Constitution Sem IInd

Article-14 of Indian constitution(a analysis)
th
-Eshan pandit BA(hons) LLB(hons)(4 semester)

-National University of Study and Research in Law, Ranchi, India.
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Article 14 "combines the English doctrine of the rule of law with equal protection of clause of
the 14th Amendment" .1
- Das C.J. in Basheshar Nath v. CIT
Article 14 a brief introduction: - Article 14 mandates that the State shall not deny equality
before law and equal protection of laws to any person within the territory of India. By
incorporating in Article 14 the British doctrine of rule of law as propounded by Prof. Dicey and
the "equal protection of law" clause of 14th Amendment of the U.S. Constitution, the framers of
our Constitution had in their zeal infused extra vigour and vitality in the right to equality.
However, Parliament has repeatedly tried to curtail the scope and vigour of Article 14 in order to
2
carry out the welfare programs. Apart from it, the Supreme Court had sapped some of the vigour
of Article 14 by showing "fanatical reverence" to the theory of classification or the nexus tests".
Finally in 1974 the Supreme Court evolved the new doctrine that Article 14 is a guarantee
3
against arbitrariness. Thus the Supreme Court has evolved two different and distinct doctrines
for tackling attack on State action on the ground of violation of Article 14. An attempt is being
1
(1959) Supp 1 SCR 528, 551
Constitution (First Amendment) Act, 1951 blunted the attack on the ground of violation of Article 14 for allowing smooth
passage of Zamindari Abolition Acts of various States. Constitution (25th Amendment) Act introduced Article 31-C for
giving overriding effect to Articles 39(a) and (b) over fundamental rights enshrined in Articles 14,
and 31. Later on this overriding effect was given by 42nd Amendment to all the Directive Principles over these
articles
E.P. Royappa v. State of Tamil Nadu, (l974) 4 SCC 3.
1
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made in this paper to analyze objectively the merits and demerits of the old and new doctrines. It
is only understandable that our Supreme Court should have applied the theory of classification,
evolved by the American Supreme Court for giving content and true meaning to right to equality.
According to this doctrine "equal protection of laws" prohibits class legislation but permits
4
reasonable classification of persons or things. By expressly incorporating in the second part of
Article 14 the language of the 14th Amendment of the U.S. Constitution, the Constituent
Assembly impliedly had approved the interpretation of that clause by the U.S. Supreme Court.
Hence, from the very beginning the Indian Supreme Court has had no hesitation in applying the
theory of classification while testing the Constitutional vires of legislations and State actions
impugned on the basis of their being violative of Article 14. The classic nexus test was
5
enunciated by S.R. Das, J. in the Anwar Ali Sarkar case "In order to pass the test of permissible classification two conditions must be fulfilled viz. (i)
that the classification must be founded on an intelligible differentia which distinguishes those
that are grouped together from others left out of the group, and (ii) that the differentia must
have a rational relation to the objects sought to be achieved by the Act. The differentia which
is the basis of the classification and the object of the Act are distinct and what is necessary is
that there must be nexus between them."
On the basis of these tests, better known as nexus tests, innumerable cases have been decided by
the Supreme Court and various State High Courts. Supreme Court has from time to time tried to
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summarise the principles enunciated by it in its previous decisions under Article 14.
These classic tests of permissible classification have been repeated so many times that the
7
Supreme Court in 1960 remarked that "they now sound platitudinous". Apart from staleness of
Cf. Prof. Willis, 'CONSTITUTIONAL LIMITATIONS' (Ist edn.) p. 579. "The guarantee of equal protection of laws
means protection of equal laws. It forbids class legislation but does not forbid classification which rests upon
reasonable grounds of distinction. It does not prohibit legislation which is limited either in the objects to which it is
directed or by the territory within which it is to be operated. It merely requires that all persons subject to such
legislation shall be treated alike, under like circumstances and conditions both in privileges conferred and in the
liability. Similarity and not identity of treatment is enough."
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
(a) State of Bombay v. F.N. Balsara, AIR 1951 SC 318. (b) R.K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538. (c) In re
Special Courts Bill, 1978, (1979) 1 SCC 380.
2
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repetition, it was feared that the fanatical reverence shown to these tests might ultimately replace
8
the doctrine of equality and rob Article 14 of its "glorious content". Some academic literature
regarding the right to equality also appeared pointing out the shortcomings of the nexus tests.
However, only two of such studies may be noted in this brief paper.
K.K. Mathew, J. highlighted the negative concept of the doctrine of "equality before the law", as
traditionally understood and posed the question whether the command of Article 14 is merely to
ban creation of equality or to eliminate inequalities ? According to him "Formal equality before
9
the law has been found to be a sham in many areas". Thus, legal thinking in the country was
slowly moving towards giving a positivistic or activist twist to the right to equality. Prof. P.K.
Tripathi in his Telang lectures on "Right to Equality" attempted a more comprehensive study of
the right to equality. After careful analysis of several decisions of the Supreme Court applying
nexus tests he concluded that these tests were inappropriate in certain fields. He pointed out that
the theory of classification has three aspects which he chose to call " 'Why', 'What' and 'Whom'
elements respectively." He also observed that, the nexus tests notice only the object and criterion
of classification and their mutual relation but ignore the "what" element and the relationship of
this element with the other two, resulting in the "what" element being confused with the other
"why" or "whom" elements, specially when the "object" or "why" element is not expressly and
clearly indicated in the statute itself. He further concluded that nexus tests are not suitable at all
for tackling certain situations. These are: (i) where the statute indicates the policy or purpose to
be fulfilled and also the special treatment to be given to selected persons or things but leaves it
to the executive to make actual selection of the persons or things in fulfillment of the
legislative policy; (ii) to "one person" statutes; (iii) where legislature gives broad indication of
the kind of cases to be subjected to differential treatment and (iv) to statutes which leave the
executive free to pick and choose individuals towards the fulfillment of statutory policy. In
Chandrachud. C.J. in Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 423 : "As far back as 1960 it was said by this
Court in Kangsari Haldar that the proposition applicable to cases arising under Article 14 have been repeated so many#
times that they now sound platitudinous. If it was so in 1960, it would be even more true in 1979."
LachmanDas v. State of Punjab, AIR 1963 SC 222. Subba Rao J.,:"The doctrine of classification is only a
subsidiary rule evolved by courts to give content to the said doctrine (equality before law). Over-emphasis on the
doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually
and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the
doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal
protection of the laws may be replaced by the doctrine of classification."
K.K. Mathew : Democracy, Equality and Freedom, p. 63
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short it may be stated that nexus tests were found inadequate to meet the situation where very
wide or unbridled discretion was given to the authorities to pick and choose persons for giving
different treatment through indicating clearly the legislative policy for achieving other objects
of legislation in the statute itself. No doubt in this sphere the Supreme Court has not shown
10
consistency even according to H.M. Seervai.
Prof. Tripathi in the end expressed his hope that "the Supreme Court will sooner rather than
11
later free itself from the shackles of this dogma".
As a result of the aforesaid, well informed criticism of the nexus tests, the Supreme Court freed
itself from the shackles of this dogma. However, at first in Maganlal Chaganlal v. Municipal
12
Corpn., Greater Bombay , the Supreme Court overruled its previous decision in Northern
India Caterers Ltd. v. State of Punjab
13
without applying nexus tests. Finally the Supreme

