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Article 14 a brief introduction: -

Article 14 mandates that the State shall not deny equality before law and equal protection of
laws to any person within the territory of India. By incorporating in Article 14 the British
doctrine of rule of law as propounded by Prof. Dicey and the "equal protection of law" clause of
14th Amendment of the U.S. Constitution, the framers of our Constitution had in their zeal
infused extra vigour and vitality in the right to equality. However, Parliament has repeatedly
tried to curtail the scope and vigour of Article 14 in order to carry out the welfare programs.
Apart from it, the Supreme Court had sapped some of the vigour of Article 14 by showing
"fanatical reverence" to the theory of classification or the nexus tests".
Finally in 1974 the Supreme Court evolved the new doctrine that Article 14 is a guarantee
against arbitrariness. Thus the Supreme Court has evolved two different and distinct doctrines for
tackling attack on State action on the ground of violation of Article 14. An attempt is being made
in this paper to analyze objectively the merits and demerits of the old and new doctrines. It
is only understandable that our Supreme Court should have applied the theory of classification,
evolved by the American Supreme Court for giving content and true meaning to right to equality.
According to this doctrine "equal protection of laws" prohibits class legislation but permits
reasonable classification of persons or things.4 By expressly incorporating in the second part of
Article 14 the language of the 14th Amendment of the U.S. Constitution, the Constituent
Assembly impliedly had approved the interpretation of that clause by the U.S. Supreme Court.
Hence, from the very beginning the Indian Supreme Court has had no hesitation in applying the
theory of classification while testing the Constitutional vires of legislations and State actions
impugned on the basis of their being violative of Article 14. The classic nexus test
wasenunciated by S.R. Das, J. in the Anwar Ali Sarkar case-
"I n order to pass the test of permissible classification two conditions must be fulfilled viz
. (i)that the classification must be founded on an intelligible differentia which distinguishes
those that are grouped together from others left out of the group, and
(ii) that the differentia must have a rational relation to the objects sought to be achieved by
the Act. The differentia which is the basis of the classification and the object of the Act are
distinct and what is necessary is that there must be nexus between them."
On the basis of these tests, better known as nexus tests, innumerable cases have been decided by
the Supreme Court and various State High Courts. Supreme Court has from time to time tried to
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summarise the principles enunciated by it in its previous decisions under Article 14. These
classic tests of permissible classification have been repeated so many times that the Supreme
Court in 1960 remarked that "they now sound platitudinous". Apart from staleness of repetition,
it was feared that the fanatical reverence shown to these tests might ultimately replace the
doctrine of equality and rob Article 14 of its "glorious content". Some academic literature
regarding the right to equality also appeared pointing out the shortcomings of the nexus tests.
However, only two of such studies may be noted in this brief paper.
K.K. Mathew, J. highlighted the negative concept of the doctrine of "equality before the law", as
traditionally understood and posed the question whether the command of Article 14 is merely to
ban creation of equality or to eliminate inequalities ? According to him "Formal equality before
the law has been found to be a sham in many areas".Thus, legal thinking in the country was
slowly moving towards giving a positivistic or activist twist to the right to equality. Prof. P.K.
Tripathi in his Telang lectures on "Right to Equality" attempted a more comprehensive study of
the right to equality. After careful analysis of several decisions of the Supreme Court applying
nexus tests he concluded that these tests were inappropriate in certain fields. He pointed out that
the theory of classification has three aspects which he chose to call " 'Why', 'What' and 'Whom'
elements respectively." He also observed that, the nexus tests notice only the object and criterion
of classification and their mutual relation but ignore the "what" element and the relationship of
this element with the other two, resulting in the "what" element being confused with the other"
why" or "whom" elements, specially when the "object" or "why" element is not expressly and
clearly indicated in the statute itself. He further concluded that nexus tests are not suitable at all
for tackling certain situations.
These are:
(i) where the statute indicates the policy or purpose to be fulfilled and also the special
treatment to be given to selected persons or things but leaves it to the executive to
make actual selection of the persons or things in fulfillment of the legislative policy;
(ii) to "one person" statutes;
(iii)where legislature gives broad indication of the kind of cases to be subjected to
differential treatment and (iv) to statutes which leave the executive free to pick and
choose individuals towards the fulfillment of statutory policy. I n short it may be stated
that nexus tests were found inadequate to meet the situation where very wide or
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unbridled discretion was given to the authorities to pick and choose persons for giving
different treatment through indicating clearly the legislative policy for achieving other
objects of legislation in the statute itself. No doubt in this sphere the Supreme Court has
not shown consistency even according to H.M. Seervai . Prof. Tripathi in the end
expressed his hope that "the Supreme Court will sooner rather than later free itself
from the shackles of this dogma". As a result of the aforesaid, well informed criticism
of the nexus tests, the Supreme Court freed itself from the shackles of this dogma.
