#LongRead: Article 14 and the Paradox of Equality

The article argues that although “equality” is proclaimed to be a right inherent in all human beings, in practice, the concept has been given a far more limited effect.

Navroz Seervai

In this article I propose to analyze Article 14 and the paradox of equality. By this I mean that while there have been many broad declarations proclaiming “equality” to be a right inherent in all human beings, in practice, the concept of equality has been given a far more limited effect. Indeed, for large tracts of human history, it has not been recognized as a right at all. To me, as a student of law, politics and philosophy, the concept of equality has always seemed more complex and layered than that of freedom and liberty. This is not to dilute the complexity of these other rights - the age old debate of free will versus determinism rages on 2,500 years after the Greek philosophers grappled with it, and 500 years after Martin Luther and Erasmus crossed swords on this issue, as Christendom teetered on the brink, and was soon thereafter to be torn asunder by the Reformation and the birth of Protestantism.

What is the meaning of equality? It is a beguilingly simple question till you open a dictionary. The Concise Oxford Dictionary defines” equal”, as follows:

when it is used as an adjective:

(1) the same in quantity, quality size degree rank level etc.(often followed by the word “to” or “with.) (2) evenly balanced (3) having the same rights or status,( for example human beings are essentially equal.) (4) uniform in allocation or effect, (equal opportunities.)

When it is used as a noun:

” a person or thing equal to another, especially in rank status or characteristic quality.”

And equality is defined as the status of being equal.

Not surprisingly the words “equal” and “equality” are often used in the world of science, especially physics and mathematics, in the study of philosophy, in jurisprudential studies and the study of constitutional law.

The first questions that come to mind are: Is it possible to achieve perfect equality? Is it a verifiable reality? Can it be guaranteed? The answers to these questions depend on the subject to which it is applied. In the world of mathematics and physics, I venture to suggest that the answer would be in the affirmative.

The moot question is: can the same be predicated for human beings? To answer this question, it may be worth comparing equality as a right with the right to life, and to freedom of thought speech and expression. One school of thought treats these latter two rights as inalienable human rights, rights that inhere in all human beings precisely because they are human. They are natural rights, which all human beings possess and are thus fundamental. Articles 21 and 19(1)(a) of our Constitution embody these rights and recognize them as fundamental.

Capitol Hill

And the relevant part of the first amendment of the U S Constitution states: “Congress shall make no law….abriging the freedom of speech, or the press.” Article 1 of The Universal Declaration of Human Rights states “All human beings are born free….” Article 3 states “Everyone has the right to life, liberty, and security of person.”

Is equality also an inherent, inalienable, natural right? The famous philosopher and chief advocate of the theory of natural rights Jean-Jacques Rousseau said, “man is born free but everywhere he is in chains.” Significantly, he did not say “man is born equal.” For Rousseau recognized that thought at some primeval time men might have been equal, they no longer were.

Now what is the reality? In reality men and women are not born equal. They never were, and I dare say they never will be. If in fact one were to say man is born unequal, it would historically be an accurate statement. From the ancient civilizations of Mesopotamia, Egypt, Babylon, Persia, Greece, and Rome, to only mention some, one thing is undeniable –these civilizations were founded and built on the principle that men were not born equal. There was no equality between men and women, between the rulers and the ruled, between the wealthy and the poor. And each of these civilizations was premised and built on the bedrock of institutionalized slavery. Thus you have in ancient Greece, considered one of the first democracies in civilization, one of its greatest philosophers Plato propounding his philosophy of philosopher kings. In the Republic, Plato wrote that these few wise men would rule in what he envisaged as the precursor to a perfect state-- but a state founded on inequality. In words that are famous, Plato said, “Until then, Kings are philosophers, or philosophers are kings.”

And yet, contrary to this historical reality, we find something interesting, almost intriguing. In July 1776, the American declaration of independence stated in ringing words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Thirteen years later in July 1789, in France, the Declaration of the Rights of the Man and of the Citizen was proclaimed, and resounded around the world--- delighting many and striking terror in the hearts and minds of the absolute monarchs of Europe. Briefly stated, it declared that men are born and remain free and equal in rights including liberty property and security. It guaranteed to all citizens equal justice, freedom of speech and freedom of religion. Once more we have a declaration that men are born and remain not only free but also equal. After all the battle cry of the Revolution was liberte, egalite, fraternite (liberty, equality, fraternity).