14
Court adopted the positivistic or activist stance in E.P. Royappa v. State of Tamil Nadu.
Bhagwati, J. stated :
"Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and
confined' within the traditional and doctrinaire limits. From the positivistic point of view
equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies....
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Article 14...."On the basis of this new
15
activist theory of equality a few decisions were made by the Supreme Court and ultimately it
16
was unanimously approved by the Supreme Court in Ajai Hasia v. Khalid Mujib. After
reiterating that equality is a dynamic concept with many aspects which could not be confined to
traditional and doctrinaire limits, Bhagwati, J. had in Maneka Gandhi case proceeded to
H.M. Seervai, Constitution Law of India, 3rd Edn. Vol. I, p.382, 9.114 (Commenting with reference to the power of
exemption conferred by most of the statutes on the executive he has said "on this question the attitude of the Supreme
Court is not consistent".
Cited in Mahendra P. Singh (Ed.): Comparative Constitutional Law, p. 485.

(1974) 2 SCC 402
AIR 1967 SC 1581
(1974) 4 SCC 3, 38
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Ramana Dayaram Shetty v. Airport Authority, (1979) 3 SCC 489.
(1981) 1 SCC 722
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examine the 'content and reach' of the 'great equalizing principle' enshrined in Article 14. He
observed that:
"It is indeed the pillar on which rests securely the foundation of our democratic republic. And
therefore, it must not be subject to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all embracing scope and meaning, for, to do so would be to
violate its activist magnitude.... Equality is a dynamic concept with many aspects and
dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14
strikes at arbitrariness in State action and ensures fairness and equality of treatment. The
principle of reasonableness, which legally and philosophically, is an essential element of
equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.'' This was
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again reiterated by the Supreme Court in the International Airport Authority case.
Thus the new doctrine of equality that "Article 14 embodies a guarantee against arbitrariness"
has become established. However, this does not mean that the nexus tests have been abandoned
18
by the Supreme Court altogether However, the new doctrine of equality has its own critics.
Seervai has taken exception to Bhagwati, J.'s description of the classification theory as
"doctrinaire" because according to him "there is nothing unpractical about a doctrine which
effectively secures equal protection of law to persons by declaring the law based on
impermissible classification to be void while leaving to the State a wide field for making laws
based on permissible classification". He does not stop here but goes on to challenge the very
validity of the new doctrine in the following terms: "The new doctrine hangs in that air
because it propounds a theory of equality without reference to the terms in which Article 14
confers rights to equality." After pointing out that Article 14 has two limbs, he observes that:
"Equality before law, broadly speaking, means that except in a very limited class of cases a
court administering justice is not concerned with the status or position of the parties
appearing before it. The law is no respecter of persons." As regards the second limb he
observes that "the
U.S. Supreme Court had evolved the doctrine of classification to explain and give content to
(1979) 3 SCC 489

