Thursday, June 02, 2016

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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