Sarthak Wadhwa
Parv Tyagi*

About Varta: Dialogues on India’s Constitutional Democracy

Indian constitutionalism is in a perilous state. Its ability to guarantee democratic governance and citizens’ rights are under deep stress. This democratic backsliding is not just on account of authoritarian and populist politics alone but is also manifesting itself through sophisticated autocratic legalism and abusive constitutional politics. In such times, it becomes important to evaluate various facets of sociological and political legitimacy and resilience of the Constitution, without giving in to idolatry, defeatism or obscurantism. Through the Varta podcast, Law School Policy Review aims to do the same.  

Episode 3: Rationality by Any Other Name- Common Principles for an Evolving Equality Code

Jurisprudence on the right to equality in India suffers from a specific kind of inconsistency: a tendency to reinvent itself from time to time without accounting for the existing principles. Ultimately, this creates considerable uncertainty regarding the outcomes of specific cases in which the right is applied.

In the third episode, Sarthak Wadhwa speaks with Mr. Lalit Panda. Lalit is a research fellow with the public law team at the Vidhi Center for Legal Policy. In a recent paper, he focusses on the development and current status of the two doctrines under the right to equality: manifest arbitrariness and substantive equality. He finds that the manifest arbitrariness test under Article 14 has been adopted despite stark inconsistencies in the Shayara Bano judgment. Even if it were consistent with previous case-law, the structure of the test itself is problematic because it is overbroad and ambiguous to the point of incoherence. Likewise, the principle of substantive equality is marked with two inconsistencies. One, the Court has failed to develop adequately broad underlying principles or tests for different kinds of discrimination. Two, it has prominently failed to engage with the textual limitations Article 15 imposes on any meaningful application of the principle of substantive equality. Finally, the relation between the two doctrines is also unclear and, crucially, non-arbitrariness as a rationality-based principle may be incompatible with core aspects of non-discrimination.      

Listen to the Podcast

Read the Complete transcript of the Podcast

Sarthak-

Greetings to all our listeners. Thank you for joining us again for another episode of Varta- dialogues on India’s constitutional democracy. Today we are joined by Mr. Lalit Panda. Mr Panda is a graduate of the Gujarat National Law University, Gandhinagar and has been working as a research fellow with the public law team at the Vidhi Center for Legal Policy since 2017. Over the last year, Lalit has been a Samvidhan fellow working on economic perspectives on the right to equality. He’s currently a senior resident Fellow at Vidhi and has also worked as a consultant with the 21^st Law Commission of India. Hi, Lalit!

Lalit-

Hi, Sarthak! Thanks so much for having me. It’s a pleasure to be here.

Sarthak-

So today we will be discussing a forthcoming piece on the contemporary problems with the right to equality that Lalit has authored Rationality by Any Other Name: Common Principles for an Evolving Equality Code. Lalit, would you like to introduce us to the contemporary jurisprudence around which your work centers and how right to equality interacts with the doctrinal approaches of the past?

Lalit-

Yes, so as you mentioned, I have been working on this specific issue of whether there can be an economic perspective or economic justification for the structure of the right to equality and the way it’s tested. And as part of this particular project, I have tried to approach it at the outset, at least, from traditional constitutional doctrine. My intent was to first move from constitutional doctrine towards these issues. And then, look at it from the perspective of economic analysis backwards towards constitutional doctrine, and meet in the middle somewhat. So, in our discussion today I think we’ll be discussing mostly the constitutional doctrine- questions from traditional constitutional law and not economic analysis, but you might catch a little flavour of this idea of economic rationality coming in at certain points. So, to give you a little bit of the premise of my argument, again, from traditional constitutional law, I guess the best way to talk about it is to sort of mention how I came upon the issue, and it goes back to when I was in law school. There’ve been a number of striking judgments on the right to equality that have come up and it’s become clear recently that the right is evolving at a faster pace than it was before, in the last decade at least. So, back in law school, when I was interning once in the Supreme Court, the 377 judgment came out, the one from the two-judge bench- Suresh Kumar Koushal. And I recall distinctly how even when the judgment was passed, the internship was over, and I was back in college, a number of us were very disquieted by the nature of that judgment. We found that the judgment was, applying the test of reasonable classification fine enough. But the consequences of the judgment seemed very disquieting. Clearly, the test itself had a problem. The test itself only looked at the neutral form of the law that was being applied and it did not really care about the effects of the test. Naturally, we saw later that the Navtej Johar judgment overruled Suresh Kumar Koushal, and while it’s focus on the right to privacy is a separate question, and it certainly was on the right track there, I personally have been working on this issue, and I’ve been studying the judgments and the evolution of the equality since then, and, frankly, the Navtej Singh Johar judgment is also a little dissatisfying on the grounds of article 14 and 15. Its findings on equality are not satisfactory. For example, it relies on the arbitrariness test, which had in the interim come up from Shayara Bano. But the arbitrariness test continues to operate on the basis of a standard of rationality, so to speak, and this seems to be far removed from where the right to equality has been moving in other jurisdictions, where we have been seeing questions of substantive equality. So even while that context of substantive equality did turn up in one of the opinions in Navtej Johar, there are further issues with how in terms of judicial consensus, and as well as the justification provided by even the best opinions, we don’t have a satisfactory solution. And I think the weakness in our equality jurisprudence is made most clear in the context of the public debate related to the Citizenship Amendment Act.

