The first and foremost understanding that should be imprinted in our minds is that right to equality does not mean everybody should be treated equally. Because if equal treatment is given to everyone, irrespective of their original differences, then it is not equality. Let’s assume that there are six people A, B, C, D, E, and F. A lives in urban area. B lives in rural area. C is poor. D is rich. E is from upper caste. And F is from lower caste. If all six of them are given equal treatment by overlooking the disadvantages of some of them, then it will not be equality. Similarly, if there are a few seats reserved for the disabled, it does not create inequality. Rather, it furthers the concept of equality because you are trying to understand the inherent differences that one has over others, and you are trying to balance it. This balancing act is what equality is all about.
This article will delve into the nuances of right to equality under Article 14 of the Constitution of India. Part 1 will deal with the old doctrine of equality. Part 2 will deal with the new doctrine of equality. Part 3 will give an analysis as to how both the doctrines of equality are inadequate, and why do we need a new model of equality. Part 4 will offer conclusion.
1. Old equality doctrine
In the introduction, the author has established that everyone cannot be treated equally because everyone is not equal. Treating everyone equally, regardless of their attributes is called formal equality. Substantive equality, on the other hand identifies the difference between people to classify them into groups, and based on such classification, differential treatment is accorded. Article 14 of the Constitution of India talks about ‘equality before the law’ and ‘equal protection of laws’. Here the term ‘the law’ in the first phrase signifies the legal system. So, the phrase ‘equality before the law’ means that before the legal system, there is no high and low, no rich and poor, no man and woman, everyone is on the same pedestal. The second phrase ‘equal protection of laws’ signifies that you may have laws which give preferential treatment to those who are at a disadvantage.
‘Equality before the law’ came from Dicey’s ‘rule of law’. ‘Rule of law’ has a very distinct background which says ‘no matter who you are, either the king or an ordinary person, the legal system will treat you equally. This is colour blind equality because it ignores the attributes. On the other hand, ‘equal protection of laws’ is derived from the 14th Amendment to the American Constitution (The Bill of Rights). ‘Equal protection of law’ means laws should protect everybody equally, the focus is on protection. So, in order to protect each one of us equally, it may so happen that the law may have to be used to classify people and offer them differential treatment. This is substantive equality. Therefore, from the wordings of Article 14, it gets evident that Article 14 has both a negative and a positive component in it, and without having the positive component, you cannot fulfil the goal of equality in the truest sense.
However, the categorisation under the positive component should be reasonable, i.e., reasonable classification should be made. Reasonable classification has two components, viz., intelligible differentia and rational nexus with the object. Intelligible differentia suggests that the basis of classification is perceptible, it may not be fool-proof, but it should be understandable. Let’s take an income tax example, where people are put in different tax slabs on the basis of their income, and those earning below ₹ 2.5 lakhs are not supposed to pay any tax. Here, the classification is intelligible as it is based upon the income of the individuals. The 2nd component, which signifies that the classification should bear a rational nexus with the object that it seeks to achieve. Coming back to the income tax example, the government is levying tax on people to carry out its public functions, the classification is on the basis of differential income because the idea is that if people are earning less, they need to save more. And if they are earning a lot more than the average, then even after saving, they will have enough for themselves, and they can pay tax. And using this collected tax, which is the corpus, the state will carry out its welfare activities. Hence, both the components of reasonable classification are satisfied in this case.
In State of West Bengal v. Anwar Ali Sarkar, §5(1) of the West Bengal Special Courts Act (‘WBSCA’), 1950 was challenged. The WBSCA empowered the State to classify cases or offences as per its discretion, and refer them to a special court. The majority declared §5(1) of the WBSCA to be void. They asserted that any categorization should be based on ‘intelligible differentia’, i.e., there should be some ‘real and substantial distinction’ on the basis of which a group is segregated from the rest. Furthermore, the majority added that the stratification should have a ‘rational nexus’ with the object that is sought to be achieved. Here, the sole yardstick provided by the WBSCA for sorting cases or offences that were to be tried by the special courts was ‘cases requiring speedy trial’, as mentioned in the Preamble to the WBSCA. The majority held that ‘speedy trial’ is desired for the disposal of every case, and the criterion of ‘speedy trial’ is too general and vague. Therefore, it does not satisfy the ‘reasonable classification’ test.
