This Article was originally published in Nepal Law Review, Volume 28, Number 1 & 2.
This work can be cited as: Manaj Jyakhwo, Right to Equality, NEPAL LAW REVIEW, (Vol 28, No. 1 & 2), Nepal Law Campus, Faculty of Law, Tribuvan University, Kathmandu, Nepal, at, 477-484, (2019).
Constitutional
Jurisprudence of Equality
Manaj
Jyakhwo*
Equality as a fundamental principle governing
rule-making and rule-application plays a central role in most modern
constitutions and international human rights instruments. Egalité was one of the proclaimed goals of
the French Revolution; and in the first clause of the 1789 Declaration of the
Rights of Man and of the Citizen it is declared that "Men are born and
remain free and equal in respect of rights.” The Fourteenth Amendment to the
United States Constitution, which was adopted to entrench the outcome of the
Civil War, but has since been applied to areas other than race, stipulates that
"No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” The International Covenant on Civil and Political Right
adopted in 1966, stipulates in Article 26 that “All persons are equal before
the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination
on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.”
The Philosophical Issue
Equality
is a major component of most theories of justice. For some philosophers, the
very touchstone of justice is equality. Aristotle tells us that "Equality
and justice are synonymous: to be just is to be equal, to be unjust is to be
unequal". And the concept of justice advocated by John Rawls was summed up
as follows:
"First
principle - Each person is to have an equal right to the most extensive total
system of equal basic liberties compatible with a similar set of liberty for
all.
Second
principle - Social and economic inequalities are to be arranged so that they
are both: (a) to the greatest benefit of the least advantaged, consistent with
the just savings principle, and (b) attached to offices and positions open to
all under conditions of fair equality of opportunity".
Equality,
as Professor Laski says, does not merely mean absence of special privileges. It
means that adequate opportunities are laid open to all. Every citizen according
to this right has the inherent right to enjoy all the facilities provided by
the state, or to occupy any position of honour or eminence in the service of
the State. Bentham’s maxim, "Each to count for one, nobody for more than
one.” supports the idea of equality. Besides, equality is the underlying theme
in the central doctrine of AV Dicey’s Rule of Law, which second proposition
states ‘Equality before law and equal subjection of all classes to the ordinary
law of the land administered by the ordinary law courts.’
The principle of equality is implicit in
the concept of human rights, as belonging to all human beings, and therefore to
all equally. The assurance of equality in the enjoyment of rights occupies a
central place in international human rights law, as well as in the
constitutional law of many states. The principle of equality
is recognized in the UN Charter, which affirms that one of the organization’s
purpose is to “achieve international co-operation … in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.” The idea of basic equality
connotes that, for normative purposes, the range of humans is not subject to
any fundamental differentiation along the lines of the differentiation that
some people maintain between humans and animals. We humans are all basically
alike.
Types
1.
Formal Equality
Formal
equality is a belief that, for fairness, people must be consistently or equally
treated at all times. Formal equality appears as
a written set of laws and rules in legal instruments. Formal equality operates
on the idea that all people should be treated as the same. It applies equally
to all human beings without due regard to practical exigencies. Therefore, its
practical application has probability of yielding unequal results among
unequal. One example happens when positions open to all (qualified) candidates
available for hire. This means any person with a fair application has a chance
of getting the job.
2.
Substantive equality
It
requires that laws themselves take account of meaningful differences between
persons: who in fact are equal be treated equally, but that unequal
circumstances be treated differently. Substantive equality goes beyond the
basics of recognizing the equality of everyone and identifies differences among
groups of people with the long-term goal of greater understanding. This version of equality itself
possesses differing not embodying substantive values but merely requiring
non-reasonable differentiations between persons; egalitarian conception of
society and accordingly demanding redistribution in order to ensure true
equality; or a somewhat meaning, as requiring that persons be treated with
equal respect.
3.
Structural equality
By
structural equality is meant constitutional not prescribe or oblige certain
substantive outcomes but rather require that legislation be enacted, executive
measures decisions reached a certain way, and where one objective provision is
to prevent inequalities. Thus, the democratic nature dictates a "one
person, one vote" standard, and candidates have every reasonable
opportunity to the electorate. And the adversary nature suggests that all
citizens have a "right to counsel" in serious controversies.
4. Complementary
equality
By complementary equality
is meant aspects of substantive rights guaranteed in constitutions that have a
distinctive egalitarian thrust. The "Fundamental Rights" provisions
of the Constitution contain some express references to
"non-discrimination", which is the equivalent of equality. Thus, laws
regulating the guaranteed "liberty to exercise the rights" of free
expression, assembly and association must "contain no political, religious
or class discrimination"; and, in guaranteeing religious freedom, the
State undertakes, inter alia, not to "make any discrimination on the
ground of" religion, and, in providing aid for schools, not to
"discriminate between" schools managed by different religious
denominations.
