This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 5 - Lecture 5 By Prof. (Dr.) Faizan Mustafa Namaskar, welcome to online course on Constitution of India which is being offered by Nalsar University of Law in collaboration with Ministry of Law and Justice Government of India. Today we are going to talk about a very important fundamental right that is right to equality. Now first of all we should understand why fundamental rights as such are important. So fundamental rights, human rights, basic rights, natural rights, civil and political rights, these are the various names which are given to these important rights. We must understand all fundamental rights are human rights but all human rights are not fundamental rights. Only some of the human rights have been incorporated in part three of Indian Constitution as fundamental rights. Some other human rights will find a place in the directive principles of state policy. Now fundamental rights also incorporate what we already discussed in our lecture on preamble, ideas of liberty, equality, fraternity, justice and above all dignity of the individual. Fundamental rights also serve the goal of constitutionalism in terms of putting negative restrictions on the powers of the state. Now part three of Indian Constitution which deals with fundamental rights starts with the definition of a state in article 12. Why state is the primary address of fundamental rights? Because of the enormous powers which state enjoys, state is in the best position to violate rights. And that's why generally state is addressed that state shall not deny liberty, state shall not deny equality. Let us come to article 12 and understand what is the meaning of the state. State under article 12 means government of India and parliament of India, government and legislatures of each state and local or other authorities within the territories of India or under the control of government of India. What are the examples of local authorities, municipalities, panchayats, recently you had elections in the union territory of Jammu and Kashmir on DDC. Now this is also a local authority. In terms of other authorities, a lot of jurisprudence developed, number of judgments were given by the Supreme Court but let us say O and G.C. was held to be a state. Life insurance corporation L.I.C. was held to be a state but judiciary is not a state. Therefore, if judges are giving judgments, you cannot challenge them as a relative of fundamental rights. But if judiciary is acting in the administrative position, then they can be a state. Political parties are not a state and Supreme Court is strangely held, B.C.C.I. is not a state. Now, let us go to article 13, very important article. Of course, Supreme Court Justice Patanjali Shastri had said that article 13 was included in the Constitution out of abundant caution. Even if that article is not there, you cannot make any law which is violating of fundamental rights. So, article 13 says all the pre-constitution laws so far they are inconsistent in the fundamental rights on the commencement of the Constitution that is 26 January 1950, they become void to the extent of inconsistency. You know, you have number of pre-constitution laws, Indian contract, transfer of property, sale of goods, partnership, civil procedure code, Indian penal code, all these laws are to be tested today on the touchstone of fundamental rights. For future article 13 clause 2 says no law can be made which contravenes fundamental rights. There are three doctrines which we must understand. One is doctrine of eclipse. Now, what is this doctrine of eclipse? You must have heard of lunar eclipse, solar eclipse. Eclipse means overshadowing. When you don't see sun or you don't see moon, that does not mean moon or sun does not exist. They exist, but some other body overshadows them. So, now fundamental rights overshadow all the laws. And therefore, if some law is violating of fundamental rights, doctrine of eclipse comes into picture. If the problem in that law, the violation in that law is removed, then the law will be revived. Doctrine of severe ability. If a law is passed which has 100 sections, only one section is violated of fundamental rights. So, this section will be severeed from rest of the section and only this section will be stuck down as null and void by the courts. Then we must understand fundamental rights being natural rights, basic rights every human being is born with those rights are not subject to waiver. No citizen, nobody has a right to say, I have waived my right, no one can waive his right. Let us see what are our fundamental rights. So, you have right to equality from article 14 to 18, right to freedom from articles 19 to 22, right against exploitation, article 23 and 24, right to freedom of religion, articles 25 to 28, cultural and educational rights, article 29 and 30, by the 44th amendment in 1978, right to property was deleted as a fundamental right. That does not mean today anyone can take away somebody's else's property. It is not a fundamental right, but it remains a legal right. And after the 44th amendment of the constitution rights given in article 20 and rights given in article 21 are now non-dero-gabel rights. Therefore, even during emergency, these rights cannot be suspended. Now, look at the framers of our constitution. When they drafted fundamental rights, they showed their vision of India. And the vision of my great country is there are rights which we give only to our citizens. So, rights given in article 15, 19, 29 are rights of only our citizens. So, our citizens have a right for instance to non-discrimination. State and article 15 cannot discriminate against any citizen on grounds only of religion raised caste, sex, place of birth. Similarly, freedom of speech and expression, right to reside and settle anywhere in India, right to form associations or unions. These are the rights given in article 19 only to the citizen. Similarly, right to conserve culture is a right of citizens. Then there are rights which we have given to all natural persons including foreigners. So, rights under article 20, article 21, article 25 are given even to foreigners. Any foreigner on our soil will also have freedom of religion. Any foreigner on our soil will also have right to life and right to personal liberty. Similarly, there are rights which we give not only to natural