H.M. Seervai, former Advocate-General of Maharashtra (1957-1974) and Jagdish Swaroop, former Solicitor-General of
India, in their commentaries on the Constitution of India.
5
equal protection of laws."
19
He has further stated that the new doctrine suffers from "fallacy of
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undistributed middle" Jagdish Swaroop has also found "it difficult to agree" with the observations
of Bhagwati, J. in the Ajay Hasia case that it was for the first time in Royappa case that the Supreme
Court laid bare a new dimension to Article 14 and that it was a guarantee against arbitrariness. He has
pointed out that: "From the very beginning the Supreme Court held that while Article 14 forbids
class legislation, it does not forbid reasonable classification." If any statute is found not to comply
with the two important requirements of Article 14, it will be struck down as void and no act of the
legislature could be termed "arbitrary". He further points out that: "Any order passed independent of
a rule or without adequate determining principle would be arbitrary. Here the valid determining
principle is valid classification. Article 14 is not really a guarantee against arbitrariness...
classification would be arbitrary if it does not follow and is contrary to the norms laid down by the
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Supreme Court in regard to classification."
Thus in substance the objection of Jagdish Swaroop to the new doctrine is that it fails to lay
down any "determining principle for finding out whether or not a particular state action is
arbitrary". In substance he agrees with H.M. Seervai that "the new doctrine hangs in the air". It
is humbly submitted that, by and large the old doctrine of classification or nexus tests is more
satisfactory and must be retained because, on the basis of the old doctrine challenge to State
action as being violative of Article 14 can be successfully tackled by the courts in a large
majority of cases. It is only in the limited sphere of conferment of unbridled or too wide a
discretion on executive authorities to pick and choose persons or things for giving different
treatment that, the doctrine of classification has not yielded satisfactory results and resulted in
inconsistency in Supreme Court decisions. The new doctrine of equality, therefore, can be
usefully employed in plugging this loophole. On the contrary, if the theory of classification is
replaced by the new doctrine of equality viz. non arbitrariness, it would lead to highly
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unsatisfactory results because shorn of its rhetoric the new doctrine is vague and uncertain.
H.M. Seervai: Constitutional Law of India, 3rd Edn.,vol. I, p. 275
H.M. Seervai at p. 277. He has demonstrated the fallacy thus: All arbitrary actions are violative of equality. Some laws
violate equality, Middle term "equality" remains undistributed in both the# aforesaid major and minor premises. Therefore,
according to him, "if a conclusion were drawn namely, therefore some laws are arbitrary actions'' it would be an inaccurate
conclusion
Jagdish Swaroop: Constitution of India vol. I para 10.6

