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Action of The State Violates The Right To Equality and Is Arbitary in Nature
Action of The State Violates The Right To Equality and Is Arbitary in Nature
Action of The State Violates The Right To Equality and Is Arbitary in Nature
1
Belgian Linguistic case, (1968) 11 Y.B.E.C.H.R 832 (N.33-34).
2
Mohini v. State of Karnataka, AIR 1992 SC 1858.
3
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
4
Bachan Singh, Sher Singh And Anr. v. State Of Punjab And Ors, AIR 1982 SC 1325.
5
Om kumar v. Union Of India , AIR 2000 SC 3689.
6
Rubinder Singh v.Union of India, AIR 1983 SC 65
7
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538
a) Classification must be founded on an intelligible differentia.
Intelligible Differentia means a factor that distinguishes a class from another which is capable
of being understood8.It is submitted that Section 377 IPC creates classification between
persons indulged in proactive and non-proactive sexual acts which are unintelligible as it
creates a class of vulnerable people continually victimized and directly affected by the
provision.
The Petitioner humbly submits that the classification enabled by the Act is based upon no
reasonable ground since it creates a class for women merely on the differentiation of sex
which is not capable of being understood. Such class legislation is hostile, discriminatory and
contra Article 14 of the Constitution.
Classification should not amount to a class legislation. Class legislation means a law that is
applicable only to certain persons or class of persons. For example, if a law makes the
classification based only on a class of persons who belong to a particular religion or race or
gender will be unreasonable and violate the right to equality.9
In the present case, a class is being formed by providing reservations only to women thereby
reducing the choice of voters. The basic principle of democracy is being affected by
encroachment on the rights of the citizens by making them vote only for the women. The
reservation of constituencies for women is violation of Article 14 and the democratic
framework of the nation.
8
Ramanatha Aiyer , Advanced law Lexicon, 2391 (3rd Edn. 2005).
9
https://www.lawtutor.in/tag/reasonable-classification/
b) Classification or differentia must have reasonable nexus to the object sought to be
achieved
In considering reasonableness from the point of view of Article 14, the Court has also to
consider the objective for such classification. If the objective be illogical, unfair and unjust,
necessarily the classification will have to be held as unreasonable.10
There should be a relation to the object sought to be achieved by the legislation. In the
present case, inference can be drawn from the facts, that the prime objective of providing
reservation was upliftment of the women and to empower them. But this object cannot be
possible and reasonably achieved by providing a reservation to women, the main argument
from side petitioner being that this law will empower only elite class women whom they
referred to as "Parkati Mahilayen" (by which they mean – “woman belonging to rich and
aristocratic class who are the faces of already established politicians of the country”) who
are modern in nature and wanted to establish their dominance in Indica, and ultimately by
such reservation only such kind of women shall be benefited, because, Indica is basically a
rural country where majority of women belong to rural class where they are unaware even
about their basic rights. 11
The petitioner humbly submits that the objective of empowering women as a whole, has no
rational nexus to the classification created. As held in Anuj Garg v. Hotel Association of
India12 if a law discriminates on any of the prohibited grounds, it needs to be tested not
merely against "reasonableness" under Article 14 but be subject to "strict scrutiny".
It may be also be noted that the right to equality has been declared by the Supreme Court as
the basic feature of the Constitution. Preamble to the Constitution of Indica emphasises
principle of equality as the basic to the Constitution. Even constitutional amendments which
offend basic structure of the Constitution are invalid. In the landmark case of Indira Gandhi
v. Raj Narain13, the Court said that“Parliament and State Legislature cannot transgress the
principle of equality enshrined in Articles 14 and 16 (1) of the Constitution which is the basic
feature of the Constitution.”
10
Deepak Sibal v. Punjab University, AIR1989 SC 903.
11
Fact sheet,para 10
12
AIR 2008 SC 663
13
Indira Gandhi v. Raj Narain 1975 AIR 2299
1.2 AMENDMENT TO ARTICLE 19(2) ARE ARBITRARY AND VIOLATIVE OF
THE CONCEPT OF EQUALITY?