January 22, 2022

The Paradox of Equality in India 2021 – An analysis

jurisprudence

 

Abstract

The objective of this article is to provide detailed information about equality in India, with a view of current scenarios and case laws thereon. The article contains equality as contained under the preamble and the constitution of India, which is very important to understand the aspect of the paradox of equality in the territories of India. The landmark judgments explained in this article may help to evaluate the purpose of law and inequalities if found in any area of the country.

The important recent scenarios which helps in better understanding the equality in India in the present which is very much needed to a reader like you and me to be aware of the legal  consequences going on around the country, and analyze whether it is legal or illegal and whether it is constitutional or unconstitutional in the eyes of people in the society.

The recent scenarios include the amendment called CAA, 2019, which is compared to an aspect of equality as contained under the Indian Constitution and as we all have been facing the COVID-19 pandemic since previous years it is very important to know the impact of COVID-19 on the aspect of equality under the law and the article focuses on the same and also includes relevant case laws regarding it.

Keywords: equality in India, CAA, 2019, COVID-19 on the aspect of equality.

Introduction

Equality is a one-man’s puzzle and many people’s paradox.

India is a sovereign, socialist, secular, democratic and republican country striving for equality since its independence. Equality has become a distinct dream for India, though it never fails to protect rights of any person. Equality is conceptually wider in scope. Equality among people is very much needed for a country like India because it is the main reason for country’s development and progress.

“The earth is the mother of all people, and all people should have equal rights upon it” –

Chief Joseph.

India has always been protecting the rights of the people and never left them behind. It has also made certain provisions under constitution as evidence for the same. Equality is also a right of people as under the Indian Constitution. Without equality there can be no democracy for democratic countries like India. Equality in simple terms can be said as an equal treatment among people without differentiating anyone upon anything in the society.

Equality is a concept of paradox in India because though the Indian Constitution protects people and their rights, inequality has escalated all over India in the form of gender discrimination, unequal treatment on grounds of caste, religion, status etc. In recent decades the constitution has sweat a lot to tackle this problem of inequality among the people by granting provisions, making laws and acts regarding the same. As manifested in the preamble of the constitution about equality among people with providing equal status and opportunity, India aims to attain liberty from inequality.

India is facing a lot of issues regarding inequalities, but it has also not failed to give justice to the people who are suffering inequality. Let us further know in detail about the same.

Meaning of equality

Equality means any person having the same position or status in the society disregarding different races, castes, religions and the same form of treatment among the people.

Equality can be among different categories such as gender, sex, caste, creed etc.

Equality in the preamble of the Indian Constitution

Equality is manifested in the preamble of the Indian Constitution as equal status and opportunity among people without any sought of discrimination with equal treatment in the society and equality before the law thus, it becomes the sole objective of India i.e to promote unity and integrity.

Equality as contained under Indian Constitution

The Constitution of India has provided provisions for the fundamental basic rights of the people.

Part 3 of the Indian Constitution’s fundamental rights such as the right to equality, the right to education and so on is written down.

Equality is understood in different contexts.

Article 14 talks about equality before the law, Article 15 contains provision for prohibition of discrimination of people on grounds of caste, sex, etc and Article 16 includes equal opportunity among people in public employment.

Art 14 – Equality before the law and equal protection by law

Any person should not be treated as unequal and should be equally protected by by-laws made by the country. It is a right of everyone to be equally represented in society. Right to equality is read with supporting articles such as 19 and 21 which are known as the Golden Triangle rule.

Important case laws regarding Art 14 of the Indian Constitution

India v. Nargesh Meerza 28th Aug, 1981

Facts:

In this case a regulation was made by Indian Airlines regarding the termination of services. The regulation said that Air Hostess has to retire when they reach 35 years of their age or if they marry within 4 years or for first pregnancy whichever among these occurs first and whereas on other hand the male Air Hostess was said to retire when they attain the age of 45 years.

Issues:

Whether the regulation was violative of the fundamental rights of Air Hostess?

Held:

It was held that the pregnancy is not a mere ground for termination of service and violative of Art 14 of the Indian Constitution and the regulation was struck down by the laws.

Maneka Gandhi v. Union of India, 1978

Facts:

The petitioner was issued a passport under Passport Act, 1967 and later in 1977, the Regional Passport Officer had ordered her to return the passport.

She filed a petition on seizing of passport under Art 32 of the Constitution of India as a violation of Art 14, Art 19 and Art 21 granted as rights of the people.

Issues:

Whether the seize of passport was violative of Art 14, 19 and 21 of Indian Constitution.

Held:

It was held by the court that the law has deprived a person’s personal liberty, freedom of speech and expression and equality, thus these 3 articles are said to be important, with Art 14 even other two articles have to be read together known as Golden Triangle Rule.

Bachan Singh v. State of Punjab, 1983

The learned judge in this case, held that the acts which are arbitrary and violative of fundamental rights as according to the golden triangle rule, it would strike down such acts and treat them as unconstitutional because there was a denial of rule of law. 

In this case the scope of Art 14 was widened as that the article does not only provide provision for equality among people but also grants against arbitrary actions by the state.

 

Recent scenario regarding Article 14, how it has impacted India

CAA, 2019 and Art 14 of Indian Constitution

Recently, Citizenship Amendment Act, 2019 has been implemented which created riots all over India.

The purpose of the bill:

  1. The intention of the bill passed was to provide Indian Citizenship to illegal refugees coming from 6 communities such as Hindu, Buddhist, Sikh, Christian, Jain and Parsi coming from the countries Pakistan, Bangladesh, and Afghanistan.
  2. To check the entry and exit of the foreigners to India and to keep track of illegal migrants to imprison them under the Foreigners Act, 1946 and the Passport (entry into India) was the perspective of the parliament to pass this bill.