However, at first in Maganlal Chaganlal v. Municipal Corpn., Greater Bombay, the
Supreme Court overruled its previous decision in Northern I ndia Caterers Ltd. v. State
of Punjab without applying nexus tests. Finally the Supreme Court adopted the
positivistic or activist stance in E.P. Royappa v. State of Tamil Nadu. Bhagwati, J .
stated : "Equality is a dynamic concept with many aspects and it cannot be 'cribbed,
cabined and confined' within the traditional and doctrinaire limits. From the
positivistic point of view equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies....
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Article 14...."On the basis of this new
activist theory of equality a few decisions were made by the Supreme Court and ultimately it was
unanimously approved by the Supreme Court in Ajai Hasia v. Khalid Mujib. After reiterating
that equality is a dynamic concept with many aspects which could not be confined to traditional
and doctrinaire limits, Bhagwati, J. had in Maneka Gandhi case proceeded toexamine the
'content and reach' of the 'great equalizing principle' enshrined in Article 14. He observed that:
"I t is indeed the pillar on which rests securely the foundation of our democratic republic. And
therefore, it must not be subject to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all embracing scope and meaning, for, to do so would be to
violate its activist magnitude.... Equality is a dynamic concept with many aspects and
dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14
strikes at arbitrariness in State action and ensures fairness and equality of treatment. The
principle of reasonableness, which legally and philosophically, is an essential element of
equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.'' This was
again reiterated by the Supreme Court in the I nternational Airport Authority case.
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Thus the new doctrine of equality that "Article 14 embodies a guarantee against arbitrariness"
has become established. However, this does not mean that the nexus tests have been abandoned
by the Supreme Court altogether However, the new doctrine of equality has its own critics.
Seervai has taken exception to Bhagwati, J.'s description of the classification theory as
"doctrinaire" because according to him "there is nothing unpractical about a doctrine which
effectively secures equal protection of law to persons by declaring the law based on
impermissible classification to be void while leaving to the State a wide field for making laws
based on permissible classification". He does not stop here but goes on to challenge the very
validity of the new doctrine in the following terms: "The new doctrine hangs in that air because
it propounds a theory of equality without reference to the terms in which Article 14 confers
rights to equality." After pointing out that Article 14 has two limbs, he observes that: "Equality
before law, broadly speaking, means that except in a very limited class of cases a court
administering justice is not concerned with the status or position of the parties appearing
before it. The law is no respecter of persons." As regards the second limb he observes that "the
U.S. Supreme Court had evolved the doctrine of classification to explain and give content to
equal protection of laws." He has further stated that the new doctrine suffers from "fallacy of
undistributed middle" J agdish Swaroop has also found "it difficult to agree" with the
observations of Bhagwati, J. in the Ajay Hasia case that it was for the first time in Royappa case
that the Supreme Court laid bare a new dimension to Article 14 and that it was a guarantee
against arbitrariness. He has pointed out that: "From the very beginning the Supreme Court
held that while Article 14 forbids class legislation, it does not forbid reasonable classification."
