Jump to content

Equality before law

From Justice Definitions

Introduction

Now, let's say you are in court waiting for your judgment. Meanwhile, a well-dressed, sophisticated person comes before you with an advocate and walks away with a favourable judgement. Then it's your turn. No lawyer. No understanding of legal jargon. Just you, hoping that the judge will somehow see the truth in your eyes and give a judgement in your favour. Does that sound like equality? Probably not. Yet we toss around the phrase "equality before the law" as if it were a done deal, a box already ticked. As Richard Wollheim observed, this principle has become so incrusted, so overgrown with particular interpretations, “that it is difficult to see it clearly, as it is.”[1]

What Does 'Equality Before the Law' Actually Mean?

Let's start with the basics. Equality before the law means, in its simplest form, that the law should not play favourites. It should not care whether you are a king or a cobbler, a billionaire or a beggar and treat you equally. Article 14 of the Indian Constitution puts it this way: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."[2] A distinguished Indian judge, P.B. Mukharji, once speculated that the first expression "equality before the law" came from British jurisprudence (the rule of law), while "equal protection of the laws" travelled across the Atlantic from the American Constitution.[3]

But here is where it gets interesting, and deeply human. Equality before the law does NOT mean that every law must apply to everyone in exactly the same way. That would be absurd. A law that treats a child the same as an adult, or a person with a disability the same as someone without, might actually create inequality rather than solving it. As Mr. Justice Douglas of the U.S. Supreme Court observed, lawmakers must constantly make classifications: graduating taxes according to income, regulating business according to size, protecting people according to age.[4] The real question is not whether classifications exist, they must but whether those classifications are reasonable and not arbitrary.[5]

The Two Faces of Equality: Formal and Substantive

This brings us to one of the most important distinctions in all of equality law: the difference between formal equality and substantive equality. Formal equality is the "treat likes alike" principle. It says that if two people are in the same situation, they should receive the same treatment. Simple, clean, and often completely inadequate.[6]

Substantive equality, on the other hand, recognises that treating everyone the same can actually perpetuate inequality. If you give a tall person and a short person the same size box to stand on to see over a fence, the tall person still sees better. True equality sometimes requires treating people differently to account for their different circumstances.[7]

The Irish Supreme Court captured this well when it said that Article 40.1 of the Irish Constitution "does not either envisage or guarantee equal measure in all things to all citizens."[8] The German Federal Constitutional Court agrees: "The principle of equality does not require that the legislature must treat individuals and their relevant social groupings with unconditional uniformity." In other words, equality is not sameness, its fairness and fairness sometimes requires seeing difference and acknowledging it, not ignoring it.[9]

What the Law Says: Official Definitions and Legal Provisions

Article 14 of the Indian Constitution is the most essential part of the equality jurisprudence in India. But it does not stand alone, Articles 15, 16, 17, and 18 work together to ensure equality in all its aspects. Article 15(1) prohibits discrimination by the State against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. Article 16(1) guarantees equality of opportunity in matters of public employment. Article 17 abolishes untouchability. Article 18 abolishes titles.[10]

The Supreme Court of India has developed a two-part test to determine whether a classification is constitutionally permissible. First, the classification must be founded on an intelligible differentia meaning something that genuinely distinguishes those grouped together from those left out. Second, that differentia must have a rational relation to the object sought to be achieved by the legislation. There must be a ‘nexus’.[11]

Landmark Cases: When Equality Came Alive in Court

The Sholapur Spinning & Weaving Case

In Chiranjit Lal v. The Union of India,[12] the government took over the management of a single company, the Sholapur Spinning & Weaving Company due to gross mismanagement and because they produced essential commodities which if failed would cause serious unemployment. A shareholder challenged this, arguing that singling out one company violated Article 14. By a majority of three to two, the Supreme Court upheld the law, finding that the company's exceptional circumstances made it a class by itself.[13]

But two dissenting judges, Sastri and Das, condemned this as the kind of legislation that singles out a particular individual or corporation for punishment comparable, in Sastri's words, to the "notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by retrospective bills of attainder."[14] Mr. Justice Douglas of the U.S. Supreme Court commented that such legislation "would undoubtedly have been condemned in America."[15] This case shows how even the judges of the highest courts can disagree profoundly about what equality requires.

