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Article 14 - Critical Analysis and Contemporary Development

Men are not made to live on this earth but to pass through it and they enjoy equal share of God's love in their attainment to eternal life – Gospel of Jesus Christ.

Origin
Religion, since ages have endorsed the Principle of Equality. Their teachings were based primarily on the premise that the soul, being the image of God is immortal and it cannot be whittled away by nefarious whims. Leaders rose in the defence of this doctrine which led to a political ascent of the Fundamental Rights in the form of Magna Carta, a document which came into being on Jun 12, 1215. Freedom would assume it's importance only if the people would have an assurance for enjoyment of their civil liberties without any discrimination and the knowledge of an existence of State machinery which would safeguard their rights.

India was at her cusp of freedom, and while the Nation was preparing herself for the New Dawn, our Founding Fathers were troubled by a singular thought - if this freedom failed to ensure Equality of civil liberties and the means to safeguard them, the nation would be pulled into chaos and a state of anarchy would prevail. The urgency was visible at the INC Sessions where raging debates on the need for non-discriminatory policies were held.

The drafting of the Fundamental Rights, later embodied in Part III of the Constitution was the first major step towards guaranteeing the preservation of individual Liberty, thus upholding the Democratic Principles of our Constitution.

While emphatic mandates on the values of liberty have been succinctly articulated in various Fundamental Rights, it is the Right to Equality advocated by Article 14, 19 and 21 popularly known as the Golden Triangle, brings forth the essential philosophy of our Constitution as a true Democratic Nation. The emergence of this Trinity paved the path towards liberty, Equality and Fraternity and has played a major role in the operation of our judicial system. The author shall limit this essay to Article 14.

Interpretation
The edifice of Article 14 derives its essence from the Preamble which speaks of Equality of Status and Equal Opportunity. The Principle of Equality forms the basic tenet of Article 14 and is conferred on the people within the territory of India through two primary guarantees – Equality before the Law and Equal Protection of the Laws. Be you so high, the Law is above all. The guiding Principle of this article is that the Law stands unopposed and that it is Supreme.

Though both these guarantees appear to be similar, they have an inherent difference. While one is dynamic and philosophical in concept, the other speaks of application of Laws. However, Article 14 would fail to achieve it's objective if operated on a single limb. Equality of Law and Equal Protection of Laws are so intricately woven with each other in the most legal sense, that it would be unthinkable to imagine that one guarantee would continue to be silent at a time when the other is hit by a violation of Principle of Equality. Article 14 is largely influenced by the Rule of Law, a theory that was pronounced and advocated by Prof. Dicey.

In this respect, Article 14 adopted the Principle of Equality in totality and explicitly conveying that in the Eyes of Law, all are equal irrespective of their status in the society and there shall be Equality in Administration of Law in similar circumstances without regard to caste, colour or nationality.

For the necessity of explanation, if two persons, belonging to two different communities commit a similar crime, the Law will not pronounce a Differential treatment. Like will be treated alike and unlike will not be equated with equals and viewed through the same prism of Law.

Exceptions
The Principle of Equality is not an absolute Rule and is subject to certain exceptions.
  1. Private individuals do not enjoy the powers of public officials.
  2. Article 361 offers immunity to the President and the Governor.
  3. Article 31-C offers immunity to the State for implementing Directive Principles contained in Article 39 (b) and (c).
  4. Article 359(1), under the President's order, the enforcement of the right is suspended till the said order is in force.
  5. Foreign Heads, Ambassadors, Judicial Officers, Public Officers, Armed Forces Personnel while in office enjoy immunity under various Laws.
Reasonable Classification
Since the structure of the society is complex owing to varying nature of persons, objects and transactions, a Universal application of Law is therefore a fallacy. While Article 14 forbids class legislation, Reasonable Classification of persons or things was permitted and was exercised through a fine balance between Principle of Equity and Equality.

In order to avoid the pitfalls of whims and fancies of the Legislators and ensure that the classification is reasonable and not rational, a nexus was warranted to strike a legal balance between Intelligible Differentiation which distinguishes persons and things that are grouped together from others left out of the group and the rational relation to the goal that such classification wished to achieve. Thus this doctrine of classification was seen as the most evident and logical interpretation of Article 14.

