DOCTRINE FOR REASONABLE CLASSIFICATION OF INDIA

Project submitted to

DR. AZIM PATHAN

(Faculty: LEGAL METHOD)

Project submitted by

VIKAS GHRITLAHRE

(ECONOMIC, major)

Semester I

Roll no.168

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HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, C.G.

ACKNOWLEDGEMENT

I feel myself highly exhilarated to work on this project involving “DOCTRINE FOR

REASONABLE CLASSIFICATION OF INDIA”. And I have tried my level best to throw

light upon his personality and achievements.

I take this opportunity to thank DR.AZIM PATHAN who had played the role of a central

character and always given me the courage and wisdom to shape my ideas in right direction.

Special thanks to the I.T. staff and library staff who have devoted their valuable time to give me

all sorts of suggestions, ideas and facilities regarding this topic.

Last but not the least I thank all the members of the H.N.L.U. and all others who have helped me

in the completion o this work.

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RESEARCH METHODOLOGY

The research is based on secondary sources. Literature review has been done extensively in order

to make a comprehensive presentation. Books from the university’s library have been used.

Computer from the computer laboratory of the university has been used for the purpose. Articles

from journals and material available on internet have also been used.

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TABLE OF CONTENTS

1. ACKNOWLEDGEMENT……………………………………………………..2

2. RESEARCH METHODOLOGY……………………………………………...3

3. INTRODUCTION……………………………………………………………..5

4. EQUALITY BEFORE LAW…………………………………………………..6

5. PRESUMPTION THAT THE CLASSIFICATION REASONABLE………...9

6. WHAT CLASSIFICATION IS REASONABLE……………………………..10

7. REASONABLE BASIS OF CLASSIFICATION…………………………….11

8. THE OLD DOCTRINE OF REASONABLE CLASSIFICATION…………..12

9. CLASSIFICATION OF SINGLE INDIVIDUAL AND HOE LEGISLATION. 14

10. EQUAL PROTECTION MAY BE DENIED BY PROEDURAL LAW AS WELL..14

11. OLD DOCTRINE vs. NEW DOCTRINE OF CLASSIFICATION………….15

12. CONCLUSION……………………………………………………………….

13. BIBLIOGRAPHY…………………………………………………………….

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INTRODUCTION

Article 14 of the Indian Constitution guarantees “equality before the law” and “equal protection

of the laws”. Whereas the reasonable classification test was being applied by the judiciary to test

the validity of any state action under Article 14, since1974 the new doctrine of arbitrariness has

been evolved1. According to this approach, any arbitrary state action is violative of Article 14.

While arbitrariness test has been applied often in case of executive actions, its application to

statutes is still ambiguous2.

In a recent article, Abhinav Chandrachud argues in favor of application of doctrine of

arbitrariness to legislations.3 He argues that the presumption of validity of statutes is acting as a

barrier from applying this doctrine to legislations.Chandrachud cites two decisions of the

Supreme Court to show that the arbitrariness test has been applied to invalidate legislations.4 To

remove the vagueness pervading the doctrine, Chandrachud makes a case for using the basic

structure doctrine as the objective standard to determine arbitrariness.

This essay presents a reply to Chandrachud; wherein we argue against the application of

arbitrariness doctrine to examine validity of statutes under Article 14.We argue that it is not the

presumption of constitutionality that acts as a handicap to the application of the doctrine of

arbitrariness to legislations. We contend that the arbitrariness doctrine lies outside Article 14,

virtually replacing the right to equality itself by not reading ‘arbitrary’ in the sense of

‘discriminatory’. We examine the application of reasonable classification doctrine by courts and

argue that even with respect to the two cases relied upon by Chandrachud, bringing the extra-

Constitutional test of arbitrariness is unnecessary. Even if one assumes that the arbitrariness

doctrine should be accepted, we put forth certain anomalies that may arise if basic structure

doctrine is used as an objective standard to define arbitrariness under Article 14. Thus, we

1 E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR 1978 SC 597; AjayHasia v. Khalid Mujib, AIR 1981 SC 487. Though the new doctrine is considered to have evolved since the1970s, its roots may be traced to the opinion of Bose, J. in State of West Bengal v. Ali Anwar Sarkar, AIR 19522 See Dr. Subramanian Swamy v. Director, CBI, (2005) 2 SCC 317, where the question whether arbitrariness andUnreasonableness are available as grounds to invalidate a legislation was referred to a larger bench.

