December 3, 2020

Article 14: A Transformative Outlook

– Richik Dadhich[1]

INTRODUCTION

For an analysis of the nuances of Article 14 of the Constitution of India and its contemporary relevance, it would be both intuitive and logical to start with the text of the same:

“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 interpretation of this succinct expression has varied through the passage of time[2]and its scope has significantly been broadened after new doctrines of interpretation have been propounded by the courts of law.

The unique relation that exists between Article 14 and the concept of progressive constitutionalism with respect to contemporary issues would also be looked upon. Right to equality forms an integral part of all the state actions and is one of the basic structures of our democracy[3]. Recently, the courts have taken up what experts call a ‘progressive’ approach[4]and various judgements have been taken with a liberal approach to further the cause of women’s and minorities’ rights.

This article is thus aimed at analysing the doctrines of classification under Article 14 and its contemporary relevance through the mirror of ‘transformative constitutionalism’.

THE REASONABLE CLASSIFICATION UNDER ARTICLE 14

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.

Article 14 mainly has two parts, the first one talks about equality before law and the second one is about equal protection of laws. The earliest decisions of the Court had a fairly consistent view of Article 14.[5] The first part of the article which speaks of equality is commonly accepted to be a guarantee that no person is above the law.[6] This guarantee is made effective by its corollary in the second part which offers to persons the equal protection of the laws.

The “equal protection of laws” means that class legislation is prohibited but there could be a reasonable classification. 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.[7]

This nexus test, initially developed by the Supreme Court in the case of Anwar Ali Sarkar[8], where Das, J. stated:

“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.”

In order for a classification to be permissible, it must be founded on an intelligible differentia which distinguishes the persons and this differentia must have a reasonable nexus with the end objective which is sought to be achieved. The classification, however, must be rational and lawful. Further, the distinguishing rationale must be based on a just rationale.[9]

Through the passage of time, this doctrine was applied and summarised by the courts in several cases[10]. However, some academic literature regarding the right to equality also appeared pointing out the shortcomings of the nexus tests. Critics said that the nexus test was not suitable for certain conditions like one person statutes and the statutes where the executive is free to pick and choose individuals towards fulfilment of statuary policy. Further, the unequal treatment in itself is not a discrimination. The burden is on the petitioner to prove that not only there is a differential treatment, but also, the treatment is without any valid reason. In other words, he has to show that there is no valid classification in the immediate case.[11] These classic tests of permissible classification have been repeated so many times that the Supreme Court in 1960 remarked that “they now sound platitudinous”.[12] Apart from staleness of repetition, it was feared that the fanatical reverence shown to these tests might ultimately replace the doctrine of equality and rob Article 14 of its “glorious content” and original meaning.[13]

This nexus test for classification, though continues to be valid, has to be read in light to various new developments as discussed in subsequent sections.

EXPANDING HORIZONS OF EQUALITY

Considering the shortfalls and criticism of the old doctrine of classification, a more positivist and activist stand was taken by the court in the case of EP Royappa[14] where 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….”

This new doctrine that “Article 14 embodies a guarantee against arbitrariness” was further reaffirmed and reiterated in various cases.[15]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 proceeded to examine the ‘content and reach’ of the ‘great equalising 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 activistic 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.”

It could be said that this doctrine of arbitrariness significantly broadened the scope for the interpretation of Article 14 as there was no longer a need to find a classification and its nexus with the end objective. If an action was unreasonable, it would directly be in contravention of Article 14.

However, this was not the only interpretation apart from the traditional doctrine as the approach of the courts have varied from case to case basis and various new forms of interpretations have developed making Article 14 more inclusive. Reasonableness and fairness are now considered essential[16] and non-compliance with rules of natural justice amounts to arbitrariness violating Article 14.[17]Also, it has been held that all persons in similar circumstances must be treated alike, both in privileges and liabilities imposed.[18]

ARTICLE 14 THROUGH THE LENS OF TRANSFORMATIVE CONSTITUTIONALISM

“The purpose of having a constitution is to transform society and to embrace the ideals of justice, liberty, equality and fraternity.”

– Deepak Misra[19]

Constitution is basic law of the land. It lays down the framework defining fundamental political principles, powers and duties of government institutions and sets out fundamental rights, and the duties of citizens. A constitution is the legal and moral framework setting out these powers and their limitations. This framework must represent the will of the people, and should therefore have been arrived at through consensus. In order to make it more attached to the people of our country, the concept of ‘Transformative Constitutionalism’ is highly relevant.

