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.
Thursday, June 02, 2016
Reviewing Legislation under Article 14
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.