H.M. Seervai in 'CONSTITUTIONAL LAW OF INDIA' at p. 274, vol. I, 3rd Edn. "However, stripped of rhetoric, and
the use of fashionable phrases like 'dynamic aspects' and 'activist magnitude' (whose appropriateness we need not stop
to examine), it is claimed for the new doctrine that it explains, as the
6
Patanjali Sastri, C.J.'s warning may be usefully recalled here, that "dangerously wide and vague
language of equality clause to the concrete facts of life, a doctrinaire approach should be
23
avoided ". The chief merit of the new doctrine is, that it has freed the Supreme Court of the
"shackles of the dogma of classification" in the limited sense that the Judges should not make
sustained efforts to find some basis of classification where none is perceptible from the language
of the Act. However, the new doctrine or test of non-arbitrariness does not evolve a more
satisfactory test than the nexus tests. Even Prof. P.K. Tripathi, a critic of nexus tests has
expressed his concern regarding the new development. He has observed that "arbitrariness by
Article 14 is the arbitrariness or unreasonableness in discriminating between one person and
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another and if there is no discrimination, there is no arbitrariness in the sense of Article 14".
To sum up, it is submitted that the approach of the courts should not be doctrinaire towards either
of the doctrines of equality. Where a State action appears ex facie arbitrary as found in a recent
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case , it should be decided on the basis of the new doctrine. Again cases pertaining to
conferment of unbridled or too wide discretion on executive authorities should also be tackled on
the basis of the doctrine of non-arbitrariness but other challenges to State action should still be
tackled by applying the old nexus tests. It is heartening to note that Supreme Court has not totally
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abandoned the nexus tests though the new theory of non-arbitrariness has also been applied
doctrinaire theory of classification does not, the scope of the right to equality. One of the risks which judges run
by being 'dynamic' or 'active' is that at times their activity may carry them away from the truth and reality and
this is precisely what has happened to Bhagwati, J. and his brother Judges in propounding the new theory. It is
submitted that the old theory is the only doctrine which brings out the full scope of "the equal protection of law"
guaranteed to every person by Article 14.... new doctrine is untenable...
Lachman Das v. State of Bombay, AIR 1952 SC 239
P.K. Tripathi, The Fiasco of Overruling, A.K. Gopalan and worse. Cited by Mahendra P. Singh in Comparative
Constitutional Law at p. 480.
Km. Shrilekha Vidyarathi v. State of U.P., (1991) 1 SCC 212. "However, where no plausible reason or principle is
indicated nor is it discernible and the impugned State action, therefore, appears ex facie,# arbitrary, the initial burden to
prove the arbitrariness is discharged by shifting onus on the State to justify its action as fair and reasonable. If State is
unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must
be held to be discharged." Removal en bloc of all District Government Counsel by State Government was held to be
arbitrary as no common reason applicable to all of them justifying their termination in one stroke on a reasonable ground
was shown
Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187; Kerala Hotel and
Restaurant Assn. v. State of Kerala, (1990) 2 SCC 502. (The scope for classification permitted in taxation is greater
and unless the classification made can be termed to be palpably arbitrary, it must be left to the legislative wisdom to
choose the yardstick for classification, in the background of the fiscal policy of the State to promote economic
equality as well.)
7
where state action has
been
found
to
be
"patently"
27
arbitrary.
The fallacy of equality(an over view)- The equality clause of the Constitution, Article 14,
reads:
The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.
The Constitution guarantees us the right to equality and non-discrimination. But is it
guaranteeing only a formal equality while in effect maintaining the status quo of substantive
inequality in the lives of disadvantageously-situated citizens?
The chequered history of Indian constitutionalism has given us reason enough to repose our faith
in the fundamental rights enshrined in Articles 14 (equality) and 15 (non-discrimination).
Constitutional guarantees have been effectively used to expand their reach to protect many forms
of human rights, and also to strike down laws that go against the tenets of equality and nondiscrimination. Yet when it comes to dealing with historical and structural disadvantage, even
these pillars of the rule of law seem to falter.
There are three reasons for this: first, the premise of equality and non-discrimination in the
judicial interpretation of constitutional guarantees is based on a formal equality approach,
27
Sushma Gosain v. Union of India, (1989) 4 SCC 468. The widow of a store-keeper in the department of
Director-General Border Road (DGBR) had applied after the death of her husband in 1982 for employment on
compassionate ground, on the post of L.D.C. She had also passed the trade test but she was not given appointment
and was told that her case was under consideration. Her application was, however, rejected in 1985 when a ban on
appointment of ladies was imposed. The Supreme Court held that denial of appointment to her was 'patently'
arbitrary and had to be set aside
8
as opposed to a substantive equality one; second, the Constitution has been ineffective in
responding to intersectional forms of discrimination, where the incidence of disadvantage is
most acute; and third, these basic constitutional guarantees lay claim to a universal truth
about the operation of rule of law -- where the law is understood to be insulated from all
kinds of influences, and to be above all worldly considerations -- and thus ignores the fact
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that such a claim resides in the ideal rather than the actual practice of law .
Although the law often fails to deliver its idealised promise of protecting the rights of citizens, it
continues to declare its authority, which is claimed to be derived, in part, through scientific
legal method and rigour, and its projection as a unified discipline with an internally coherent
logic that is transcendent and divorced from the world. It is because of this illusionary reason
that the law, in spite of its in-built biases, continues to be used by those very people to claim
rights, who are at the receiving end of the violence of law. This does not mean that these
standards should be ignored -- merely that a more strategic politics is required for engaging with
the law. In this essay I will attempt to illustrate what I call the fallacy of equality, where in
spite of the constitutional guarantee of equal protection of the law, judicial interpretation
reinforces formal equality, in effect maintaining the status quo of substantive inequality in
the lives of disadvantageously-situated citizens. Any claim for substantive equality demands that
the claimant becomes same, like those whose behaviour and identity conform to the notions of
the good or ideal citizen. Thus, in the process of guaranteeing equality, the system seeks to