There was considerable public difference of opinion on whether or not the CAA violated the Constitution, and the right to equality. The difference of opinion seemed, according to me, at least, to stem from a two-fold problem, one being that there was absolute uncertainty about what the arbitrariness test really would say about the CAA. It’s not clear whether or not anything really is liable to be struck down as arbitrary, and this I feel is purely a problem with the way in which the arbitrariness test has been formulated. The second problem though, is whether or not article 15 and the idea of right against non-discrimination can be grafted into article 14 in a satisfactory manner, given that article 15 applies only to citizens. So, the question comes up: what aspect of article 15 would already exist under Article 14? So, these are sort of the questions that I’ve been coming up. What is arbitrariness? What has it to do with substantive equality? What does substantive equality have to do with the arbitrariness test? It doesn’t seem like judges and courts have really engaged with this question. It seems as if these different doctrines have been moving on their own tracks, and they don’t really have anything to do with each other, and if we find a solution, it sounds as if the existing proposals require that one be trumped by the other or that one be considered to the exclusion of the other. That’s sort of where I’m coming from. Trying to find out where they are related.

Sarthak-

I see, and that’s a very interesting perspective. Now, interestingly, you do mention Navtej Singh Johar which talks about substantive equality, quite substantially. However, the substantive equality jurisprudence as far as I am familiar, seems to be drawing from several other jurisdictions. Navtej Singh being one of several examples where other jurisdictional norms are being imported to sort of substantiate the equality jurisprudence here. So do you think that there may be other jurisdictional norms that we may be emulating in developing arbitrariness? And that is why these two doctrines are walking on separate paths because we are drawing from different sources perhaps?

Lalit-

Yes, so I think you’ve touched upon something that’s interesting. One way of looking at it, surely, is that these doctrines, substantive equality, as we know it, sure, was in India to a certain extent. How do we understand substantive equality? It views equality, less from the perspective of rationality, in the sense that what the object of the legislation was, and whether any intelligible differentia has a nexus with the object, whether there is a connection between differentiation and objectives and instead substantive equality places emphasis on group disadvantage, on disadvantages, that specific people, vulnerable groups face in society. Now, this particular differentiation does exist in our Constitution, but it has traditionally been isolated to those explicit exceptions in article 15, in which this is recognized, where say, reservations are provided or there is a question of providing benefits just to women and children: those sort of exceptions to article 15, so to speak, it has been termed as an exception by some at least. Those were the places where traditionally substantive equality has been isolated. The way in which substantive equality is now coming up most recently, is in the non-discrimination provisions, which is to say, articles 15(1) 16 (2) and 29(2); viewing those provisions as questions of substantive equality, bringing in a flavour of asymmetry, that the more disadvantaged group gets the protection more than the less disadvantaged, the less advantaged group gets more protection than the more advantaged group. And there basically is more emphasis on whether the effects of a particular legal measure or particular government to measure result in discrimination. So, this new sort of a paradigm is certainly being drawn from other jurisdictions, especially there has been emphasis on Canada. But you were specifically asking I believe on the arbitrariness test. So, there’s a parallel, yes. The arbitrariness test has also when it originally came up in the E.P. Royappa judgment, there didn’t seem to be too much competitive borrowing from other jurisdictions. There was considerable reference to whether or not it had to do with the reasonableness standard, generally speaking, in administrative law, but most recently, with the manifest arbitrariness test, and with a number of judgments in the interim, which referred to these questions, I guess certain doctrines from America like the substantive due process doctrine have been, like ritualistic incantation, been repeated. But this is again very uncomfortable because even the doctrine of substantive due process in America is not as expansive as the manifest arbitrariness test. To put it very simply, for example, the substantive due process test has in America traditionally looked at very specific interests of constitutional importance. In the Lochner era, it was only looking at the freedom to contract and focused on the freedom to contract as a particular freedom of significant value that deserved to be protected. Most recently, substantive due process seems to be trotted out in relation with questions of privacy and autonomy. And those are identified values related to life, liberty, and property, as opposed to what we currently see in the manifest arbitrariness test, where there are questions of caprice, inadequacy of determining principle, and proportionality. Generally speaking, all of these terms are very far removed from any focus on specific and heightened interests embedded in the constitution. So, I find it very difficult to understand why substantive due process justifies this sort of an approach. At the same time, you see Shayara Bano also relies on the doctrine of proportionality. But we’ve seen that the test of proportionality, at least, the three prong-test brought in the context of right to privacy in previous judgments including the way in which Shayara Bano talks about proportionality seem to be very removed from this three-prong test. It talks about entirely different terms, it seems to refer to it as any disproportionate measure, anything in which the magnitude of the measure that does not match the problem at hand, where you are going too far. So, it is as if the borrowing is only in name and there’s not really a genuine emphasis on the nature of the thing being borrowed from.

Sarthak–

So, if I understand your approach to the arbitrariness problem correctly, would you say that the arbitrariness test should examine impugned laws against these vital facts that the legislature may not have considered? That rather than looking into the caprice and adequate determining principle there is, in fact an external standard that the arbitrariness test could imply. Is that what you would say?