The Arbitrariness Doctrine: E.P. Royappa

Then came E.P. Royappa v. State of Tamil Nadu (1974)[16], a jurisprudential earthquake in legal history. The Supreme Court declared that equality is the contradiction of arbitrariness. Any state action that is arbitrary is inherently unequal and thus unconstitutional. "Equality and arbitrariness are sworn enemies," the court famously observed.[17]

This was a groundbreaking change in the legal history of equality. It meant that even if a law does not explicitly discriminate, if it is unreasonable or arbitrary, it violates Article 14. The principle was reinforced in Maneka Gandhi v. Union of India (1978)[18], where the court held that executive actions must pass tests of fairness and reasonableness.[19]

Variations: How Different Countries Approach Equality

The United States: Equal Protection

The U.S. Constitution's Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws."[20] This has generated a vast body of jurisprudence, including the famous Yick Wo v. Hopkins[21] decision, which held that a law fair on its face could be administered "with an evil eye and an unequal hand," thus denying equal justice.[22]

However, as Walter Carrington pointed out as early as 1922, equality before the law in America remains elusive for the poor. "To say that a poor man without financial support has the same opportunity to have his case effectively presented as has a wealthy man or a large corporation is certainly not true."[23] He noted that the ability to employ able counsel, the expense of litigation, and the right of appeal on technical questions all place the poor at a "very great disadvantage."[24]

Brazil: The Gap Between Law and Reality

Brazil's Constitution declares that "all individuals are equal before the Law, without distinction of sex, race, labor, religious creed or political conviction."[25] But Sebastião Rodrigues Alves, writing from lived experience as a Black Brazilian, calls this "juridical equality" a form of "abolition of memory."[26]

He writes: "It would seem that in Brazil, by way of juridical arts, there now exist no more differences among men grounded in racial roots... It would seem, again under the guise of the Great Law, that that guilty subconscious of Brazilian citizenry with relation to Black people has been sublimated."[27] Yet the reality is that Black Brazilians face educational discrimination, economic discrimination, social and cultural discrimination.[28] "A Black person, when he climbs down the hill to work, does not know if he will come back, because his darkness... turns us automatically into police suspects."[29]

United Kingdom: The Forked Tongue of Equality Law

A commitment to equality before the law is stated in the UK's Equality Act 2010 and its predecessor acts. However, British equality law "has taken to speaking with a forked tongue,"[30] according to Lizzie Barmes. In a nutshell, it instructs organisations to disregard identification, treat everyone equally, eliminate differences, and refrain from overt discrimination at all costs. In the following, it requires public authorities to aggressively support equality, make accommodations for people with disabilities, and even defend age-based discrimination. The outcome is confusion rather than clarity.

Consider the Avon and Somerset Constabulary in 2006. The police force launched a pioneering positive action campaign to recruit officers from underrepresented communities, inspired by the disability discrimination model. Instead of praise, they were advised that their scheme might violate the Sex Discrimination Act and the Race Relations Act. The Chief Constable protested: “It was not and has never been our intention to discriminate.”[31] Yet the law had trapped them in its own contradiction. As Barmes notes, organisations that try to do the right thing are often “frustrated by the rigidities within the equality laws.”[32] The UK has a beautiful equality architecture on paper, but inside, the corridors lead in opposite directions.

The Crippling Cost of Justice: Legal Aid as a Facet of Equality

The uncomfortable truth is that courts may have their doors wide open for everyone, but if you cannot afford to walk through them, they might as well be made of stone. As S.M. Huang-Thio observed in 1963, "the doors of the courts may be wide open but the impecunious person may be unable to enter their portals because he is inhibited by the high cost which litigation involves."[33]

Justice Sutherland captured the human stakes in Powell v. Alabama[34]: "Even the intelligent and educated layman has small and sometimes no skill in the science of law... He lacks both the skill and knowledge adequately to prepare his defence even though he may have a perfect one. He requires the guiding hand of counsel at every step."[35]

In India, the right to free legal aid has been recognised, but the gap between promise and practice remains vast. The poor continue to face barriers of poverty, illiteracy, distance, and social prejudice which acts as a major reason to distance the poor from equal protection of law. Equality before the law is only a starting point; without the means to enforce that right, it remains a hollow promise.[36]

