CLASS DISCUSSION 29 APRIL 2020

RECAP:
The Indian Constitution is transformative in character, in that it seeks to
transform existing social, political, economic relations in India.
What features of the Constitution can you identify to justify or to
disprove this proposition vis-à -vis the right to equality?

1) It is a living Constitution: dynamic interpretation, organic,

responsive to needs of society
a. Judicial interpretation/ constitutional interpretation:
i. Changing social, political, economic conditions
1. Changing environmental conditions, eg climate
change
ii. Evolution of thought
iii. The right to privacy: technological advances: social
architecture is changing
iv. Definition of state: changing role and functions of the
state
v. Decriminalization of adultery and same-sex relations
under S.377: evolution of thought
vi. Right to life and dignity: evolution of thought
b. Creation of rights: right to life with dignity
c. Adaptation of existing rights to newer contexts: eg 377,
adultery etc.
d. Role of judiciary
2) Affirmative action: SUBSTANTIVE EQUALITY
a. Amendments to Article 15: come back to Akanksha in next
class
b. Recognizing and addressing existing inequalities, eg
reservations in employment and education: ref Art.15(4) and
15(5)- enabling provisions; “power coupled with duty”
c. Special provisions for women, children, SC, ST, OBC etc.
d. “Address” historical wrongs; continue in the present as well
e. How is substantive equality measured? Equality in effect,
in results
3) Protects fundamental freedoms and democratic rights
i. How does evolution of thought happen?
 1. Through resistance, protests, years of civil rights
movements, “voicing” concerns (SPEECH), letters,
dissent, news articles, KNOWLEDGE CREATION,
information
2. Evolution in mindset: cultural change
ii. What is the role of the law and judiciary in this
landscape?
1. Judicial review
2. Give movements and resistance an impetus (Naz
Foundation), or it can set it back (Suresh Kumar
Koushal)
3. Upholding overall “public thought”/ “morality”
a. V. Imp. To return to this under discussion
on Article 19

4) Collective and individual rights

a. Transforming group inequalities, not just individual
discrimination
b. Structural changes, overcoming systemic disadvantages
5) Vertical and horizontal discrimination
a. Not just discrimination vis-à -vis the State, but also inequality in
private relationships, eg, inequality in marriages, inequalities
arising out of caste-based segregation; workplace hostility;
equality of opportunity
b. Equality of opportunity in the private sector- is it addressed by
the constitution or not?

Application of constitutional doctrines relating to equality

Sexual harassment at the workplace Act as a dimension of addressing

sexual harassment against women in employment
- Creation of 2 classes in the workforce: one of men, and one of
women (classification based on sex); and we are going to enact a
law that applies specifically to women

Is this discrimination?
- Address existing inequalities; “BRIDGE THE POWER GAP:;
special provision; corrective action based on what?
- WHAT IS THE POWER GAP BASED ON?
 o Power gap is based on gender: “men always being in a
dominating position”
- Not only women, but also transpersons, maybe even men
- “Progressive realization”
- Rule of the majority: women more likely to face harassment than
men, even transpersons? Than queerfolk?
- Gender neutrality: so that it covers transfolk, queerfolk etc.
- Men and women: changing with our understanding of “gender”
itself; “gender power dynamics”

Anuj Garg: Prohibition of employment of women in restaurants and

bars serving liquor.
Justification: this is to prevent sexual harassment of women
Is this ultra vires Article 14, or is this a step towards substantive
equality?

Nargesh Meerza v. Air India: Compulsory retirement of airhostesses

upon pregnancy, upon marriage or upon attaining 30 years of age.
Justification: Efficiency in the functioning of airlines; women
discontinue their careers after marriage
Contra: no discrimination against women, discrimination based on
marital status or pregnancy

Other hypotheticals: Non-reservation for SCs in private corporations

due to lack of English-speaking skills
Justification: needs of a global business to interact with a global
audience/ partners/ investors etc.

Mary Roy v. State of Kerala: Exclusion of widows from inheritance

Laws and policies that exercise facial discrimination

Anwar Ali Sarkar:

Constitute special courts for certain offences for expediency and speedy
trial.
What was the challenge?
Petitioner was tried in a different court with different procedures.
Article 14 GENUS: general principles
Article 15: SPECIES: specific corollary of the general principle
Article 15 address specific grounds of discrimination: “prohibited
grounds of discrimination” : sex, caste, class, ethnicity, race…or any of
them: grounds of structural discrimination and exclusion
Article 15 not invoked in this case.

Offences that were classified under the law challenged in Anwar Ali
Sarkar: offences eg beggary, sex work, S.377
Not under Art 15: Does not classify based on sex, caste, class.
Classification based on offences.
Under Art 15: Sex work and sex can be related- how?

