5/1/2021 Article 14 and the Paradox of Equality

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#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 e ect.

Navroz Seervai

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5/1/2021 Article 14 and the Paradox of Equality

Navroz Seervai
Published on : 02 Aug, 2020 , 1:52 pm

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 de nes” 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 de ned 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 rst questions that come to mind are: Is it possible to achieve perfect equality? Is
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it a veri able 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 af rmative.

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 rst 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.” Signi cantly, 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 rst 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
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famous, Plato said, “Until then, Kings are philosophers, or philosophers are kings.”

And yet, contrary to this historical reality, we nd 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.
Brie y 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 signi cantly, 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 rst ten amendments to the Constitution. The rst
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
signi cantly 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,
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three of the rst 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 speci c reference to it. For the
purposes of representation and taxation, Article I Section 2 Clause 3 equated a slave
as being 3/5th 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 18th
century---in the age of enlightenment-- both in the United States and in France, rst,
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 rst 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 2nd 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 1st January, 1863, by which
the slaves were proclaimed as being free, was followed on 9th July, 1868, by the 14th
Amendment. Section 1 of this amendment is important, and the relevant part of it
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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 31st January, 1865 with the civil war nearing its end, the
13th Amendment had been passed by Congress. By 6th December, 1865, it had been
rati ed by the requisite number of States. Abraham Lincoln lived to see the rst of
these events, but tragically not the second, as he was assassinated on 14th April,1865.
The 13th 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 1st 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. Signi cantly, 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 14th 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 14th 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
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discussion, some of them might have answered in the af rmative. But, as we have
seen, and as a careful reading of it shows, the 14th 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 10th December, 1948, -- ttingly 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 rst 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 rst 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.

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“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 rst 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 rst 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 nd, even in the middle of the 20th 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 26th 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.

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Constitution

We now nally 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
af rmative 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 de ned 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 14th 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 af rmative action.

Dr. B.R. Ambedkar

Now the question that naturally arises is that if this is the relatively limited scope of
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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, brie y stated,
dealt with a challenge to the infamous 42nd amendment effected during the
Emergency. It amended Article 31C as originally enacted by the 25th Amendment, and
which amendment had been upheld in Keshavananda Bharati. What the 42nd
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 nd 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 classi cation. 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
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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 nd, at least since the 18th 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 quali ed 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 14th Amendment to the American Constitution is achievable, even if the ideal of
perfect equality is not. I’m afraid I don’t have a de nite 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
db h b O ild i hi
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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 brie y, 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 af rmation
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 of ce without fear or favor ,affection or ill will, and that I will
uphold the constitution and the laws.”

Judges thus swear or af rm to perform their duties as judges without fear or favour.
More importantly they swear or af rm 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 nd 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, rst enunciated that the Supreme
Court had been created as the guardian of the Constitution, and he spoke of the
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Supreme Court as “the sentinel on the qui vive.” Is the court ful lling this role today?
Regrettably the answer is in the negative---they have not ful lled 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 5th and 14th
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 nally
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
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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.

Also Read

Train/bus fare not to be charged from migrants: Supreme Court issues

directions and grants states time to reply in Covid 19 migrant matter

Let us next examine how the Supreme Court approached the case of the migrants in
light of the above discussion. From the perspective of the fundamental rights that
were being asserted in each case, namely Articles 14, 19 (1) (g) and 21 in the case of
the migrants, and Articles 14, 19 (1)(a) and 21 in the case of Goswami, weigh in the
balance the treatment meted out to the migrants and the treatment afforded to
Goswami. Are the fundamental rights asserted on behalf of millions of migrants –
stranded without shelter or food in the middle of a deadly pandemic so different so as
to deny them immediate protection? The intuitive answer would be no, and yet, as
regards relief, for months on end none was granted to the migrants. On the other
hand, immediate protective relief was granted to Goswami. Also consider how
expeditiously the respective matters were taken up for hearing. In the case of
Goswami, the rst hearing was afforded in 36 hours; the petitions led on behalf of
the migrants, weren’t so lucky.

As lucky as Mr. Goswami however, were petitions for conducting Rath Yatras during a
deadly and life threatening pandemic that have received instant attention---not to
mention instant relief, thanks to the instant reversal of orders refusing permission for
holding such Yatras.

Also Read

[Breaking] "Lord Jagannath won't forgive us if we allow it", Supreme

Court stays annual Rath Yatra in Puri due to COVID-19

How then does one contend with this paradox of unequal treatment by a court
enjoined by our Constitution with dispensing justice equally and even-handedly to all
without fear or favour? A court entrusted with the duty of upholding, enforcing and
protecting the fundamental rights of each citizen against the excesses of the state.
Does this paradox disappear, if we accept that equality before the law and the equal
protection of the law, as guaranteed by Article 14, or the right to freedom of speech
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5/1/2021 Article 14 and the Paradox of Equality

and the press as guaranteed under Article 19, or the right to life and personal liberty
as guaranteed under Article 21, is to be protected on a case by case basis—dependent
solely on the subjective discretion of the particular Court hearing a matter? Orders
which when so passed, albeit in a different context, Justice Hidayatullah had
disapprovingly termed as “the law of the Medes and the Persians.” But as the French
would say, “Autre temps, autre moeurs”. If other days bring other ways, then of course
the paradox magically disappears. The question is—where does this extremely
dangerous exercise of discretion whilst dispensing justice on the subjective
satisfaction of a judge, by which the paradox is seemingly resolved, leave it’s citizens,
especially when faced with an authoritarian, intolerant government? What happens to
Part III of the Constitution and those cherished fundamental rights that comprise the
“golden triangle”? Where is that heaven of freedom which Tagore wanted his country
to awake, protected only by Articles 14, 19 and 21 from the abyss of unrestrained
power?

On 17th August, 1945, Eric Blair’s allegorical novel was published. Eric Blair had been
an avowed socialist but had seen through the horrors of Stalin’s Soviet Union. Eric
Blair, better known by his nom de plume George Orwell, wrote Animal Farm as a
scathing critique and expose of the entire Soviet system. An article on the paradox of
equality and the inherent inequality of man is not complete without a reference to
Animal Farm, for it ttingly answers the paradox that I have posed.

“Benjamin felt a nose nuzzling at his shoulder. He looked round. It was Clover. Her old
eyes looked dimmer than ever. Without saying anything she tugged gently at his mane
and led him round to the end of the big barn, where the Seven Commandments were
written. For a minute or two they stood gazing at the tarred wall with its white
lettering. ‘My sight is failing,’ she said nally. 'Even when I was young, I could not have
read what was written there. But it appears to me that that wall looks different. Are
the Seven Commandments the same as they used to be, Benjamin?’ For once Benjamin
consented to break his rule, and he read out to her what was written on the wall.
There was nothing there now except a single Commandment.

It ran: ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE

MORE EQUAL THAN OTHERS.”
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5/1/2021 Article 14 and the Paradox of Equality

This article is based on a webinar talk presented by the author. The author would like
to acknowledge and thank his colleague and friend Akash Rebello for his valuable
suggestions and inputs.

#LongRead: Article 14 and the Paradox of Equality writes Navroz H

Seervai@NHSeervai #Article14https://t.co/cS7Y6czDZV
— Bar & Bench (@barandbench) August 2, 2020

Article 14 Constitution of India Right to Equality equality

Navroz Servai

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