The judiciary passed innumerable judgements based on the nexus test and was seized with this doctrine to the extent of platitudinous. An uncanny fear was experienced by many scholars and academicians who felt that if such Fanatical Reverence towards the nexus test continued unabated, the doctrine of classification might replace the Principle of Equality and thus rob the Article 14 of it's glorious content.

Shortcomings
The Pursuit of Equality when analysed along with Article 15 and Article 16 has become a discriminatory exercise in itself. It seems to be an empty idea, a subterfuge to benefit the political patronage. The traditional concept of Equality is being viewed with a critical eye. The Principle that Equals will be treated Equally may find a favourable ground for smaller number of people but may fall short for a larger section.

For the necessity of explanation, an institution which observes strict penalty for cheating, may find itself hesitant to invoke suitable action on discovering that a similar activity was done en masse in the class. Or, A State that wishes to confer privileges to her citizens may find herself hesitant to deliver on the promise on realisation that these privileges may need to be extended to non-residents too.

Or An orphanage may find itself on crossroads with the concept of Equality when it would have to place her child inmates in different homes. Which child deserves a better home when all children are equally placed!

Formal Equality, seemed to have developed a ring of emptiness in spite of being dispensed with such an alacrity. Article 14 was suddenly seen to vacillate between a simple ban on creation of equalities or elimination of inequalities. Scholars have, on scrutiny of various Supreme Court judgements found the application of the doctrine of Reasonable Classification inappropriate in certain areas. The nexus test was found lacking in tackling situations where very wide or unbridled powers were given to the authorities to pick and choose persons for giving different treatment indicating legislative policies for achieving other objects of the legislation given in the statue itself. It was time to look further for wider amplification of the Article 14 and its true meaning.

Arbitrariness
The legal thinking was not only marred by the limited approach but was restricted in operating between the two clauses which then reposed their faith on the nexus test. An anxious and sustained effort by the judiciary to discover some basis for classification was becoming the order of the day. In the light of the foregoing, an activist view emerged which relied on the dynamic concept of equality and opened a third level of inquiry to the nexus test – Non-Arbitrariness.

This new doctrine of Guarantee Against Arbitrariness enhanced the reach of Article 14 beyond mere classification. This new doctrine sought to strike against the State action and mandated that it must be based on reason and not on rational approach. The test was to tread cautiously in times of delegated legislation where a thin line existed between an Executive Action and The Legislative Policies.

Thus, if there is non application of mind by the State, while pronouncing administrative laws, it does not make the law arbitrary and unconstitutional so as to be struck down. This new judicial innovation, however, since inception was a beleaguered one. It drew sharp criticism, equally from eminent jurists and scholars. The debate overlooks the differentiation between the two doctrines. While the doctrine of Reasonable Classification provides unique contribution of Comparative Unreasonableness, Arbitrariness test strengthens the Article 14 through Non-Comparative Unreasonableness.

The Way Forward
The delinking of the area of Reasonable Classification test from the Arbitrariness has created lot of confusion. Piecemeal judicial intervention to the breach of judicial discipline may not result in desired results. The best approach is to have a smooth transition and an overlapping of the doctrines. This fluidity would help the both the Judiciary and the State to balance between the Rational and Reasonable approach, thus enhancing the true essence of Article 14.

References:
  1. Magna Carta
  2. Constitution of India, arts 14, 15 and 16
  3. State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
  4. E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3
  5. Lachman Das v. State of Bombay, AIR 1952 SC 239
  6. Maneka Gandhi v. Union of India (1978) 1 SCC 248
  7. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722
  8. RD Shetty v. AAI (1979) 3 SCC 489
  9. Chiranjit Lal Chowdhary v. UOI 1951
  10. A.L. Kalra v. Project & Equipment Corporation (1984) 3 SCC 316, 328
  11. Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212
  12. Rajbala and ors v. State of Haryana and ors (2015)
  13. H.M. Seervai, Constitutional Law of India 438 (1991)
  14. P.K. Tripathi, “The Fiasco of Overruling A.K. Gopalan” AIR Journal 6 (1990)
  15. Jagdish Swarup, Constitution of India 401
  16. K.K. Mathew : Democracy, Equality and Freedom,
  17. VK Sircar – The Old and New Doctrine, Critical Study
  18. Tarunabh Khaitan, “Legislative Review under Article 14” Oxford Handbook of Indian Constitutional Law
  19. Kent Greenawalt - How Empty Is the Idea of Equality? Columbia Law Review
Written By: Commander Anand Bhuptani

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