Art. 14

Art. 14 : The State not deny to any person equality before law or the equal

               protection of the laws within the territory of India

Ø  The concept of equality before law and equal protection of law encompasses social and economic justice in a political democracy.

Ø  Equality before law is a negative concept implying -

a)      absence of any special privilege by reason of birth, creed or the like, in favour of any individual

b)      equal subjection of all classes to the ordinary law

Ø  Equal protection of law is a positive concept implying -

a)      right to equality of treatment in equal circumstances

     I.        Equality before law

1)      Equality before law is correlative to the concept of 'Rule of law'

2)      It is a declaration of equality of all persons within the territory of India, implying thereby the absence of any privilege in favour of any individual

3)      It means that no man is above the law of the land and that every person, whatever be his rank or status, is subject to the ordinary law and amenable to the jurisdiction of the ordinary tribunals

NOTE :-

1)      The concept of equality before law does not involve the idea of absolute equality

2)      Art. 14 guarantees the similarity of treatment and not identical treatment

3)      Art. 14 does not require that the legislative classification should be scientifically or logically perfect

4)      the concept of equality permits rational or discriminating discrimination {rational discrimination}

5)      Conferment of special benefits or protection or right to a particular group of citizens for rational reasons is envisaged under Art. 14 and is implicit in the concept of equality

Exceptions : The exceptions allowed by the Indian Constitution are -

1)      Art. 361(1) : The President or the Governor of a State shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

2)      Art. 361(2) : No criminal proceedings whatsoever shall be instituted or continued against the President or the Governor of a State in any court during his term of office.

3)      Art. 361(4) : No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office

NOTE : The above immunities, however, shall not bar -

       i.        impeachment proceedings against the President

     ii.        suits or other appropriate proceedings against the govt of India or the govt of a State

 

4)       Besides the above Constitutional exceptions, there will remain the exceptions acknowledged by the community of nations

 eg - in favour of foreign sovereigns and ambassadors

Rule of law

1)      Absence of arbitrary power i.e. no man can be punished except for a breach of law

2)      Equality before law i.e. no one is above the law and equal subjection of all citizens to the ordinary law of the land

3)      the Constitution is the supreme law of the land and all laws passed by the Parliament must conform with the provisions of the Constitution

II.     Equal protection of law

1)      Among equals the law should be equal and equally administered; Likes should be treated alike

2)      Equal protection requires affirmative action by the State towards unequal by providing facilities and opportunities

3)      In other words, it means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the laws

4)      Implicit in the concept of equality is the concept that persons who are unequally circumstanced cannot be treated on par. However, unequals cannot be clubbed.

v  It does not mean that every person shall be taxed equally, but that persons under the same character should be taxed by the same standard.

5)      Art. 14 prohibits "class legislation" and not "classification for the purpose of legislation"

 i.e. The legislature can classify persons for legislative purpose so as to bring them under a well defined class.

6)      The classification should not be arbitrary, it should be reasonable and be based on qualities and characteristics that have relation to the object of legislation.

 

NOTE :-

a)    The legislature is competent to exercise its discretion and make classification

b)   It is for the legislature to identify the class of the people to be given protection and on what basis such protection is to be given

c)    The court cannot interfere

7)      The guarantee of equal protection applies against substantive as well as procedural laws.

In short, Art. 14 hits arbitrariness of State action in any form. Any act which is discriminatory is liable to be labelled as arbitrary. Reasonableness and fairness is the heart and soul of Art. 14.

 

Citizenship

Meaning of Citizenship :- A citizen is a person who enjoys full membership of the community or State in which he/she ordinarily lives.

 

Citizens and Aliens

Ø  The population of a State is divided in 2 classes - citizens and aliens

Ø  While citizens enjoy full civil and political rights, aliens do not enjoy all of them.

Ø  The citizens of India have the following rights under the Constitution which aliens shall not have :-

1.      Some of the fundamental rights belong to citizens alone, such as, Art. 15, 16, 19

2.      Only citizens are eligible for certain offices, such as those of the President [Art. 58(1)(a)]; Vice President [Art. 66(3)(a)]; Judge of the Supreme Court [Art. 124(3)] or of a High Court [Art. 217(2)]; Attorney General [Art. 76(2)]; Governor of a State [Art. 157]; Advocate General [Art.165]

3.      The right of suffrage [Art. 326] and the right to become MP [Art. 84] or MLA [Art. 191(d)] are also confined to citizens.

v  All the above rights are denied to aliens

 

Note :

1.     The Constitution did not intend to lay down a permanent or comprehensive law relating to citizenship in India.

2.    It simply described the classes of persons deemed to be citizens at the date of the commencement of the Constitution and left the entire law of citizenship to be regulated by some future law made by Parliament.