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conclude that the arbitrariness doctrine as propounded by the Indian judiciary should not be used

to test the validity of legislations under Article 14.

EQUALITY BEFORE LAW

A constitution bench of the supreme court has declared in no uncertain term the equlity is a basic

feature of the constitution and although the emphasis in the earlier decision evolved around

discrimination and classification, the content of article 14 got expanded conceptually and has

recognized the principle to comprehend the doctrine of promissory estoppels non arbitrariness,

compliance with justice eschewing irrationality etc.

If there is no affectation of of avested right, the question of applicability of art 14 would not

arise3. Such an absolute proposition is inconsistent with the recognition by the supreme court in

or in many of its ite earlier judgments in relation to promissory estopple and legitimate

expectation which are not only much short of indefeasible right but were evolved to protect a

person from unfair or arbitrary exercise of power.4Moreover art 14 itself confers a vested

fundamental right and it is difficult to appreciate the logic behind the enunciation.

Art 14 bars discrimination and prohibits discriniminarty law. Art 14 is now proving as a bulwark

against any arbitrary or discriminatory state action. The horizon of equality as embodied in art 14

has been expanding as a result of the judicial pronouncements and art.14 has now come to have a

“highly activist magnitude”.

Art 14 an 15 read in the light of the preamble to the constitution reflect the thinking of our

constitution makers and prevent and discrimination based on religion or origin in the matter of

equal treatment or employment and to apply the same even in respect of a cooperative society.5

Two concepts are involved on art 14, viz, ‘equality before law ‘and equal protection of laws.

3 M. Nagaraj v union of India,(2006)8 scc212:AIR2007 SC 714 Food corporation of India v. kamdhenu cattle feed industries, AIR 1993 SC 1601 :( 1993)1SCCC71.5 Zoroastrian coop. Housing Society Ltd v. District Registrar, coop. societies(urban),(2005)5 SCC 632:AIR

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The first ia a negative concept which ensures that there is no special privilege in favour of

any one, that all are equally subject to the ordinary law of the land that no person, whatever be

his rank or condition, is above the law. The is equivalent to the second corollary of the DICEAN

concept of the Rule of Law in Britain.6However, is not an absolute rule and there are a number of

exception to it, eg.., foreign diplomats enjoy immunity from the country’s judicial process art

361 extends immunity to the president of India and the state governor7,public officer and judge

also enjoy some protection, and some special groups and interest, like the trade unions, have

been accorded special privileges by law.

The second concept, equal protection of law’ is positive in content. It does not mean that

identically the same law should apply to all people, that every law must have a universal

application within the country irrespective of differences of circumstances. Equal protection of

the laws does not postulate equal treatment of all persons without distinction. What it postulates

is the application of the same law alike and without discrimination to all people similarly

situated. It denotes equality of treatment in equal circumstance. It implies that among equal the

law should be equal and equally administered, that the like should be treated alike without

distinction of race, religion, wealth, social status or political influence.

Where a particular mode is prescribed ifor doing an act and there is no impediment in adopting

the procedure, the deviation to act in different manner which does not disclose any discernible

principle which is reasonable in itself shall be labeled as arbitrary. Every state action must be

informed by reason and it follow that an act uninformed by reason is per se arbitrary.

The Supreme Court has explained in Sri Srinivasa Theatre v. Govt.of Tamil Nadu, that the two

expressions equality before law and equal protection of law do not mean the same thing even if

there may be much common between them.”Equality before law” is a dynamic concepts having

faect is that there shall be no privileged person or class and that none shall be above law.

Another facet is “the obligation upon the state to bring about, through the machinery of law

meaningfully only in an equal society.

Art14 provided positive and not negative equality. Hence any action or order contrary to law

does not any right upon any person for similar treatment. Thus unauthorized additional

6 WADE& PHILLIPS, CONST.&ADM.LAW87(1997).7 Supra, Chs.III and VII

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construction and change of user of land cannot be claimed on the basis that the same had been

granted in order cases in contravention of law.8

Art 14 presercibes equality before law. But the fact remain that all person are not equal by

nature, attainment or circumstance, and, therefore, a mechanical equality before the law may

result in justice. Thus, the guarantee against the denial of equal protection of the law does not

mean that identically the same rule of law should be made applicable to all persons in spite of

difference in circumstance or condition.9The varying needs of different classes or sections of

people require differential and separate treatment. The legislation is required to deal with diverse

problems arising out of an infinite variety of human relations. It must, therefore, necessarily have

the power of making laws to attain particular objects and, for that purpose, of distinguishing,

selecting and classifying person and things upon which its law are to operate.