Equal Protection: USA
Virtually no legislation applies
universally and treats all persons equally; all laws classify or “discriminate”
by imposing special burdens or by conferring special benefits on some people
and not other.
The US Constitution guarantees ‘All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.’ This provision aimed to
abolish slavery and establish civil and legal rights for black Americans as
equally as the white Americans. It granted citizenship to all persons born or
naturalized in the US, including former slaves, and guaranteed ‘equal
protection of laws’.
Equal
protection clause, primarily meant for doing away the evils of racial
discrimination and segregation, later became the basis for several landmark
Supreme Court decisions over the year. The cases like Plessy V Ferguson
and Brown V Board of Educationare
concerned with racial segregation between blacks and whites. In Plessy V
Ferguson, Supreme Court advanced ‘separate but equal’ doctrine for
assessing the constitutionality of racial segregation laws. In declaring
separate-but-equal facilities constitutional on intrastate railroads, the Court
ruled that the protections of 14th Amendment applied only to political and
civil rights (like voting and jury service), not “social rights” (sitting in
the railroad car of your choice). The majority opinion goes like ‘Separate treatment did not imply the
inferiority of African-Americans but merely was a matter of state policy.’ The separate-but-equal
doctrine, which segregated blacks from white people in all social life, continued to exist until it was overruled
by Brown V Board of Education. The unanimous decision of the case
states, “… in the field of public education the doctrine of “separate but
equal” has no place. Separate educational facilities are inherently unequal.”
Therefore the case actually established the racial equality and guaranteed
equal protection to political and civil rights and social rights equally. The
decision clearly has established that law and constitution know no-class and
‘Constitution is color-blind and neither knows nor tolerates classes among
citizens’. Further in Loving V
Virginia (1967),
by declaring Virginia’s anti-miscegenation law unconstitutional, the Supreme
Court ended prohibitions on interracial marriage and dealt a major blow to
segregation.
Regarding
gender equality, Reed v Reed opened the door
for challenging discriminatory laws. It marked the first time in history that
the Supreme Court applied the Equal Protection Clause to strike down a law that
discriminated against women.
Equality in India
The constitution of India guarantees the Right to
Equality through Article 14 to 18. Article 14 iterates, ‘The State shall not
deny to any person equality before the law or the equal protection of the laws
within the territory of India.’ It clearly outlaws
discrimination in a general way and guarantees equality before law to all
persons. However some specific provisions against discriminatory behaviors are
covered in subsequent Articles. Article 15 prohibits discrimination on grounds
of religion, race, caste, sex or place of birth. Article 16 guarantees to
citizens equality of opportunity in matters relating to employment or
appointment to any office under the State. Article 17 abolishes
"untouchability" and forbids its practice in form, and Article 18
abolishes titles, other than a military or academic distinction.
In Indian judicial system, a concomitant development of
the 1970s is the expansive interpretation of the right to equality. Towards the end of 1973,
Bhagwati J, in E.P. Royappa v State of Tamilnadu
expounded on the concept of equality inscribed in Article 14 as follows: “Equality
is a dynamic concept with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From
a positivistic point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies, one belongs to rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both according to
political logic and constitutional law and is, therefore, violative of Article
14.”
In Madhu Limage V Superintendent, Tihar Jail, Delhi,
it was held that difference Indian and European prisoners in the matters of treatment
and diet violates Article 14. In an another instance, the government once
announced a liberalized pension scheme for retired government servants but made
it applicable to those who had retired after March 31, 1979. This provision was
held to be discriminatory as violating Article 14 in D.S. Nakara v Union of
India,
as all pensioners form one class for the purpose of revision of pension and
division of pensioners into two classes on the basis of date of retirement is
not based on any rational principle. Similarly, a gender-discriminatory law was
struck down in Air India v Nergesh Meerza case.
In this case a regulation providing for termination of service of an
air-hostess in Air India International on her first pregnancy has been held to
be arbitrary and abhorrent to the notions of a civilized society.
The scope of Article 14 extends to the tax
laws too. Tax laws must pass the test of Article 14. However, taxing statutes
enjoy more judicial indulgence because picking and choosing within limits is
inevitable in taxation. The courts adopt a more tolerant attitude towards a tax
law. The Supreme Court in State of Andhra Pradesh & Anr V Nalla Raja
Reddy & Ors
declared void land revenue imposed at a flat rate on land without taking into
account the quality or productivity of land.
Right to Equality: Nepal
The
notion of equality has taken its root and advanced in Nepal ever since the
inception of Government of Nepal Act 2004 (1948). The level of defacto
realization of equality is a matter of research, however the dejure provision
kept on advancing and becoming more luculent in a fashion that the equality
provision is more progressive in existing constitution than that in the
previous one. The equality provision of existing Constitution of Nepal is
consistent with and its wordings are much inspired by provision of ICCPR
Article 26.