Lalit-

Yes, this is somewhat the proposal I’ve tried to make in my research paper on the subject. But to really get at what the problem is and why this proposal is necessary, it’s maybe necessary to talk about certain problems with the Shayara Bano test. And I’ll go through that first. And then I’ll mention what the proposal is.

So, I think the manifest arbitrariness test has been somewhat difficult for scholars to fit into the entire jurisprudence of equality, generally speaking across the world, because of certain reasons, which are more general in nature, but there are, even more basic problems with the Shayara Bano judgment, which run into the question of respect to precedent. For example, Shayara Bano masquerades as a judgement which is trying to bring together and consolidate jurisprudence, trying to consolidate precedent, but there are a number of infirmities and inconsistencies that exist. In the Ajay Hasia judgment for example, it picks up one particular passage of the judgment, and says that that passage seems to refer to arbitrariness in actions of the legislature, but it seems to ignore entirely that the same passage was actually referring to the reasonable classification test, as one of the ways in which to arrive at a finding of arbitrariness. So, it’s difficult to see why that should be read as necessarily meaning that there is permissibility of the application of the arbitrariness test to plenary legislation.

There are other inconsistencies as well. It looks at another judgment called Om Kumar v. Union of India and refers to that judgment as a wholesale approval of the use of proportionality in the context of right to equality, but mises out that Om Kumar itself refers to the reasonable classification test as a form of a proportionality test. Well, Om Kumar is somewhat wrong even on that criteria, but regardless, it is true that the reasonable classification test is closer to the proportionality test. It is one prong out of the three prongs in a traditional proportionality test. Shayara Bano does not seem to bother about these doctrinal inconsistencies that it is picking up. It seems to suggest that Om Kumar would propose arbitrariness as an application of the doctrine of proportionality.

Similarly, it seems to think that Maneka Gandhi’s removal of the compartmentalization of fundamental rights, and it’s finding of the application of article 14 to article 21, to talk about due process of the law, as substantive due process is, you know, a blank cheque to allow it to deal with all questions of governance in the same measure and in the same breath. At best, a question of substantive due process should, as I mentioned, in the context of America, deal only with questions of fundamental freedoms or fundamental interests where those fundamental values are raised. That could be a trigger for departing from traditional deferential tests like the reasonable classification test, but it seems to ignore this, it seems to take Maneka Gandhi’s approval of reading 14 and 21 together as an approval of looking at questions of arbitrariness test in legislations regardless of whether there is a fundamental freedom involved or whether there is personal liberty, or life or dignity involved. It doesn’t care about that. It seems to think that a combination of 14 and 21, a combination of substantive due process, allows for application in any walk of life, in any field of governance. So, it’s difficult to see what exactly Shayara Bano is doing with these inconsistencies. But at heart Shayara Bano has a problem because its formulation seems to fail to respect the judgment that it seeks to overrule. It fails to respect the criticism that the McDowell judgment raised, which related to separation of powers. If you see the formulation of the Shayara Bano test with caprice, with rationality with inadequacy of determining principle and with the proportionality of the measure. You bid these four terms and they’re actually impossibly broad. And if you think about them, they cover the entire field of legislative choice. There is no action or consideration that the legislature would engage in, that isn’t actually covered by one of these four values, or these four vices.

Caprice goes into the mental motivations of legislators. Rationality can be about instrumental rationality, or it could be about principled rationality, there are so many kinds of it. That’s somewhat where I come from, in proposing the solution that we need to fix on a particular kind of rationality. Disproportionality is entirely unmoored from the additional proportionality test there is no specification of what we mean by a proportionate measure and inadequacy of determining principle. Once again, it’s not clear what it means, to be inadequate, when you want to be principled in governance. So, deliberation and further elaboration on this has been sorely lacking. I think we somewhat departed from what you asked me, but I wanted to make clear the problems starting with Shayara Bano both in terms of the test and in terms of its respect for precedent, but I think we were getting at was in relation with how we can isolate it and I think I was already hinting at it.

Sarthak-

Yes. So, what I gathered from this discussion of the issues with Shayara Bano is that manifest arbitrariness maybe comes from some questionable sources, with precedent not being applied properly. However, what I wanted to know was how would you suggest the arbitrariness test should be carried out at present, say, what exactly are the dimensions of the arbitrariness test in your formulation?

Lalit-

Right, I think I sort of hinted it in my previous answer. As I mentioned, in terms of the formulation itself, the four vices in Shayara Bano result in a test that makes it impossibly broad. And so, we need to be able to reduce it in some manner. We need to be able to limit what the meanings of those four vices are, so as to not capture the entire field of legislative choice. And my suggestion has been that we need to therefore focus on certain judgments that previously existed, like The Indian Express judgment and Khoday Distilleries (II), which proposed certain formulations of the manifest arbitrariness test which don’t seem to have been accounted for and incorporated when Shayara Bano made its formulation. And this specifically has to do with the nature of the values that need to be at play before a plenary legislation and action of the legislature can be challenged on the grounds of rationality or inadequacy of determining principle or any of those grounds. There need to be certain values of a heightened significance that are at play. And I think that’s hinted in those two judgments. So that’s where I am coming from.

