RIGHT TO EQUALITY BEFORE LAW.

CONSTITUTIONAL ARTICLES & DECIDED JUDGEMENTS ON RIGHT TO EQUALITY BEFORE LAW

Duncan Abeynayaka – LLB, Attorney At Law

 

1978 CONSTITUTION OF SRI LANKA 

Article 12

1. All persons are equal before the law and are entitled to the equal protection of the law.

2. No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds:.....

UNIVERSAL DECLARATIONS OF HUMAN RIGHTS

Article 07

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

 

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 26

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.

 

DECIDED JUDGEMENTS

01. VISUVALINGAM AND OTHERS V. LIYANAGE AND OTHERS [1983]2 SRI L R

18 November. 1983

WANASUNDERA, J.

"All persons are equal before the law and are entitled to the equal protection of the law”. “By equal protection of the law "of course is meant the protection of equal laws, that is, laws that operate alike on all persons under like circumstances. A company is a legal person and hence has locus standi to claim the fundamental right of equality guaranteed under Article 12(1). By virtue of the provisions of Article 15(7) the exercise and operation of the fundamental right declared and recognized by Article 12(1) are subject to such restrictions as may be prescribed by law (including regulations relating to public security) in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the right and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.

Art. 12(1) and Art. 14(1) (a) (g) are Constitutional provisions designed to protect the personal rights therein declared to be fundamental rights of Sri Lankan citizens and these Articles are also declared subject to all existing written and unwritten laws, which in the event of inconsistency, prevail over the Articles. Judge made law is unwritten law and the legal rights of shareholders, in any case, vis-a-vis the company are settled by Judge made law. This is not disputed.

 

02. JAYANETTI V. THE LAND REFORM COMMISSION [1984] 2 SRI L. R 172

July 13, 1984.

WANASUNDERA, J.

The word 'the law' in Article 12(1) refers not only to legislation but also to executive or administrative action. To confine it to legislation alone would be to emasculate the equality clause.

There are clear indications in the Constitution itself that the fundamental rights are to be secured, respected and- advanced by all organs of government. Besides, any proposed legislation contrary to fundamental rights would be struck down at the Bill stage itself and the question of discrimination by “legislation" as such does not really arise.

Article 12 of our Constitution is similar in content to Article 14 of the Indian Constitution. The Indian Supreme Court has held that Article 14 combines the English doctrine of the rule of law with the equal protection clause of the 14th amendment to (the U.S.) Constitution'.

We all know that the rule of law was a fundamental principle of English Constitutional Law and it was a right of the subject to challenge any act of the State from whichever organ it emanated and compel it to justify its legality. It was not confined only to legislation, but extended to every class and category of acts done by or at the instance of the State. That concept is included and embodied in Article 12.

In India the words used in the equal protection clause are "equality before the law" and "the equal protection before the law". Our Constitution uses the expression "equal before the law" and "equal protection of the law". They mean substantially the same thing. It has been said that "equality before law" may be defined as equal subjection of all persons to the ordinary law of the land and "equal protection of laws" as the protection of equal laws. Raja Suryapalasingh v. U.P. Govt. AIR 1951 Allahabad 674

In State of U.P. v. Deoman (AIR 1960 SC 1125) the Indian Supreme Court defined those expressions as follows :

"Equality before the law is a negative concept; equal protection of law is a positive one. The former declare that everyone is equal before the law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land ; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed."

Seervai sums up the position as follows:

"And law in Article 14 is not confined to the law enacted by a legislature but includes any order or notification. Thus Article 14 protects a person not only against legislation but also against executive orders or notifications. This is not surprising, for the protection given by the Article would be worth little if a law enacted by the legislature could not violate it but executive action could. As Lord Atkin said in another context: The Constitution is not to be mocked by substituting executive for legislative interference with freedom'."

 

03. ELMORE PERERA V. JAYAWICKREMA (1985) 1 SRI L. R. 285

It would be observed that Article 12(1) does not use the word "discriminate". It merely sets out the concept of equality. The term "discriminate" is used however in Article 12(2), which is subsidiary to Article 12 (1), and what this provision does is to prohibit a classification in terms of the specified items which, in the absence of such a provision, may have been a permissible classification under Article 12(1).

Article 12(1) is cast in much broader terms than 12(2) both in concept and content. Any departure from the norm which is the law of the land, whether or not it be understood in the specific sense of the term "discrimination" used in Article 12(2), would prima facie amount to a violation of Article 12(1). But Article 12(1) does not forbid reasonable classification. In this connection the courts have held that a law may be constitutional even though it relates to a single individual who is in a class by himself.

