Equality: Legislative Review Under Article 14

Sujit Choudhry, Pratap Mehta & Madhav Khosla eds, The Oxford Handbook of Indian Constitutional Law (OUP 2016) 699-719

Oxford Legal Studies Research Paper No. 29/2015

21 Pages Posted: 12 May 2015 Last revised: 21 Aug 2017

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Oxford - Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group; University of Melbourne - Law School

Date Written: May 12, 2015

Abstract

This chapter concerns the guarantee of the right to equality under Article 14 of the Indian Constitution. It explores the two doctrines that have evolved to test the constitutionality of a measure when faced with an Article 14 challenge: the ‘classification test’ or the ‘old doctrine’ (which I have labelled ‘unreasonable comparison’) and the ‘arbitrariness test’ or the ‘new doctrine’ (labelled ‘non-comparative unreasonableness’). I show that (a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); (b) it is a limited and highly formalistic test applied deferentially; (c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (in the actor-sensitive sense). The way forward is to beef up the classification doctrine to realise its true potential, and abandon the arbitrariness doctrine with respect to actor-sensitive legislative review.

Keywords: Indian constitutional law, right to equality, classification doctrine, arbitrariness doctrine

Suggested Citation

Khaitan, Tarunabh, Equality: Legislative Review Under Article 14 (May 12, 2015). Sujit Choudhry, Pratap Mehta & Madhav Khosla eds, The Oxford Handbook of Indian Constitutional Law (OUP 2016) 699-719; Oxford Legal Studies Research Paper No. 29/2015. Available at SSRN: https://ssrn.com/abstract=2605395

Tarunabh Khaitan (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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