Equality as a Civil Liberty

The criticism is that arbitrariness is a conclusion rather than a test, and that a doctrine which permits invalidation without a comparator gives the Court an unbounded discretion. The answer is that classification alone cannot catch a law that treats everybody equally badly.

The American tiers

The equal protection clause is applied at three levels, chosen by the classification the law uses.

Strict scrutiny. For suspect classifications, race and national origin among them, and for classifications burdening a fundamental right. The government must show that the law is narrowly tailored to serve a compelling governmental interest. Almost nothing survives.

Intermediate scrutiny. For classifications by sex and by legitimacy. The law must be substantially related to an important governmental interest.

Rational basis. For everything else, including economic and social regulation. The law survives if it is rationally related to a legitimate governmental interest, and the government need not have articulated the interest itself.

The level chosen usually decides the case, which is why so much American equal protection litigation is about which tier applies.

Comparison

Article 14 of the Convention is not a free-standing equality guarantee: it prohibits discrimination in the enjoyment of the other Convention rights, so a claim must be brought within the ambit of another article. British equality law does most of its work by statute.

Sex discrimination as the test case

India. Article 15(1) forbids discrimination on grounds only of sex; article 15(3) permits special provision for women and children. Air India v. Nergesh Meerza, (1981) 4 SCC 335, struck down a regulation terminating the services of an air hostess on first pregnancy as manifestly unreasonable and arbitrary, while upholding differences in retirement age between two cadres on the ground that the cadres were different, which shows both limbs at work in one case.

United States. Sex classifications receive intermediate scrutiny and must be substantially related to an important governmental interest, so a sex classification is easier to defend than a racial one and harder than an economic one.

United Kingdom. The Equality Act 2010, with article 14 read with another Convention right where applicable.

A worked example

A rule requires all applicants for a post to be under thirty, and the object of the rule is to secure a long period of service.

India. Intelligible differentia, age; rational nexus with the object, plausible. Then the second question: is the cut-off manifestly arbitrary, for instance because it excludes a class of persons for reasons unconnected with the object?

United States. Age is not a suspect classification; rational basis applies and the rule almost certainly survives.

United Kingdom. Age is a protected characteristic under the Equality Act 2010, and direct age discrimination may be justified if a proportionate means of achieving a legitimate aim, which is a stricter enquiry than American rational basis.

The cases

Facts. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, concerned section 5(1) of the West Bengal Special Courts Act 1950, which allowed the State Government to direct that any offences, cases or classes of cases be tried by a special court following a shortened procedure without committal, jury or the ordinary appeal.

Held, by the Supreme Court. The provision violated article 14. Article 14 forbids class legislation but permits reasonable classification founded on an intelligible differentia having a rational relation to the object of the Act; the section laid down no basis for selection at all and conferred an uncontrolled discretion, so the classification test could not be satisfied.

Why it matters here. It is the foundational Indian equality case and the source of the twin test in its usual form.

Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, concerned the transfer of a Chief Secretary to posts he alleged were inferior, and the question whether the transfer was mala fide and violated articles 14 and 16.

Held, by the Supreme Court. Equality is a dynamic concept with many aspects and cannot be confined within traditional and doctrinaire limits; equality and arbitrariness are sworn enemies, and where an act is arbitrary it is implicit that it is unequal and therefore violative of article 14. On the facts the challenge failed.

Why it matters here. The holding on the facts is unimportant; the sentence about arbitrariness became the second limb of Indian equality doctrine and the foundation of manifest arbitrariness review.

Facts. Joseph Shine v. Union of India, (2019) 3 SCC 39, challenged section 497 of the Indian Penal Code, under which only a man could be punished for adultery and only on the complaint of the husband of the woman concerned.

Held, by five judges. The section violated articles 14, 15 and 21. It rested on the view of a woman as her husband's property, denied her autonomy and dignity, and was manifestly arbitrary; a provision that punishes a man and treats a woman as incapable of consent cannot survive article 14.