Sarthak-

I understand that there may be some values against which we may be able to assess plenary legislations before we go into the broad formulations of Shayara Bano. But insofar as these values are external to legislative contemplation, maybe like the legislature may not have considered these values when drafting such legislation. So insofar as there’s this externality to these values, don’t you think that they come out to be a normal external standard and judicial review along those lines might just offend the doctrine of separation of powers in those instances?

Lalit-

Absolutely. So, this is the same criticism that comes forward when I was referring to the Shayara Bano judgement and Manifest Arbitrariness. So, it’s natural and very logical that any proposal, any solution to adapt the Manifest arbitrariness test also needs to meet this criticism.

Sarthak-

So how do think the Indian Express and Khoday Distilleries measure up to the doctrine of separation of powers criticism?

Lalit-

The direction from which I’m approaching is that if we respect these precedents in Indian Express and Khoday Distilleries, we realize that the significance of the value at play is a metric against which we can move. It’s a sliding scale against which we can move when trying to meet the nature of the government action, the nature of the state action that we are assessing or reviewing. Indian Express and Khoday Distilleries hint at the fact that there are certain vital facts or certain self-evident kinds of disproportionality that allow us to review delegated legislation, and they are very specific about this. Both of these judgments had to do with the application of the arbitrariness doctrine to delegated legislation. Now, Shayara Bano takes the entire previous body of precedent on delegated legislation and says that there is no difference between delegated legislation and plenary legislation, the actions of legislatures. And says therefore, that manifest arbitrariness should also apply to plenary legislation. I think an appropriate way in which to account for the separation of powers objection is to ensure that if we depart from the reasonable classification test, in the context of plenary legislations, then we should do so only because the Constitution demands it. And that’s because when we have vital facts at play those vital facts in the context of legislations should be facts related to constitutional values. And we need to be very clear about this. It is only when a constitutional value is at stake, when for example, there is a question of a differentiation of classification affecting autonomy or affecting the rule of law or free and fair elections, democracy itself; it’s only when we see a clear and serious harm to one of these constitutional principles that we should be willing to depart from the reasonable classification test. That is my proposal, which I feel would be respectful of the separation of powers principle, because courts would be acting only at the behest of the Constitution, and not because they feel that there is a particular governance issue that they would think should be met differently or that they have a different policy solution to. It’s only for constitutional value is at stake, that the arbitrariness test should come up in the context of plenary legislations.

Sarthak-

Okay, that does make a lot of sense. The only metric against which to judge any action by the courts has to be the Constitution and not any arbitrary conception of “separation of powers”, and that’s fair. However, ground realities also tell us that the separation of powers argument sort of appears to be something that we try and limit new ideas in constitutional jurisprudence. At present, what we see instead is that there’s a lot of judicial deference to the executive. One example that you mentioned in your paper as well is the usage of the word ‘only’ in the equality code and how that may pose a problem of presumption of constitutionality. So, can you elaborate a little more on why that may be the case? Why the equality code itself may take away the Supreme Court’s power to act on legislative motives and what the effects of those motives may be? 

Lalit-

I think what you’re referring to is the use of the word ‘only’ in our non-discrimination guarantees, as opposed to the general right to equality in article 14. To refer to this, I think it’s good to have in mind the phrasing of those provisions: article 15 (1) 16 (2) and 29 (2). How these provisions run is: the state shall not discriminate on the grounds only of race, religion, sex, etc. (separate listed prohibited grounds). So how these provisions seem to run is that they say that the discrimination, the nature of discrimination that is prohibited, the nature of the discrimination that the state should not engage in is discrimination, which is only on the grounds of ABC, on the grounds that are only of this nature. So, the way courts have read this is to use the word only as a sort of fulcrum or the site at which discrimination can be justified, and how do they create this justification? They say that the government is permitted to discriminate, it is permitted to differentiate on the listed grounds on say, the grounds of religion or sex, if it so happens, that the government is not only discriminating on that ground, and when they mean on that ground, they mean it is not only or solely or exclusively motivated by that ground, and this is what they call a motivation-based reading of discrimination. When they’re talking about motivations, they mean that that should not be the only object of the government. So, this has resulted in a range of really absurd rulings in which they have said that discrimination between women on the grounds of pregnancy, discrimination on grounds of sex: because pregnancy is made a standard for different employment or service conditions or discrimination on the grounds that is say, the financial capacity to deal with your estate as a woman in society, all of these are not discrimination on the grounds only of sex. All it requires is that some additional consideration be offered by the government. As soon as this additional consideration is offered, regardless of how serious this additional consideration is, in comparison to the impact on the protected group or the impact on the disadvantaged group, that additional consideration is enough to justify. Why? Because the courts can now freely suggest that that discrimination was not only on the grounds of sex. So, for example, they would say in a case like Nargesh Meerza, that the discrimination on the grounds of pregnancy was not only on the grounds of a woman’s gender or sex, it was instead on the grounds that they were already different employment classes: one of Air flight purses for men and one of air hostesses for women and these existing employment classes and these existing structures that an airline company had created were already an additional consideration to keep in mind and therefore, discrimination on the grounds of pregnancy was not only on the grounds of sex. And it’s very absurd because it moves away from a standard by which we’re able to see whether or not the differentiation affected a group and only cares so much about what the object or the motivation of the government was. And that’s where the problem comes. That the word ‘only’ is used in this limiting fashion allows courts to freely justify, or freely take on board justifications that the government can come up with when it is in fact, causing harmful effects to particular disadvantaged groups or whether intentionally or, unable to identify systemic discrimination, it is just doing so in effect. Either of these cases, it is just the court’s taking on board the government’s word that only permits this to happen because of the unique and peculiar kind of justification that it permits. So that’s so much for the traditional interpretation of article 15, or of the non-discrimination guarantees. It’s important now, because in the last decade, we have seen judgments that have moved away from this traditional justification. But there are problems with the new rulings as well. And I think the main issue with this is largely that it has been a selective resolution or a partial resolution of the jurisprudential, doctrinal problem at play.

