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:
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);
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;
deferentially;
(c) the arbitrariness test is really a test of unreasonableness
of measures which do not entail comparison (hence labelled non- comparative
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
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.