Research That Engages with Equality

Scholars have long grappled with what equality truly means. Carl Knight proposes three conditions for a theory to count as genuinely egalitarian. First, the theory must consider the bare fact that a person is in certain circumstances as a conclusive reason for placing another relevantly identically entitled person in the same circumstances. Second, it must show no greater concern and respect for some rather than others. Third, it must pursue equality in a dimension that is valuable to egalitarians.[37]

William Lucy argues that "juridical equality" has three components: the presumptive-identity component (the law sees its addressees as identical abstract beings), the uniformity component (the same laws should apply to all), and the limited-avoidability component (exculpatory claims are limited to reasonableness standards).[38]

Ben Mitchell distinguishes between process equality (the State must be neutral) and substantive equality (concerned with output and relative disadvantage). He argues that equality should be defined by relative levels of disadvantage, not merely by neutral treatment.[39]

Challenges: Why the Promise Remains Unfulfilled

The obstacles to genuine equality before the law are staggering:

  1. Poverty is perhaps the greatest. The rich can afford better lawyers, more time, and the luxury of appeals. The poor often cannot afford any lawyer at all.[40]
  2. Discrimination exists despite so many legal prohibitions. Racial, gender, caste, and religious biases operate both openly and subtly. As the Brazilian experience shows, a law declaring equality does not erase centuries of slavery and subordination.[41]
  3. Indirect discrimination where a neutral rule disproportionately harms a particular group remains under-recognised. The Irish Supreme Court in Fleming v Ireland held that "the constitutional principle of equal treatment before the law... does not extend to categorise as unequal the differential indirect effects on a person of an objectively neutral law."[42]
  4. Access to justice remains the single biggest hurdle. Legal aid systems are underfunded. Court fees remain prohibitive for many. Language barriers and illiteracy exclude millions. As Carrington wrote a century ago, "It is a common occurrence in a criminal court, and a pathetic one, to see some poor wretch, when brought up for trial, announce that he has no lawyer to defend him, and then to see the judge appoint as his counsel some neophyte just out of a law school."[43]

The Way Ahead: From Promise to Practice

First and foremost, we need to improve our legal aid programs. Advocates must realise that this is a constitutional mandate rather than a charitable endeavour. Free legal aid is required under Article 39A of the Indian Constitution; however, its implementation is well behind schedule.[44]

Second, we need to broaden the definition of legal positive activity. Lizzie Barmes contends that UK equality law has been unduly restrictive, outlawing actions that are completely reasonable and have no negative effects. Subject to proportionality and fairness requirements, organisations should have greater latitude to test programs intended to address structural disadvantages.[45]

Third, we need to take direct action against indirect prejudice. Neutral regulations can be just as detrimental as overtly discriminatory ones, and courts should acknowledge this.[46]

Fourth, we need to address how money plays a part in justice. Justice will never be fully equal as long as it is something that is purchased. In addition to legal assistance, this calls for broader economic changes that reduce inequality more broadly.

Conclusion

Equality before the law is one of those phrases we hear so often that people start to overlook it. However, once you get past the legal terminology and the opinions of judges, you are left with a radical idea. This idea is that every single person deserves to be treated with the same dignity, respect, and fairness under the law.

The road that we are travelling on is long and full of dangers, and what we have done so far is important. Every arbitrary law that a court strikes down brings us closer. Every legal aid lawyer who fights for their poor clients is a step closer. Every citizen who demands that someone be held accountable is a step closer.

Law is not a machine that runs on its own. We are the lawmakers, and since we make it, we are accountable for changing it as well.

