Reviewing Legislation under Article 14

Readers may have already heard of the excellent Oxford Handbook of the Indian Constitution edited by Khosla, Mehta and Choudhry. I have contributed a chapter on the application of Article 14 to judicial review of legislation. 

The chapter 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) despite some doctrinal confusion, courts are unlikely to consistently apply it to acts of legislatures.
The chapter concludes by showing that Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review.

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