In D.S. Nakara v Union of India, a new pension scheme, whose benefit could only be claimed by those who retired after a particular date was challenged. The question was why were the existing pensioners being deprived from the benefit of the scheme. The argument made by the petitioners was that the existing pensioners are also retired employees, they are also getting pensions, just because the retired at an earlier date, they shall not be entitled to the benefits of this new scheme, this is not justified. The court held that this advocates for under inclusion, it does not include all pensioners. It added that there is no intelligible differentia, i.e., there is no perceptible basis of classification. Pensioners are one indivisible block; the government cannot categorise them on the basis of the date of retirement.
In Sukumar Mukherjee v State of West Bengal, a statute of the West Bengal state was challenged which created a distinction between the doctors of the health service and health education service. The health services doctors practiced in the government hospitals, and those in the health education services used to work in the area of medical education. The scheme said that the doctors under the health services can run their private chambers, but the doctors of the health educational services cannot do their private practice. Moreover, the doctors who were teaching on contractual basis were also allowed to do their private practice, but the regular medical professors could not. The court observed that there definitely was a noticeable basis, but asked the state the rationale behind such classification, i.e., the court wanted to know if there was a rational nexus to the objective that the state was trying to achieve. To which the state said that there is a lack of professors for doing research. The state wanted the teaching doctors to invest their free time in research, because if they will start doing private practice, they will not research. The court deferred to the argument made by the state and held the statute to be constitutional.
So, in the aforementioned cases it gets manifested that the as per the old equality doctrine, the burden of proof is on the petitioner, he has to prove that there is a lack of reasonable classification as there is a presumption of constitutionality. If the petitioner gets successful in proving his case, the classification is struck down as violative of Article 14. However, it stays if the court gets satisfied that the categorisation is based on intelligible differentia and rational nexus with the object.
2. The new equality doctrine
The new equality doctrine was brought in E. P. Royappa v. State of Tamil Nadu.E. P. Royappa was the chief secretary of the Tamil Nadu civil services. He was transferred to the position of deputy chairman of the Tamil Nadu Planning Commission. From there he was transferred as the officer on special duty. These were routine transfers. However, E. P. Royappa had a problem with his second transfer. He said that ‘officer on special duty’ is a non-cadre post. The post of chief secretary was high ranking post, whereas, officer on special duty was a much lower post, hence he had a reason to be aggrieved. He challenged the second transfer by filing a writ petition, and the challenge was a mere administrative one, and it was on the basis of mere administrative provisions and rules. He added that there is non-application of mind, violation of legitimate expectation. As an afterthought, and because in a writ petition an abridgement of Fundamental Rights has to be shown, a point on violation of Article 14 was added. He alleged that he has been treated unfairly, as compared to his peers. The bench unanimously held that Royappa did not have any justifiable claim. J. Ray and J. Palekar said that the position was not inferior, and J. Bhagwati, J. Iyer, and J. Chandrachud said that Royappa did not establish the inferiority of the position. Hence, the bench went with presumption of constitutionality. J. Bhagwati laid the new equality doctrine, as per which a law could be declared to have violated Article 14 if it was found to be arbitrary. Under this doctrine, a law that did not necessarily discriminate between two people could also be found arbitrary by a court.
The new arbitrariness doctrine was being used to invalidate numerous administrative decisions, but a critical question was being asked from the mid-1980s that can the arbitrariness test be used to scrutinise legislations. The first opportunity to answer this question came up in the case of State of Andhra Pradesh v Mc Dowells. There was a liquor ban in the state of Andhra Pradesh, which was imposed through an ordinance which was ratified into a law. The question before the court was whether this law was arbitrary, and the court had to subject the legislation to the arbitrariness test. Rohingtan Nariman was vehemently arguing that legislations can also be subjected to the arbitrariness test like the administrative decisions. However, the court did not accept his argument. The three judge bench said that legislations cannot be scrutinised as per the arbitrariness, as this would mean that substantive due process is available in this country, which actually is not.
This approach was followed in Rajbala v State of Haryana. But there were cases like Mardia Chemical v Union of India, which simply went ahead and subjected the legislations to the arbitrariness test.
Interestingly, in Shayara Bano, the majority struck down the law on grounds of manifest arbitrariness. The leading judge who does this was J. Rohingtan Nariman, who was arguing to subject legislations to arbitrariness test in the Mc Dowells case. In the words of Nariman, ‘a provision of law would be manifestly arbitrary if it lacked a clear determinative principle, or encapsulated a capricious or irrational measure’.