But significantly, in that same year, when the Constitution of the United States was originally drafted, it did not provide for equality. Nor too did the Bill of Rights, which on December 15,1791, became the first ten amendments to the Constitution. The first amendment interdicted Congress from making any law abridging the freedom of speech and press. It also guaranteed freedom of religion and freedom of assembly, and petition.

Interestingly, Thomas Jefferson, third President of the United States, was not only one of the authors of that Declaration of Independence of 1776 along with Benjamin Franklin and John Adams (the second President) and the American Constitution; but significantly he also assisted the Abbe de Sieyes and the Marquis de Lafayette in drafting the French Declaration of the Rights of Man.

Well may we ask ourselves: what happened to the “self-evident truth” of 1776 that all men are created equal? A probable answer is that these declarations in America and in France were precisely that – mere declarations. High-sounding principles hurt no one and please everyone! More importantly, as we all know, such declarations are not enforceable against the state in a court of law. But many of the men who drafted and enacted the Constitution lived and prospered in a society built on slavery. Notably, three of the first four presidents were all slave owners, the honorable exception being John Adams. Washington, Jefferson and Madison were most certainly not going to draft a Constitution guaranteeing equality and preventing Congress from making laws which discriminated between persons – men and women, rich and poor, free men (namely white men) and slaves. On the contrary, no less than three articles of the American Constitution recognized slavery and made specific reference to it. For the purposes of representation and taxation, Article I Section 2 Clause 3 equated a slave as being 3/5^th a “free” man. Interestingly, it was another of these articles, which in 1789 had entrenched slavery in America, namely, Article IV Section 2 Clause 3 (the fugitive slave clause) that was responsible, indirectly if not directly, to the civil war, which was fought over the question of the abolition of slavery. This was the very article that the Supreme Court enforced against the escaped slave Dred Scott in the landmark case of Dred Scot vs. Sandford.

Can one venture to suggest that this was a hard-headed recognition, even in the 18^th century---in the age of enlightenment-- both in the United States and in France, first, that man is not born equal, and secondly, that even a state founded on a Constitution guaranteeing to it’s citizens fundamental rights, cannot and will not recognize equality as a fundamental right? History and the events that followed suggest so. In France by 1791 the reign of terror was in full swing with Louis XVI and Marie Antoinette being guillotined; and the saying that “revolutions devour their own children” proved frighteningly prescient, as first Danton and then Robespierre both became victims of the revolution. There was to be no liberty or fraternity, let alone equality in France during this period. On the contrary, terror anarchy and chaos reigned supreme. In November, 1799, Napoleon had launched his bid for supreme power, initially becoming First Consul and then on 2^nd December, 1804, he crowned himself Emperor- the rollback of the revolutionary principles was almost complete. Eleven years later, in 1815, at the Congress of Vienna, when Napoleon had been safely dispatched to St. Helena by his victors, Austria, Prussia, Russia and Great Britain, the autocratic Bourbon monarchy was restored in France.

Fast forward 50 years to April 1865. After a bloody and brutal civil war lasting four years, the slave owning States of the Southern Confederacy had been defeated, and the Union preserved. The Emancipation Proclamation of 1^st January, 1863, by which the slaves were proclaimed as being free, was followed on 9th July, 1868, by the 14^th Amendment. Section 1 of this amendment is important, and the relevant part of it states: “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 law.”

But the social advances achieved by a civil war that cost the lives of 600,000 men, had borne fruit even earlier. By 31^st January, 1865 with the civil war nearing its end, the 13^th Amendment had been passed by Congress. By 6^th December, 1865, it had been ratified by the requisite number of States. Abraham Lincoln lived to see the first of these events, but tragically not the second, as he was assassinated on 14^th April,1865. The 13^th Amendment abolished slavery, and to the extent relevant states: “Neither slavery nor involuntary servitude shall exist within the United States or any place subject to their jurisdiction.”

But even before these closing events of the civil war, on 1^st July, 1863, one of the bloodiest and most important battles of the civil war commenced at Gettysburg, lasting for 3 days and costing the lives of thousands of men. On 19th November 1863, Lincoln having travelled to Gettysburg at great personal risk, in a mere 272 words delivered one of the greatest speeches of all time. Significantly, he didn’t refer to the Constitution. Lincoln harked back instead to that famous Declaration of 1776 in memorable words:

“Four score and seven years ago, our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are engaged in a great civil war testing whether that nation or any nation so conceived and so dedicated can long endure.”