Chapter III of the Constitution dealing with "Fundamental Rights" provides in Article 12(1) that "All persons are equal before the law and are entitled to the equal protection of the law." Our Article 12(1) is in the same terms as Article 14 of the Constitution of India'. Shukla in his Commentary on the Constitution of India (7th Ed.) states at page 29 that this Article guarantees to every person the right not to be denied equality before the law or the equal protection of the law. The first expression:- "equality before the law" which is taken from the English Common law, is -a declaration of equality of all persons within the territory, implying thereby the absence of any special privilege in favour of any individual. The second expression, "the equal protection of the laws" which is rather a corollary of the first expression, and is based on the last clause of the first section of the 14th Amendment to the American Constitution, directs that equal protection shall be secured to all persons in the enjoyment of their rights and privileges without favoritism or discrimination. Equality before the law is a negative concept; equal protection of the law is a positive one.

Seervai in his critical commentary on the Constitutional Law, of India (Vol 1 3rd Ed.) states at p. 275 that equal protection of the laws must mean the protection of equal laws for all persons similarly situated. To separate persons similarly situated, from those who are not, we must discriminate, that is, "act on the basis of a difference between" persons . . who are and persons who are not similarly situated.

The 14th Amendment of the Constitution of the United States of America provides that "the State shall hot deny to any person within its jurisdiction....... the equal protection of the laws.''

"Article 14 the Constitution of India provides that the State, shall not deny to any person equality before the law or the equal protection of the laws in the territory of India:."

The first expression "equality before the law" is taken English common law and implies the absence of any special privilege in favour of any individual. A Court administering justice is not concerned `with Me status or position of the parties appearing before it, "the law is no respecter of persons."

The object of the second expression "equal protection of MOW is to make the whole system of the law rest upon the fundamental principle of- equality of application of the law." "The guarantee was aimed at undue favour and individual or" class privilege; on the `one hand, and at hostile discrimination or the oppression of inequality on the other: per Taft-, C: J. in Truax v. Corrigan (supra).

It has been held by the Courts in the United States that Article 14 06 boo preclude ",legislative classification.," provided , it is reasonable. The segregation of Negroes by requiring them to attend separate schools or ride in separate buses is only a glimpse of the difficulties that have beset this complex doctrine in the socio-economic setting of the United States.

The general doctrine as stated in Henderson v. Mayer (28) is as follows:-"Though the law be fair on its face and impartial in its appearance, yet if it is applied and administered by public authority with an evil eye and unequal hands so as practically to make unjust and illegal discriminations, material to their rights, the denial of equal justice is still within the prohibition of the Constitution".

 

04. C.W. MACKIE AND CO. LTD. V HUGH MOLAGODA, COMMISSIONER-GENERAL OF INLAND REVENUE AND OTHERS (1986) 1 SRI L. R. 300

November 1, 1985.

SHARVANANDA, C.J.

Article 12 (1) of the Constitution provides "all persons are equal before the law and are entitled to the equal protection of the law." The essence of the right of equality guaranteed by Article 12(1) and the evil which the article seeks to guard against is the avoidance of designed and intentional hostile treatment or discrimination on the part of those entrusted with administering the law. In order to sustain the plea of discrimination based upon Article 12(1) a party will have to satisfy the court about two things, namely (1) that he has been treated differently from others, and (2) that he has been differently treated from persons similarly circumstanced without any reasonable basis.

But the equal treatment guaranteed by Article 12 is equal treatment in the performance of a lawful act. Via Article 12, one cannot seek the execution of any illegal or invalid act. Fundamental to this postulate of equal treatment is that it should be referable to the exercise of a valid right, founded in law in contradistinction to an illegal right which is invalid in law.

 

05. JAYASEKERA V. WIPULASENA AND OTHERS [1988] 2 SRIL. R 237

G. P S. de Silva. J.

In my opinion. Article 12(1) cannot confer on the petitioner a right to which he is not entitled in terms of the very contract upon which he found his complaint of "unequal treatment".

 

06. RAMUPPILAI V FESTUS PERERA [1991] 1 SRI L.R. 11

07. January, 1991

Per Ranasinghe C.J.

Any promotions made, based upon ethnic quotas would be violative of the right of equality assured by the provisions of article 12 of the Constitution.