3.    Parliament has enacted the Citizenship Act, 1955 making elaborate provisions for the acquisition and termination of citizenship.

 

Acquisition of Citizenship

The citizenship Act, 1955 provides for the acquisition of Indian citizenship after the commencement of the Constitution in five ways :-

1.      Citizenship by birth -

a)      Conferred on those born in India on or after January 26, 1950 but before July 1, 1987

b)      those born on or after July 1, 1987 but before December 3, 2004  if either of his/her parents was a citizen of India at the time of his/her birth

c)      on or after December 3, 2004 if both of his/her parents are citizens of India or one of whose parents is citizen of India and the other is not an illegal migrant at the time of his/her birth  

d)      the latter provision was added by an amendment to citizenship act in 1986 to prevent illegal immigration from Bangladesh, Sri Lanka etc

      2. Citizenship by descent -

a)      a person born outside India on or after January 26, 1950, shall be a citizen by descent, if one or both of his/her parents are citizens of India at the time of that person's birth

     3. Citizenship by registration -

a)      Any person who is not a citizen can apply for registration as a citizen if he/she belongs to any of the following categories :-

        I.            persons of Indian origin who are ordinarily resident in India for five years immediately before making an application for registration

      II.            person of Indian origin who are ordinarily resident in any country or place outside India

    III.            person who are married to citizens of India

    IV.            minor children of persons who are citizens of India

      V.            persons of full age and capacity who are citizens if a country mentioned in schedule I to the Act

b)      the person must have resided in India for at least five years immediately before making an application for registration as a citizen

     4. Citizenship by naturalisation -

            A foreigner can acquire Indian citizenship by naturalisation provided he/she satisfies certain conditions like:-

a)      resided for at least 10 years in India immediately before making an application

b)      not a citizen of a country where Indian citizens are prevented from becoming citizens by naturalisation

c)      renounces his/her citizenship of other country

d)      resided and/or bear in govt service for 12 months immediately preceding the date of application

e)      during 7 years prior to these 12 months, he/she has resided and/or been in govt service for not less than 4 years

f)       good character

g)      adequate knowledge of a language recognised by the Constitution

h)      after naturalisation he/she intends to reside in India

Note :- If Central govt is of the opinion that the applicant has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress, it may waive the conditions for naturalisation in his/her case.

      5. Citizenship by incorporation of territory -

a)      If any new territory becomes a part of India, the Govt of India shall notify the persons of that territory to be citizens of India

 

Loss of Citizenship

The Citizenship Act, 1955 lays down three modes by which an Indian Citizen may lose his citizenship :-

1.     Renunciation

a)      It is a voluntary act

b)      a person after acquiring the citizenship of another country gives up his Indian citizenship

       2. Termination

a)      It takes place by operation of law

b)      when an Indian citizen voluntarily acquires the citizenship of another country, he automatically ceases to be an Indian citizen

      3. Deprivation

a)      It is a compulsory termination of the citizenship of India obtained by Registration or Naturalisation

b)      the citizenship is deprived on the basis of an order of the Govt of India, in cases involving acquisition of Indian citizenship by fraud, false representation, concealment of material fact or being disloyal to the Constitution etc.

 

One Citizenship in India

A person born or resident in any State can acquire only one citizenship, namely, that of India and the civil and political rights which are conferred by the Constitution upon the citizens if India can be equally claimed by any citizens of India irrespective of his birth and residence in any part if India.

However, permanent residence within a State may confer advantages in certain other matters :-

1.     Art. 16(3)

                                     i.        there shall be no qualification for residence for employment under the Union but by Art. 16(3), Parliament is empowered to lay down that as regards any particular class or classes of employment under a State or a Union Territory residence shall be necessary qualification.

                                    ii.        Parliament would be the sole authority to legislate in this matter and that State Legislature shall have no voice.

     2. Art. 15(1)

                                     i.        Art. 15(1) prohibits discrimination on grounds only of race, religion, caste, sex or place of birth, does not mention residence.

                                    ii.        It is constitutionally permissible for a State to confer special benefits upon its residents. eg - levying concessional admission fees to State educational institutions to its residents.

     3. Art. 370

                                                        i.            the legislature of the State of Jammu and Kashmir is authorised to confer special rights and privileges upon persons permanently resident in the State -

a.      employment under the State govt

b.      acquisition of immovable property in the State

c.       settlement in the State

d.      right to scholarships and such other forms of aid

 

Distinctive features of Indian federalism

 

Though the Constitution possesses the essential features of a federation, it differs noticeably from the typical federal systems of the world in certain ways. These are the following:-

1.      Art. 249

¨      If Rajya Sabha passes a resolution by two-third members present and voting,

¨       that it is necessary in national interest that Parliament should make laws with respect to any matter enumerated in the State List,

¨       the Parliament can make laws for the States with respect to that matter

¨      for a period not exceeding one year and extendable upto one year at a time.

