Right to Equality- Reasonable Classification Rule Versus Rule Against Arbitrariness Under

the Indian Constitution: A Note1

Udai Raj Rai

Equality Liberty and Fraternity were the gospel words of the French revolution. These are the

three virtues that we still prize, especially in the realm of human rights. Equality of opportunity

and treatment is also considered one of the goals that the Indian Constitution strives to bring

about as part of Indian social, administrative and legal culture. Article 14 of the Constitution of

India guarantees equality before the law and the equal protection of the laws. The first case that

the Supreme Court decided with reference to this provision was Charanjeet Lal Choudhury

v.Union of India.2 The short question to be decided was whether a manufacturing company could

be singled out for adverse treatment because it was being managed badly giving rise to many

adverse possibilities. The case was decided by applying the principle of reasonable classification

which shall be discussed below very briefly. Soon thereafter a larger bench of seven judges was

constituted to decide the twin cases of State of West Bengal v. Anwar Ali Sarkar3 and Kathi Rani

Rawat v. State of Saurashtra.4 We shall dwell here only with the case of Anwar Ali Sarkar. The

1
To be published in Journal Section of Supreme Court Cases soon


Writer former Professor of Law. For a discussion of Rule against Arbitrariness see author’s Fundamental Rights and
their Enforcement, (New Delhi, PHI, 2011) Ch. 7, Part IV.

2
AIR 1951 SC 41

3
AIR 1952 SC 75

4
1952 SCR 435
West Bengal legislature had enacted a special law to deal with the problem of extreme

lawlessness and anarchy then prevailing in the State. It provided for the constitution of special

courts to try accused persons by a special procedure which was disadvantageous to the accused

persons in comparison to the normal procedure prescribed under the Criminal Procedure Code.

In the particular case 50 persons had been convicted by the special judge and their conviction

had been set aside by the High Court. The State had appealed to the Supreme Court. The

Supreme Court by a majority of 6 to 1 dismissed the appeal. One of the majority judges Vivian

Bose, J. found it difficult to reconcile the creation of special courts and special procedure in a

criminal case with the very idea of the rule of law. Five other majority judges decided the case by

applying the doctrine of reasonable classification. One of these majority judges was Justice S.R.

Das. Even though they differed among themselves and were divided into two groups, but all of

them agreed that the law could not be defended in terms of the doctrine of reasonable

classification.Chief Justice Patanjali Shastri was the lone judge who allowed the appeal of the

State. His basic contention was that the doctrine of reasonable classification was not applicable

to all kinds of equality related cases. In the particular case he found that the procedural

modifications made by the law were not very serious and taking into account the totality of

circumstances, it could not be considered to be unjust or arbitrary. Patanjali Shastri,J. was not

followed in any other subsequent case for the next two decades and the rule of reasonable

classification became an accepted part of constitutional principle for deciding equality related

cases. Prof. P.K. Tripathi in his Telang memorial lectures 5 has remarked that it was fortuitous that

the subsequent important cases in the Supreme Court came to be decided by benches where S.R.

Das, J. played the leading role and thus he got an opportunity to give to the doctrine of

reasonable classification a sound footing.

5
P.K. Tripathi, Some Insights Into Fundamental Rights, University of Bombay, 1972, Ch. II.
 After more than two decades in E.P. Royappa v. State of Tamil Nadu6 in a concurring

judgment P.N. Bhagwati, J. speaking for himself and Chandrachud and Krishna Iyer, JJ. said that

the essence of the rule of equality lay in its anti arbitrariness. Subsequent to this in Ajay Hasia v.

Khalid Mujid7 he pointed out that reasonable classification was not a paraphrase of equality and

that it was only one of the means whereby a judge could decide whether there was an element of

arbitrariness or not. In no other case the Supreme Court has come out to define the relationship

between reasonable classification and anti-arbitrariness rule. It would be shown below that this

rule against arbitrariness has been used at two levels: One, it has helped in considerably

modifying and improving the rule of classification by extending the scope of judicial scrutiny

and reducing the scope of judicial deference to administrative and legislative decisions. Two, it

has earmarked an independent area for judicial redressal of grievances which in the submission

of the present writer does not have any connection with equality as traditionally understood. It

can be said to be an extended version of article 14 which gives to the court the scope for non-

textual review of both legislative and administrative actions. The contention of this paper is that

equality as understood normally relates to a particular kind of unfair treatment which is called

discriminatory and other kinds of grievances which do not have any element of duality or

provide scope for comparison have nothing to do with equality. The purpose of the paper is to

make this clear lest someone may think that the Royappa8 rule is judicial affirmation of