Per Thambiah J.

The right that is protected and guaranteed by article 12(1) is the personal right of any person, qua person, and not as belonging to a particular community. So also the right that is protected and guaranteed by article 12(2) is the personal right every individual citizen, qua citizen, and not as belonging to a particular community. The rights of a community or caste or of persons professing a particular religion do not come into the picture at all.

The gravamen of article 12 is equality of treatment. The Superintendents of Customs form a single class. All persons within this class must have an equality of opportunity of advancement of their career in the Public Service irrespective of race, caste, religion etc.

Per Fernando J.

"It is the individual who is the repository of the fundamental right guaranteed by article 12 and the violation of his right cannot be excused or overlooked by reference to the treatment meted out to the group to which he is linked by race or ethnicity".

For a variety of reasons, the purported ethnic classification is uncertain, unreasonable and inconsistent and on this ground too cannot be sustained.

The following principles should guide is in the interpretation of article 12:

(a) Article 12 (1) read with articles 3, 4 and 12 (2) embodies a principle of equality broadly comparable to that recognized in the Constitutions of the United States and India but more extensive in nature and scope.

(b) (i) Paragraphs (2) (3) and (4) of article 12 are essentially explanatory and declaratory of the principle of equality and do not add to or detract from that principle. Article 12 (4) in particular, does not authorise "affirmative action” for women, children and disabled persons, but out of an abundance of caution declares that nothing in article 12 shall prevent affirmative action; apart from proved "inequality", article 12 (4) would not permit, for example a quota of 60% being stipulated for women, in any sphere.

(ii) Those paragraphs also emphasize that references to "the law" in article 12 (1) do not restrict the scope of equality to the province of legislation; paragaph (4) emphasizes that subordinate legislation and executive action must also abide by the equality principle; paragraphs (2) and (3) indicate that the non – discrimination principle is binding not only on the "State" but on all institutions and individuals. Citizens shall not be discriminated against by anyone, although the special remedy under article 126 is only available in respect of executive or adminsitrative action.

(c) The principle of equality requires that equals be treated equally, and that unequals may (and sometimes must) be treated unequally. Affirmative action is preferential treatment; i.e. unequal treatment of unequals. Affirmative action is therefore not a refinement or extension of as an exception to, the principle of equality, but its necessary corollary; it is applicable whenever "unequals" are being considered.

(d) (i) For the purpose of applying those twin principles, it is necessary to determine whether persons are equals or unequals. Differences in respect of "immutable" factors (such as race, ethnicity, arresting, caste, sex, place of birth) do not per se render persons unequal; nor differences in respect of "acquired" or changeable factors, such as language, religion and political opinion. Differential treatment of citizens on account of factors set out in article 12 (2) is, prime facie, constitutionally odious, but there seems to be no such presumption in the case of other factors.

(ii) However, all differential treatment needs to be justified, there must be a legitimate object to be achieved, in relation to which it must be shown that there are intelligible and rational criteria which render a particular individual or group of individuals a distinct "class".

(e) If in relation to a legitimate object, their race makes persons of one race a distinct "class", they may be differently treated. The same is true of sex, religion, and political opinion.

(f) (i) Even where race would not normally afford a permissible basis of classification, on proof of special circumstances differential treatment would be justified

(ii) Racial preferences or quotas for their own sake, are not permissible because in a free, republican, democracy one citizen is as good as another, and is entitled to equal treatment, regardless of the group to which he belongs. Likewise, racial quotas cannot be imposed simply for the pupose of "correcting" an existing racial imbalance except perhaps where there is serious, chronic, pervasive under representation (or over - representation) sufficient to raise a presumption of past discrimination.

(iii) Affirmative action, where the necessary proof exists, is permissible both at the stage of recruitment and promotion; but the proposed remedy would be more strictly scrutinized in the latter case, on account of other competing needs and interests; such as the efficiency of the service the higher levels of responsibility involved upon promotion, and the legitimate expectations of employees that merit and devoted service would be rewarded.

 

07. SEELAWANSA THERO AND TW O OTHERS v TENNAKOON, ADDITIONAL SECRETARY, PUBLIC SERVICE COMMISSION [2004] 2 Sri L.R 241

November 23, 2004

SHIRANI BANDARANAYAKE, J.

Article 12 of the Constitution guarantees equal protection of the law and not equal violation of the law.

Per Bandaranayake, J.