The most recent judgements that seem to discard this traditional way of reading the word ‘only’ have come up mostly in the context of gender. In fact, only in the context of gender and they seem to be pursued mostly by Justice Chandrachud. Anuj Garg was of course an early judgement that seemed to depart from this, but that was only in the context of protective discrimination.

The first call that we actually saw, to discard the old form of interpretation came in the opinion of Justice Chandrachud in Navtej Johar, when he said that this old way of interpreting the word only has to be stopped and we need to now care about whether or not any particular discrimination is furthering or engaging in the stereotyping of a particular group, of a disadvantaged group. This proposal by which we depart from the old standard, the old interpretation is in the right direction, and it is definitely a welcome development. However, I’ve been trying to point out or work out why it was not joined by the other judges. So purely on the grounds of precedent, Justice Chandrachud’s opinion on overruling the old judgments on the interpretation of article 15, was not joined by either Justice Mishra, or by Justice Malhotra or by Justice Nariman. None of them really came on board with Justice Chandrachud, in overruling this old judgment. So that’s one point on precedent. The reason for this could be that the old interpretation or way of reading article 15, where discrimination is permitted, if it is not an exclusive motivation was rooted in the fact that the word only still existed in the Constitution. I don’t think that the solutions forwarded have really resolved this problem, because they haven’t talked about how we should read article 15, to come up with a solution. These problems seem to come up in other contexts as well.

Sarthak-

So how do we go about overruling these traditional interpretations to resolve problems in these other contexts, like for sex-based discrimination, Justice Chandrachud has laid down some groundwork albeit not joined by many of his brother judges, but how do we go about resolving this for other issues, maybe other grounds apart from sex?

Lalit-

Yes, so to sort of come to grips with the extent of the problem, it’s important to keep in mind, how many other grounds or other situations is this traditional interpretation is actually being used in. The call that what we were talking about, is that the justification for discrimination can arise as long as you can provide some additional consideration (any additional consideration frankly). That same logic has been used in the context of discrimination on the grounds of religion. It has been used in the context of discrimination on the grounds of descent, and also in the context of discrimination on the grounds of caste. In, at least these three grounds, we have bodies of jurisprudence that rely very strongly on the word only. So, at base, a problem we are facing, is that overruling the jurisprudence on that reading of article 15, only for the grounds of sex is partial and incoherent because it does not respond to how that same reading is still applicable in the context of these other grounds.

So, for example, these early cases on personal laws. These early judgments from high courts, suggested that personal laws did not discriminate on the grounds of religion, because they were not only on the grounds of religion. Instead, they were on the basis of differences in the religions, fundamental texts, differences in their readiness for reform: these additional considerations, which to you and me might clearly be linked to religion itself. Court seemed to find them as adequate additional considerations because of which they could say that personal laws did not discriminate on the grounds only of religion. Now, of course, in the interim, we had the Narasu judgment, which made it seem that you can’t really question personal laws in the first place. But we have come full circle now to the position where it’s again, a question that’s come up, and this is a very interesting question, in the context of the CAA. Many people who defend the CAA say that apart from the fact that article 15 does not apply to non-citizens, merely discriminating on the grounds of religion is also not in our polity, a ground for a measure to be struck down as unconstitutional and they point to personal laws as a striking instance of governance measures that discriminate on the ground of religion. There are many others and all of these need to be dealt with in lockstep, they need to be dealt with at the same time, as we overrule the previous theory of justification or the previous traditional theory of discrimination that we had. It is not enough to just solve one of them, and then expect that everybody would come on board and overrule old judgments on the question. We need to have a way to read the non-discrimination guarantees that adequately responds to the context and social reality of each of these grounds and to the textual limitations in the non-discrimination guarantees themselves.

Sarthak-

So, from what I understand, if we are to sort of move away from traditional formulations that circle around the word only, and considering that ‘only’ sort of qualifies a motive-based test, do you think that a solution could lie in an effects-based test instead?

Lalit-

Yes, that is a traditional proposal that is given but I need to really pass this out for a moment.

Look, again, at the text of the provision. Discrimination that is on grounds only of ABC characteristics: that is what is to be prohibited. Now, if we move from a motivations based test, even to an effects based test, the problem, and this is a problem that is there across the world, we looked at discrimination in the sense of formal equality, neutral forms were fine, effects and the impact of the judgment, differences in impacts on different groups in society, and advantage and disadvantage groups were ignored by courts earlier and across the world, jurisdictions have been moving away from the formal view to the substantive view. My concern though, is that in India, this doesn’t resolve the problem because of the peculiar phrasing to start with. Even if we move to an effects-based test, a judge might still say that the prohibition is about discrimination that is only on this ground. So if we move to an effects based test, and we find that the effect on that particular ground or the effect on people identified by that particular ground, race, religion, sex, the effect on them is not the only effect.

