Article 14: equality before law and the new doctrine of arbitrariness - Constitutional Law I

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The shape of this topic. Article 14 has two eras. The old doctrine asks whether a classification is reasonable. The new doctrine asks whether the State has acted arbitrarily. They coexist rather than replace one another, and an answer that shows the movement between them is worth far more than one that recites only the classification test.

1. The two limbs

Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Two expressions, drawn from different traditions.

Equality before the law is from English common law and Dicey's rule of law. It is a negative concept: the absence of special privilege, and the equal subjection of all persons to the ordinary law administered by the ordinary courts. No one is above the law.

Equal protection of the laws is from the Fourteenth Amendment to the United States Constitution. It is a positive concept: like should be treated alike, in like circumstances. It does not require identical treatment of everyone; it requires equality of treatment among equals.

Note also that Article 14 is available to any person, not merely citizens, and so extends to companies and to foreigners.

2. Reasonable classification: the old doctrine

Because equal protection requires equal treatment only among equals, the State may classify. But the classification must not be arbitrary, and the test has two limbs. It is best learned in the words the Court has used repeatedly:

the classification must be founded on an intelligible differentia which distinguishes persons or things grouped together from those left out; and
that differentia must have a rational nexus with the object sought to be achieved by the statute.

In State of West Bengal v. Anwar Ali Sarkar, 1952 INSC 1, AIR 1952 SC 75, section 5(1) of the West Bengal Special Courts Act allowed the State to direct that any case be tried by a special court following a truncated procedure. The Act supplied no basis for choosing which cases; the discretion was untrammelled. The provision was struck down because there was no intelligible differentia at all — the classification was left entirely to executive whim.

The principles were then systematised in Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1958 INSC 29, AIR 1958 SC 538, where the Court set out propositions governing classification, including that a statute may be constitutional even though it applies to a single individual if that individual forms a class by themselves, and that there is a presumption of constitutionality which the challenger must displace.

Class legislation is forbidden; classification is not

The distinction to state clearly. Class legislation makes improper discrimination by conferring a privilege on an arbitrarily selected group. Reasonable classification groups persons who genuinely differ, for a purpose connected with the difference. Article 14 forbids the first and permits the second.

3. The new doctrine: arbitrariness

The classification test had a weakness. A law could satisfy both limbs mechanically and still be unjust, and the test tended to invite ingenious justifications after the fact.

The shift came in E.P. Royappa v. State of Tamil Nadu, 1973 INSC 213, (1974) 4 SCC 3. Bhagwati J. said that equality is a dynamic concept with many aspects and dimensions, and that it cannot be “cribbed, cabined and confined” within traditional limits; equality is antithetic to arbitrariness, and where an act is arbitrary it is implicit in it that it is unequal. Arbitrariness and equality are sworn enemies.

That reasoning was carried into Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, where the Court held that Articles 14, 19 and 21 are not watertight compartments but a connected scheme — the “golden triangle”. A law depriving a person of personal liberty must satisfy not only Article 21 but also the reasonableness demanded by Articles 14 and 19. Article 14 thereby became a general guarantee against arbitrary State action rather than merely a rule about classification.

The doctrine's modern application appears in Shayara Bano v. Union of India, 2017 INSC 785, (2017) 9 SCC 1, where the practice of talaq-e-biddat was set aside. The judgment is also cited for the proposition that manifest arbitrariness is a ground on which legislation itself, and not merely executive action, may be struck down under Article 14.

4. Exceptions to equality

Worth a short paragraph, since questions sometimes ask whether equality before law is absolute. It is not:

Article 361 — the President and Governors are not answerable to any court for the exercise of the powers of their office, and no criminal proceedings may be instituted against them during their term.
Articles 105 and 194 — parliamentary and legislative privilege, including immunity for anything said or any vote given in the House.
Diplomatic immunity under international law and the statutes giving it effect.

5. How the two doctrines fit together

The classification test has not been discarded. It remains the working tool where a statute groups people. The arbitrariness doctrine sits alongside it as a wider guarantee, catching State action that is unreasonable, capricious or without determining principle even where a classification could be constructed. In an answer, present them as successive layers rather than as rivals.

How this is examined

One of the most heavily set topics in the paper. As a short note: equality before law and equal protection of the laws, or reasonable classification, or the exceptions to Article 14. As an essay: discuss the doctrine of reasonable classification and the new concept of equality, or examine judicial trends on equality.

The structure that works: state both limbs and their different origins; give the two-limb classification test with Anwar Ali Sarkar and Dalmia; then show the movement to arbitrariness with Royappa and Maneka Gandhi; then bring it to the present with Shayara Bano and manifest arbitrariness; and close with the exceptions. Get the phrase “intelligible differentia” and “rational nexus” exactly right — examiners look for it.

Now go and read the questions themselves: Constitutional Law I past question papers.