Article 14 – Historical Interpretation and trace

This article was written by Aditya Bansal, a student of Jindal Global Law School.

“What is life without liberty; and what is liberty without equality of rights?” – Ernestine L Rose

 What does Article 14 of the Indian Constitution say? It says that the state shall not deny anyone equality before the law and equal protection of law to any citizen within the Indian Territory. The major components of Article 14 have to be “rule of law” as incorporated by professor Dicey from the British doctrine and also the “equal protection of law” clause from the 14^th Amendment of the U.S and Irish Constitution. The parliament in our country has repeatedly tried to curb the scope of Article 14 so that the welfare programmes run smoothly and the Supreme Court introduced to us the classification and the nexus test. It was, finally, in 1974 when the Supreme Court declared Article 14 to be a guarantee before Arbitrariness. This paper, hence, tries to unravel and make us understand the old and new doctrines and also analyse the merits and demerits of such changes, and it will do so while keeping a timeline in mind.

Let us first, try and understand the concepts involved in the Article namely “equality before law”, “equal protection of law” and “rule of law”. The first, taken from the American constitution aims at denying anyone any special form of privilege based on the grounds of religion, race, caste, sex or place of birth. The second aspect on the other hand has a positive trait and says that everyone should be treated equality before the law essentially saying, if you are the President or a common man, there will be equality of treatment in equal circumstances in India. Lastly, the rule of law as brought forth by professor dicey tells us that there should be absence of arbitrary power and supremacy of law, essentially saying you cannot be punished for anything else but for breaking the law. No man is above the law and is subject to the jurisdiction of all the courts and finally there must be absence of individual liberty.[1]

However, Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons or that every law must have universal application.This means that the law can treat different people differently, if circumstances justify such a difference. Thus, it became imperative to have “reasonable classification” falling within the ambit of Article 14, classification of people, objects and transactions by the state that help the society in reaching its welfare goals. However, the same Article forbids “Class legislation” and disapproves the idea of discrimination and giving privilege to a class of people in the country. [2]

What is classification, as applied by the Supreme Court? For the purposes of passing fair and reasonable judgments, classification must be formed on certain aspects. The classic Nexus test was established by S.R Das, J in the Anwar Ali Sarkar Case. The case said that in order for classification to be reasonable, there must be two conditions that must be fulfilled:-

• That the classification must be based on an intelligible differentia which distinguishes those that grouped together from others left out of those groups.
• That the differentia must have a rational relation to the objects it aims to sought for the welfare of society.[3]

The differentia and the object of the act are two different things. What is important here is to make sure that there is a Nexus between the basis of classification and the object of the act which makes the classification. The classification can only be deemed to be discriminatory when the basis of classification is not reasonable. For an example, the law may set a minimum age for declaring people competent to contract but cannot deny certain people the right to contract based on the color of their hair.[4]

As time moved on, innumerable cases have been decided based on the nexus test by the Supreme Court and some of the High Courts. The courts, at multiple instances, have tried to summarize this principle established for Article 14. The test was used to its extent and so much that in 1960, the courts declared it to be platitudinous. Apart from the staleness of repetition, the courts thought that the tests might ultimately steal the Article 14 of its glorious content and replace the doctrine of equality. The tests were criticized by many who thought it should no longer be used. Prof P.K Tripathi in his telang lectures focused on a more comprehensive study of the right to equality and equal protection of law. After analyzing various decisions of the Supreme Court he concluded that the nexus tests failed in various fields. He said that the theory of classification must have three major elements known as the “what”, “why” and “whom” elements. The nexus test only saw the object and criteria of the classification and ignored the “what” element and is not feasible to tackle many situations. Professor Tripathi hence hoped that the Supreme Court will free itself from this inaccurate dogma.[5]

