NO CONCEPT OF NEGATIVE EQUALITY U/A 14 OF THE CONSTITUTION

-Tanisha Sharma

NO CONCEPT OF NEGATIVE EQUALITY U/A 14 OF THE CONSTITUTION

BACKGROUND



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

Hence, the article is comprised of two parts-

  • While it commands the State not to deny any person with ‘equality before law’
  • It also commands the State not to deny the ‘equal protection of laws.’

Equality before law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of laws’ requires the State to give special treatment to persons in different situations in order to establish equality amongst all. This concept is positive in character. Therefore, the necessary corollary to this would be that equals must be treated equally, whilst un-equals would have to be treated unequally.

In India, where the Constitution intends to establish a welfare State, actually “it is the role of law which adds to the relevance and validity of the rule of law.”  Therefore, the concept of the rule of law is a dynamic one which not only aims at safeguarding and advancing the civil and political rights of the citizens of the country but also at establishing social, economic, educational and cultural conditions under which their legitimate aspirations and dignity maybe realised.



The concept of ‘equality before law’ is of British origin and is a negative concept which connotes-

  1. Absence of any special privileges in favour of any person,
  2. Equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and
  3. No person (whether rich or poor, high or low, official or non official) is above the law.

NO CONCEPT OF NEGATIVE EQUALITY U/A 14 OF THE CONSTITUTION
The concept of ‘equal protection of laws’ is taken from the American Constitution and is a positive concept which connotes-

1)Equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws,

2) Similar application of the same laws to all persons who are similarly situated, and

3) Like should be treated alike without any discrimination.

CURRENT ISSUE


In the appeal it was pleaded that the employees are entitled to claim grant in aid admissible under the Orissa (Non-Government Colleges, Junior colleges and Higher Secondary Schools) Grant in aid order, 1994 after it’s repeal in the year 2004 by virtue of provisions contained in Orissa. The order of 2004 was also repealed by Orissa grant in order, 2008.

The Supreme Court on 17 September 2019, observed that there is no concept of negative Equality U/A 14 of the Constitution of India. The bench comprising of Justice Arun Mishra, Justice Abdul Nazeer and Justice MR Shah observed thus while considering an appeal wherein the issue whether the employees are entitled to claim grant in aid as admissible under the Orissa Grant in aid order, 1994 after it’s repeal in the year 2004. The bench made this observation in State of Odisha vs. Anup Kumar Senapati that the impugned orders have been passed by the Tribunal, which was affirmed by the High Court and grants in aid has been released under the order of 1994 as such on the ground of parity, the Apex Court should not interfere.

NO CONCEPT OF NEGATIVE EQUALITY U/A 14 OF THE CONSTITUTION
According to the bench, in case the person has a right, he has to be treated equally, but where the right is not available a person cannot claim rights to be treated equally as the right does not exist. Negative inequality when the right does not exist cannot be claimed. Also, while dealing with the submission based on Section 6 of the General Clauses Act, the bench observed that what is unaffected by the repeal of the statute is a right acquired or accrued and not mere hope or expectation of or liberty to apply for acquiring a right.


CONCLUSION


  • Equality before law is state prerogative and in India the right is very important because there has been a widespread socio-economic difference which has been in existence from a very long duration. The equality which has been provided for under Article 14 is not universal and the principle of equality amongst the equals is followed. Such classifications are reasonable and not arbitrary.

  • The new dimensions in article 14 have been developed by the judiciary itself and it’s main purpose is to remove arbitrariness which might exist in the actions of the State and hence this article has much wider scope in the present time as compared to it’s scope at the time of enactment of the Constitution of India.