The reason Lincoln drew upon the Declaration and not the Constitution is obvious - the Constitution at that point of time did not speak of equality of man, let alone suggest that it was self-evident. Even after the 14^th Amendment, the US Supreme Court in Plessey v. Fergusson upheld the “separate but equal” standard that formed the basis of racial segregation – a decision that was overruled only as late as in 1954 in Brown v. Board of Education.

Does the 14^th amendment even recognize, let alone guarantee, equality in absolute terms, as a fundamental or constitutional right? I venture to suggest that if I had posed this question and sought an answer from the readers at the beginning of this discussion, some of them might have answered in the affirmative. But, as we have seen, and as a careful reading of it shows, the 14^th Amendment in fact did no such thing.

Eighty years and two World wars later, (wars which it is believed cost the lives of over a hundred million people) the Universal Declaration of Human Rights was adopted by the United Nations General Assembly on 10^th December, 1948, -- fittingly at the Palais de Chaillot in Paris; for that great declaration of 1789 had also been adopted in Paris by France’s National Constituent Assembly.

Article 1 has been quoted earlier, but only partially. That article in its entirety states:

“all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.”

Sounds familiar, doesn’t it? It echoes the American declaration of Independence and the French declaration of the Rights of Man and the Citizen. Liberty, equality and fraternity. But it too is a declaration and is generally considered as not being enforceable.

Lawyers know that even the seemingly simplest of sentences can, and often does, call for interpretation. Article 1, the first sentence of which reads “all human beings are born free and equal in dignity and rights” has no punctuation. How does one interpret this article? As I read it, there are at least two possible interpretations. First, it can be read “All human beings are born free,” (with a comma inserted) and “all human beings are equal in dignity and rights”. So read there is no assertion that all human beings are born equal. Secondly, “All human beings are born free and equal in dignity and rights”, the words “dignity and rights” qualifying the phrase “free” and equal.” What Article 1 was intended to mean is important, because the Universal Declaration was adopted in the aftermath of World War II. And if there is one lesson to be learnt from that war it is that totalitarian governments of left and right have no regard or respect for life, liberty, or equality.

Was the Universal Declaration therefore meant to be a realistic or idealistic document? If the former, then I would suggest that the first interpretation would be the correct one; and if the latter, then the third. An academic study at Columbia University has this to say on Article 1.

“Bearing a clear resemblance to the French revolutionary slogan of ‘liberte ,egalite fraternite,’ Article 1 provides that all people are born free and equal in dignity and rights, and as a result of common birth into the human family should treat one another in a spirit of brotherhood. The first article has been referred to as the ‘cornerstone’ of the Universal Declaration. During the drafting process, it occupied more debate and discussion than any other article. The words ‘free and equal in dignity and rights’ encapsulate---without theoretical or philosophical exploration--- the main foundational concepts of the Declaration and are closely linked to the themes and ideas found in the first recital of the preamble.”

So how does one interpret Article 1? Is the interpretation given in this academic paper correct ? I think so, not least because the horrors of World War II needed a strong dose of idealism as an antidote. I would suggest that the Declaration of 1948 approximates more to the Declaration of Independence of 1776 and the Declaration of the Rights of Man of 1789, than to the American Constitution as originally drafted in 1789. Interestingly, the drafting history of the Declaration shows that at the suggestion of an Indian draftswoman, Hansa Mehta, the term “men” in the French Declaration was replaced with the term “human” – thus ensuring that another type of enduring inequality, on the basis of gender, was, in no uncertain terms banished from the text. Thus we find, even in the middle of the 20^th Century, in the face of historical reality, a Universal Declaration asserting that all human beings are born free and equal. Surely, another example of the paradox we are examining!

Now I do not wish to belittle this historic document. Far from it, for it has had the most salutary effect in recognizing and inculcating respect for human rights. It redounds to the credit of those farsighted men and women who drafted it, and ensured it’s adoption by the General Assembly, for though not enforceable, several countries have incorporated all or some of the rights contained in the Universal Declaration in their Constitutions and into domestic law.

So in 1946, when our Constituent Assembly met, and the drafting committee embarked on its task, culminating in our Constitution on 26^th November 1949, it wasn’t working on a tabula rasa. It had a good amount of material to draw on, and wisely it did so.