The principle of equality of law thus means not that same law should apply ti everyone but that a

law should deal alike with all in one class that there should be an equality of treatment under

equal circumstance. It means “that equal should not be treated unlike and unlikes should not be

treated alike. Like should be treated alike10.

8 Vishal properties(p)LTD v. state of utter Pradesh,(2007)11 SCC172 :AIR2007SC 2924.9 Chiranjeet lal v. union of India, AIR 1951 SC 41:1950 SCR 869.10 Gauri Shankar v. State of utter Pradesh, (2009)4SCC 753(2009) 3 JT 202.

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PRESUMPTION THAT THE CLASSIFICATION IS REASONABLE

1.The presumption is always in favour of the constitutionality of an enactment, since it must be

assumed that the legislation understands and correctly appreciates the needs of its own people ,

that ita law directed to problem made manifest by experience and its discrimination are based on

adequate grounds.

2. The presumption may be rebutted in certain cases by showing by that on the face of the

statute, there is no classification at all and no difference peculiar to any individual or class and is

not applicable to any other individual or class, and that the law hits only a particular individual or

class.

3. it is true that the presumption should always be that the legislation understand and correctly

appreciates the needs of its own people and that its discrimination are based on adequate

grounds, but to carry the presumption to the extent of holding that there must be some

undisclosed and unknown reason for subjecting certain individual or corporation to hostile and

discriminatory legislation is to make the protection clause a mere ‘rope of sand’, in no manner

restraining state action. Unless a just cause for the discrimination is put forth in the law itself, the

statute has to be declared unconstitutional. The just cause must be an objective factor having a

real and substantial relation to the object of the legislation. The statute itself must provide the

yardstick or measure for the grouping, instead of leaving it to the absolute discretion of the

executive while applying the law11.but where the statute shows on the face of it that the

legislation made no attempt all to make a classification, but singled out a particular individual or

class without having any difference peculiar to that individual or class, the presumption of

reasonableness in favour of the legislation is instantly rebutted and the person challenging the

statute cannot be called upon to adduce further or external evidence to discharge his onus12

11 State of west Bengal v. anwar ali,(1952)S.C.R 284 (335):RAMKRISHNA V TENDOLKAR12 Stase of Bombay v balsara,(1951)S.C.R.682(708);State of rajasthan v manohar,(1954)S.C.R.1996.

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WHAT CLASSIFICATION IS REASONABLE

What art 14 prohibits is class legislation and not reasonable classification for the purposes of

legislation13.If legislation takes care to reasonably classify person for legislative purposes and if

it deal equally with all person belonging to a ‘well defined class’, it is not open to the charge of

denial of equal protection on the ground that the law does not apply to other person14.

In order, however, to pass the test of permissible classification two

conditions must be fulfilled, namely.

That classification must be founded on an intelligible differentia which distinguish person

or thing that are groups together from other left out of the group, and

That, that differentia must have a rational relation to the object sought to be achieved by

the statute in question. What is necessary is that there must be a nexus between the basis

of classification and the object of the act under consideration.

a. Art 14 does not insist that legislative classification should be scientically perfect or

logically complete.15

b. The difference which will warrant a reasonable classification need not be great. What is

required is that it must be real and substantial and must bear some just and reasonable

relation to the object of the legislation.

When a law is challenged as denying equal protection, the question for

determination by the court is not whether it has resulted in inequality, but whether there is

some difference which bear a just and reasonable relation to the object of legislation.

Mere differentiation or inequality of treated does not per se amount to discrimination

13 Budhan v state of bihar, (1952)S.C.R.3014 State of W.B v anwar ali (1952)S.C.R.28415 Kedar nath v. state of W.B.,(1954)S.C.R.404.

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within the inhibition of the equal protection clause. To attract the operation of the clause

it is necessary to show that the selection or differentiation is unreasonable.

