Right to Equality

Equality before law has a place in almost all the written Constitutions that guarantee fundamental rights. Both the expressions have also been used by the UDHR. These terms have been adopted from the English Constitution, which implied absence of special privilege in favour of any person. It provides that all citizen are equal before the law and thus implies “equality of treatment in equal circumstances,” e.g. application of the same law alike and without discrimination to all persons similarly situated.

The formula as stated in the relevant Articles of the Constitutions of Bangladesh, India and Nepal contain the English concept of equality before law and the American concept of equal protection of law. But the concept is not independent and severable in their application and will be found to overlap each other. But it is a guarantee against discrimination both in conferment of privileges and imposition of liabilities.

In fact the concept “Equality before law,” derived form the English Constitutional law follows from the ‘rule of law.’ The latter connotes the undisputed supremacy of law. This supremacy of law is for giving security to the rights of individual who are the citizens of a democratic State.

Every modern State, at least theoritically has accepted the principle of equality before law. Its acceptance is found in the provisions of the most of the written Constitutions.

Generally, equality before law meant that among the equals law shall be equal and shall be equally administered. There shall not be any special privilege for the reason of birth, creed etc.

In the case of Sheikh Abdus Sabur v. Returning officer it was observed that:

Equality before the law does not mean absolute equality of man, which is physically impossible, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law courts.

The Appellate Division of the Supreme Court of Bangladesh further observed:

“Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstance in which they are placed or special qualities and characteristics which some of them may posses but which are lacking in others.

Though personal laws existing in South Asian countries provide that male and female are not of ‘equal status’ in terms of inheriting property. But the Indian Supreme Court observes that in case of division of property after the death of the father, sons, wife and daughters are entitled to inherit his estate including alienated property even though the wife and daughters are under the customary laws incompetent to challenge the alienation.

The Constitution of Bangladesh further provides that women shall have equal rights with men in all spheres of State and of public life.

Right to Non-Discrimination

The Constitutions of Bangladesh, India, and Nepal prohibit classification of citizens on grounds of only religion, race, caste, sex or place of birth.

Discrimination indicates an unjust, unfair or unreasonable bias in favour of one and against other. The general meaning of ‘discriminated against’ is to ‘make an adverse distinction with regard to,’ ‘distinguish unfavorable from others.’

Article 28(1) of the Constitution of Bangladesh provides that state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. This Article corresponds to Article 15(1) of the Indian Constitution and Article 11(3) of the Nepali Constitution. According to Durga Das Basu the scope of the Article 15 of the Indian Constitution is very wide. Article 15(1) reads “The State Shall not discriminate against any citizen on grounds of only religion, race, caste, sex, place of birth or any of them,” The plain meaning of the prohibition is that no person belonging to a particular religion, cast, sex etc. shall be treated unfavourably by the State when compared with persons of any other religion or sex merely on the ground that s/he belongs to the particular religion or sex. But discrimination will not be unconstitutional if there is any other ground or consideration for the differential treatment in addition to those prohibited by the Article.

Right to Equal Protection of Law

Right to equal protection of law is an important fundamental right. Article 31 of the Bangladesh Constitution provides that right to protection of the law and to be treated in accordance with law is the inalienable right of every citizen. This is also applicable for the person residing in Bangladesh for the time being. And no action detrimental to the life, liberty, body, reputation or property of any person shall be taken in accordance with law.

Article 140 of the Indian Constitution provides : “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 11(1) of the Nepali Constitution also provides that “… No person shall be denied the equal protection of the laws.”

In Mofizur Rahman v. Bangladesh the Appellate Division of the Supreme Court of Bangladesh observes that “every action affecting a citizen’s right must be taken in accordance with law or under the authority of law and not according to the whims of the person in authority or under any executive fiat.”

Right to Equality of Opportunity in Employment

The Constitution provides equality of opportunity for all citizens in respect of employment or office in the service of the Republic and prohibits discrimination or ineligibility on grounds only of religion, race, caste, sex or place of birth.

Article 16(1) of the Constitution of India provides equality of opportunity in matters relating to employment or appointment to any office of the state. The right to equality is only in employment or appointment under the State. This relates to the matter of recruitment, promotion, wages, termination increments, leave, gratuity, pension, age of retirement, etc. But this equality is amongst the equally placed persons, equality amongst the same class of persons and not amongst different classes of persons.

The Constitution lists specific grounds on which citizens are not to be discriminated against each other. These are religion, race, caste, sex, descent, place of birth etc. Gender based discrimination is specifically prohibited by the Constitution. Sex shall not be the sole ground of ineligibility for any post.

Right to Life and Personal Liberty

The Constitutions of Bangladesh, India, and Nepal guarantee right to life and personal liberty. Article 32 of the Constitution of Bangladesh reads : “No person shall be deprived of life or personal liberty save in accordance with law.” This Article corresponds with Article 21 of the Constitution of India and Article 12(1) of the Constitution of Nepal.

The very objective of the provision is that no man (human being) can be subjected to any physical coercion that does not admit of legal justification. It means that no member of the Executive are entitled to interfere with the liberty of a citizen unless s/he can support her/his action by some provision of law.

Therefore, when the State or any of its agents deprives an individual of his/her personal liberty, the law should justify such action and the procedures prescribed by such law have to be observed “strictly and scrupulously.”

Right to Privacy

Except as provided by the law, the right to privacy of the person, house, property, document, correspondence, or information of anyone is inviolable. This relates to Article 43 of the Bangladesh Constitution and Article 21 of the Indian Constitution.