Constitution

We now finally turn to our Constitution and the articles dealing with equality. The Preamble itself speaks of equality along with justice, liberty, and fraternity. But, and this is an important point to note, it does not, as it could not, declare that all human beings, men and women, or for that matter all citizens, are equal or created equal. Those who drafted our Constitution knew that it was a legal document and could be enforced in a court of law, especially as against the State. The Preamble therefore opens with the words “We the people of India, having solemnly resolved… to secure to all its citizens… equality of status and opportunity.” Yet, if one were to be asked “what is Article 14 all about?” the immediate answer would probably be “equality” as an absolute concept. After all, the heading to Articles 14 to 18 is “Right to Equality”: and I venture to say so because some of the judgments of our Supreme Court, no doubt speaking in broad terms, have said so, or at least implied so.

How was the constitutionally guaranteed right to equality of status and opportunity to be secured? To answer that question, we must turn to the articles themselves. Article 14, entitled “Equality before law” states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 14 therefore, in content can be considered a negative right. It is not an affirmative assertion to any right of equality, nor is it, as those famous declarations were, a guarantee, that since all human beings are born equal they will be treated as equal in all respects. Article 14 merely, (and I use this word “merely” advisedly) prohibits the State as defined in Article 12 from denying equality before the law or the equal protection of the law. As we know, with the exception of the words “due process”, the draftsmen of the Constitution drew upon the 14^th amendment to the American Constitution, when drafting Article 14. Articles 15 to 18 are facets of the equality principle as enunciated in Article 14. Article 16 prohibits discrimination in public employment on the grounds stated in that article. Article 17 abolishes untouchability. Article 18 abolishes titles. And Article 15, which is the most important after Article 14, prohibits discrimination on the grounds, only of religion, race, caste, sex, or place of birth. Articles 15(3) and (4) provide for what in the United States would be called affirmative action.

Dr. B.R. Ambedkar

Now the question that naturally arises is that if this is the relatively limited scope of the fundamental right to equality as contained in our Constitution, as secured by “We the People,” as compared with the natural inalienable rights recognized as fundamental under Articles 19 and 21, why is Article 14 repeatedly treated as equal in importance with Articles 19 and 21? To illustrate this, I can do no better than quote Chief Justice Chandrachud in Minerva Mills v. Union of India. Minerva Mills, in a sense, did not directly deal with Articles 14 or 19 let alone 21. Minerva Mills, briefly stated, dealt with a challenge to the infamous 42^nd amendment effected during the Emergency. It amended Article 31C as originally enacted by the 25^th Amendment, and which amendment had been upheld in Keshavananda Bharati. What the 42^nd Amendment sought to do was to expand the protection given to Article 39(b) and(c) from a challenge under Articles 14 and 19, to all the directive principles in part IV of the Constitution. While striking down the amended Article 31C, Chief Justice Chandrachud said:

“Three Articles of our Constitution and only three stand between the heaven of freedom which Tagore wanted his country to awake, and the abyss of unrestrained power. They are Articles 14, 19, and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this Country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can preserve the dignity of the individual.”

So we find that not only did the Supreme Court equate Article 14 with Articles 19 and 21 in importance, but referred to Article 14 as forming part of “that golden triangle”. That it may be; but whilst Articles 19 and 21 undoubtedly come within that phrase “heaven of freedom” we must ask ourselves, does Article 14 do so? In fact, does Article 14, limited as it is in its scope and application, have anything to do with freedom? Yet another paradox that we are discussing.

In 1974 Justice Bhagwati in E.P.Royappa vs.T.N. ennunciated the doctrine of arbitrariness and unreasonableness as a facet of Article 14, and elaborated upon it four years later in Maneka Gandhi vs. Union of India. More recently, Justice Nariman in several judgments, has perceptively and incisively expounded on the right to challenge a law under Article 14 on the ground of manifest arbitrariness as a distinct, stand-alone challenge, and not as a facet of the doctrine of classification. Undoubtedly the breath, scope, and ambit, of Article 14, limited as it is in language, has been vastly expanded in the 70 years since our Constitution came into force in January 1950 through a process of creative interpretation. And therefore I must not be understood to minimize or trivialize the importance of Article 14, and the protection that it affords to all persons against the State. In fact, in one sense Article 14 is broader than Article 19, which is restricted to citizens, excluding not only non-citizens but corporations as well.

So at the end of this discussion, let me state the paradox of equality as I see it. Five thousand years of history tell us that human beings are not born equal and do not live their lives as equals. Yet we find, at least since the 18^th century, declarations of the rights of man asserting that all men are created equal. The 1948 declaration says “all human beings are born equal” and the 1776 declaration goes so far as to say that this is “self-evident.” So on the one hand there is no equality; on the other we have declarations of perfect equality; and in between these two extremes we have Constitutions, which far from proclaiming the supposedly self-evident truth, confer or recognize an extremely limited and qualified right to equality. T S Elliot sums up this paradox rather well in “The Hollow Men”:

“Between the idea

And the reality,

Between the motion

and the act,

Falls the shadow.”