Again, the word only comes even in an effect-based test. Somebody may say that the effect on something else, the effect on say the economy, the efficiency of operating an airline company, are also effects and these are effects that matter more, and then say, therefore, that the discrimination is not on grounds only of sex, for example, because the effect is not only on sex, the effect is on something else as well. So, my point is that a movement from motivation-based readings of discrimination to effect-based readings of this condition does not solve the peculiar problem faced in India, because we don’t just face a problem of formal equality in the context of non-discrimination. What we actually face is a formalistic reading of the non-discrimination guarantee.

So, to resolve this particular problem, what we actually need to do is read the non-discrimination guarantee slightly differently. To start with, one of the problems that come up is that the word discriminate in these non-discrimination guarantees, is often read as synonymous with the word classify, which seems to suggest that if you classify on the grounds of sex, if you classify on the grounds of religion, if you classify on the grounds of caste, that is, you directly discriminate by using that particular metric or particular characteristic in the measure, then you have violated that prohibition. That means, that as it is phrased that those non-discriminatory guarantees are absolutely prohibited on any of these grounds, you cannot discriminate only on the grounds of religion if you read it that way. My suggestion is that we need to move from that value neutral meaning of discriminate, which means that you classify on the ground, to instead a value laden meaning. I mean to suggest that the word discriminate should already contain within it, or we should read the word discriminate, as containing within it the standard of justification. If somebody classifies on the grounds of sex, on the grounds of religion in a way that our polity, our governance, our system of government and our constitution permits, if somebody classifies in a way that it’s permissible under our Constitution, then we should read the word discriminate as not hitting that classification at all. So certain kinds of classification on the grounds of religion are not discriminatory. That’s the first step. If we can do that, what we have done is shift the burden of justifications from the word only to the word discriminate.

Now, what I suggest is that we read the word grounds not as motivations or effects or causes of the discriminatory effect, but as enabling factors. So, in a sense, we suggest that the connection between the measure and the prohibited grounds is such that the prohibited ground as long as it has enabled the measure to be discriminatory, as long as it has made it such that its involvement has made it discriminatory, that is enough for it to be hit by the prohibition. The word only there is not causing a problem because the idea of enablement isn’t restrictive in the same sense.

I like to use this particular example to sort of explain it. If I say the line: I researched only because of the research grant. That’s about causation. I research only because of the grant. If I didn’t have the research grant, I would not have wanted to research at all. I wouldn’t have done it. It just wouldn’t have happened. If I say I was able to research only because of the research grant, then that is still using the word only, it is still talking about the exclusive enablement by that particular ground of a research grant. But that exclusivity doesn’t prevent other things from also causing the research to take place. Similarly, if I say grounds as enabling factors, what I’m suggesting is that the involvement of sex religion or one of those grounds, allowed for that measure to become discriminatory. And we can use the word only in that context without preventing a problem or requiring that that be the only reason for it to be discriminatory.

Sarthak-

What your analogy makes quite clear for me is that earlier in the classical formulation of discrimination as a value neutral synonym of classification, it so happened, that any classification on the basis of the stated grounds were sufficient to attract the ire of the court, and have that lobby struck down. If I’m getting you correctly, what you’re suggesting is that the word discriminate should be afforded its value laden meaning which is disadvantage. And unless this finding of disadvantage is made, mere classification on the basis of the stated grounds does not really strike the law down. Is that correct?

Lalit-

Yes, that’s right. So, we’re moving away from a value neutral meaning where discriminate is just being read as it is, to mean any kind of classification on the ground is violative to one which requires something more than just classification or which requires some kind of a connection between the measure and the effect on the ground, or on people who are identified by that ground. And I see Yeah, I there are certain problems with that. One could find that there are risks in doing that. It seems to open the door to what would previously would have thought to be incontrovertible. Earlier, you would find that in various contexts, for example, in the context of the CAA, many people who were against the CAA would just simply say this much: that x measure has discriminated or has classified on the grounds of religion, that’s all that matters. You have discriminated on the grounds of religion because you’ve classified on the grounds of religion. And I am suggesting that if we use the word discriminate in a value laden way, there needs to be something more than just classifying on the grounds of religion, to make it discriminatory. To make it subject to the prohibition we need to use the word discriminate in a special way. I think this is inevitable, because as I was discussing earlier, there are many things in which our polity, in our governance system, in our Constitution, we seem to be permitting, governance measures that are classified on the grounds of caste, descent, religion, especially religious governance where we seem to have lasting problems. So, if we want those particular existing measures to continue, we see value in the continuation of those measures, we have to read the word discriminate in a value laden way, because otherwise, those measures which are classifying on the grounds of religion would be directly hit by article 15. The personal law system will be hit by article 15. Our ability to allow minority institutions to take certain actions will be hit by article 29. Our system by which we allow for affirmative action on the grounds of caste, which isn’t covered necessarily by the exceptions in article 15, which isn’t explicitly allowed for on the exception documentary, those would all be hit by the prohibitions in articles 15(1), 16(2). So, if we don’t want those to be hit, it is necessary that we read the word discriminate differently. And this is a necessary discretion that we need to give courts. It is inevitable because we have to be able to sort out this problem of where such classifications are not permitted. And I think we need to have faith that a theory of discrimination that is already building up in our courts on the grounds of systematic systemic discrimination, of discrimination in effects, indirect discrimination, all of these sorts of issues that are building up in our jurisprudence, they will be able to carry that particular interpretation that I’m proposing in the direction that we find desirable.