persons but also artificial persons. What are artificial persons? Juristic persons. In law, there is a fiction that a company is also a person. So, a company is also entitled to rights under article 14 which is right to equality. Now, come to right to equality which is article 14 and as I said fundamental rights basically are addressed to the state. So, article 14 says, state shall not deny and then it says to any person which includes even a juristic person, even a company, even an idol. Equality before law. An equal protection of laws within the territory of India. Two expressions are used. Equality before law, this has been borrowed from British concept of rule of law. Equal protection of laws, very important expression has been borrowed from the 14th amendment of United States Constitution. Both these expressions are there in article 7 of universal declaration of human rights, 1948 which was adopted by the general assembly while we were drafting our Constitution. So, probably we picked it up from article 7 of universal declaration of human rights. Now, in equality before law, this term law is used in generic or philosophical sense. But when we come to equal protection of laws, then it is in the context of specific laws. And now courts have held that right to equality is the part of basic structure of the Constitution and therefore, this right can never be deleted. Equality, word when I use, you may think everyone is to be given a same treatment. No, that is not the idea of equality. Equality does not mean same or equal or uniform treatment for all. Equality does not mean everyone will be treated equally. So, unequals are not to be treated equally. Equals are to be treated equally. People who are circumstance in similar manner will be similarly treated. Therefore, classification is permissible. Law within the class will be same. Likes will be treated alike. So, this classification is permissible. Why classification is permissible? Because you will say there will be one law for this class and another law for other classes. So, there can be a law even against one individual or law against one company. If that company or that individual constitutes a class in himself or itself. How do we test the validity whether the classification which has been made is good classification, a legitimate classification. We have to look at three things. One, the classification must be reasonable. It must be based on intelligible differential. People who are picked up and people who are left out. There are intelligible differences between them. You cannot say we are making a law for people who have black hairs and people who have golden hairs will not be covered by this law. This kind of classification is not reasonable classification. You cannot say we will pass one law for tall people and another law for short people. This kind of classification is not permissible. Then this classification which is reasonable which is based on intelligible differential must have a rational and lawful object to achieve. Let me give you an example. Section 11 of the Indian contract says minor cannot enter into a contract. Now if a minor who is an Indian citizen, he says how come law does not allow me to enter into a contract. This classification based on age is not correct. The classification is right because minors do not have the same kind of maturity as compared to majors or adults. So classification is reasonable. And then this classification is based on intelligible differential between adults and minors. And it has a rational object to achieve. What is the object to achieve? Minors should not be forced by adults to enter into contracts against their own interest. Minors will not be able to understand all the implications of the contractual liabilities they are undertaking. And therefore law says a minor's contract is void. And this classification is reasonable. It has a rational object to achieve and it is based on intelligible differential. Therefore it is a valid classification. Now let us move further in this classification. When you are making classification law is based on common sense. So it does not expect that the classification should be based on mathematical nicety or should be scientifically perfect or logically complete. That is not the demand of law or demand of article 14. Article 14 does not say that there must be identical treatment. And then our law says if parliament or state legislature passes a law there shall be a presumption of constitutionality of law. And anyone who challenges that law he has the burden to prove that the law is unconstitutional. So if say citizenship amendment act is challenged the burden of proof will be on the petitioner. The court will start with this that this law is constitutionally valid because there is a presumption that parliament knows constitution. And it is not expected to pass any law contrary to the constitutional provisions. Now let us look at some of the examples of classification. Let us first take what are valid classification. Taking over the management of a company there was a law passed against one company which was involved in the production of an essential commodity and the court said this law is valid. There are laws which have been passed over the decades to set up special courts for special crimes. This classification is valid. There is a law which says non-resident indians NRIs will pay higher fee. Now this classification between indians and NRIs is a valid classification. Let us look at some of the bad classifications. There was a law which provided for district wise reservation that for this district this much reservation will be there. It was a shutdown. Similarly Christian for instance if a Christian is making a will then the will must be made 12 months before his death. Now this kind of law is not there for other communities. The law of will is very clear. Whatever is the last will before death will be taken as the valid will and therefore court is stuck it down. Or the reservation for the people of hills was not accepted as a reasonable classification. Now Supreme Court has liberalized the doctrine of equality and Supreme Court has said equality is a dynamic concept and cannot be crypt cabined and confined within the traditional and doctrine of the limits. And therefore now it is not enough that a classification is reasonable. It is based on intelligible