REFERENCES

  1. Alves, Sebastião Rodrigues. “We Are All Equal Before the Law.”
  2. Amma, Janki Kutti. “Right to Equality.”
  3. Barmes, Lizzie. “Equality Law and Experimentation: The Positive Action Challenge.”
  4. Carrington, Walter. “Equality before the Law.”
  5. Chowdhury, Subrata Roy. “Equality before the Law in India.”
  6. Gowder, Paul. “The Rule of Law and Equality.”
  7. Huang‑Thio, S. M. “Legal Aid: A Facet of Equality before the Law.”
  8. Kelly, J. M. “Equality before the Law in Three European Jurisdictions.”
  9. Knight, Carl. “Describing Equality.”
  10. Lucy, William. “Equality Under and Before the Law.”
  11. Mitchell, Ben. “Process Equality, Substantive Equality and Recognising Disadvantage in Constitutional Equality Law.”
  12. Wollheim, Richard, and Isaiah Berlin. “Equality.”
Contributors & review status
Curated / edited bynot yet recorded
Peer reviewpending
Project reviewpending
Expert reviewpending
Page created 2026-08-21  ·  Last updated 2026-08-23
  1. ↑ Wollheim, R., & Berlin, I. (1955). Equality. Proceedings of the Aristotelian Society, 56, 281–326. http://www.jstor.org/stable/4544567 [1]
  2. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 [2]
  3. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 [3](citing P.B. Mukharji J. on the British and American origins of the two expressions).
  4. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 at 224 (quoting Justice Douglas of the U.S. Supreme Court). [4]
  5. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 (stating that "in order to be unconstitutional the inequality must be actually and palpably unreasonable and arbitrary"). [5]
  6. ↑ MITCHELL, B. (2015). PROCESS EQUALITY, SUBSTANTIVE EQUALITY AND RECOGNISING DISADVANTAGE IN CONSTITUTIONAL EQUALITY LAW. Irish Jurist, 53, 36–57. http://www.jstor.org/stable/44026885 [6]
  7. ↑ MITCHELL, B. (2015). PROCESS EQUALITY, SUBSTANTIVE EQUALITY AND RECOGNISING DISADVANTAGE IN CONSTITUTIONAL EQUALITY LAW. Irish Jurist, 53, 36–57. http://www.jstor.org/stable/44026885 at 44-46 (arguing that equality should be defined according to relative levels of disadvantage rather than neutral treatment). [7]
  8. ↑ Kelly, J. M. (1983). EQUALITY BEFORE THE LAW IN THREE EUROPEAN JURISDICTIONS. Irish Jurist (1966-), 18(2), 259–288. http://www.jstor.org/stable/44027806 [8]
  9. ↑ Kelly, J. M. (1983). EQUALITY BEFORE THE LAW IN THREE EUROPEAN JURISDICTIONS. Irish Jurist (1966-), 18(2), 259–288. http://www.jstor.org/stable/44027806 at 268 (quoting BVerfGE 6.84, 91 from the German Federal Constitutional Court). [9]
  10. ↑ Amma, J. K. (1952). RIGHT TO EQUALITY. The Indian Journal of Political Science, 13(3/4), 57–61. http://www.jstor.org/stable/42743401 [10]
  11. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 at 225 (setting out the two tests for permissible classification). [11]
  12. ↑ Chiranjit Lal v. The Union of India 1950 SCR 869 [12]
  13. ↑ Ibid. at 226-227 (discussing Chiranjit Lal v. The Union of India). [13]
  14. ↑ Ibid. at 227 (quoting Sastri J.'s dissenting judgment). [14]
  15. ↑ Ibid. (quoting Mr. Justice Douglas's commentary). [15]
  16. ↑ E.P. Royappa v. State of Tamil Nadu (1974) AIR 555 SCR (2) 348 [16]
  17. ↑ Maneka Gandhi v. Union of India, AIR 1978 SC 597 (discussed in Chowdhury at 224, though the Royappa case is the source of the "sworn enemies" formulation). [17]
  18. ↑ Maneka Gandhi v. Union of India, AIR 1978 SC 597 [18]
  19. ↑ ibid (Maneka Gandhi v. Union of India, AIR 1978 SC 597) [19]
  20. ↑ Huang-Thio, S. M. (1963). Legal Aid: A Facet of Equality before the Law. The International and Comparative Law Quarterly, 12(4), 1133–1164. http://www.jstor.org/stable/756561 [20]
  21. ↑ Yick Wo v. Hopkins 118 US 356 (1886) [21]
  22. ↑ Chowdhury, S. R. (1961). Equality before the Law in India. The Cambridge Law Journal, 19(2), 223–238. http://www.jstor.org/stable/4504739 at 230 (citing Yick Wo v. Hopkins). [22]