Sarthak-

What I found interesting about that answer is your use of the word discretion. Now, as you previously suggested, affording that discretion to courts is inevitable. We want them to be able to find discrimination to then strike down laws. However, I do have a couple of reservations about this. So, it’s a two-fold question. First, are courts really best situated to assess the social realities and find disadvantages and therefore discrimination, in the first place? Are they in the best place to understand social realities, as opposed to say trained bureaucrats and elected representatives? Second, what the courts essentially do by exercising this discretion in this sense, is distributive justice. Now, should distributive justice as a matter of policy not remain within the legislative and executive hold and not come to the judiciary.

Lalit-

Okay, so I think the answer to both of your questions can be somewhat given in the same way and I’d like to point out that maybe it’s echoing what I was mentioning in our discussion about arbitrariness, that when we are entering into this fold of figuring out what effects on certain people, on certain groups, on certain disadvantaged groups, we aren’t entering into the full array of legislative choice. For example, any measure which does not affect a disadvantaged group in a serious manner, or disproportionate manner, or which does not aggravate the disadvantage in a way that we find problematic. These are all measures which the court should not be interfering in, unless there are other questions of rationality that, would be under the reasonable classification test. These won’t be interfering with any of those. So, this concern that we have that moving into an effects-based test or allowing discretion in determining what kinds of social reality result in discrimination, these aren’t entirely unconstrained from constitutional rail guards, they continue to be very specific ways in which the Constitution gives rise to a requirement for courts to consider what precisely is at stake. When for example, you have a question of discrimination or disadvantage, you aren’t referring to just any question of distributive justice, any question of distribution of resources, you are referring to those kinds of distribution of resources that prevent a disadvantaged group from behaving in a way where they are free of having to consider a personal characteristic that they should not have to. As long as it is a cost imposed on them, it is something that the Constitution cares about, in its consideration of values like personal autonomy or dignity. It cares about the fact that one should not have to consider one’s religion, in having to determine whether or not you are eligible for citizenship for example. It would care about that fact, because it is an imposition on liberty, on personal autonomy, to have to consider those personal characteristics wherever you go. Things that you did not have responsibility in giving rise to that aspect of yourself, of your sex, of your religion, or such matters, fundamental choices and characteristics of a personal nature. Because of this connection with a value like personal autonomy, we should be clear that it’s not a problem of separation of powers. It is a problem of constitutional values and rights.

Sarthak-

So, it’s certainly fair that the idea behind substantive equality is ultimately to ensure that there’s personal autonomy and dignity that is afforded to the individuals. That they are free to act in any way that they see fit. But I would like to take a step back from this discussion and look at the tools through which we afford such substantive equality. So earlier, tests, such as the reasonable classification tests were a lot more formalistic, a lot more respectful of the executive-judiciary boundary. At present, as I highlighted in previous question, the substantive equality test has the potential to re-invent the equality discourse and the jurisprudence around it. It has also brought with it several novel tools such as stereotyping, indirect discrimination, the interpretive modes such as feminist and intersectional approaches. To that extent, the judicial vocabulary that we have now to deal with equality and non-discrimination, has expanded considerably. What role do these traditional tests that we had earlier play in our current understanding of the equality jurisprudence, if any at all? Have we entirely abandoned older tests?

Lalit-

No. I think that this sort of misunderstanding does seem to come up because some scholars presently or, in the push to have our courts recognize substantive equality, sometimes suggest as if we want to discard formal equality entirely, that we don’t care about formal equality at all. Questions like generality of the law or neutrality in certain contexts seem to be given short shrift in this movement to get our courts to recognize substantive equality. But I don’t think that’s a problem per se. I think it’s very clear that courts will continue to respect questions of formal equality as well. One striking example is, every person gets just one vote, regardless of the level of group disadvantage they face. So, it’s in the very foundations of our democracy, that there’s a kind of formal equality, a democratic equality involved on that context. You could imagine a world in which, each member of a disadvantaged group gets 1.01 vote, a fraction of vote more. And that could be a way in which you look at it, but we don’t make that step. It’s clear that substantive equality doesn’t cover the entire fold of equality. Formal equality still remains, and the reasonable classification test is going to continue to be a part of those particular conversations, where we don’t think disadvantage is of relevance. We don’t think a disadvantage should be considered a motivating factor in our governance systems. So that seems to suggest perhaps, that a form of rationality might exist that covers both substantive and formal equality. But the reasonable classification test currently seems to be going beyond its ambit, it seems to be applied to situations that it should not be. For example, one judgment Madhu Kishwar seems to apply the reasonable classification test in the context of article 15. But there are severe problems with applying the standard context of instrumental rationality, the obsessive focus on the object of legislation to the context of discrimination, there are there are serious problems with that, as should be clear in the context of some cases, we mentioned. Simply picking up an object and suggesting the discrimination on a prohibited ground is actually furthering that objective a little bit is not enough of an answer to whether or not discrimination is happening. Say, in the Nargesh Meerza judgement, it seemed as if the economic efficiency of the airline company, was the object of discriminating against women on the grounds of pregnancy. And that was all mattered. But this is precisely the reason why there is a distinction between 15 and 14, between the general right to equality and the right against discrimination. So, it’s not appropriate to apply the reasonable classification test in the context of non-discrimination. There are situations where despite the existing relevance of that characteristic, the seeming relevance of sex or religion to that characteristic, there are other considerations that are as important or as relevant that should be considered or given more weight, and that I’m proposing is supposed to be things like autonomy, things like dignity. So, the reasonable classification test has its place. But as it currently stands, it seems to go into areas that you should not.

