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Sharath Chandran

B.A, LL.B

Graduate Student, BCL, University of Oxford

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USA: Fourteenth Amendment (1870): ‘No Stateshall.... deny to any person the equal protectionof the laws...’ 

India: Article 14 (1950): ‘The State shall not deny

to any person equality before the law or theequal protection of the laws...’ 

ECHR: Art 14 (1950): The enjoyment of the rightsand freedoms set forth in this Convention shallbe secured without discrimination on any ground

such as sex, race, colour, language, religion,political or other opinion, national or socialorigin, association with a national minority,property, birth or other status.

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Canada: S.15 Canadian Charter (1982) ‘Everyindividual is equal before and under the lawand has the right to the equal protection andequal benefit of the law.’ 

South Africa S.9 (1997): ‘Everyone is equalbefore the law and has the right to equalprotection and benefit of the law….The State

may not discriminate unfairly.’ 

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Aristotle: Equality in morals means this:things that are alike should be treated alike,while things that are unalike should betreated unalike in proportion to their

unlikeness.

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Tussman and TenBroek ‘The Constitutionrequires that those who are similarly situated besimilarly treated.’ 

But ‘The demand for equal protection cannot be

a demand that laws apply universally to allpersons. The legislature, if it is to act at all, mustimpose special burdens upon or grant specialbenefits to groups’ 

‘The measure of the reasonableness is the degreeof its success in treating similarly those similarlysituated’ 

Closeness of ‘fit’: under or over inclusive – orboth.

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Article 14 does not forbid every difference intreatment … One would reach absurd results wereone to give Article 14 an interpretation as wide asthat ... One would, in effect, be led to judge ascontrary to the Convention every one of the manylegal or administrative provisions which do not secureto everyone complete equality of treatment ….(Belgian Linguistics)

A difference of treatment is discriminatory if it "hasno objective and reasonable justification", that is, if itdoes not pursue a "legitimate aim" or if there is not a

"reasonable relationship of proportionality betweenthe means employed and the aim sought to berealised"

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Individualism: ‘If a society can be said to have anunderlying political theory, ours has not been atheory of organic groups but of liberalism,focusing on the rights of individuals’ (Brest)

Rationality: Race-dependent decisions areirrational in so far as they reflect the assumptionthat members of one race are less worthy thanothers. (Brest) Cf Aristotle - women irrational.

State Neutrality: Equal value to each individual’schoice of the good life.

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USA – Carolene Products Case , Griggs VsDuke Power Corp (1971) , United States VsVirginia (1996) , Grutter Vs Bollinger(2003),Bakke Vs US (1978).

Canada – Andrews Vs The Law Society of British Columbia, R Vs Kapp

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Ngcobo J finds that it criminalises male and femaleprostitution and is therefore not directly discriminatory;nor does it constitute indirect discrimination because (a)there is a qualitative difference between the person whoconducts business as a prostitute and a customer; and (b)under the common law and statute the customer is liable

to prosecution as an accomplice to the offence committedby the prostitute and liable to the same punishment. O'Regan and Sachs JJ find that the prostitution provision

constitutes unfair discrimination: by making the prostitutethe primary offender and regarding the patron at most asan accomplice, the law reinforces sexual double standards

and perpetuates gender stereotypes in a mannerimpermissible in a society committed to advancing genderequality.

Sexual Offences Act 1957

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India – Budhan Chaudhury Vs State of Bihar,E.P Royappa Vs Tamil Nadu, Ajay Hasia VsKhaled Mujib (1981). Anuj Garg Vs HotelAssn, AK Thakur Vs Union

EU – Kalanke (1995) , Lommers (2002), Smithand Grady Vs The UK

United Kingdom – James Vs Eastleigh (1991) ,

R Vs JFS

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