Constitutionalism’ means the limited government or limitation on arbitrary powers of government. Constitutionalism recognizes the necessity of powerful government but with reasonable restrictions in order to avoid misuse of powers. Absence of constitutionalism will lead to despotism. A government, which goes beyond its limits, loses its authority and legitimacy. Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the Constitution should be permeated with ‘Constitutionalism’; it should have some inbuilt restrictions on the powers conferred by it on governmental organs.[20]

The term “transformative constitutionalism” was coined by American academician Karl Klare, in 1998 which he described as:

“A long term project of constitutional enactment, interpretation and enforcement committed to… transforming a country’s political and social institutions and power relationships in a democratic participatory and egalitarian direction[21]

Transformative Constitutionalism means that the law is being transformed through statutes and judicial procedures to bring about a change and a transformative impact. It takes a more pragmatic approach towards the realisation of constitutional goals by protecting individual’s fundamental rights and freedoms. Judiciary is the core element of transformative constitutionalism since the concept places faith in the law as an instrument of social and political change, and in that, the courts act as catalyst of the transformation as they are empowered to interpret and apply the law[22].

It can be concluded that Transformative constitutionalism aims to rebuild society on new principles through creation of just and humane conditions for individuals which are in consonance with social justice. This means that the judiciary is at highest pedestal of trust and in order to keep accord to its position it needs assume a more assertive role via transformative constitutionalism than that in ordinary traditional contexts.

The right to equality has always played a central role in social reforms throughout the history, be it the time of Buddha or the French Revolution. The makers of our Constitution had considered the widespread social and economic inequalities and injustice, often sanction by law or public policies and sanction by public power, supported by religious and social norms and practices. Hence, they infused with extra zeal and vigour the right to equality under Article 14. It has also been held as an intrinsic and a part of the basic structure[23]. It is indeed the basic pillar on which safely rests the democratic foundations of our country.

Recently, the courts have taken a more activist approach and assertive approach through ‘transformative constitutionalism’ and right to equality. This can be seen in the light of various recent judgements such as Joseph Shine v. Union of India[24], where the apex court decriminalized adultery, Navtej Johar & Ors. v. Union of India[25], which had the effect of decriminalizing homosexuality and Shayara Bano v. Union of India[26]which declared instant triple talaq to be a violation of the constitution.

[1] Second Semester Student, BBA LLB, National Law University, Jodhpur.
[2] See MP Jain, Indian Constitutional Law, 12th Edn., p.878
[3] Maneka gandhi v. Union of India, (1978) 1 SCC 248; Keshavananda Bharati v. state of kerala, (1973) AIR SC 1461
[4] Indira Jaising, Address on Tranformative Constitution – NLSIU (2019), available at https://scroll.in/article/931512/for-us-it-now-means-personal-liberty-indira-jaising-explains-transformative-constitutionalism
[5]Chiranjit Lal v Union of India AIR 1951 SC 41; State of West Bengal v Anwar Ali Sarkar 1952 SCR284; Kathi Raning Rawat v State of Saurashtra 1952 SCR 435; Kedarnath Bajoria v State of WestBengal 1954 SCR 30; Jyoti Pershad v Administrator of Delhi (1962) 2 SCR 125
[6] M P Jain, Constitutional Law of India, (7th edn, Lexis Nexis 2014) p. 856; Sri Srinivasa Theatre vGovernment of Tamil Nadu AIR 1992 SC 1004.
[7] V.K. Sirkar, The Old and New Doctrines of Equality: A Critical Study of Nexus Tests and Doctrine of Non-Arbitrariness, (1991) 3 SCC (Jour) 1
[8] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
[9] Kallakkurichi Taluk Retd. Officials Ass. v. State of T.N., (2013) 2 SCC 772
[10] State of Bombay v. F.N. Balsara, AIR 1951 SC 318; R.K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538.
[11] Supra foonote no. 6; K.K. Mathew : Democracy, Equality and Freedom, p. 63
[12] Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 423
[13]LachmanDas v. State of Punjab, AIR 1963 SC 222
[14] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, 38.
[15] Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722.; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[16] Ashok Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406; Minoo Framroze Balsara v. Union of India, AIR 1992 Bom 375
[17]Rajasthan State Road Transport v. Bal Mukund Bairwa, (2009) 4 SCC 299.
[18] John Vallamotom v. Union of India, (2003) 6 SCC 611.
[19] Deepak Misra, Article 377: The Transformation, https://www.thehindu.com/opinion/op-ed/a-greater-transformation/article24910086.ece Sept. 19, 2019 10:33 AM IST
[20]Kiruthikadhanapa, “Constitutionalism” http:// www. legalservicesindia. com/article/ 1699/Constitutionalism.html Sept., 2019 10:46 A.M IST
[21] Karl Klare, “Legal Culture and Transformative Constitutionalism”, 14 S. Afr. J. Hum. Rts. 146, 150
[22] Dr. Ansari Zartab Jabeen, Indian Judiciary and Transformative Constitutionalism, http://www.lex-warrier.in/wp-content/uploads/2019/04/Indian-judiciary-and-transformative-constitutionalism.pdf
[23]Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
[24] 2018 SCC OnLine SC 1676
[25] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
[26] Shayara Bano v. Union of India, WP(C) No.118 of 2016 Triple Talaq

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