If any statute is found not to comply with the two important requirements of Article 14, it will be
struck down as void and no act of the legislature could be termed "arbitrary". He further points
out that: "Any order passed independent of a rule or without adequate determining principle
would be arbitrary. Here the valid determining principle is valid classification. Article 14 is not
really a guarantee against arbitrariness... classification would be arbitrary if it does not follow
and is contrary to the norms laid down by the Supreme Court in regard to classification." Thus
in substance the objection of J agdish Swaroop to the new doctrine is that it fails to lay down any
"determining principle for finding out whether or not a particular state action is arbitrary". In
substance he agrees with H.M. Seervai that "the new doctrine hangs in the air". It is humbly
submitted that, by and large the old doctrine of classification or nexus tests is more satisfactory
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and must be retained because, on the basis of the old doctrine challenge to State action as being
violative of Article 14 can be successfully tackled by the courts in a large majority of cases. It is
only in the limited sphere of conferment of unbridled or too wide a discretion on executive
authorities to pick and choose persons or things for giving different treatment that, the doctrine
of classification has not yielded satisfactory results and resulted in inconsistency in Supreme
Court decisions. The new doctrine of equality, therefore, can be usefully employed in plugging
this loophole. On the contrary, if the theory of classification is replaced by the new doctrine of
equality viz. non arbitrariness, it would lead to highly unsatisfactory results because shorn of its
rhetoric22 the new doctrine is vague and uncertain. Patanjali Sastri, C.J.'s warning may be
usefully recalled here, that "dangerously wide and vague language of equality clause to the
concrete facts of life, a doctrinaire approach should be avoided". The chief merit of the new
doctrine is, that it has freed the Supreme Court of the "shackles of the dogma of classification" in
the limited sense that the Judges should not make sustained efforts to find some basis of
classification where none is perceptible from the language of the Act. However, the new doctrine
or test of non-arbitrariness does not evolve a more Satisfactory test than the nexus tests . Even
Prof. P.K. Tripathi, a critic of nexus tests has expressed his concern regarding the new
development. He has observed that "arbitrariness by Article 14 is the arbitrariness or
unreasonableness in discriminating between one person and another and if there is no
discrimination, there is no arbitrariness in the sense of Article 14". To sum up, it is submitted
that the approach of the courts should not be doctrinaire towards either of the doctrines of
equality. Where a State action appears ex facie arbitrary as found in a recent case , it should be
decided on the basis of the new doctrine. Again cases pertaining to conferment of unbridled or
too wide discretion on executive authorities should also be tackled on the basis of the doctrine of
non-arbitrariness but other challenges to State action should still be tackled by applying the old
nexus tests. It is heartening to note that Supreme Court has not totally abandoned the nexus tests
though the new theory of non-arbitrariness has also been applied where state action has been
found to be "patently" arbitrary.

The fallacy of equality(an over view)-
The equality clause of the Constitution, Article 14, reads:
The State shall not deny to any person equality before the law or the equal protection of the
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laws within the territory of India.
The Constitution guarantees us the right to equality and non-discrimination. But is it
guaranteeing only a formal equality while in effect maintaining the status quo of substantive
inequality in the lives of disadvantageously-situated citizens? The chequered history of Indian
constitutionalism has given us reason enough to repose our faith in the fundamental rights
enshrined in Articles 14 (equality) and 15 (non-discrimination).
Constitutional guarantees have been effectively used to expand their reach to protect many forms
of human rights, and also to strike down laws that go against the tenets of equality and
Yet when it comes to dealing with historical and structural disadvantage, even these pillars of the
rule of law seem to falter.
There are three reasons for this:
first, the premise of equality and non-discrimination in the judicial interpretation of
constitutional guarantees is based on a formal equality approach, as opposed to a
substantive equality one; second, the Constitution has been ineffective in responding to
intersectional forms of discrimination, where the incidence of disadvantage is most acute; and
third, these basic constitutional guarantees lay claim to a universal truth about the
operation of rule of law -- where the law is understood to be insulated from all kinds of
influences, and to be above all worldly considerations -- and thus ignores the fact that such a
claim resides in the ideal rather than the actual practice of law .
Although the law often fails to deliver its idealised promise of protecting the rights of citizens, it
continues to declare its authority, which is claimed to be derived, in part, through scientific
legal method and rigour, and its projection as a unified discipline with an internally coherent
logic that is transcendent and divorced from the world. It is because of this illusionary reason
that the law, in spite of its in-built biases, continues to be used by those very people to claim
rights, who are at the receiving end of the violence of law. This does not mean that these
standards should be ignored -- merely that a more strategic politics is required for engaging with
the law. In this essay I will attempt to illustrate what I call the fallacy of equality, where in
spite of the constitutional guarantee of equal protection of the law, judicial interpretation
reinforces formal equality, in effect maintaining the status quo of substantive inequality in
the lives of disadvantageously-situated citizens. Any claim for substantive equality demands that
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the claimant becomes same, like those whose behaviour and identity conform to the notions of
the good or ideal citizen. Thus, in the process of guaranteeing equality, the system seeks to
negate plurality of experiences.

Elusive equality:-
The equality clause of the Constitution, Article 14, reads:
The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India.