negate plurality of experiences.
Elusive equality
The equality clause of the Constitution, Article 14, reads:
The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.
28
Ratna Kapur, Travel Plans: Border Crossings and the Rights of Transnational Migrants. 18 Harvard Human
Rights Journal at 109
9
What constitutes the right to equality under the Indian Constitution is equal treatment only in
respect of the law -- the meaning of law extends also to administrative rule and procedures that
flow from legislations formulated by agents of the State. Unequal treatment meted out because
of the existence of any other form of structural disadvantage is outside the scope of this
provision; so are acts of unequal treatment carried out by non-State (private) actors. Any law
found to be ultra vires Article 14 can be declared void ab initio, as per Article 13 (3).
The Preamble to the Constitution speaks of equality of status and of opportunity and this article
guarantees the realisation of that principle. A plain reading of this article tells us that the
Constitution imposes restrictions on State action to ensure that it refrains from doing
anything that can deny the citizen two primary guarantees -- that of right to equality before
the law, and equal protection of the law.
The first expression equality before the law is a declaration of equality of all persons within the
territory of India, implying thereby the absence of any special privilege in favour of any
individual. Every person, whatever his/her position, is subject to the jurisdiction of the
ordinary courts. The second expression, the equal protection of laws, which is a corollary to
the first, secures equal protection in the enjoyment of their rights and privileges, without
favouritism or discrimination, within the territorial jurisdiction of India .
The juridical application of Article 14 operates on the basis of intelligible differentia. This
refers to two principles in law regarding classification of groups for different treatment. First,
that differently-placed citizens can be treated differently under the same law as long as the
classification is based on an intelligible differentia which distinguishes persons that are grouped
together from others excluded from the group; and two, the differential treatment must have a
reasonable and rational connection with the objective that the law in question is supposed to
reach. In other words, the equality guarantee actually does not require that the law treat all
individuals equally. It has been interpreted by courts as a prohibition against unreasonable
29
classification. As was held in the case of , the guiding principle of the article is that all persons
similarly circumstanced shall be treated alike, both in privileges conferred and liabilities
29
Chiranjit Lal Chowdhury v Union of India (1951)
10
imposed. The rule is that like should be treated alike and that un-like should be treated
differently.
This understanding of equality clearly follows the formal equality approach where equality is
understood as sameness. In effect, only if you can become same will you be treated equally. To
decide whether one qualifies to be same, the court has to first classify the groups in question
claiming equality so that they can be compared to find out whether they are same or different.
If it is established that the classified groups are differently placed, then such difference will be
the justification for differential treatment. Thus, judicial interpretation suggests that when
classified groups dont qualify to be the same, or similarly situated, they dont qualify to be equal
30
either, even if their differences are an outcome of historic or systemic discrimination .
31
For instance, let us consider the case of where women are prohibited from working in factories
during the night, on grounds that they are vulnerable to violations during nocturnal hours of
work. If one were to challenge this section as violative of Article 14, because it treats men and
women unequally, such a challenge would fail because, according to the doctrine of intelligible
differentia, the classification between male factory workers and female factory workers is
reasonable; and thus, differential treatment between them is justified in law. The same
situation arises when we consider Section 377 of the Indian Penal Code that criminalises
unnatural sex: challenge to this law on the ground that it violates the guarantee of equality
would fall flat, since differentiation between homosexuals and heterosexuals would be
valid, thus justifying the differential treatment; in other words, a perpetuation of substantive
inequality.
Similarly, in the 2000 case of Almitra Patel v Union of India, the Supreme Court did not
consider the guarantee of the right to housing and livelihood applying without prejudice to slumdwellers in Delhi. Instead, it labelled them encroachers, legitimising their forced eviction.
Again, the judgment was informed by an understanding of formal equality where classifying
slum-dwellers as different from non-slum-dwellers justified their eviction. The means for
these
30
. As Ratna Kapur and Brenda Cossman note: The first step in determining whether Article 14 has been violated is a
consideration of whether the persons between whom discrimination is alleged fall within the same class. If the persons are
not deemed to be similarly circumstanced, then no further consideration is required
31
Section 66 of the Factories Act, 1948
11
differently placed groups then, to make use of this article to claim their right to equality,
would be to become same as the classified group in comparison to which they are being
treated unequally. What such interpretations of formal equality also imply is that equality is
predicated on certain normative standards: you can only become equal to that standard.
Exclusive discrimination
Article 15 extends the equality guarantee of Article 14 by providing for the right against
discrimination on the basis of religion, race, caste, sex and place of birth. Forms of
discrimination that fall within the purview of Article 15 are based on disability, liability,
restriction or condition imposed on the basis of the above prohibited grounds.Article 15
32
reads Inferences towards the possibilities of exclusionist interpretations of Article 15 appear
even from a plain reading of the provision. In Clause 1, beyond the five grounds mentioned,
no other grounds qualify as discrimination. For instance, sexuality and disability does not find
mention as grounds for discrimination. Thus all the manifestations of discrimination as
enshrined in Clause 2 (a) will also not apply in case of sexually marginalised or disabled
persons. The imposition of any disability, liability, restriction or condition on these groups
does not qualify as discrimination at all within the scheme of the Constitution. Their access to
32
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to -access to shops, public restaurants, hotels and places of public entertainment; or
the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public.
Nothing in this article shall prevent the State from making any special provision for women and children []
Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes (6).
Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article
12
public places, if circumscribed by law, or executive/non-State action, or structural/spatial factors

