Category Archives: Constitutional Law – I


Equality before Law and equal protection of law explain both the term under Art 14

Art 14 Declares “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 Art 14 used the two expression

“equality before the Law” and

“equal protection of the law”

As such this right was considered generally a negative right of an individual not to be discriminate in access to public offices or places or in public matter generally. It did not take account of existing inequalities arising even from the public policies with that kind of undertaking of the right to equality.
This first expression equality before the law, is a somewhat negative concept which is said to be have taken from English common law, is a declaration of equality of all person within the territory of India, implying there by the absence of any special privilege in favor of any individual. Ever person whatever be his rank or position is subject to the jurisdiction of the ordinary court. Prof. Dicey, explain the concept of equality as it operated in England said “ with us every official from the PM down to a constable or collector of taxes is under the same responsibility for every act done without any legal justification as any other citizen.
The second expression the equal protection of the law which is rather a corollary of the first and is to be taken from US, it is a more positive concept implying equality or treatment in equal circumstances.

These two expression under this article to make the concept of equal treatment a binding principle of State action . The word Law in the former expression is used in a generic sense a philosophical sense, whereas the word Laws in the latter expression denotes specific laws. It has not explained this statement any further, but it means that equality for all is the law or standard norm of the land.
Equal protection of the laws is now being read as a positive obligation on the State to ensure equal protection of the Laws by bringing in necessary social and economic changes so that every one may enjoy equal protection of the laws and nobody is denied such protections.
Underlying Principle
As no human being are equal in all respect the same treatment to them in every respect would result in unequal treatment. For example the same treatment to a child as to an adult or to a physically challenge or healthy person, will result in unequal treatment.
Therefore the underlying principle of equality is: not the uniformity of treatment to all in all respect, but rather equal must be treated equally while unequal must be treated differently.
But this does not mean the unequal treatment for all, while the later Article of this part ( Part III) especially Art 15 and 16, equality not only prohibited unequal treatment but it also demands equal treatment. Therefore state must not only treat people unequally but it must also take positive steps to remove existing inequalities, especially those inequalities which treat human being less then human being.
Test of Valid Classification
This article forbids the legislature classification, but it does not forbid reasonable classification of person, objects and transactions by the legislature for the purpose of achieving specific ends. And differentia must have a rational relation to the object sought to be achieved by the Act.
There must be an nexus between the basis of classification and the object of the Act which makes the classification.
In Kedar Nath Bajoria V/s State of WB
It said
The equal protection of the Laws guaranteed by the Article 14 of the Constitution does not mean that all the Laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation.

In E.P Yoyappa v/s State of TN
Propounded a new approach to Article 14 in the following words:
Equality is a dynamic concept with many aspects and dimensions and it is cannot be cribbed, cabined and confined within traditional and doctrinaire limits. For a positive point of view equality is antithetic to arbitrariness.
In Maneka Gandhi v/s Union of India
Article 14 strikes at arbitrariness in state action and ensure fairness and equality of treatment, the principle of reasonableness, which logically as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence.

 


The preamble of constitution sets out the main objectives, which the constitution makers wanted to achieve. Discuss this statement. Can preamble be amended under Art 368 of the constitution?

Preamble useful to interpretation the constitution.
The principle generally sets the ideas and goal of constitution maker which then intended to achieve through that constitution. In Golaknath v.s State of Punjab court held that- the Preamble contained in nutshell the idea and aspiration of the constitution.
In Berubari Union and Exchange of Enclaves- it was held that – the constitution is the key to open the mind of the constitution makers. And it is not the part of the constitution.
Preamble also a legitimate aid in the interpretation of the constitution.
In Keshvanad Bharti v.s State of Kerala it was held that-
Constitution is extremely important and it should be read and interpretive in the light of the grand and noble vision of preamble. And preamble is the part of the constitution.
The purpose serve by preamble.
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSCTICE, social, economic, political;
LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation.
It indicate the following purpose-
1. Source of constitution.- the source of the constitution is the people of India
which denote form the word in the preamble – We the People of India no
subordinate or external source of power other than people of India.
2. Enacting clause -which brings into force the constitution- having solemnly
resolved India Into- which shows the enactment clause of constitution.
3 Right and freedom of the people, type of Government and polity- to secure every citizen justice, liberty, and equality and fraternity right. And there would be sovereign, socialist and democratic ( head of the State is elected, direct and indirect democracy.)nature of government.
Objective of Preamble-
JUSCTICE, social, economic, political;
LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation
Amendment of Preamble- controversy in this point, some are agree and other are not agree. But the evidence shows that it can be amended which has been shown in 42ed Amendment of Constitution which add –Secularism, Socialism, and integrity.