Shatri,C.J.’s view in Anwar Ali Sarkar9 where in a case of duality he held that even though

legislative procedure had been modified to the detriment of the accused, still the law was valid

6
(1974) 4SCC 3

7
(1981) 1SCC 722

8
Supra Note 5 above.

9
Supra Note 2 above.
because it was not unfair.

Apart from this section the paper has three other sections. In section II the traditional rule of

classification will be discussed quite briefly. It will be pointed out that traditionally the rule

believed in minimal judicial scrutiny and this left scope for some injustices remaining

unredressed. In section III we shall discuss the new trend of intrusive judicial scrutiny which

appears to be the gift of new equal protection or the rule against arbitrariness. In the last and IVth

section it shall be submitted that rule against arbitrariness will be totally unsuitable for being

applied to the cases of inequality or discrimination which presuppose dualty or adverse treatment

by comparison.

Section II

Doctrine of Reasonable Classification

It is premised on the principle that law can be general in its application, but it is rarely universal.

There is so much diversity in every respect in every sphere of life that categorisation of people,

things or events becomes a sheer necessity. Freedom of contract is considered the hallmark of a

civilised and free society, but only adult persons who are of sound mind can be given this right.

We have an adult franchise law whereunder adult citizens are voters but prisoners do not have

the facility to cast their votes. Examples can be multiplied. However, though the law maker has

the power to classify, his act of classification must fulfil two conditions: first, the basis of

classification must be intelligible and should not have been specifically be prohibited under the

Constitution. Second, the basis of classification should be relevant to the purpose of law. In

judicial terminology it is said that there should be some intelligible differentia between those
who are part of the group and those that are left out, and the differentia should have rational

relation with the object of the law. This requires some elaboration which is given below.

While describing the components of the reasonable classification, we have mentioned above two

of them, that is, the basis of classification and the object of the law or that of the classification.

But there is a third element as well, that is, the special treatment of favour or disfavour meted out

to the classified people. A learned writer10 has called this the ‘what’ element, whereas the other

two are respectively called the whom and the why elements. Every classification involves a

special treatment to a class of people to achieve an object. For example, when persons who are

not adults or are not of sound mind, are deprived of the right to contract. Here is a classification

between adult persons of sound mind and those who are not of that variety. People belonging to

these two categories constitute the ‘whom’ element. Adult people of sound mind are given a

facility that they can enter into contract while the others are denied this facility. This is the

‘What’ element. Lastly, all this is done to ensure that only those persons be given the right to take

vial decisions about themselves and their fortunes who have the necessary mental capacity to

understand the implications of their decisions or promises.

Out of these three elements the ‘what’ element may appear to be most important. It is the

substantive element of the special treatment. However, during the period when the scope of the

equality right was defined in terms of the classical doctrine of reasonable classification, it was

largely ignored and carried little importance and it is only with the emergence of the new equal

protection or the rule against arbitrariness that its importance is now being recognised. We must

bring to the notice of the reader an important decision of the earlier era which may surprise him.

10
Supra Note 4 above.
This is the decision in Lakshman Das v. State of Punjab.11 In this case Patiala State bank had

been given two special privileges which other banks did not have. One privilege consisted of the

right to recover its dues from the debtors in a summary manner. The other privilege was its right

to conclusively determine the amount of dues one owed to the Bank. When this was challenged,

the Constitution bench of the Supreme Court unanimously agreed that a classification could be

made between the State Bank and private banks and the State bank could be given the special

privilege of recovering its dues by a summary procedure. But the bench was divided four to one

on the issue of the other privilege that the bank should have the power to conclusively determine

as to what a debtor owed to it. The majority upheld the validity of the grant of second privilege

to the bank as well on the basis of the doctrine of reasonable classification. But Subba Rao, J. in

a powerful dissent pointed out that merely because there was a valid classification, that did not

mean that the classified group could be conferred some special benefit or could be subjected to

some special burden which was totally unreasonable and arbitrary. As a matter of fact the

majority decision was being governed by the principle of minimal judicial scrutiny which we

shall note later has ceased to be a part of the doctrine now as a result of the arrival of the rule

against arbitrariness. As far as the third component or ‘why’ element is concerned, it is seldom

expressly written in the law. It has to be discovered by the court by reading the Act alongwith its

preamble and by looking at the surrounding circumstances. Naturally, the court has some

discretion in the matter. It is believed that generally the courts impute a purpose which is

plausible and which can also sustain the law.