What constitutes the right to equality under the Indian Constitution is equal treatment only in
respect of the law -- the meaning of law extends also to administrative rule and procedures that
flow from legislations formulated by agents of the State. Unequal treatment meted out because
of the existence of any other form of structural disadvantage is outside the scope of this
provision; so are acts of unequal treatment carried out by non-State (private) actors. Any law
found to be ultra vires Article 14 can be declared void ab initio, as per Article 13. The
Preamble to the Constitution speaks of equality of status and of opportunity and this article
guarantees the realisation of that principle. A plain reading of this article tells us that the
Constitution imposes restrictions on State action to ensure that it refrains from doing anything
that can deny the citizen two primary guarantees -- that of right to equality before the law,
and equal protection of the law.
The first expression equality before the law is a declaration of equality of all persons within the
territory of India, implying thereby the absence of any special privilege in favour of any
individual. Every person, whatever his/her position, is subject to the jurisdiction of the
ordinary courts. The second expression, the equal protection of laws, which is a corollary to
the first, secures equal protection in the enjoyment of their rights and privileges, without
favouritism or discrimination, within the territorial jurisdiction of I ndia .
The juridical application of Article 14 operates on the basis of intelligible differentia. This
refers to two principles in law regarding classification of groups for different treatment. First,
that differently-placed citizens can be treated differently under the same law as long as the
classification is based on an intelligible differentia which distinguishes persons that are grouped
together from others excluded from the group; and two, the differential treatment must have a
reasonable and rational connection with the objective that the law in question is supposed to
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reach. In other words, the equality guarantee actually does not require that the law treat all
individuals equally. It has been interpreted by courts as a prohibition against unreasonable
classification. As was held in the case of, the guiding principle of the article is that all persons
similarly circumstanced shall be treated alike, both in privileges conferred and liabilities
imposed. The rule is that like should be treated alike and that un-like should be treated
This understanding of equality clearly follows the formal equality approach where equality is
understood as sameness. I n effect, only if you can become same will you be treated equally. To
decide whether one qualifies to be same, the court has to first classify the groups in question
claiming equality so that they can be compared to find out whether they are same or different.
I f it is established that the classified groups are differently placed, then such difference will be
the justification for differential treatment. Thus, judicial interpretation suggests that when
classified groups dont qualify to be the same, or similarly situated, they dont qualify to be equal
either, even if their differences are an outcome of historic or systemic discrimination. For
instance, let us consider the case of where women are prohibited from working in factories
during the night, on grounds that they are vulnerable to violations during nocturnal hours of
work. If one were to challenge this section as violative of Article 14, because it treats men and
women unequally, such a challenge would fail because, according to the doctrine of intelligible
differentia, the classification between male factory workers and female factory workers is
reasonable; and thus, differential treatment between them is justified in law. The same
situation arises when we consider Section 377 of the I ndian Penal Code that criminalises
unnatural sex: challenge to this law on the ground that it violates the guarantee of equality
would fall flat, since differentiation between homosexuals and heterosexuals would be
valid, thus justifying the differential treatment; in other words, a perpetuation of substantive
Similarly, in the 2000 case of Almitra Patel v Union of I ndia, the Supreme Court did not
consider the guarantee of the right to housing and livelihood applying without prejudice to slum
dwellers in Delhi. Instead, it labelled them encroachers, legitimising their forced eviction.
Again, the judgment was informed by an understanding of formal equality where classifying
slum-dwellers as different from non-slum-dwellers justified their eviction. The means for these
differently placed groups then, to make use of this article to claim their right to equality,
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would be to become same as the classified group in comparison to which they are being
treated unequally. What such interpretations of formal equality also imply is that equality is
predicated on certain normative standards: you can only become equal to that standard.