REASONABLE BASIS OF CLASSIFICATION

It is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for

classification in all cases. It depends on the objects of the legislation in view and whatever has a

reasonable relation to the object or purpose of the legislation is reasonable basis for classification

of the objects coming under the purview of the enactment.

a. The basis of classification may be geographical, provided there is a nexus between the

territorial basis of the classification and the object sought to be achieved by the Act.

b. The justification for classification may be historical.

c. The classification may be according to difference in time.16

It is a matter exclusively for the legislation to decides from what date a (civil) law should be

given operation and the law cannot be challenged as discriminatory in not affecting prior

transaction, or pending proceeding if it applies generally to all persons coming within its

ambit as from the date on which it become operative and if the criterion of time is not

adopted arbitrary.

d.Age may from rational basis of relation to the object of particular subject of legislation.

Thus, person who have not attained majority may be segregated from prisoners.

e.The classification may be based on the difference in the nature of the person,trade,calling or

occupation, which is sought to be regulated by the legislation,..e.g…,admission to an a education

institution, censorship of cinematograph as distinguish from other media of expression; framing

rules for recruitment or promotion of public servant for the purpose of securing the requisite

standard of efficiency or fixing of different minimum wage for different industries,having regard

to their different economic and local condition or differentiation between licensed dealers and

16 Ramjilal v. I.T. officer,(1951)S.C.R.127

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certified and goldsmith for the purposes of gold control separate treatment of agriculturist

debtors in view of their backwardness in a state.

f. The reasonableness is to be judged with reference to the object of the legislation and moral

consideration of course, there may be cases where gross immorality of a measure may condemn

the legislation as arbitrary or irrational.

THE OLD DOCTRINE OF REASONABLE CLASSIFICATION

Although the doctrine of arbitrariness is extra-Constitutional, its application to legislations might

still be fruitful if it would serve some greater purpose, beyond what is being already served by

the existing doctrine of reasonable classification. An analysis of decisions shows that with regard

to statutes whose provisions are challenged as discriminatory or arbitrary, the judiciary is still

applying the old doctrine, even while sometimes claiming to have applied the new doctrine of

arbitrariness17. In State of Andhra Pradesh v. McDowell & Co.,34 the court categorically held

that no enactment can be struck down merely on the ground of unreasonableness. Where the

statute gives discretion to the executive to classify, the question does not hold much relevance

because in such cases, there is not much difference between the application of the old and new

doctrines18. Under both the doctrines, the Court examines whether the legislature has provided

enough guidance to prevent an arbitrary exercise of power by the administrator.

Two cases have been particularly relied upon by Chandrachud where legislations were

invalidated as violative of Article 14 on the application of arbitrariness doctrine. The first of

these cases is Maple Vishwanath v. State of Maharashtra19 where the court declared provisions

of the Bombay Rent Act as violative of Article 14 on the ground that the legislation had become

arbitrary with the passage of time. It is interesting to observe, however, that all the

precedents relied on by the court to reach this conclusion used the old doctrine.20 these

cases clearly state that passage of time may obliterate the considerations of necessity and

17 Manchegowda v. State of Karnataka, AIR 1984 SC 1151; Karnataka STDC v. Karnataka STAT, (1986) 4SCC 421; Naz Foundation v. Government of NCT of Delhi, 160 (2009) D.L.T. 277.18 [1996] 3 S.C.R. 721. See also Novartis AG v. Union of India, (2007) 4 M.L.J. 1153.19 (1998) 2 SCC 1.20 State of Madhya Pradesh v. Bhopal Sugar Industries, [1964] 52 I.T.R. 443(SC);

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Expediency, and the grounds which justified a classification may cease to be valid. Hence,

the old doctrine also allows for invalidating outdated legislation on the ground of violation

of Article 14.38 Another interesting aspect is that even in this case, the court examined the

object behind the legislation and noticed how the provision is no longer in furtherance of

the same.

The next case upon which Chandrachud’s comment is based is Mardia Chemicals Ltd. v. Union

of India21 where the requirement of deposit, by the borrower, of 75% of the amount claimed by

the secured creditor under the Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 was held to be unreasonable, hence, violative of

