurisdiction of ordinary courts. “With us”, Dicey wrote “every
official from the Prime Minister down to constable or a Collector of taxes is
under the same responsibility for
every act done without legal justification as any other citizen”. Rule of law
requires that no person shall be subjected to harsh, uncivilised or discriminatory
treatment even when the object is the securing of the paramount exigencies of
law and order.3
2. Equality before the law. It means subjection of all classes to the ordinary
law of the land administered by ordinary law courts. This means that 'no one is
above law with the sole exception of the monarch who can do no wrong'. Every
one in England, whether he is an official of the State or a private individual, is
bound to obey the same law. Thus, public officials do not hold a privileged
position in Great Britain. In Great Britain there is one system of law and one
system of courts for all, i.e., for public officials and private persons.
3. The Constitution is the result of the ordinary law of the land. It means that the
source of the right of individuals is not the written Constitution but the rules as
defined and enforced by the courts.
The first and the second aspects apply to Indian system but the third aspect of
the Dicey's rule of law does not apply to Indian system as the source of rights of
individuals is the Constitution of India. The Constitution is the Supreme Law of
the land and all laws passed by the legislature must be consistent with the
provisions of the Constitution.
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unequal circumstances would amount to inequality. So, a reasonable
classification is not only permitted but is necessary if society is to progress.3
(2) the differentia must have a rational relation to the object sought to be
achieved by the Act.'
The differentia which is the basis of the classification and the object of the Act
are Iwo distinct things. What is necessary is that there must be a nexus between
the basis of classification and the object of the Act which makes the
classification. It is only when there is no reasonable basis for a classification
that legislation making such classification may be declared discriminatory.
Thus, the Legislature may fix the age at which persons shall be deemed
competent to contract between themselves but no one will claim that
competency. No contract can be made to depend upon the stature or colour of
the hair. Such a classification will be arbitrary.?
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The true meaning and scope of Article 14 have been explained in a number of
cases} by the Supreme Court. In re Special Court Bill case, Chandrachud,
J., reformulated new propositions to be followed regarding the applicability of
Article 14. This has been rightly criticised by Mr. Seervai as making the well-
settled principles unsettled and creating confusion and uncertainty and
encouraging litigation. The principles laid down by Das, J., in Dalmia's case
has not been disputed by Chandrachud, J., and therefore there was no need
to reformulate the same unless it was necessary to add something to the existing
principles." In view of this, the propositions laid down in Dalmia's case still
holds good governing a valid classification and are as follows :
(1) A law may be constitutional even though it relates to a single individual if
on account of some special circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated as a class by itself.
(2) There is always presumption in favour of the constitutionality of a statute
and the burden is upon him who attacks it to show that there has been a clear
transgression of constitutional principles.
(3) The presumption may be rebutted in certain cases by showing that on the
fact of the statute, there is no classification at all and no difference peculiar to
any individual or class and not applicable to any other individual or class, and
yet the law hits only a particular individual or class.
(4) It must be presumed that the Legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds.
(5) In order to sustain the presumption of constitutionality the court may take
into consideration matters of common knowledge, matters of report, the history
of the times legislation.
(6) The Legislature is free to recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest.
(7) While good faith and knowledge of the existing conditions on the part of a
Legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the court on which the
classification may reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent of always holding that there
must be some undisclosed and unknown reasons for subjecting certain
individuals or corporations to be hostile or discriminating legislation.
(8) The classification may be made on different basis, e.g., geographical or
according to objects or occupations or the like.
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(9) The classification made by a legislature need not be scientifically perfect or
logically complete.' Mathematical nicety and perfect equality are not required.-
Equality before the law does not require mathematical equality of all persons in
all circumstances. Equal treatment does not mean identical treatment.
Similarity, not identity, of treatment is enough.
(10) There can be no discrimination both in the substantive as well as the
procedural law. Article 14 applies to both.4 If the classification satisfies the test
laid down in the above propositions, the law will be declared constitutional. The
question whether a classification is reasonable, and
proper or not, must, however, be judged more on commonsense than on legal
subtleties.5
Article 19(1)(d) guarantees to all citizens of India the right “to move freely
throughout the territory of India”. This right is, however, subject to reasonable
restrictions mentioned in clause (5) of Article 19, i.e., (1) in the interest of
general public or (2) for the protection of the interest of any Scheduled Tribe.
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(1) in the interests of general public,
(2) for the protection of the interest of Scheduled Tribes.
According to Article 19(1)(e) every citizen of India has the right “to reside and
settle in any part of the territory of India”. However, under clause (5) of Article
19 reasonable restriction may be imposed on this right by law in the interest of
the general public or for the protection of the interest of any Scheduled Tribe.
The object of the clause is to remove internal barriers within India or any of its
parts. The words "the territory of India” as used in this Article indicate freedom
to reside anywhere and in any part of the State of India.
It is to be noted that the right to reside and right to move freely throughout the
country are complementary and often go together Therefore, most of the cases
considered under Article 19(1)(d) are relevant to Article 19(1)(e) also. This
right is subject to reasonable restrictions imposed by law in the interest of
general public or for the protection of the interests of any Scheduled Tribes.
Thus, where a prostitute, under the Suppression of Immoral Traffic in Women
and Girls Act, 1956, was ordered to remove herself from the limits of a busy
city or the restriction was placed on her movement and residence, it was held to
be a reasonable restriction.2
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