  23. ↑ Carrington, W. (1922). Equality before the Law. The Virginia Law Register, 8(7), 481–485. https://doi.org/10.2307/1108778 [23]
  24. ↑ Carrington, W. (1922). Equality before the Law. The Virginia Law Register, 8(7), 481–485. https://doi.org/10.2307/1108778 [24]
  25. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. no. 2 (1980): 179-180 (quoting Article 153 of the Brazilian Constitution). [25]
  26. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. http://www.jstor.org/stable/2784226. at 189-190 (discussing the "abolition of memory"). [26]
  27. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. http://www.jstor.org/stable/2784226 at 180. [27]
  28. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. http://www.jstor.org/stable/2784226 at 181-182. [28]
  29. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. http://www.jstor.org/stable/2784226. at 182-183. [29]
  30. ↑ Barmes, L. (2009). Equality Law and Experimentation: The Positive Action Challenge. The Cambridge Law Journal, 68(3), 623–654. http://www.jstor.org/stable/40388838 [30]
  31. ↑ Barmes, L. (2009). Equality Law and Experimentation: The Positive Action Challenge. The Cambridge Law Journal, 68(3), 623–654. http://www.jstor.org/stable/40388838 [31]
  32. ↑ Barmes, L. (2009). Equality Law and Experimentation: The Positive Action Challenge. The Cambridge Law Journal, 68(3), 623–654. http://www.jstor.org/stable/40388838 [32]
  33. ↑ Huang-Thio, S. M. (1963). Legal Aid: A Facet of Equality before the Law. The International and Comparative Law Quarterly, 12(4), 1133–1164. http://www.jstor.org/stable/756561 at 1134. [33]
  34. ↑ Powell v. Alabama 287 U.S. 45 (1932) [34]
  35. ↑ Ibid. at 1157 (quoting Powell v. Alabama, 287 U.S. 45 (1932)). [35]
  36. ↑ Carrington, W. (1922). Equality before the Law. The Virginia Law Register, 8(7), 481–485. https://doi.org/10.2307/1108778 [36] see also Amma, J. K. (1952). RIGHT TO EQUALITY. The Indian Journal of Political Science, 13(3/4), 57–61. http://www.jstor.org/stable/42743401 [37]
  37. ↑ Knight, C. (2009). Describing Equality. Law and Philosophy, 28(4), 327–365. http://www.jstor.org/stable/40284676 [38]
  38. ↑ Lucy, W. (2011). EQUALITY UNDER AND BEFORE THE LAW. The University of Toronto Law Journal, 61(3), 411–465. http://www.jstor.org/stable/23018555 [39]
  39. ↑ MITCHELL, B. (2015). PROCESS EQUALITY, SUBSTANTIVE EQUALITY AND RECOGNISING DISADVANTAGE IN CONSTITUTIONAL EQUALITY LAW. Irish Jurist, 53, 36–57. http://www.jstor.org/stable/44026885 [40]
  40. ↑ Carrington, W. (1922). Equality before the Law. The Virginia Law Register, 8(7), 481–485. https://doi.org/10.2307/1108778 at 482-485. [41]
  41. ↑ Alves, S. R. (1980). We Are All Equal Before the Law. Journal of Black Studies, 11(2), 179–194. http://www.jstor.org/stable/2784226 [42]
  42. ↑ MITCHELL, B. (2015). PROCESS EQUALITY, SUBSTANTIVE EQUALITY AND RECOGNISING DISADVANTAGE IN CONSTITUTIONAL EQUALITY LAW. Irish Jurist, 53, 36–57. http://www.jstor.org/stable/44026885 [43]
  43. ↑ Carrington, W. (1922). Equality before the Law. The Virginia Law Register, 8(7), 481–485. https://doi.org/10.2307/1108778 [44]
  44. ↑ Amma, J. K. (1952). RIGHT TO EQUALITY. The Indian Journal of Political Science, 13(3/4), 57–61. http://www.jstor.org/stable/42743401 [45]
  45. ↑ Barmes, L. (2009). Equality Law and Experimentation: The Positive Action Challenge. The Cambridge Law Journal, 68(3), 623–654. http://www.jstor.org/stable/40388838 [46]
  46. ↑ MITCHELL, B. (2015). PROCESS EQUALITY, SUBSTANTIVE EQUALITY AND RECOGNISING DISADVANTAGE IN CONSTITUTIONAL EQUALITY LAW. Irish Jurist, 53, 36–57. http://www.jstor.org/stable/44026885 [47]
Retrieved from "https://www.lawandjusticewiki.org/w/index.php?title=Equality_before_law&oldid=15644"
Cookies help us deliver our services. By using our services, you agree to our use of cookies.