The question then needs to be answered—why is there this perceived ideal of man as born equal? Why the yearning to believe that human beings are born equal? Is it the yearning of Rousseau, for man to revert to some primeval state of nature when man in the state of nature may have been born equal? Or is it that if you set an impossibly high bar, namely, perfect equality, and strive towards it, civil societies in democracies will attain some level of equality? That, equality as enunciated in Articles 14 to 18, and in the 14^th Amendment to the American Constitution is achievable, even if the ideal of perfect equality is not. I’m afraid I don’t have a definite answer. Sometimes there are no certainties to complex issues. But the guess I’ve hazarded to explain this paradox could be summarized as the desire of all human beings to strive to achieve the unattainable—for a utopia---for an ideal or perfect world. This craving was nowhere expressed better than by Oscar Wilde in his essay The Soul of Man Under Socialism. He ended that essay with these lines:

“A map of the world that does not include Utopia is not even worth glancing at, for it leaves out the one country at which Humanity is always landing. And when Humanity lands there, it looks out, and seeing a better country, sets sail. Progress is the realization of Utopias.”

Dare I venture to suggest that the quest for perfect equality is the attempted realization of Utopias?

I would have loved to end this article with Oscar Wilde, but in these deeply disturbing and troubled times I cannot do so, for this discussion would then be incomplete. I must therefore, however briefly, touch on another aspect of the paradox of equality---its operation in relation to the functioning of the Supreme Court. How does Article 14 and its underlying principle of equality apply to the functioning of the Supreme Court? While it is true that a writ will not lie against Orders of the Supreme Court, if the State is enjoined not to discriminate or act arbitrarily or unreasonably, can or should the Courts be able to so when dispensing justice? A look at a judge’s oath of affirmation would suggest not, for it says inter alia

“that I will duly and faithfully and to the best of my ability knowledge and judgment perform the duties of my office without fear or favor ,affection or ill will, and that I will uphold the constitution and the laws.”

Judges thus swear or affirm to perform their duties as judges without fear or favour. More importantly they swear or affirm to uphold the Constitution, including Part III, and especially the “golden triangle” of which Chief Justice Chandrachud spoke so eloquently in Minerva Mills. But cast your mind back a few years, and to present times as well, and ask yourself this question: how has the Supreme Court (with notable exceptions) applied principles of “equality” in upholding the constitutionally guaranteed rights of citizens, especially under Articles 14, 19, and 21?

To find out we must travel into the past. It was in 1952 that that great Chief Justice Patanjali Sastri, in V.G. Rao vs. State of Madras, first enunciated that the Supreme Court had been created as the guardian of the Constitution, and he spoke of the Supreme Court as “the sentinel on the qui vive.” Is the court fulfilling this role today? Regrettably the answer is in the negative---they have not fulfilled this role in the recent past, and certainly not today. Now, it is worth remembering exactly what Patanjali Sastri said in V.G. Rao:

“Before proceeding to consider this question, we think it right to point out what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to it’s conformity with the constitution, unlike as in America, where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted due process clause in the 5^th and 14^th Amendments. If then the courts in this country face up to such an important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusaders spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new setup are out to seek clashes with the legislatures in the country.”

Supreme Court Arnab

Let us consider this question of equality before the law or the equal protection of the law. Let us contrast the Court’s approach to the case brought by Arnab Goswami with those of other journalists, whether in J&K., or throughout the rest of the country- they certainly have been less fortunate than Goswami in asserting their rights under either Articles 19 or 21. Victimized by an authoritarian state; browbeaten, bullied and threatened in an attempt to silence them, on pain of arrest under draconian laws, their pleas have fallen on deaf ears. No immediate relief has been afforded to such journalists, under two of those articles that Chief Justice Chandrachd called the “golden triangle”, but which somehow Goswami was lucky enough to invoke successfully. Similar rights to liberty asserted in Habeas corpus cases have, incredibly and unprecedentedly, languished for several months, breaking with centuries old tradition of immediately hearing such petitions—for they touch on the personal liberty of the citizen. How would these situations be viewed through the prism of the equal protection of the law under Article 14? Even on the traditional notion of discrimination, there is no “intelligible differentia” in the type of rights asserted or the urgency required in enforcement of these rights in all three of these situations.