This reasoning was extended to the Navtej Johar case, where the bench unanimously held Section 377 of the Indian Penal Code to be manifestly arbitrary. Similarly, Section 497 of the Indian Penal Court was declared unconstitutional in the Joseph Shine case as it was found to be manifestly arbitrary.
This part shows the evolution of the arbitrariness doctrine. The doctrine was first used to scrutinize administrative decisions, but now even the legislations are being subjected to the arbitrariness test.
3. The need of a new model of equality
Presently, there are two models of equality. As observed in the above parts, the old model which talks about reasonable classification has two components, ‘intelligible differentia’ and ‘rational nexus’. Whereas the new model deals with arbitrariness. Intelligible differentia is a ‘what’ enquiry, rational nexus is a ‘why’ enquiry, and arbitrariness is a ‘how’ enquiry.
Reasonable classification delves into three broad questions, engagement of the right to equality, intelligibility of the differentia, and the rational nexus between the measure and the objective. But it does not focus on the impact that the said measure is having, and the consequences of the rule. This is the biggest drawback in the traditional equality doctrine. and Tarunabh Khaitan rightly puts it as ‘unreasonable classification’.
Arbitrariness, on the other hand is not necessarily comparative. Any rule which is applied in an arbitrary fashion could be potentially violative of equality. There is no need to draw parallels. However, the arbitrariness doctrine can be more dangerous as the court may, in order to keep a check on government’s arbitrary actions, goes on to act even more arbitrarily. Because the judiciary can put a check on the executive and the legislature, but no one can put a check on the judiciary. One such instance was the Ajay Hasia case, where J. Bhagwati regarded the 50% weightage given to the interview component as arbitrary, and said that interviews can have a maximum weightage of 15%. But nobody knows how he reached to the figure of 15%, and how is 15% justifiable. Again, Tarunabh Khaitan rightly puts it as ‘non-comparative unreasonableness’.
One cannot deny that right to equality is the heart and soul of the Constitution, and its denial results in grave injustice. Therefore, having a quintessential equality model is an essential part to protect the rights of the citizens of the country. The traditional equality model had its drawbacks, as it did not look into the potential impact of the provision. A law would only fall if lack of intelligible differentia, or absence of rational nexus with the object was proved. As the ills of the old doctrine were observed, the new doctrine was developed. J. Bhagwati felt that a mere ‘arbitrariness’ will suffice to constitute a violation of Article 14. However, the arbitrariness doctrine was not the appropriate solution, it was like forcing a square peg in a round hole, and as a result the doctrinal confusion exacerbated. The old equality model was insufficient, but the new model is Frankenstein. The ideal way for equality model will be somewhere in between, i.e., scaling up the old doctrine and scaling down the new doctrine.
 Gautam Bhatia, “A Critique of the Supreme Court’s Maratha Judgement – I: Equality”, Indian Constitutional Law and Philosophy, May 06, 2021, available at <https://indconlawphil.wordpress.com/tag/substantive-equality/> (last visited on June 16, 2021)
 The Constitution of India, 1950, Art.14
 Paul Craig, “The Rule of Law”, http://www.parliament.uk available at <https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm> (Last visited June 16, 2021)
 Interactive Constitution, “14th Amendment Citizenship Rights, Equal Protection, Apportionment, Civil War Debt” National Constitution Center, available at < https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv> (Last visited June 16, 2021)
 The Constitution of India, 1950, Art.14
 (1952) AIR 75.
 1983 AIR 130
 AIR 1993 SC 2335
 1974 AIR 555
 HM Seervai, Constitutional Law of India 1950, vol 2 (4th edn, Universal Book Traders 2002), 439
 1996 AIR 1627
 (2015) 3 UC 1711
 2004 4 SCC 311
 Shayara Bano v. Union of India WP (C) 118/2016
 Navtej Singh Johar v Union of India WP (c) 76/2016
 Joseph Shine v. Union of India WP (c) 194/2017
 Tarunabh Khaitan, “Equality: Legislative review under Article 14”, Oxford Hand Book
 1981 AIR 487
 Supra note 21
Author: Shashwat Baranwal from WBNUJS, Kolkata.