Exclusive discrimination:-
Article 15 extends the equality guarantee of Article 14 by providing for the right against
discrimination on the basis of religion, race, caste, sex and place of birth. Forms of
discrimination that fall within the purview of Article 15 are based on disability, liability,
restriction or condition imposed on the basis of the above prohibited grounds. Article 15 reads
I nferences towards the possibilities of exclusionist interpretations of Article 15 appear even
from a plain reading of the provision. I n Clause 1, beyond the five grounds mentioned, no
other grounds qualify as discrimination. For instance, sexuality and disability does not find
mention as grounds for discrimination. Thus all the manifestations of discrimination as
enshrined in Clause 2 (a) will also not apply in case of sexually marginalised or disabled
persons. The imposition of any disability, liability, restriction or condition on these groups
does not qualify as discrimination at all within the scheme of the Constitution. Their access to
public places, if circumscribed by law, or executive/non-State action, or structural spatial factors
will not automatically draw the protection of the non-discrimination guarantee of the
The contested perceptions of equality and non-discrimination within the context of the
Constitution get further complicated when we try to understand if the Constitutional mandate in
Article 15 captures the intersectional nature of discrimination and disadvantage. It is necessary to
note that the grounds stated in Article 15 (1) are preceded by the word only. In the
interpretation of this word by the Supreme Court in, it was noted that if discrimination is found
to exist on grounds other than those enumerated, then there is no violation of Article 15 (1). Even
discrimination on the basis of sex, coupled with discrimination on other non-enumerated
grounds, would not constitute a violation . Thus, the courts are not even permitted to
progressively interpret the grounds under Article 15 (1) to include sexuality or disability --
neither can judicial interpretation capture the reality of disadvantage that many might face from
being at the receiving end of multiple and intersectional forms of discrimination.
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However, a reading of Clause (3) seems to suggest a move from the otherwise formal approach
to equality to that of substantive equality. The substantive equality approach moves beyond
looking at equality merely as a guarantee lettered in law, to one that looks at the actual impact of
the law, to do away with substantive inequality. The primary aim of a substantive equality
approach is not to harp on the guarantee of equality as being predicated on an understanding
of sameness and differences, but one that takes into account inequalities of social, economic
and educational background of the people and seeks the elimination of existing inequalities by
positive measures . In other words, the substantive equality approach attempts to correct the
historical and structural reasons that result in disadvantaging a particular group.
On the face of it, Article 15 (3) mandates the State to make special laws for women -- in effect,
discriminating in their favor. A stipulation of this kind suggests that the provision does take into
account the historical and systemic processes through which discrimination against women has
been effected, and thus makes the State accountable for doing away with it through protective
and proactive laws. However, in the absence of a substantive equality approach in the judicial
interpretation of Article 15 (3), there is scant consideration of whether the laws actually protect
women, or they create protectionist measures to safeguard the honour and chastity of good
Such an understanding of progressive discrimination on the grounds of sex can actually serve
as a justification for the constitutional validity of the Immoral Traffic Prevention Act --
purported to be a legislation that is meant to rescue and rehabilitate passive and agency-less
women from the scourges of prostitution - completely undermining the fact that it is the
existence of the law that perpetuates the violence of stigma against women in prostitution, and
gives the police a free hand in apprehending and incarcerating them as criminals. All this in the
name of protecting women . Similarly, if one were to challenge the Maharashtra government
ordinance that banned dance bars on grounds that it violated Article 14 and 15 (1), such a
challenge could have been struck down by the courts on the basis that bar dancers are a
reasonable classification in comparison to other more respectable women, and that in
connection with Article 15 (3), the ordinance would actually protect the helpless bar girls. In
a 2001 petition filed in the Delhi High Court demanding that Section 377 be read down to
decriminalize adult, consensual and private sex, the State used the logic of Article 15 (3) to argue
that since Section 377 protects women and children from sexual assault, it actually serves the
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responsibility put on the State under Article 15 (3). While the argument follows the letter of the
law perfectly well, never did the State even mention that what is required to effectively curb
child sexual abuse is a separate law on the issue, given the fact that Section 377 is highly
inadequate in doing so.
Again, a plain reading of Clauses 4 and 5 in Article 15 points towards the constitutional culture
of progressive discrimination of caste-based disadvantaged groups. Clearly, the States mandate
for extending reservations derives strength from these clauses . But what might special
provisions mean in a context where the Constitution is increasingly being interpreted through a
formal equality approach? A possible peril can be the justification of segregation (within
institutes, for instance) between non-SC/ST/OBC students and SC/ST/OBCs, ostensibly on the
ground that it will prevent harassment and discrimination. A move towards exclusive institutes
for SC/ST/OBCs can be yet another consequence of furthering the mandate in Clauses 4 and 5.
Both segregation and exclusivity might temporarily make the States initiative look progressive,
but in actuality it wouldnt have changed any of the structural and systemic inequalities that
cause caste-based discrimination. Interestingly, anti-quota advocates use the same letter of the
Constitution to point out that it is self-contradictory: while on the one hand it guarantees
nondiscrimination, at the same time it makes an exception for special groups. This argument is
also predicated on a formal equality approach which believes that as long as the Constitution
guarantees non-discrimination all become equal automatically. This is why quotas alone as
representative of progressive discrimination only perpetuate a politics of patronage, in effect
maintaining a state of substantive inequality for disadvantaged groups like dalits.