Why it matters here. It shows manifest arbitrariness operating as an independent ground of invalidity in a case where a classification test alone would have produced a longer and less honest answer.

Distinctions

What beginners get wrong

"Article 14 requires everybody to be treated identically." It requires like to be treated alike, and permits reasonable classification.

"Article 15 covers all discrimination." It forbids discrimination on grounds only of religion, race, caste, sex or place of birth; a classification resting partly on another ground is outside it, and article 14 then applies.

"Arbitrariness is just another way of saying irrational classification." It is wider: a law that classifies rationally may still be struck down as manifestly arbitrary, and a law with no classification at all may be too.

"American strict scrutiny applies to all discrimination." It applies to suspect classifications and to burdens on fundamental rights; sex gets intermediate scrutiny and most classifications get rational basis.

Limits and criticism

The classification test is formal, and a legislature that drafts carefully can satisfy it while producing an unjust result, which is what arbitrariness review was developed to answer.

Arbitrariness has no stated standard, and the objection that it substitutes judicial for legislative judgment is a serious one.

Tiers of scrutiny are rigid, and the choice of tier is made before the argument and effectively decides it.

None of the three reaches private discrimination on its own, which is why every one of them has statutory anti-discrimination law alongside the constitutional guarantee.

Quick revision

1. Article 14: equality before the law, the English negative formulation, and equal protection of the laws, the American positive one.
2. Twin test: intelligible differentia and rational nexus with the object of the statute.
3. Anwar Ali Sarkar, AIR 1952 SC 75: an uncontrolled discretion to select cases fails the test.
4. E.P. Royappa, AIR 1974 SC 555: equality and arbitrariness are sworn enemies.
5. Manifest arbitrariness invalidates a statute without a comparator: Joseph Shine, (2019) 3 SCC 39.
6. American tiers: strict for suspect classifications, intermediate for sex, rational basis for the rest.
7. Article 14 of the Convention is parasitic on another Convention right; British equality law is statutory.

Test yourself

1. State the twin test and the case that established it. That article 14 forbids class legislation but does not forbid reasonable classification, and that a classification is reasonable if it is founded on an intelligible differentia distinguishing those grouped together from those left out, and if that differentia has a rational relation to the object sought to be achieved by the statute. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, applied it to strike down a provision allowing the State Government to send any case to a special court following a shortened procedure, since the section supplied no principle of selection and conferred an uncontrolled discretion.

2. What did E.P. Royappa add, and what is the objection to it? It added arbitrariness as an independent limb: equality is a dynamic concept that cannot be confined within traditional and doctrinaire limits, equality and arbitrariness are sworn enemies, and an arbitrary act is by that fact unequal and violative of article 14. The doctrine grew into manifest arbitrariness review of statutes, applied in Joseph Shine v. Union of India, (2019) 3 SCC 39. The objection is that arbitrariness states a conclusion rather than a test, requires no comparator, and therefore lets a court invalidate a law simply because it thinks it excessive.

3. Set out the American tiers and say what turns on them. Strict scrutiny for suspect classifications such as race and national origin and for burdens on fundamental rights, requiring the law to be narrowly tailored to a compelling governmental interest. Intermediate scrutiny for sex and legitimacy, requiring a substantial relation to an important governmental interest. Rational basis for everything else, requiring only a rational relation to a legitimate interest, which the government need not itself have articulated. The choice of tier usually decides the outcome, which is why the litigation is largely about classification rather than about justification.

4. Why is article 15 narrower than article 14? Because it forbids discrimination on grounds only of religion, race, caste, sex or place of birth. A classification that rests on one of those grounds together with another consideration falls outside article 15(1) on its terms, and the challenge must then be made under article 14, where the twin test and arbitrariness apply. Article 15 is also confined to the listed grounds, whereas article 14 covers every classification, which is why the general equality guarantee does most of the work.