will not automatically draw the protection of the non-discrimination guarantee of the
Constitution.
The contested perceptions of equality and non-discrimination within the context of the
Constitution get further complicated when we try to understand if the Constitutional mandate in
Article 15 captures the intersectional nature of discrimination and disadvantage. It is necessary to
note that the grounds stated in Article 15 (1) are preceded by the word only. In the
33
interpretation of this word by the Supreme Court in , it was noted that if discrimination is found
to exist on grounds other than those enumerated, then there is no violation of Article 15 (1). Even
discrimination on the basis of sex, coupled with discrimination on other non-enumerated
grounds, would not constitute a violation . Thus, the courts are not even permitted to
progressively interpret the grounds under Article 15 (1) to include sexuality or disability -neither can judicial interpretation capture the reality of disadvantage that many might face from
being at the receiving end of multiple and intersectional forms of discrimination.
However, a reading of Clause (3) seems to suggest a move from the otherwise formal approach
to equality to that of substantive equality. The substantive equality approach moves beyond
looking at equality merely as a guarantee lettered in law, to one that looks at the actual impact of
the law, to do away with substantive inequality. The primary aim of a substantive equality
approach is not to harp on the guarantee of equality as being predicated on an understanding
of sameness and differences, but one that takes into account inequalities of social, economic
and educational background of the people and seeks the elimination of existing inequalities by
positive measures . In other words, the substantive equality approach attempts to correct the
historical and structural reasons that result in disadvantaging a particular group.
On the face of it, Article 15 (3) mandates the State to make special laws for women -- in effect,
discriminating in their favour. A stipulation of this kind suggests that the provision does take into
account the historical and systemic processes through which discrimination against women has
been effected, and thus makes the State accountable for doing away with it through protective
33
Anjali Roy v State of West Bengal (1952)
13
and proactive laws. However, in the absence of a substantive equality approach in the judicial
interpretation of Article 15 (3), there is scant consideration of whether the laws actually protect
women, or they create protectionist measures to safeguard the honour and chastity of good
women.
Such an understanding of progressive discrimination on the grounds of sex can actually serve
as a justification for the constitutional validity of the Immoral Traffic Prevention Act -- purported
to be a legislation that is meant to rescue and rehabilitate passive and agency-less women from
the scourges of prostitution - completely undermining the fact that it is the existence of the law
that perpetuates the violence of stigma against women in prostitution, and gives the police a
free hand in apprehending and incarcerating them as criminals. All this in the name of
protecting women. Similarly, if one were to challenge the Maharashtra government
ordinance that banned dance bars on grounds that it violated Article 14 and 15 (1), such a
challenge could have been struck down by the courts on the basis that bar dancers are a
reasonable classification in comparison to other more respectable women, and that in
connection with Article 15 (3), the ordinance would actually protect the helpless bar girls.
In a 2001 petition filed in the Delhi High Court demanding that Section 377 be read down to decriminalize adult, consensual and private sex, the State used the logic of Article 15 (3) to argue
that since Section 377 protects women and children from sexual assault, it actually serves the
responsibility put on the State under Article 15 (3). While the argument follows the letter of the
law perfectly well, never did the State even mention that what is required to effectively curb
child sexual abuse is a separate law on the issue, given the fact that Section 377 is highly
inadequate in doing so.
Again, a plain reading of Clauses 4 and 5 in Article 15 points towards the constitutional culture
of progressive discrimination of caste-based disadvantaged groups. Clearly, the States mandate
for extending reservations derives strength from these clauses. But what might special
provisions mean in a context where the Constitution is increasingly being interpreted through a
formal equality approach? A possible peril can be the justification of segregation (within
institutes, for instance) between non-SC/ST/OBC students and SC/ST/OBCs, ostensibly on the
ground that it will prevent harassment and discrimination. A move towards exclusive institutes
14
for SC/ST/OBCs can be yet another consequence of furthering the mandate in Clauses 4 and 5.
Both segregation and exclusivity might temporarily make the States initiative look progressive,
but in actuality it wouldnt have changed any of the structural and systemic inequalities that
cause caste-based discrimination. Interestingly, anti-quota advocates use the same letter of the
Constitution to point out that it is self-contradictory: while on the one hand it guarantees nondiscrimination, at the same time it makes an exception for special groups. This argument is also
predicated on a formal equality approach which believes that as long as the Constitution
guarantees non-discrimination all become equal automatically. This is why quotas alone as
representative of progressive discrimination only perpetuate a politics of patronage, in
effect maintaining a state of substantive inequality for disadvantaged groups like dalits.
34
If we consider the recent Supreme Court judgment it becomes apparent that the inclusion of
Clause 5 to Article 15 through the 93rd Amendment Act, 2005 and the subsequent debates
around the constitutional validity of the Central Educational Institutions (Reservation in
Admission) Act, 2006 (Act 5 of 2007) follow the formal equality approach. While it is
celebratory that the judgment upheld the constitutional validity of both Article 15 (5) and Act 5
of 2007, it did so by reasonably classifying certain specific institutions, minority institutions
and private un-aided institutions, and exempted them from the ambit of the implementation of
35
quotas
What emerge from the above discussion are glimpses into the fractured armour of constitutional
justice in India. Does that suggest we abandon the Constitution? Of course not, because the
Constitution is more than a mere document listing rights and guarantees of the citizens of India;
it is a charter that defines the ways in which India as a country should work towards a shared
future that is not detrimental to any of its citizens. Yet, theres a peril in romanticising the
Constitution in an age where even the ideals of equality and freedom have faced a neo-liberal
appropriation: economically and culturally. The activist role played by the Supreme Court of
Ashoka Kumar Thakur v Union of India (2008)
. As Kalpana Kannabiran observes in Kalpana Kannabiran, Road Map for Reservation in Higher Education. The
Hindu, April 18, 2008: (This) goes against the spirit of (substantive) equality and considerably shrinks the space for
entitlements of persons from vulnerable groups. It is not so much a question of the measure of equality between
institutions inter se that is critical in access to education, as of the measure of equality between citizens differently placed
because it is citizens who bear the brunt of discrimination and exclusion. After all, reservation is an inseparable part of the
principle of equality, and where equality is concerned no institution can be outside its ambit (11).
15
India in the 1990s that redefined the right to life (Article 21) by expanding it to include a
whole range of situations where rights are absent, to the present period where the judiciary
has been complicit with the market in shrinking the spaces for allowing access to justice and
meting out distributive justice, requires an acknowledgement that the laws letter derives
meaning from the socio-political contexts in which it is used and applied. While we cannot
afford to abandon the constitutional guarantees of equality and non-discrimination, it is important
that we ask critical questions about whether the pursuit of equality has itself become a
discriminatory enterprise.
Old Doctrine vs. New Doctrine of Classification - One of the main objectives of the
legislative action and reform in the modern era is to enforce the concept of equality and liberty.
The legal conception of equality relates not to a uniform treatment for all but equal treatment for
those who are at an equal footing, under like circumstances and conditions. However, the tough
task lies in identifying the equals for this purpose by reasonable classification. This
classification may be society specific, culture specific, nation specific or history specific.
Hence, no strait jacket formula can be applied in this regard. In India, initial developments in
this regard lead to the formation of the classic nexus test, or the old doctrine in 1952 which
helped in identifying valid classifications for categorize equals. Though used for a long time,
gradually, this doctrine was found to be inadequate in some respects by the legal scholars. Thus,
starting from early 1970s began the development of a new doctrine, hence considerably
broadening the horizons for the application of Article 14. Further developments saw the
unfolding of new dimensions of Article 14, identifying reasonableness in State action as the main
objective of Article 14 and aiming at its widened scope. This essay aims at a critical analysis of
both the doctrines and deciding the most desirable course of advancement in this regard for the
judiciary.
NEXUS TEST - The Indian conception of equality as propounded in Article 14 of the

