Classification, and Arbitrariness as the Antithesis of Equality

How the two tests fit together

They are not alternatives and one has not replaced the other.

The classification test is still the right tool for a challenge to a statutory classification, and it is what a court applies when a law divides the population into groups.

The arbitrariness test is the right tool for executive action and for a rule with no discernible basis, and it is what a court applies when there is no classification to examine.

Both are article 14. A candidate who presents the second as having overruled the first is wrong; the correct statement is that article 14 has two distinct doctrinal routes and the choice of route depends on what is being attacked.

Article 14 and article 21 read together

Since the late 1970s the articles in Part III are not read as separate compartments.

A law that deprives a person of life or personal liberty must prescribe a procedure, that procedure must be fair, just and reasonable under article 21, and it must not be arbitrary or discriminatory under article 14.

The three articles 14, 19 and 21 are read as a group, so a law restricting liberty must survive all three tests rather than only the one it appears to engage. [Due Process Read into a Constitution That Refused It] takes that development in full.

Positive discrimination is not an exception

Articles 15(3) to (6) and 16(4) to (6) permit special provision, and it is a common error to call them exceptions to article 14.

They are applications of it. The equal protection of the laws requires like treatment for those alike in relevant respects, and persons who are not alike in relevant respects are not entitled to identical treatment.

Treating unequals as equals is itself a denial of equality, which is the proposition that carries the whole of Indian reservation jurisprudence, and it follows directly from the second limb of article 14 rather than standing outside it.

Worked example

A question that asks whether some State action offends article 14.

Identify what is being attacked: a statutory classification, or an executive decision.

If it is a classification, apply the two limbs. State the differentia. Ask whether it is intelligible. Then ask what the statute's object is and whether the differentia serves it. Note the presumption of constitutionality.

If it is an executive act, apply the arbitrariness test. Ask whether there were reasons, material, and a discernible principle. Note that no comparator is required.

Read article 14 with article 21 where liberty is affected.

And if the challenge is to a special provision, say that it is an application of equality and not an exception, and then test whether the group is properly identified.

What it does NOT mean

It does not mean any classification is bad. Classification is not merely permitted, it is necessary; only class legislation is forbidden.

It does not mean the arbitrariness test replaced the classification test. Both live, and they answer different questions.

And it does not mean the presumption of constitutionality is a formality. It is a real burden, and it is why so many article 14 challenges to statutes fail.

Quick revision

• Article 14 forbids class legislation and permits reasonable classification.
• Two limbs, both required: an intelligible differentia distinguishing those grouped in from those left out; and a rational nexus between that differentia and the object sought to be achieved.
• Three refinements: the object must itself be legitimate; mathematical precision is not required; and there is a presumption of constitutionality, the burden being on the challenger.
• The arbitrariness test: equality is antithetic to arbitrariness, so an arbitrary act is unequal and violates article 14. No comparator is needed, which is why it is the useful limb for individual human rights violations.
• The two tests coexist: classification for a statutory classification, arbitrariness for executive action.
• Articles 14, 19 and 21 are read together: procedure must be fair, just and reasonable and also non-arbitrary and non-discriminatory.
• Special provisions under 15(3) to (6) and 16(4) to (6) are applications of equality, not exceptions, because treating unequals as equals is itself unequal.

Test yourself

1. State the classification test and explain which limb does the work. Article 14 forbids class legislation but permits reasonable classification, and a classification is reasonable only if two conditions are both satisfied. First, it must be founded on an intelligible differentia which distinguishes the persons or things grouped together from those left out of the group, intelligible meaning that the line can be stated and understood so that one can tell on which side of it any given case falls. Second, that differentia must bear a rational relation to the object sought to be achieved by the statute in question. Three refinements attach: the object must itself be legitimate, since a classification cannot be saved by showing that it perfectly serves an unconstitutional purpose; mathematical precision is not required, so a statute may draw an age line at eighteen without proving that nobody matures earlier; and there is a presumption of constitutionality, the burden lying on the person attacking the law, on the footing that the legislature understands and correctly appreciates the needs of its own people.

The second limb does the work. The first is rarely difficult to satisfy, because almost any line a legislature draws can be stated clearly enough to be intelligible. It is the requirement of a rational connection between that line and the statutory purpose that defeats bad classifications, since a rule dividing people by the first letter of their surname is perfectly intelligible and connected to nothing worth achieving. An answer that recites both limbs but tests only the first has not applied the doctrine.

2. What is the arbitrariness test, and why does it matter more in human rights litigation? From the late 1970s the Supreme Court held that equality is antithetic to arbitrariness, so that where an act is arbitrary it is implicit that it is unequal both according to political logic and constitutional law, and is therefore violative of article 14. The test asks whether the decision or rule was made with reasons, on material, according to a discernible principle, and in a manner a reasonable authority might adopt.

It matters more in human rights litigation for one reason: it needs no comparator. Under the classification test a petitioner must identify a group that is relevantly alike and was treated better, which is a demand the facts frequently cannot meet. Where the State has treated everybody equally badly, or where the petitioner is the only person affected by the impugned act, there is no comparator to produce and the classification test simply has nothing to work on. Most human rights violations in India are individual rather than group-based: a detention without grounds, a removal without assessment, a refusal of a document without reasons. In those cases the arbitrariness limb is the only route through article 14, and it is why article 14 has become a general guarantee against unreasoned State action rather than only a guarantee against discriminatory classification.

3. Why are the special provisions for backward classes not exceptions to article 14? Because article 14's second limb guarantees the equal protection of the laws, which requires that persons alike in relevant respects be treated alike, and carries the corollary that persons who are not alike in relevant respects are not entitled to identical treatment. Applying an identical rule to people whose starting positions differ materially produces unequal outcomes, so treating unequals as equals is itself a denial of equality. That proposition follows directly from the equal protection limb and does not need any exception to article 14 to support it.

Articles 15(3) to (6) and 16(4) to (6) accordingly do not carve equality back; they confirm and make explicit what the equal protection limb already permits. Article 15(3) allows special provision for women and children, 15(4) for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, 15(5) for their admission to educational institutions including private unaided ones other than minority institutions, and 15(6) for economically weaker sections subject to a maximum of ten per cent. Article 16(4) permits reservation of appointments for a backward class not adequately represented in the services, 16(4A) permits reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes, and 16(6) permits reservation for economically weaker sections subject to a ten per cent ceiling. The constitutional question in any given case is therefore not whether the special provision is an exception, but whether the group has been properly identified and whether the provision serves the equality the article guarantees.