Direct discrimination
Laws that discriminate formally and facially, eg, discrimination in
inheritance laws which exclude widows, daughters, sisters
Eg, discrimination in employment, only Brahmins can be priests in
temples

Indirect discrimination (form v. effect)

Classsification of offences like beggary, sex work, sex against the order
of nature has the effect of targeting persons based on their class
(beggary), sex/ gender (sex work), sexual orientation (S.377)

Under Anwar Ali Sarkar, petitioner challenged this based on Article 14,
to say that this classification violated his right to “equal protection of
laws”.
State argued: based on public policy (which is in legislative domain),
considered fit to classify trial of offences to ensure expediency and
efficiency; speedy trial.

Reasonable classification test

1) Classification per se is not violative of Article 14:
a. Treat like cases alike, unlike case unlike
b. Comparison of apples and oranges
c. Equal treatment =/= Same treatment; there can be
difference in treatment of dissimilar classes
2) Intelligible differentia, reasonable classification
 a. There must be a rational basis to distinguish between the
classes sought to be created
b. It must be clear what falls in which class
c. it can't be mere classification, it is not enough that the
people who grouped together have similar charecter but
also that ones left have different character
d. Can I objectively determine whether something is included
or excluded

3) Classification must have rational nexus to object sought to be

achieved
a. Cost-benefit analysis???
b. Basis of classification (“differentia”) should be related to the
object sought to be achieved
c. Reservation policies have rational nexus

- What method to be adopted?

d. May be subject to judicial review through the intelligible
differentia standard: some expectation of under-
inclusiveness/ over-inclusiveness
e. Method must be narrowly tailored to the object sought to
be achieved
i. (Based on principle of widest possible interpretation
of rights)
f. Beyond that, wide discretion
- Can courts scrutinize the objective sought to be achieved? Is that
rational or not?
g. Eg, CAA

- NALSA: where classification ought to exist but does not exist, eg

NALSA: classification of third gender: - this may be also be
violative of Article 14.

Let’s take the example also of decongestion of prisons in light of COVID-

19.
Objective: to decongest prisons in order to contain the spread of COVID-
19.
Guidelines: Release of UT prisoners; release of prisoners who have
served 80% of their term; release of prisoners for petty offences.
Release on bail or parole.
No release of prisoners who are under trial or serving sentences in
serious offences.
There is clear classification: based on nature of offence; period of
sentence served; category of prisoner: undertrial, convict; political
prisoners

Rational nexus to the objective sought to be achieved?

Object: public health concerns; ensure health of prisoners
Rational nexus?
Yes: There is a second objective, which is law and order. Balancing
exercise: balance the objective of law and order against the objective of
public health
Other methods must be adopted: social distancing within jails; solitary
confinement
No: Prisoners under trial, or serving sentences, for serious offences may
also be infected. So there is no rational nexus.
Health, comorbid condition and age should be classifications, and not
the nature of offence.

EP Royappa: arbitrariness standard

1) Article 14 enshrines the rule of law; rule of law is the opposite of

whims, caprices of a monarch/ ruler/ the State.
2) Fairness, equity, reasonableness are implicit in Article 14.
3) Based on valid, relevant principles
4) Must exclude extraneous or irrelevant considerations
5) Extension of principles under administrative law of
a. Accounting for relevant factors
b. Discounting irrelevant factors
c. To not be guided by whims and caprice
d. There must elements of reasonableness, fairness, equity in
State action
6) Eg, power of the police to arrest
 a. On what basis is this power to be exercised? Supreme Court
Guidelines eg DK Basu, on when and how this power of
arrest is to be exercised.
b. Grant of passports and denial of passport: lies within the
discretion of the executive; this discretion must be guided
and rational
c. Unguided discretion is arbitrary and violative of Article 14
d. The collection of biometric information under UID: UIDAI is
empowered to collect biometric information- the use of this
information must be guided and not arbitrary
7) Citizenship (Amendment) Act:
a. Intelligible differentia
b. Rational nexus to the object sought to be achieved
c. How do we evaluate CAA under the arbitrariness standard?
d. Object? To address the persecution of minorities in Muslim-
dominated states by granting them refuge/ asylum/
citizenship
i. Irrelevant factors that have been included: only
minorities from certain religions; only minorities
from certain countries based on religion
ii. Relevant factors that have been excluded: persecution
of Buddhist minorities in Tibet, eg
e. Can CAA be read down/ severed/ eclipsed in order to
uphold constitutionality? Without legislating the supreme
court cannot do that.
f. If a law empowers executive authorities with discretion to
do something/ refrain from doing something
i. It would be unconstitutional in the absence of
objective guidelines on how that power is to be
exercised
ii. Constitutional courts to read down the law; prescribe
guidelines on the exercise of executive discretion;
presumption of constitutionality
iii. If cannot be read down, completely arbitrary, then the
law is struck down