The Test for Equality

Abstract
Through this note, we understand the tests that are applied to judge whether a law is violative
of article 141 of the Indian Constitution and the shortcomings of said tests. We analyse the
present day relevance of these tests and offer a critique on the Tarunabh Khaitan2 article.

Introduction
In the aftermath of the Navtej Singh Johar3 and Joseph Shine4 judgments, the relevance of
Article 14 cannot be but emphasized. Tarunabh Khaitan gives us a critique on legislative
review within the context of Article 14. He analyses the meaning of ‘legislative’ in three
different contexts: actor sensitive, process sensitive and product sensitive. His analysis is
restricted to product sensitive and actor sensitive understandings. In this respect, he explores
the doctrines of the test for Equality.

The Old Doctrine

To determine the validity of an issue under article 14 the courts have used two tests. The old
doctrine, or what the author calls the classification test, is a two pronged test: the test of
intelligible differentia and the test of rational nexus to the object. The test is applicable when
an issue is comparative in nature, that is, one group is treated differentially in contrast to
another. In the Anwar Ali5 case, the court says in order to adjudge a law in unconstitutional,
two considerations need to be met. First, it must be seen whether “it observes equality
between all the persons on whom it operates.” But an affirmative answer just to this question
does not resolve the issue. The court also needs to enquire whether he classification is
founded on a “reasonable basis having regard to the object to be attained.”

The problem with this test is that it is extremely formalistic and the questions that it asks are
not enough to assess real world issues. The test, which is divided into intelligible differentia
and reasonable nexus to object, considers many more sub questions within itself. Is the

1
Article 14, Constitution of India, 1950.
2
Tarunabh Khaitan, Equality: legislative review under Article 14, in Sujit Choudhry, Madhav Khosla and Pratap
Bhanu Mehta (ed.), the Oxford Handbook of the Indian Constitution, New Delhi: Oxford University Press.
3
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
4
Joseph Shine v Union of India, (2018) 2 SCC 189.
5
Anwar Ali Sarkar v State of West Bengal, AIR 1952 SC 75.
differentia intelligible subsumes within it the question of whether it is “presumptively
impermissible”. While talking about the objective, the questions that need to be incorporated
are whether the objective is genuine, measure is necessary to achieve the objective and if the
objective is “sufficiently weighty”. Beyond this, the questions of the engagement of rights
and social impacts are not overtly considered. But the author expresses that while these are
questions not included in the test, they are definitely considered when the courts rightly
misapply the test to reach just outcomes.

The New Doctrine

The narrow, formalistic nature of the old doctrine gave rise to the test of arbitrariness in the
Royappa6 case. In the new doctrine, Justice Bhagwati held that mere “arbitrariness” of a
principle is enough to violate article 14.

However since this test is not classificatory, it is not a replacement for the old doctrine as was
the intention of Justice Bhagwati. The two tests applied to different scenarios. The new doctrine
is a non-comparative test. This means a principle can violate Article 14 on its own without
requiring classification. The idea of equality is inherently comparative. One can’t be equal on
their own. They are always equal in comparison to somebody else. This is what Article 14
embodies. But the test is a disjuncture from the language of the article.

The author also proposes that while Justice Bhagwati spoke of arbitrariness7, he actually meant
“unreasonableness.” Traditionally, any concept of justice embodies a citizen’s right against
unreasonableness but it has not been characterized as a fundamental right due to its vagueness.
But through this test, the right against unreasonableness becomes a ground for constitutional
review.

But unreasonableness and arbitrariness are two separate concepts. In the Raju8 case, the
constitutionality of an arbitrary age of majority was stated to be reasonable and thus accepted
by the Supreme Court. Similarly, the age to stand for elections9, the number of years of practice

6
E.P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3.
7
Ibid.
8
Subramanian Swamy v Raju, 2014 (8) SCC 390.
9
Article 84 (b), Article 173 (b), Constitution of India, 1950.
required to become a judge are all arbitrary but not unreasonable. Furthermore, not all forms
of arbitrariness entail inequality.

The judicial trend is that the courts circumvent the doctrine by qualifying it as obiter to the
Royappa case10 and in the event the classification test does not suffice, the arbitrariness test is
used (SS)11. In fact, instances where the arbitrariness test is used, elements of the classificatory
test are also considered. In the Air India12 case, the court said that pregnancy discrimination
was sex discrimination and thus involved classification as well. Thus, this test too was rightly
misapplied to reach just outcomes.

Critique
The author critiques the old doctrine saying that its formalistic nature accounts for a very
narrow interpretation. He proceeds to critique the new doctrine saying that it encompasses the
wide principle of arbitrariness that is not defined. In this process, he fails to suggest a solid
remedy for the equality conundrum.

In recent judgments we notice that Article 14 is so elusive as no one really understands what
the requirements of the test are. For instance, in the Navtej Singh Johar13 judgment, both the
classification and arbitrariness tests are used. They merely say that the section didn’t stand up
to the limbs of the classification test and while considering the arbitrariness test, they say it
is clearly violative of Article 14 without stating how. However in the Naz Foundation14
judgment, the courts apply the same tests but end up with an opposite outcome.

From an analysis of the case law, it is clear that the test is not all that is at play here. The test
could be misapplied to reach just and unjust outcomes. The discretion of the judge is held
supreme. Depending on the understanding of reasonableness to the judge, outcomes are
reached.

10
Supra note 6.
11
Subramanian Swamy v Central Bureau of Investigation, (2014) 8 SCC 682.
12
Air India v Nargesh Meerza, (1984) 4 SCC 335.
13
Supra note 3.
14
Naz Foundation v Government (NCT of Delhi) and Ors (2016) 15 SCC 619.
 Conclusion
The author critiques both the doctrines and justifiably so. In the 123rd Constitutional
Amendment15, which provides for 10 percent reservation for backward classes, we find the
application of the tests for equality could go either way. Applying the classification test, the
courts could either say that there exists intelligible differentia as it differentiates between
economically backward and forward sections of the India population and that it serves the
objective of upliftment of these backward classes. The provision could fail the arbitrariness test
because the reservation would increase to 60 percent, leaving out the economically backward
Scheduled Castes and Tribes who are unable to avail of the previous reservation and are now
being excluded from this one as well. Alternatively, it could fail the classification test as the
intelligible differentia as it distinguishes economically backward persons of Scheduled and
General Category. It could pass the arbitrariness test because we are a socialist nation, and thus
is reasonable to make provisions to achieve its objective. Clearly, these tests are extremely
subjective and the way forward would be to fuse these tests in such a way that we have a
comprehensible test for equality.

15
Constitution 123rd Amendment Bill, Bill No. 71 of 2017, Lok Sabha, 2018.