Equality before Law and Equal protection of law

Equality before Law and Equal protection of law

Article 25: Equality of citizens:

(1)        All citizens are equal before law and are entitled to equal protection of law.

(2)        There shall be no discrimination on the basis of sex.

(3)        Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

25A: Right to education:

The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.

Clause (1)

 Equality before the law

Equality before the law is also known as legal equality is the principles under which all people are subject to the same laws of justice. It means “All are equal before the law”.

Universal Declaration of Human Rights:

Article 7 of the Universal Declaration of Human Rights:

“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”

The principle of equality before the law is especially important for groups that are in the minority, such as indigenous people, or groups that have less political or other power, such as the poor. This also means that judges, government officials and police are also answerable to the same body of law.

Thus, the law and the judges must treat everybody by the same laws regardless of their gender, ethnicity, religion, socio-economic status etc.

Equal protection of the law

The right of equal protection of law means, “All persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law”

It is akin to the right to due process of law, but in particular applies to equal treatment as an element of fundamental fairness.

In United States:

Equal protection of law in U.S is the constitutional guarantee that no person or group will be denied the protection under the law that is enjoyed by similar persons or groups. In other words, persons similarly situated must be similarly treated. Equal protection is extended when the rules of law are applied equally in all like cases and when persons are exempt from obligations greater than those imposed upon others in like circumstances.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Text of the Equal Protection Clause of the Fourteenth Amendment

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application.

Clause (2)

Discrimination

Definition of discrimination:

“The unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex”

Or

“Treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit”

Sources of Non-Discrimination and Equality:

UN Charter

The three main provisions discussing human rights in the UN Charter are Articles 1(3), 55(c) and 56. In addition, other Articles of the Charter make it clear that human rights protection is a fundamental part of the UN’s mission.

Universal Declaration of Human Rights

Article 1: All human beings are born free and equal in dignity and rights.

Article 2: Everyone is entitled to all the rights and freedoms set forth in the Universal Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 4: No one shall be held in slavery or servitude.

Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law.

International Covenants

1: International Covenant on Civil and Political Rights 1966.

2: International Covenant on Economic, Social, and Cultural Rights 1966

Article 26 of the ICCPR:

“All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”

The ICESCR also contains general and specific non-discrimination clauses, which are similar to the ICCPR.

The International Convention on the Elimination of All Forms of Racial Discrimination:

The International Convention on the Elimination of All Forms of Racial Discrimination 1966 was one of the first human rights treaties to be adopted by the United Nations (UN). The Convention is widely supported, with more than 156 countries (four-fifths of the membership of the UN) having ratified it.

Clause (3)

Special provision for the protection of women and children

Clause 3 of this article provides an exception in favour of women and children.

The philosophy behind this is that our country, there is usually a discrimination on the basis of sex. They are unequal position. The children have also been included because they are innocent and it protects from child labour.

Thus women and children can be provided with legal assistance in legal procedures of law or of court etc.

25(A)

Right to education

Section 9 of the Constitution (Eighteenth Amendment) Act, 2010, inserted a new Art25A after Art25 of the Constitution.

“The right to education is a universal entitlement to education, a right that is recognized as a human right”

According to the International Covenant on Economic, Social and Cultural Rights the right to education includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all, in particular by the progressive introduction of free secondary education, as well as an obligation to develop equitable access to higher education, ideally by the progressive introduction of free higher education. The right to education also includes a responsibility to provide basic education for individuals who have not completed primary education. In addition to these access to education provisions, the right to education encompasses the obligation to rule out discrimination at all levels of the educational system, to set minimum standards and to improve quality of education.

The right to education is law in Article 26 of the Universal Declaration of Human Rights

In Europe, Article 2 of the European Convention on Human Rights states that the right to education is recognized as a human right and is understood to establish an entitlement to education.