Sarthak-

Those are my questions on how you think of substantive equality. But there’s just one question that remains perhaps something that you mentioned at the very outset. That problems with arbitrariness, rationality and those of substantive equality seem very far removed and these problems therefore require quite different solutions. How do you propose that these two should relate to each other, arbitrariness on one side and substantive equality on the other? How do you think that we can reconcile doctrinal issues that come up around?

Lalit-

Yes, so this has been because I had to approach from the context of traditional constitutional doctrine, I have tried to hint at certain solutions to this, but they aren’t complete solutions. Instead, because I was approaching from constitutional doctrine, one of the main problems I was trying to highlight is that arbitrariness as we see it currently seems to continue to be a rationality-based test, just like the reasonable classification test. All that it has done is it has removed the requirement that we need to consider the relevance of characteristics against the object of the legislation, but it still goes on the basis of relevance and the EP Royappa test, for example, simply says that, if a particular measure has not taken into account things that are relevant, or taking into account things that are not relevant, then it would be hit by the right to equality. So it’s about relevance. It’s about rationality, but it’s not rationality in the sense of the reasonable classification test, which requires the relevance to be against the object.

So, if the test continues to be about rationality, it doesn’t seem to fit with the context of substantive equality. I just mentioned in my answer to the previous question, about problems that come up when you think about discrimination, in terms of instrumental rationality, in terms of just the object of the law. It doesn’t seem to meet with our understanding of how discrimination happens, which happens beyond the object of the law, for reasons other than the object of the law, for considerations external to the object of the law. So, I think I’ve hinted throughout our discussion, how, where, on what grounds we are going to be able to combine the two. My suggestion is that there should be a form of rationality that is broader than merely instrumental rationality, that article 14, we still considered the genus, so to speak, substantive equality still be considered a species within that genus. So, article 14, should espouse a form of rationality that is broader than just instrumental rationality, it should be able to cover both formal equality and substantive equality. And the way it should do so is that it should be able to apply a reasonable classification test and ordinary rationality test in various contexts, but it should be willing to depart from this obsession with the object of the law. This obsession with the majoritarian prioritization that a government is engaged in when it chooses a legislative object, it should be willing to depart from that when the Constitution demands it. And the Constitution can demand it in the context of say, substantive equality in the context of group disadvantage, because group disadvantage impinges constitutional values like personal autonomy available in articles 19 and 21. And it should also be able to protect against damage to values like free and fair elections, rule of law. One departure for example that took place was in the Subramanian Swamy judgment, where there was a corruption law, and an exception to the corruption law was made in relation with high-ranking bureaucrats. And this was considered to be violative despite it having some particular object. The judgment itself was not very clear about why the object itself violated the right to equality, but one way to view it is that it was violative of the rule of law. So, I think this sort of a conception that we need to be able to depart from reasonable classification and consider the differential effects, that differences between people can have certain specific effects on constitutional values. This sort of a test, that differences that affect constitutional values, constitutional principles, constitutional rights. This can be the way in which we can bring together arbitrariness and substantive equality. This would mean necessarily that we have to narrow down the ambit of arbitrariness which currently in its Shayara Bano formulation seems to be far too broad. And it also means that we are able to fit substantive equality within that logic, that the specific constitutional values at play, the specific kind of arbitrariness we’re talking about in the context of substantive equality in the context of group disadvantage has to do with constitutional values related to freedom and liberty.

Sarthak-

That’s great. I think that ties up our discussion quite perfectly. And personally, I find that I’m walking away from this discussion with several of my misconceptions about both manifest arbitrariness and substantive equality. And I think you’ve given us much to think about both to me and our listeners. And I thank you so much for visiting these points so clearly, with great analogies. So, thank you so much for discussing this with me today. And I hope to have another discussion sometime soon.

Lalit-

Thanks so much. Research projects seem to cover a lot of ground and I think I might have been a little incoherent at points. But I hope at the very least I was able to convey the significance of the questions that are at play, that we don’t have a right to equality currently, as the Court sees it, which is in a satisfactory state, and the directions in which we need to go so to resolve it needs to allow us to bring these doctrines together and allow them to progress in lockstep and reconcile with each other. Yeah, so thank you once again. And yeah, I look forward to more from you, guys.

Parv Tyagi provided technical and editorial assistance for this interview.