Article 14. It is important to note that the concept of arbitrariness was applied here in the sense

of the statute being discriminatory, which must be distinguished from a case where a provision is

struck down as being arbitrary per se. The Court here observed the importance of provision of

appeal in a statute which enabled drastic measures to be taken against the borrower. The Court

held that in such a case, the conditions like the 75% deposit requirement, after the secured assets

of the borrower have already been taken over, made the remedy illusory. This is an inherent

infirmity leaning one-sidedly towards one party.The court also stated that in the absence of any

other grievance redressal mechanism, the provision for appeal was equivalent to filing a suit in

first instance. Hence, this is a case where an important remedy under the statute, providing for

grievance redressal and justice delivery mechanism, was itself one-sided and hence amounted to

an unequal remedy. The 75% condition was not struck down as merely being strict and

disproportional. The Court noted that certain provisions of the statute “may also be a bit harsh

for some of the borrowers but on that ground the impugned provisions of the Act cannot be said

to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery

of the dues…to help in growth of economy”. However, considering that the provision for appeal

failed to achieve its object of providing a reasonable protection to the borrower, it was struck

down.

21 AIR 2004 SC 2371.

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CLASSIFICATION OF A SINGLE INDIVIDUAL AND HOC LEGISLATION

A classification may be reasonable even though a single individual(or object) is treated as a class

by himself or itself, if there are some special circumstances or reason applicable to him or it

alone and not applicable to other22. Where a law is of general application, it cannot be challenged

as discriminatory merely because the object of its enactment was to benefit a particular

individual.

But even though it is permissible for the legislature to classify a single individual

where he possesses real and substantial feature different from other individuals in relation to the

object of the legislation in question. Art 14 would not tolerate any discriminatory legislation

against a single named individual or individual which simulates a bill of attainder, and no

reasonable classification appears on the face of the legislation nor is deducible from the

surrounding circumstances or matters of common knowledge.23

EQUAL PROTECTION MAY BE DENIED BY PROEDURAL LAW AS WELL

The guarantee of equal protection applies against substantive as well as procedural laws. From

the standpoints of the later, it means that all litigants, who are similarly situated, are able to avail

themselves of the procedural rights for relief and for defence, without discrimination. Of course,

if the differences are of a minor unsubstantial character, which have not prejudiced the interest of

the person or person affected, there would not be a denial of equal protection.24

But a procedure different from that laid down by the ordinary law can be prescribed for a

particular class of persons if the discrimination is based upon a reasonable classification having

regard to the objective which the legislation has in view and the policy underlying it, or if the

offences to which the two procedures relate are different, or if the object and scope of the two

enactments are different,e.g…the one is a general act and the other is special act.

22 Ramakrishna Dalmai v. Tendolkar, A 1958 S.C. 538; Govindlalji v. State of Rajasthan,(1964)1S.C.R. 561(618);23 Ramkrishna v. Tendolkar,(1959)S.C.R.279.24 State of W.B. v. Anwar Ali, (1952)S.C.R.284.

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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.

In India, 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 1970’s 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.

THE NEXUS TEST

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

Indian 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.

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EMERGENCE OF 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

arbitrariness.

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-à-vis others were not necessary. Arbitrary and unreasonable actions were

identified to be per-se discriminatory25. It also aided in tackling cases of establishment of special

courts with a more liberalized 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 laws26. According to him the new doctrine hangs in the air and disregards the

25 Ajay Hasia v. Khalid Mujib, AIR 1981 SC 72226 Kesavanada Bharati v. State of Kerala, AIR 1973 SC 1461; Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

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true interpretation of Article 14. Seervai draws this conclusion from Ajay Hasia case where it

was stated that “…equality and arbitrariness are sworn enemies27”, 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 actions28. 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 exist in the

legislation to help the court derive it, the legislation may be held valid and not otherwise. 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.

27I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 at 891.28 (1994) 6 SCC 360. In this case, provisions precluding legal proceedings in relation to disputed site where theBabri Masjid stood were held to be violative of the principle of rule of law, a basic feature, and thusUnconstitutional.

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 Where classification is not given and the guidelines and policy statement is vague

enough to make discrimination inherently probable.

CONCLUSION

It is humbly submitted that, by and large the old doctrine of classification or nexus tests is more

satisfactory 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 rhetoric 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.

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BIBILOGRAPHY

1. DR. R.K. BANGIA, LAW OF TORTS

2. USHA RAMACHADRAHAN "TORT LAW IN INDIA"

3. JAIN, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.).

Nagpur: Wadhwa & Co

4. BASU, DURGA DAS (2007). 

WEBSITES

1. www.nalsarstudentlawreview.com/

2. Hanumant.com/LeadingCases15-4-16-4.

3. en.wikipedia.org/wiki/Article_14

4. www.caclubindia.com Experts  LAW

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