Constitution combines the British doctrine of rule of law as well as the equal protection of law
16
th
clause in the 14 amendment of the US constitution. Not only the doctrines, but their
interpretations have also been approved by the Indian courts to give the true content to these
doctrines. As such, the theory of classification as evolved by the American Supreme Court has
been applied by the Indian Supreme Court from the initial times. On these lines, the old
doctrine, or the nexus test was enunciated by Das J. in the Anwar Ali Sarkar case. This test
provided for two conditions to be fulfilled for permissible classification the first being the basis
of an intelligible differentia and the other being the presence of a rational relation between
36
the differentia and the object of the Act. For instance, for a legislation of reservation for
Scheduled castes, the rationale would be caste, while the nexus is the welfare of such backward
classes through educational support.
Emergence of the New Doctrine- This rule has been followed in many cases since. But
37
gradual application of this test also surfaced many of its shortcomings . Although this test
defined objective parameters of classification, which ensured certainty and limited judicial
activism, its scope was considered inadequate in cases like those of lose discretion and excessive
delegation of legislative powers. Also, it dealt with inequality amongst two people or groups,
ignoring individual discrimination. Moreover, adherence to a fixed test in a dynamic concept like
equality was looked upon as limiting its scope. Thus, the early 1970s, with adherence to such
ideas marked the initial phase of a changing course in this regard. With some initial deviations by
Bhagwati J. in some cases, a new activist theory of equality was finally approved unanimously
in Ajay Hasia case. In subsequent cases while examining this principle of reasonableness and
non-arbitrariness, the court celebrated the widened ambit of Article 14 and identified it as a
guarantee against arbitrariness.
36
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75;E.P Royappa v. State of Tamil Nadu, (1974) 4 SCC
3;Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722;V.K Sircar, The Old and the New Doctrines of Equality: A
Critical Study of Nexus Tests and Doctrine of Non- Arbitrariness, (1991) 3 SCC (Jour) 1
37
State of Bombay v. F.N. Balsara, AIR 1951 SC 318, R.K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538, In re
Special Courts Bill, 1978, (1979) 1 SCC 380;P.K. Tripathi, The Fiasco of Overrulling, A.K. Gopalan and worse as
cited in Mahendra P. Singh, Comparitive Constitutional Law, 480;See Lachmandas v. State of Punjab, AIR 1963
SC 235, 240;
17
New Doctrine: Criticisms-The new doctrine proved very helpful in deciding cases of
excessive discretion, special courts, and other cases where arbitrariness was found inherent. Also,
now for the application of Article 14 discrimination vis--vis others were not necessary. Arbitrary
and unreasonable actions were identified to be per-se discriminatory. It also aided in tackling
cases of establishment of special courts with a more liberalised methodology. The new doctrine
validated the establishment of special courts and special treatment to certain cases therein, as
long as the objective of special treatment and the discretion exercised to choose such cases
was justified to be reasonable. Although this introduced a sense of broad scope and dynamism
in Article 14, this was considered very subjective and devoid of logic by critics like H.M.
Seervai, who strongly counters the argument that new doctrine does and old doctrine does not
give full effect of to the guarantee of equal protection of laws. According to him the new doctrine
hangs in the air and disregards the true interpretation of Article 14. Seervai draws this conclusion
from Ajay Hasia case where it was stated that equality and arbitrariness are sworn enemies,
and accuses the new doctrine of disregarding the other enemies of equality. He also proposes
that the new doctrine fails to differentiate between violation of equality by law and by executive
action. On the limited scope of the old doctrine, he states that a doctrine effectively securing the
objectives of equality is not impractical, and as such should not be questioned. He also questions
the subjective grounds and certainty of the new doctrine and rules it out altogether as against the
38
nexus test .
The above arguments in opposition of the new doctrine do not seem to hold much force. The
new doctrine does not disregard other forms of inequality, identifying that only arbitrary acts
39
can violate equality of a person . Rather, it aims at widening the existing scope of Article 14 by
adding arbitrary acts as one of its targets. It does not propose that all that violate equality are
arbitrary actions. Rather, it proposes that arbitrary actions can also violate equality. Secondly,
See Meneka Gandhi v. Union of India, (1978) 1 SCC 248; R.D. Shetty v. Airport Authority, (1979) 3 SCC
489;R.D. Shetty v. Airport Authority, (1979) 3 SCC 489
It was asserted by P.K. Tripathi that the old doctrine concentrated on the Whom and Why element, ignoring the