      2. Art. 352

§  during a period of national emergency

¨      Parliament can make law on matters in the State List

¨      give directions to the States as to how they should exercise their executive aurthority

¨      empower the Union officers to execute matters in the State List

¨      suspend the financial provisions of the Constitution

     3. Art. 356

§  If the President is satisfied that the govt of a State cannot be carried on in accordance with the provisions of the Constitution, he can -

¨      issue a proclamation to that effect

¨      assume all the functions of the govt of the State including powers of the Governor (Exception - he cannot assume any of the powers vested in or exercisable by the High Court)

¨      authorise Parliament to exercise the powers of the State legislature

      4. Art. 360

§  In case of declaration of financial emergency, the President can issue directions -

¨      for the reduction of salaries and allowances of public servants belonging to the Union or the States

¨      all money bills passed by the State legislatures are also subjected to the control of the Centre

     5. Art. 3

¨      The Constitution does not protect the territorial integrity of the States. Territorial integrity of constituent unit, as emphasised in other federal constitution, is absent in the Indian Constitution.

¨      the Parliament can by unilateral action increase or diminish the area or alter the boundaries or alter the name of any State.

¨      India is an 'indestructible Union of destructible States' as against the federal system of the USA which is 'indestructible Union of indestructible States'.

      6. Position of the Governors

¨      The Governors of the States are appointed by the President and to the extent they exercise their powers in their discretion, are answerable to him.

¨      Although the Governor is the head of a State, yet he can be removed and transferred by the Central govt and State govts do not have any say.

      7. No double citizenship -

¨      The Indian Constitution does not envisage dual citizenship.

¨      There is no State citizenship.

¨       Every Indian has the same rights of citizenship, no matter in what State he resides.

       8. Constitution -

¨      The States does not have the right to make their own Constitutions except Jammu and Kashmir.

¨      The Constitution of the Union and the States is a single frame from which neither can get out and within which they must work.

       9. Amphibian character of Indian Constitution -

¨      In normal times, it is framed to work as a federal system, but in times of war and other national emergencies it is designed to work as though it was unitary.

     10. Common All India Service -

¨      yet another pointer to unitary character of the Indian Constitution

¨      members of All India Services like IAS, IPS etc are appointed by the President on the recommendations of the UPSC and they remain in office as long as they enjoy the pleasure of the President.

¨      practically, they are accountable to the Union govt

¨      the States do not enjoy any control over the members if these services and always complain about the partisan outlook of these officers

    11. Single, unified and hierarchically integrated Judiciary -

¨      unlike other federal systems of the world, Indian Constitution provides for a single, unified and integrated judiciary with the Supreme Court at the apex

¨      the judges of the High Courts are independent of the States, which do not have any say with regard to their appointment, removal and service conditions

¨      There are no separate sets of laws for the Union and the States

¨      a single civil and criminal procedure operates throughout the country

¨      yet another unitary feature of the Indian Constitution

     12. Common and Centralised Election Commission -

¨      The Constitution provides for one Election Commission which is responsible for the conduct, supervision, direction and control of the elections for both, Parliament and State legislatures.

¨      members of the commission are appointed by the President and the States have no role to play in their appointment, removal, working or service conditions

¨      yet another unitary feature of the Indian Constitution

      13. Members of Rajya Sabha -

¨      Unequal representation of States in Rajya Sabha based on the criterion of population

¨       Apart from this, the President nominates 12 members to the Rajya Sabha

¨       Uneqal representation and nomination of members is a clear violation of federal principles

       14. Comptroller and Auditor General (C &AG) -

¨      It is a constitutional authority who is responsible for the audit of the accounts of both, the Union and the State govts.

¨      Appointed by the President and removed by him with the approval of the Parliament

¨      The States have no say in appointment and removal of C &AG.

       15. Art. 368 : Amendment procedures -

¨      the procedure for amendment is generally rigid under a federation but unlike other federal systems, the Indian Constitution provides for a comparatively simple procedure

¨      only the Parliament can propose the amendments to the Constitution

¨      A majority of Constitutional provisions can be amended b the Parliament itself

¨      States have their role only in those matters which affect the federal interests i.e. a Bill for amendment in matters of federal concern needs to be ratified by the legislatures of not less than one half of the States.