The
existing Constitution of Nepal guarantees Right to Equality in Article 18. The
provisions of Sub-Articles 1 to 5 of Article 18 guarantee general as well as
specific equality along with privilege of affirmative action. Article 18(1)
reads, ‘All citizens shall be equal before law. No person shall be denied the
equal protection of law.’ Two concepts are involved in it, viz; ‘equality
before law’ and ‘equal protection of law’. The first concept ‘equality before
law’ is equivalent to the second corollary of the Dicean Rule of Law. It is the
negative concept which ensures that there is no special privilege in favor of
anyone, that all are equally subject to the ordinary law of the land and that
no person, whatever be his rank or condition, is above the law. The second concept
‘equal protection of law’ is positive content. It does not mean that
identically the same law should apply to all persons, or that every law must
have a universal application within the country irrespective of difference of
circumstances. Simply, what it postulates is like should be treated alike in
similar situation. The provision of Article 18(1) corresponds to the equal
protection clause of the 14th Amendment of the US Constitution and
Article 14 of the Indian Constitution.
Sub-Articles (2) and (3) prohibit discrimination of all
kinds in application of general laws and by the State to citizens on any
grounds. Proviso of Sub-Article (3) leaves the room for affirmative action for
the protection, empowerment and development of the citizens including the
socially or culturally backward women, Dalit, indigenous people, indigenous
nationalities, Madhesi, Tharu, Muslim, oppressed class, Pichhada class,
minorities, the marginalized, farmers, labours, youths, children, senior
citizens, gender, persons on pregnancy, incapacitated or helpless, backward
region and indigent Khas Arya. Sub-Article (4) guarantees equal pay for same
work irrespective of gender. It reads, ‘No discrimination shall be made on the
ground of gender with regard to remuneration and social security for the same
work.’
Sub-Article (5) which reads ‘All offspring shall have the
equal right to the ancestral property without discrimination on the ground of
gender.’ is the most progressive provision. The word ‘offspring’ is
gender-neutral and thus the provision ensures gender justice in matters of
ancestral property. It would not be an over-exaggeration to call this provision
an historic achievement achieved through long struggle of gender-equality in
Nepal. In, fact, this sole provision suffices the existing
Constitution of Nepal to stand best alone and among the most constitutions of
democratic countries including USA and India.
Landmark
cases on Right to Equality
1.
Iman Singh
Gurung V. Government of Nepal et al.: In this case, Section 1(3)(D) of the contemporary
Military Act, 2016 B.S. which prevented Iman Singh Gurung from seeking justice
through the regular court system was declared to be inconsistent with the
equality provision guaranteed by Article 11(1) of the Constitution of the
Kingdom of Nepal, 2047 B.S. and was declared void by the court. Through this
case, Supreme Court reaffirmed that every citizen, irrespective of their post
and position, can seek legal remedy from the ordinary court of land.
2.
Man Bahadur BK V
Nepal Governmnet et al.: the Supreme Court declared No.10(A) of Chapter of
Miscellaneous of Muluki Ain, 2020 B.S. as it was inconsistent with the
constitutionally guaranteed Right to Equality.
3.
Meera Dhungana V
Mininstry of Law, Justive & Parliamentary System et al.: The Supreme Court issued a directive order to the
government to enact within 1 year, imparting equality of women in the ancestral
property of parents, after consultation with the concerned stakeholders and
organizations. SC declared No.16 of Chapter of Partition inconsistent with
Right to Equality.
4.
Reena
bajracharya V Nepal Airlines Corporation et al.: SC declared Rule 16(1)(3) of Royal Nepal Airlines
Corporation Service Regulation 2031 void ab initio as the provision is against
the Right to Equality.
5.
Baburam Paudel V
Government of Nepal et al.: SC interpreted that while using discretionary power it
should not be used arbitrarily upon whim and caprice, equal should be treated
equally.
6.
Meera Dhungana V
Ministry of Law, Justice & Parliamentary System et al.: This case criminalizes marital rape. Criminalization of
marital rape is consistent with emerging trend of human rights. Whether rapists
are intruders or kin, they must be subject to equal treatment by criminal law.
Conclusion
Equality
is the prerequisite of justice in every legal system. It
has been recognized as one of the fundamental principles of modern democracy
and government based on the rule of law. Quoting Judge Lauterpacht: “The claim
to equality before the law is in a substantial sense the most fundamental of
the rights of a man. It occupies the first place in the most written
constitutions. It is the starting point of all liberties.” However, mere presence of
dejure equality does not suffice to fully realize defacto equality in real
world unless the related ideas like identity right, property right and liberty
are guaranteed. This fact is vividly clarified by several landmark cases in
USA, India and Nepal.