As a result of the aforesaid, well informed criticisms of the nexus tests, the Supreme Court tried to free itself from this dogma and overrule its certain decisions by not using the nexus test. It was finally, slowly and steadily, moving towards the positivist and activist approach as established in E.P RoyappaVs State Of Tamil Nadu wherein Bhagwati, J said that equality is a dynamic concept with many aspects and it cannot be cribbed, cabined and confined within the traditional limits. He said that from the positivist perspective, equality is actually antithetic to arbitrariness and also that arbitrariness and equality are sworn enemies. When an act is arbitrary, it must be violating Article 14 as the act must be unequal according to both, political logic and constitutional reasoning.[6] On the basis of this new positivist and activist approach, many decision were taken in the courts and this doctrine was finally accepted in the case of AjaiHasiaVs Khalid Mujib.[7]

Bhagwati, J then moved on to the Maneka Gandhi Case where he looked deep into the content and reach of the powers enriched in Article 14 of the Indian Constitution. He observed that it is indeed the pillar on which our democracy rests and the reasonable classification aspect is an important element of equality and non-arbitrariness. Thus the new doctrine that Article 14 embodies a guarantee against arbitrariness was established.[8]

This did not mean that the nexus test was completely abandoned, it was still used in certain instances. One of the reasons was that Bhagwati faced a lot of criticism for his new doctrine. H.M Seervai said that this new doctrine hangs in the air because it does not use the principles enriched in Article 14. The two main pillars, according to Seervai, the court serving justice must not be concerned with the status and position of the parties involved and there is no respecter of persons. The second pillar, to give content to equal protection of laws. He said that any rules that would be passed, independent of rule, without adequate determining principle would be arbitrary. Article 14 is not really a guarantee against arbitrariness, classification would be arbitrary if it does not follow the rules for classification as laid down in the courts.

The true meaning and scope of Article 14 have been discussed in detail in detail in various cases and the principles established have been widely used. But the principle, as laid down by Das, J, in R.K DamiaVs Justice Tendukar[9]are still held to be valid for classification and with this the test for classification can be established. The principles involve:

• A law may be constitutional even though it may be about a single person, if the person is class by himself.
• The burden to prove that constitutional right is violated, is on the one who tackles. The benefit of doubt is given to the constitution.
• The legislature understands the needs of its people and the discrimination is done for a valid reason and for the society’s benefit.
• Knowledge of the existing conditions for classification is a part of the legislature but if something new on the face of law and because of circumstance is brought into existence, it will be considered.
• Classification may be based on different basis eg geographical or according to occupation.
• The classification may not be scientifically perfect or logically complete.
• Article 14 applies to both, substantive and procedural law.
• The law can recognize the degree of harm and confine or expand its restrictions based on the case at hand.

While concluding, it is imperative to discuss the most reasonable and desirable path that the courts should use future purposes. Keeping the various doctrines, old and new, in mind and after analyzing the positives as well as the criticisms of all the doctrines, the most desirable path would be to look at the different aspects of equality in terms of all the doctrines and use them to find application and move ahead with a complimentary approach. Slow and gradual developments in the field of equality has helped in reaching the desired position and the nexus test, positivist and activist approach and non-arbitrariness principles were the means to achieve it. Even today, all the principles and guidelines are used in harmony with each other by the courts of India. The focus of the judiciary to look at all the doctrines to meet the demand of reasonableness to maintain the dynamic spirit of equality as enshrined in the Article 14 of the Indian Constitution.

[1]http://www.legalservicesindia.com/article/article/reasonable-classification-under-article-14-1061-1.html

[2]http://www.gktoday.in/article-14-of-constitution-of-india-doctrine-of-reasonable-classification/

[3] AIR 1952 SC 75

[4]http://www.gktoday.in/article-14-of-constitution-of-india-doctrine-of-reasonable-classification/

[5] Cited in Mahendra P Singh (Ed.): Comparative Constitution Law, p 485.

[6] 1974 4 SCC 3

[7] 1981 1 SCC 722

[8] 1978 AIR 578

[9]1959 SCR 279