If we consider the recent Supreme Court judgment34it becomes apparent that the inclusion of
Clause 5 to Article 15 through the 93rd Amendment Act, 2005 and the subsequent debates
around the constitutional validity of the Central Educational Institutions (Reservation in
Admission) Act, 2006 (Act 5 of 2007) follow the formal equality approach. While it is
celebratory that the judgment upheld the constitutional validity of both Article 15 (5) and Act 5
of 2007, it did so by reasonably classifying certain specific institutions, minority institutions
and private un-aided institutions, and exempted them from the ambit of the implementation of
What emerge from the above discussion are glimpses into the fractured armour of constitutional
justice in India. Does that suggest we abandon the Constitution? Of course not, because the
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Constitution is more than a mere document listing rights and guarantees of the citizens of India;
it is a charter that defines the ways in which India as a country should work towards a shared
future that is not detrimental to any of its citizens. Yet, theres a peril in romanticising the
Constitution in an age where even the ideals of equality and freedom have faced a neo-liberal
appropriation: economically and culturally. The activist role played by the Supreme Court of
I ndia in the 1990s that redefined the right to life (Article 21) by expanding it to include a
whole range of situations where rights are absent, to the present period where the judiciary
has been complicit with the market in shrinking the spaces for allowing access to justice and
meting out distributive justice, requires an acknowledgement that the laws letter derives
meaning from the socio-political contexts in which it is used and applied. While we cannot
afford to abandon the constitutional guarantees of equality and non-discrimination, it is
important that we ask critical questions about whether the pursuit of equality has itself become a
discriminatory enterprise.

Old Doctrine vs. New Doctrine of Classification
One of the main objectives of the legislative action and reform in the modern era is to enforce the
concept of equality and liberty. The legal conception of equality relates not to a uniform
treatment for all but equal treatment for those who are at an equal footing, under like
circumstances and conditions. However, the tough task lies in identifying the equals for this
purpose by reasonable classification. This classification may be society specific, culture
specific, nation specific or history specific. Hence, no strait jacket formula can be applied in
this regard. I n I ndia, initial developments in this regard lead to the formation of the classic
nexus test, or the old doctrine in 1952 which helped in identifying valid classifications for
categorize equals. Though used for a long time, gradually, this doctrine was found to be
inadequate in some respects by the legal scholars. Thus, starting from early 1970s began the
development of a new doctrine, hence considerably broadening the horizons for the application
of Article 14. Further developments saw the unfolding of new dimensions of Article 14,
identifying reasonableness in State action as the main objective of Article 14 and aiming at its
widened scope. This essay aims at a critical analysis of both the doctrines and deciding the most
desirable course of advancement in this regard for the judiciary.

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The Indian conception of equality as propounded in Article 14 of the Constitution combines the
British doctrine of rule of law as well as the equal protection of law clause in the 14th
amendment of the US constitution. Not only the doctrines, but their interpretations have also
been approved by the Indian courts to give the true content to these doctrines. As such, the
theory of classification as evolved by the American Supreme Court has been applied by the
I ndian Supreme Court from the initial times. On these lines, the old doctrine, or the nexus test
was enunciated by Das J . in the Anwar Ali Sarkar case. This test provided for two conditions to
be fulfilled for permissible classification the first being the basis of an intelligible differentia
and the other being the presence of a rational relation between the differentia and the object of
the Act. For instance, for a legislation of reservation for Scheduled castes, the rationale would be
caste, while the nexus is the welfare of such backward classes through educational support.

Emergence of the New Doctrine-
This rule has been followed in many cases since. But gradual application of this test also
surfaced many of its shortcomings. Although this test defined objective parameters of
classification, which ensured certainty and limited judicial activism, its scope was considered
inadequate in cases like those of lose discretion and excessive delegation of legislative powers.
Also, it dealt with inequality amongst two people or groups, ignoring individual discrimination.
Moreover, adherence to a fixed test in a dynamic concept like equality was looked upon as
limiting its scope. Thus, the early 1970s, with adherence to such ideas marked the initial phase of
a changing course in this regard. With some initial deviations by Bhagwati J . in some cases, a
new activist theory of equality was finally approved unanimously in Ajay Hasia case. In
subsequent cases while examining this principle of reasonableness and non-arbitrariness, the
court celebrated the widened ambit of Article 14 and identified it as a guarantee against
New Doctrine: Criticisms-
The new doctrine proved very helpful in deciding cases of excessive discretion, special courts,
and other cases where arbitrariness was found inherent. Also, now for the application of Article
14 discrimination vis--vis others were not necessary.
