Developments in Equality Jurisprudence

The penultimate panel for the 2nd edition of The Courts & The Constitution, focused on reviewing the developments in equality jurisprudence over 2019. The panel was moderated by Professor Sudhir Krishnaswamy, Vice-Chancellor, NLSIU.

Arundhati Katju opened the conversation and discussed the strategy behind shifting the conversation from privacy to equality so that equality rights are given primacy through Navtej Johar. Through this conversation, she discussed the need for looking at the equality jurisprudence in a broader manner and with a greater focus than the Courts have been able to do in the Sabarimala or Ayodhya judgments.

Dr. Anup Surendranath, in his speech, touched upon the doctrine of manifest arbitrariness and the issue of importing creamy layer into SC/ST reservation jurisprudence. In the first part of his speech, he brought out the irony of arbitrariness in the manifest arbitrariness doctrine through the Bar Dancers’ decision and the prohibition matter. He argued that it has failed to serve as a test of equality under Article 14 of the Constitution. Instead it seems to have become an inroad for judges to wade into a policy-rowing exercise in the garb of manifest arbitrariness. In the second section, he discussed the conceptual error in importing creamy layer into SC/ST reservation jurisprudence through a discussion of the B.K. Pavitra and Jarnail Singh judgments.

Alok Prasanna Kumar picked up from Dr. Anup Surendranath’s speech and reiterated the purpose of reservation by discussing J. Chinnappa Reddy’s decision from KC Vasanth Kumar and a passage from D.R. Nagaraj’s ‘Misplaced Anger, Shrunken Expectations’. Then on the basis of this context, he explained how the 10% reservation, brought about for economically weaker sections of the society through the 103rd Amendment fell afoul of the basic structure doctrine. He also noted that this reveals a confusion regarding the understanding of the objective and purpose of reservations on part of the Union government.

The session was followed by a very interesting Question and Answer Session starting with a round of questions from Prof. Sudhir Krishnaswamy that was taken further by the audience. In this report we have tried to rearrange portions of this discussion on the basis of themes that they have touched upon for purposes of readability. The Q&A session revolved around the EWS reservation amendment, the alternatives around it, variants of the manifest arbitrariness doctrine and sub-classification as discussed in Chinnaiah.

Please find the portion of the Conference Publication covering this Panel attached below. You can also find the video recording here. We invite response pieces, critically analysing and engaging with the arguments raised by the speakers. (Kindly see Write for Us! for further guidelines).

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