In this bill provision was made as under;

  1. The provision was made for the migrants of six religious communities of the country by granting Indian Citizenship to them. It has created discrimination against a particular community.
  2. The provision was also made on acquiring citizenship as naturalisation, which says that it has reduced the period of 5 years instead of 10 years for certain persecuted Hindu minorities in muslim countries i.e if any person from the above mentioned community and country resides in India for about 5 years or more of it may be automatically given Indian citizenship by naturalisation.

This enactment created a tragedy in India, all the citizens of India came on the streets opposing CAA on the ground that it was clearly violative of Art 14 of the Indian Constitution, because only certain religious communities were included and other communities were excluded thereon.

There are several petitions filed on the same. One such case is explained here;

Indian Union Muslim League v. Union of India, 2020

The petition was filed on the ground of inequality among the people, discrimination among the people who are being granted Indian Citizenship in certain six religious communities which is a violation of Art 14. The supreme court will rule the case according to the constitutionality of the CAA, 2019.

 

Strong reply by the Government to the ongoing protests against CAA

The below are grounds for approval of the CAA bill:

  1. The center did not consider the bill as anti-Muslims. The Home Minister of India Amit Shah said that this act nowhere discriminates the Muslims or any other community of the people.
  2. The government also said that there was no violation of the fundamental rights of any individual in the society.
  3. The act mainly concentrated on the aspect of giving citizenship to the refugees coming from the three countries mentioned in the act, therefore the refugees have to be given Citizenship without considering any documents but should not exclude their ration.
  4. Therefore, the bill does not create any unequal treatment within the people, importantly it was not against the community of Muslims. So, the bill CAA has created discrimination in the eyes of fools.

Thus, the bill was approved by the President of India because though it created a contradictory situation around the territories of India it was not unconstitutional.

Covid – 19 and equality

Equality during covid crisis has increased gender inequalities and women are majorly facing this issue. Though in this negative side of equality in India, the state has provided a positive decision regarding the same.

Hina Haneefa V. State of Kerala, 15th March, 2021

Facts:

Plea challenging sec 6 of National credit corps filled by Hina Haneefa (trans women) who is seeking permission to enroll in NCC. The NCC act does not recognize the third gender and does not permit to enrolment of that category.

Issues:

Section 6 of the NCC act only recognizes two genders i.e female and male which disrespects person’s dignity under transgender protection and right in 2019. The petition was not in its arbitrary matter which is also included the sensitive matter of discrimination against transgender.

Held:

Justice Anu Shivaraman held that the petitioner will be entitled to participate in the selection process on the basis of her application. If she is successful, the petitioner will be enrolled in NCC Unit.

 Court also directed the NCC to amend the enrolment criteria prescribed u/s 6 of the NCC Act to include transgender persons and to provide guidelines for enrolling transgender persons also in the NCC within six months period.

Such cases depict the present scenario of the paradox of equality in India.

Conclusion

Equality is the soul of liberty; there is, in fact, no liberty without it – Frances Wright.

Though India is independent country equality is still not attained properly bounding with inequalities all across. Indian is striving hard to promulgate laws regarding the same and will surely acquire it one day. Equality is a simple but wide concept which must be followed from the education field to all the other fields as Sonia Sotomayor says that “Until we get equality in education, we won’t have an equal society”.

Art 14 though guarantees equality before the law as well as equal protection of the law to all the people living within the territory of India. Sometimes acts and rules are framed against it which increases riots all over the country among the people with creating hatreds among the people which is exactly contradictory to Indian policies, whereas India follows unity in diversity policy inequality acts as an enemy to the people and the country.

While as I mentioned in the CAA tragedy in India there were a lot of petitions filed against the government on grounds of inequality and unconstitutional. But since, the bill is not unconstitutional by the government of India, the decision may deem to dismiss the petition filed against government.

The democracy of our country can only be flourished if all the people of India are treated equally without discrimination among them. It is very necessary to remove the inequalities based on gender, age, caste, religion etc. Because though India had attained independence since 1947, inequalities have occupied the areas of India and ruled all people on the basis of discrimination.

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References

  1. Chief Joseph quotes. (n.d). BrainyQuote.com. https://www.brainyquote.com/quotes/chief_joseph_280225 ( last visited 25th Aug, 2021).
  2. The Constitution of India, 1950, Preamble.
  3. N. Pandey, The Constitutional Law of India 66 (10th ed. June 1980).
  4. Air India v Nargesh Meerza, [1978] 2 SCR 621.
  5. Maneka Gandhi v UOI, (1978) 1 SCC 248.
  6. Bachan Singh v. State of Punjab,1982 AIR 1325, 1983 SCR (1) 145.
  7. Sparsh Upadhyay, Muslim League Moves Supreme Court Challenging Centre’s Notification Allowing Minorities Of Afghanistan, Pakistan & Bangladesh To Apply For Indian Citizenship, LiveLaw, 1st June, 2021, 12:36 pm. https://www.livelaw.in/top-stories/supreme-court-muslim-league-centres-notification-allowing-minorities-of-afghanistan-pakistan-bangladesh-to-apply-for-indian-citizenship-175003?infinitescroll=1
  8. Hina Haneefa v. State of Kerala, 15th March, 2021, w.p.(c).No. 23404/2020.

Author: Shrishyly. V (BMS College of Law, Basavanagudi, Bengaluru)

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