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Arbitrary and unreasonable actions were identified to be per-se discriminatory. It also aided in
tackling cases of establishment of special courts with a more liberalised methodology. The new
doctrine validated the establishment of special courts and special treatment to certain cases
therein, as long as the objective of special treatment and the discretion exercised to choose
such cases was justified to be reasonable. Although this introduced a sense of broad scope and
dynamism in Article 14, this was considered very subjective and devoid of logic by critics like
H.M. Seervai, who strongly counters the argument that new doctrine does and old doctrine does
not give full effect of to the guarantee of equal protection of laws. According to him the new
doctrine hangs in the air and disregards the true interpretation of Article 14. Seervai draws this
conclusion from Ajay Hasia case where it was stated that equality and arbitrariness are sworn
enemies, and accuses the new doctrine of disregarding the other enemies of equality. He also
proposes that the new doctrine fails to differentiate between violation of equality by law and by
executive action. On the limited scope of the old doctrine, he states that a doctrine effectively
securing the objectives of equality is not impractical, and as such should not be questioned. He
also questions the subjective grounds and certainty of the new doctrine and rules it out altogether
as against the nexus test.

The above arguments in opposition of the new doctrine do not seem to hold much force. The
new doctrine does not disregard other forms of inequality, identifying that only arbitrary acts
can violate equality of a person. Rather, it aims at widening the existing scope of Article 14 by
adding arbitrary acts as one of its targets. It does not propose that all that violate equality are
arbitrary actions. Rather, it proposes that arbitrary actions can also violate equality. Secondly,
the courts have drawn a clear distinction between the violation of equality by law and by
executive action. The court stated that the new doctrine strives to make inequality not
impossible but improbable, and where the inequality happens due to malfunctioning of the
executive, action will lie against the officials concerned, and not against the law itself. Thirdly,
the grounds that require the application of the new doctrine are not illogical, as it clearly
states that all discretionary acts are not arbitrary and violative of equality. The new doctrine
here can be considered as a broad extension of the nexus test, the only difference being that that
here the differentia has to be derived from the act itself by the court and if enough guidelines
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exist in the legislation to help the court derive it, the legislation may be held valid and not
The legislations on this basis can be divided into three divisions:
Where clear classification has been given in the legislation?
Where classification is not given in clear terms but can be derived from the given guidelines,
policy statement or preamble of the legislation?
Where classification is not given and the guidelines and policy statement is vague enough to
make discrimination inherently probable?
It is in the 1st case where the nexus test finds application. Emergence of new doctrine enhances
its scope to the second case as well, which otherwise would have faced invalidity due to limited
approach of nexus test. As far as the third case is concerned, it is still filtered by application of
the new doctrine. As such, the new doctrine can be seen as an added third level of inquiry to the
nexus test.
The most desirable path and conclusion-
As such, the two doctrines discussed above provide a vast scope for the judiciary to choose its
course of action. Analysing the positives as well as criticisms of both the doctrines, the most
desirable orientation would be to identify the different facets of equality where the two doctrines
find application and advance with a complimentary approach. New doctrine, as an extension of
the existing rule, has in a way tried to pacify the defects of the old doctrine. I t has emphasised
on positive equality and affirmative action by the state. As such, the two doctrines should be
seen as two means to attain one common objective of equality inherent in Article 14. One of
the negative points of the nexus test42 which were identified was that it may ultimately replace
the doctrine of equality and rob Article 14 of its glorious content. Gradual developments in this
regard have widened the sphere of equality as a broad phenomenon, with the nexus test along
with the test on no arbitrariness as mere means to achieve it. Advancement of the courts in this
regard also illustrates similar orientation, as the nexus test has been applied harmoniously with
the non arbitrariness test. As such, the focus of the judiciary should be to interpret the two
doctrines not as substitutes of one another but as different ways to meet the demand of
reasonableness in state action, so as to maintain the dynamic spirit of equality as enshrined in the
Indian constitution.

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H.M. Seervai: Constitutional Law of India, 3rd Edn.,vol. I, p. 275
SSRN Law School Research Papers - Legal Studies