definition. It has a rational object to achieve. There is a fourth condition. It must not be arbitrary. Triple divorce was struck down by the Supreme Court because it was found to be arbitrary. Now let us go to some of the prohibitions which are there in Article 15 which is a facet of right to equality. Again it is addressed to the state. The state shall not discriminate against any citizen on grounds only of religion. Race, caste, sex, place of birth. The crucial word is only. There cannot be a discrimination on the sole basis of religion, race, caste, sex, place of birth. And then Article 15 says, no citizen on grounds of religion, race, caste, sex, place of birth shall be subject to any disability, liability or restriction. With regard to access to shops, public restaurants, hotels, places of public entertainment, use of wealth, tanks, bathing arts, roads and public resorts, maintain wholly or partly out of state funds but dedicated to use of general public. When I tell you about Article 17, you will know the historical context of untouchability. Article 15 is addressing that. All public restaurants, public shops, roads, they are for everyone and therefore there cannot be any discrimination. Let us look at other provisions of equality. There is one formal equality and there is one substantive equality. Say if there are two people and four breads and if you give two breads to one person, two breads to another person, it will be Aristotolian former equality. But one person may not need two, he for him one bread is enough and the other person may be very hungry or has a greater appetite, he needs three. So if you give two breads to one person, one bread is getting wasted because one person wants only one. If you give to the other person only two who wants three, he still remains hungry and that is why classification. Therefore substantive equality requires taking into account distinctions, differences and therefore Article 15, clause 3 says that state can make special provision for women and children. And then in Article 15, clause 4 and Article 15, clause 5, if state is permitted to make special provision for the advancement of any socially and educationally backward classes of citizens or schedule caste and schedule trial. In 2019 by 100 and third constitutional amendment, another clause was inserted, Article 15, clause 6 which now provides for the first time in our constitutional history a provision for the advancement of any economically weaker sections which are not covered by clause 4 and clause 5. So people who are economically weaker for them also state can make a special provision and the government has made a special provision of 10% reservation for them. Now let us come to other provisions of equality. Article 16 talks of equality of opportunity in matters of public employment which we will discuss at length in the next lecture when we talk about reservation policy. Come to Article 17, it is talking about untouchability in inverted commas. Why? Because this is not a mere word, it has a context, a historical context. And it also shows Article 14 which talks of equality or 15 which prohibits discrimination on certain grounds may not be enough to remove untouchability. And therefore, Article 17 says untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arriving out of untouchability shall be an offense punishable in accordance with law. Historically, certain sections of people have been discriminated and therefore, you needed a special article for it. Similarly, in Article 25, the birth of temples have been opened for everyone. Then in 1955, as per Article 17, that it will be a punishable offense if you practice untouchability, untouchability offenses act was passed. But it was realized that it gives few and small punishments in 1976, the act was amended and was renamed as protection of civil rights act 1955. Still untouchability atrocities against schedule cast and schedule tribes continued. Therefore, Parliament in 1989 enacted what is called, schedule cast and schedule tribes prevention of atrocities act, SCST act. In 2018, Parliament had to amend this act because Supreme Court gave a decision by which Supreme Court said, an FIR will not be registered under this act without preliminary inquiry. Permission is required for arresting a person, Parliament overruled the Supreme Court judgment by amending the act and subsequently Supreme Court also recalled its erroneous judgment. Now come to Article 18 which is also part of right to equality. In the olden days, somebody was called Raja, Rai Sahab, Maharaja, Sir. Now this is gone. Article 18 says, no title, not being a military or a academic distinction shall be conferred by the state. You can have an academic title. So I am a doctor because I did PhD. If you go to military, you can get military titles and honors. And then Article 18 says, no citizen to accept any title from any foreign state. But unlike Article 17, if you indulge in untouchability, you will be punished under protection of civil rights act or a SCST act. For Article 18, if you accept a title from a foreign state, you will not be punished. There is no law which makes it punishable. In 1954, government of India introduced four awards, Padamshiri, Padambhushan, Padambhushan and Bharatratna. These awards were abolished by the Janta government in 1977. But when Mrs. Gandhi came back to power in 1980, they were reintroduced. Supreme Court upheld these awards by saying that they are not the titles which Article 18 prohibits. But the court said that these titles or awards cannot be added as suffix or prefix names. What did we learn today? We learned that fundamental rights are negative restrictions on the power of a state. Right to equality is based on the British concept of rule of law, an American concept of right to equality given in amendment 14 of US Constitution. Equality does not mean uniformity that everyone is to be treated equally. It means likes are to be treated alike. Reasonable classification is permissible if it is not arbitrary and it has rational object. In the next lecture, we will talk about reservation policy, very important subject. Why reservation policy was adopted? How it has worked? What improvements can be made in our reservation policy? Thank you very much, Danevad. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).* Last updated: 2026-02-21 22:20