What part. Going back on our reservation example, the old doctrine does state that the legislation is directed towards
the Schedule Castes, for there upliftment, but does not examine the kind of special treatment. Say, the legislation
provides for 80% reservation, it may pass the nexus test but still be contrary to the spirit of article 14. It is this
arbitrariness that the new doctrine strives to cure, by concentrating on substance rather than cure.
18
the courts have drawn a clear distinction between the violation of equality by law and by
executive action. The court stated that the new doctrine strives to make inequality not
impossible but improbable, and where the inequality happens due to malfunctioning of the
executive, action will lie against the officials concerned, and not against the law itself. Thirdly,
the grounds that require the application of the new doctrine are not illogical, as it clearly
states that all discretionary acts are not arbitrary and violative of equality. The new doctrine
here can be considered as a broad extension of the nexus test, the only difference being that that
here the differentia has to be derived from the act itself by the court and if enough guidelines
exist in the legislation to help the court derive it, the legislation may be held valid and not
otherwise. The legislations on this basis can be divided into three divisions:
Where clear classification has been given in the legislation?
Where classification is not given in clear terms but can be derived from the given guidelines,
policy statement or preamble of the legislation?
Where classification is not given and the guidelines and policy statement is vague enough to
make discrimination inherently probable?
st
It is in the 1 case where the nexus test finds application. Emergence of new doctrine enhances
its scope to the second case as well, which otherwise would have faced invalidity due to limited
approach of nexus test. As far as the third case is concerned, it is still filtered by application of
the new doctrine. As such, the new doctrine can be seen as an added third level of inquiry to the
nexus test.
The most desirable path and conclusion-As such, the two doctrines discussed above
provide a vast scope for the judiciary to choose its course of action. Analysing the positives as
well as criticisms of both the doctrines, the most desirable orientation would be to identify the
different facets of equality where the two doctrines find application and advance with a
40
complimentary approach. New doctrine , as an extension of the existing rule, has in a way
tried to pacify the defects of the old doctrine. It has emphasised on positive equality and
40
Emergence of new doctrine, unlike Seervais assertion, does not imply insignificance of the old doctrine and
its complete replacement by the new doctrine. Rather, it has added new dimensions to the existing situations.
19
affirmative action by the state. As such, the two doctrines should be seen as two means to
41
attain one common objective of equality inherent in Article 14 . One of the negative points of
42
the nexus test which were identified was that it may ultimately replace the doctrine of equality
and rob Article 14 of its glorious content. Gradual developments in this regard have widened the
sphere of equality as a broad phenomenon, with the nexus test along with the test on nonarbitrariness as mere means to achieve it. Advancement of the courts in this regard also
illustrates similar orientation, as the nexus test has been applied harmoniously with the non
arbitrariness test. As such, the focus of the judiciary should be to interpret the two doctrines not
as substitutes of one another but as different ways to meet the demand of reasonableness in state
action, so as to maintain the dynamic spirit of equality as enshrined in the Indian constitution.
.L. Kalra v. Project and Equipment Corporation (1984) 3 SCC 316, 328H.M. Seervai, Constitutional Law of
India; 438
Seervai proposes that the old doctrine was developed in lines with the classification theory of the US and hence
it imparts flesh and blood to the equal protection of laws clause. The new doctrine cannot survive by
disregarding the very interpretation of article 14 and defining it in vague terms of arbitrariness.
20
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Article-14 of Indian constitution(a analysis)

-Eshan pandit BA(hons) LLB(hons)(4 semester)

- Das C.J. in Basheshar Nath v. CIT

(1959) Supp 1 SCR 528, 551

without applying nexus tests. Finally the Supreme

Cited in Mahendra P. Singh (Ed.): Comparative Constitutional Law, p. 485.

(1981) 1 SCC 722

(1979) 3 SCC 489

equal protection of laws."

Jagdish Swaroop: Constitution of India vol. I para 10.6

where state action has

Chiranjit Lal Chowdhury v Union of India (1951)

Section 66 of the Factories Act, 1948

public places, if circumscribed by law, or executive/non-State action, or structural/spatial factors

Anjali Roy v State of West Bengal (1952)

NEXUS TEST - The Indian conception of equality as propounded in Article 14 of the

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