Right to Freedom

Articles 36 to 41 of the Bangladesh Constitution provide for citizen right to freedoms of movement; assembly, association; thought and conscience, and expression; profession or occupation; religion; and property. These articles provide that subject to any reasonable restrictions imposed by law, public order and morality in the public interest or in the public order or Public health or the State, friendly relations with foreign States or in relation to contempt of court, defamation or enticement to offense as the case may the citizen or people residing in Bangladesh for the time being are entitled to enjoy the rights mentioned above.

These rights relate to Articles 12, 17 and 19 of the Constitution of Nepal. These, except right to religion and right to property corresponds to Article 19 of the Constitution of India.

Right Against Exploitation

As mentioned earlier Article 21 of the Constitution of India guarantees right to life and personal liberty. But “Right to life” does not merely mean animal existence. It means some thing more, e.g. the right to live with dignity. Thus, rape is a crime against basic human rights and is also violative of the victims right to life guaranteed in Art. 21. Art. 23 of the Constitution has categorically prohibited “traffic in human beings and begging and other similar forms of forced labour…” Similarly, Art. 24 prohibits employment of child (including a female child) below the age of 14 years in any factory or mine or in any other hazardous works.

The Constitution of Nepal also prohibits “Traffic in human beings, slavery, serfdom or forced labour in any form…” Any contravention of the provision shall be punishable by law.

Unhopefully, the Constitution of Bangladesh does not prohibit “traffic in human being” directly. But it prohibits all forms of forced labour which is a major consequence of trafficking. Besides, Art. 18(2) of the Constitution provides for the State for adopting “effective measure to prevent prostitution” which is also a consequence of trafficking.

Women’s Special Fundamental Rights:

Most of the fundamental rights guaranteed in the Constitutions of Bangladesh, India and Nepal are both for men and women. But there is some exception also. Some fundamental rights are exclusively for women. These rights give them (women) equal status, at least theoretically with men and empower the state to adopt laws or provisions in favour of women. These fundamental rights are exclusively for women.

Equal Rights for Women

Article 28(2) of the Constitution of Bangladesh guarantees that women shall have equal rights with men in all spheres of the State and public life. This provision in favour of women makes an advance over the Constitutions of other South Asian countries including India, Nepal and Pakistan. But this clause does not help her in all spheres of life except the spheres of the State and public life. This “equal rights” provision is not applicable to those rights which are governed by the personal laws (e.g. in case of Muslims by Sharia). But human rights activist explains it negatively:

This limitation has been implied from the inherently ambiguous nature of the equality guarantee itself as in Bangladesh where it appears to be qualified by the pharse “State and public life.”

Women are Favoured : Law Making Power of the State

The Constitutions of Bangladesh, India, and Nepal empower the State for making special provision(s) for the protection and the interests of women or in favour of women. The State is empowered by these provisions for making laws to help the women folk in the competition where they are in a weaker position. Art. 15(3) of the Constitution of India reads : “Nothing in this article shall prevent the State from making any special provision for women and children.” This provision is an exception to the rule against discrimination provided in Arts. 15(1) and 15(2) of the Constitution.

Art. 15(3) of the Constitution of India permits the State to make special provision for women and children. In fact, making a special provision is not the same as taking decisions in favour of women. In this regard the Allahabad High Court observes that special provision for women as a class can be made, but not to benefit an individual woman.

In Dattatraya Motiram v. State of Bombay, Chief Justice Chagla observes that as a result of the joint operation of Art. 15(1) and Art. 15(3) the State should discriminate in favour of women against men, but it could not discriminate in favour of men against women. This observation has also been supported in Smt. Choki v. State of Rajahthan. This contraction of Art. 15(1) and Art. 15(3) would be applied to existing as well as future law. In this regard Chief Justice Chhagla in Dattatrayas Motiram More v. State of Bombayobserves :

It is impossible to argue that the constitution did not permit laws to have special provision for women if the laws were passed before the constitution come into force but permitted the legislature to pass laws in favour of women after the commencement of the constitution. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain in statute book … But the exception made to Article 15(1) by Article 15(3) is an exception which applies both to existing laws and to laws which the state makes in future.

This special treatment for the vulnerable group, women and children is for the interest of the society itself. Accordingly, in a case of conflict between Art. 27 and 28(3) of the Constitution of Bangladesh, the latter will prevail.

The Penal Code also has special treatment in favour of women. In this regard section 497 of the Bangladesh penal code dealing with the offence of adultery is mentionable. The Section reads :

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

The Section expressly excludes the woman who equally participates in the crime from participation in the crime form being punished as an abettor. Only man is liable to be punished under the Section. The constitutionality of the Section was challenged as violative of Articles 14 and 15 of the Constitution of India.

In this regard, the judgment of Hon’bel Supreme Court of India in Yusuf Abdul Aziz v. State of Bombay[44] is a landmark in the history of the constitutional validity of the penal provision(s) protecting women. In the case a complain under section 497 was filed against the petitioner. He immediately applied to the High Court of Bombay (now Mumbai) to determine the constitutionality of the Section. The High Court upholds it as constitutional. Then the petitioner filed an appeal before the Supreme Court under Article 132(1) 134(1) of Constitution. Section 497 was challenged on the ground that it was violative of Article 14 and 15 of the Constitution of India, which guarantee a right to equality. The historic judgement was delivered by a bench consisting of Chief Justice Mahajan, Justice B.B. Mukerjee, Justice S. R. Das, Justice Bose and Justice Ghulam Hasan. Delivering the Judgement of the Court Jostice Bose observes :

Article 14 is general and must be read with the other provisions which setout the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in Section 497 of penal Code.