“Here the petitioner’s allegation that these persons were not in the waiting list and/or were not eligible for General Service Quarters amounts to an allegation that quarters were allocated in breach of the relevant rules. Two wrongs do not make a right, and on proof of the commission of one wrong the equal protection of the law cannot be invoked to obtain relief in the form of an order compelling commission of a second wrong.”  Gamaethige v Siriwardana and Others -(1988) 1 SLR 384

 

08. S.C. (FR) 29/2012 VISAL BHASHITHA KAVIRATHNE & OTHERS VS W.M.N.J. PUSHPAKUMARA, COMMISSIONER GENERAL OF EXAMINATIONS & OTHERS

25.06.2012

Dr. Shirani A. Bandaranayake, CJ

The concept of the right to equality does not forbid reasonable classification for the purpose of legislation. However, in order to overcome the test of permissible classification, it is necessary to fulfil two conditions which are as follows:

1. The classification must be founded on an intelligible differentia which distinguishes20 persons or things that are grouped together from others left out of the group; and

2. That differentia must have a rational relation to the object sought to be achieved by the statute in question.

Article 12 (1) of the Constitution, which refers to the right to equality, reads as follows:

“All persons are equal before the law and are entitled to the equal protection of the law.” Article 12 (1) of our Constitution therefore had specifically referred to the right of a person to equal treatment as well as that person receiving equal protection of the law. With regard to the first aspect of the aforementioned provision, as stated by Sir Ivor Jennings (The Law of the Constitution, Pg.49), among equals the law should be equal and therefore should be equally administered. The claim on equal protection of the law has brought in a guarantee where persons who are similarly placed under similar circumstances would receive equal treatment and protection of the law.

The said guarantee on equal protection of the law clearly emphasises the fact that there should be no discrimination between one person and another.

However, this does not mean that every differentiation could be interpreted as discrimination. The meaning of equal treatment therefore would be that within the ambit of the concept of equality, classification could be sustained, subject to the fulfilment of certain conditions.

The question of classification was discussed and considered in detail in Charanjit Lal Chowdhury v The Union of India and Others (1951 A.I.R. S.C. 41) where it was clearly held that,18

“A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.”

The provision contained in Article 14 of the Indian Constitution, which refers to the concept of right to equality had been discussed before the Supreme Court of India since the decision in Charanjit Lal Chowdhury (Supra), in several cases. (State of Bombay v F.N. Balsara (A.I.R. 1951 S.C. 318), State of West Bengal v Anwar Ali Sarkar (A.I.R. 1952 S.C. 75), Kathi Raning Rawat v State of Saurashtra (A.I.R. 1952 S.C. 123), Lachmandas Kewalram v State of Bombay (A.I.R. 1952 S.C. 235), Qasim Razvi v State of Hyderabad (A.I.R. 1953 S.C. 156) and Habeeb Mohamed v State of Hyderabad (A.I.R. 1953 S.C. 287)).

Considering the meaning, scope and effect of the right to equality stipulated in Article 14 of the Indian Constitution, based on the dicta of the aforementioned decisions, it was clearly held in Budhan Chaudhry v State of Bihar (1955 A.I.R. S.C.191) that,

“It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely,

i) that the classification must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group; and

ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.

The classification may be founded on different basis; namely, geographical; or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law, but also by a law of procedure.”

 

09. SHANMUGAM SIVARAJAH vs. OIC, TERRORIST INVESTIGATION DIVISION AND OTHERS, [SC FR 15/2010, SC Minutes 27. 07. 2017]

In order to establish discrimination or denial of equal protection it is not necessary to establish the due observance of the law in the case of others who form part of that class in previous instances. The Rule of Law, which postulates equal subjection to the law, requires the observance of the law in all cases

 

SEE ALSO:

CHANDRASENA vs. KULATUNGA AND OTHERS [1996 2 SLR 327]

KARUNADASA vs. UNIQUE GEM STONES LTD AND OTHERS [1997 1 SLR 256]

SANGADASA SILVA vs. ANURUDDHA RATWATTE AND OTHERS [1998 1 SLR 350]

PREMAWATHIE vs. FOWZIE AND OTHERS [1998 2 SLR 373]

KAVIRATHNE AND OTHERS vs. PUSHPAKUMARA AND OTHERS [SC FR 29/2012]

PINNAWALA vs. SRI LANKA INSURANCE CORPORATION AND OTHERS [1997 3 SLR 85]