Section III

Increased Judicial Scrutiny or Reasonable Classification with a Bite

11
AIR 1963 SC 222.
The rule against arbitrariness has two distinct aspects. In its one aspect it operates without

requiring the element of duality to be present. This is best illustrated by the facts and decision in

A.L. Kalra v. P& P Corporation of India Ltd.12 Mr. Kalra had been removed from his job, his

only fault being that he had taken some loan from the Corporation for certain purposes which he

had failed to utilise properly and had also failed to return the same within the required period.

The Supreme Court intervened on the ground that the punishment inflicted on Mr. Kalra was

highly disproportionate, harsh and arbitrary. The intervention was under Article 14 and the Court

considered it an irrelevant objection that there was no duality in the sense that there was no other

person in comparison to whom Mr. Kalra had been discriminated against. The Court’s view was

that an action per se arbitrary itself denied equality by law. This is obviously assuming the power

of non-textual review on the pattern of American doctrine of substantive due process and has

absolutely no connection with equality as understood in the traditional sense. This amounts to

giving an extended meaning to right to equality. In this paper we are not concerned to discuss

this aspect of the rule against arbitrariness. Instead we are concerned here with the impact of the

rule against arbitrariness on the traditional doctrine of reasonable classification. Here, we find

that the traditional deference which the courts used to give to governmental decisions and

judgments in right to equality cases has now been considerably reduced and the courts are not

hesistant to intervene even in those areas which could not be dealt with earlier. For example, in

the triangle of whom, what and why the ‘what’ element which was earlier left entirely to the

discretion of the government and the courts were reluctant to examine its reasonableness, has

started playing rather a clinching role in the cases in a variety of ways. This can be illustrated by

a referring to a few important cases.

12
1984 (3) SCC 316
But before we start that the reader must be reminded of the majority decision in Lakshman Das v.

State of Punjab13 noted earlier. The position today has reversed. The first case that we take up is

Air India v. Nargesh Meerza.14 In this case the Supreme Court invalidated a regulation which

provided that an air hostess would lose her job on her first pregnancy. This was invalidated for

being arbitrary. The regulation’s arbitrariness was said to have been an insult to Indian

motherhood. It is submitted that this reasoning is unhappy and incorrect. The feminists take

exception to this reasoning and contend that it reduces the females to the level of a child

producing machine. The actual reason can be given to be the deprivation of a substantive right

which every human male or female is possessed of. It is the right of procreation. So actually this

substantive element appears to have played the major role in influencing the judgment. The

second case that we take up is Central inland Water Transport Corporation v. Brijo Nath

Ganguly.15 In this case the Supreme Court invalidated a rule of the Corporation which authorised

the Corporation to terminate the services of any person in the employment of the Corporation by

giving three months notice or three months salary in lieu of notice. There was another rule which

the Corporation could apply for terminating the services of other employees and that provided

for notice and hearing. The Court held the differentiation to be invalid being mainly influenced

by the gravity of the consequences that the rule entailed, inasmuch as a person could lose the

means of his livelihood without knowing the charges against himself and without being given an

opportunity to rebut them. It is the substantive aspect of the rule that again played hte clinching

role in the decision of the case. The third case that we take up is Mithu v. State of Punjab.16 In

13
Supra Note 10 above.

14
(1981) 4 SCC 335

15
(1985) 3 SCC 156

16
(1983) 2 SCC 277
this case the Supreme Court invalidated section 303 of the Indian Penal Code which provides

that a convict for murder who was undergoing life sentence at the time of the commission of the

offence shall necessarily be sentenced to death. Earlier in Bacchan Singh v. State of Punjab17 the

Supreme Court has upheld the constitutional validity of death sentence but subject to the rider

that it shall be inflicted in the rarest of rare cases. This provides an opportunity to the convict to

show that his case does not fall in the category of rarest of rare cases. Naturally, a murder convict

under S. 303 of the IPC is denied that opportunity. The enormity of the consequences led the

court to hold that section 303 of the IPC was void and the classification between murderers who

were undergoing life sentence at the time of the commission of the offence and the rest of the

murderers was untenable.

Let us give here a pause. The general practise in the reasonable classification cases has

been that it is the province of the legislative authority to decide whether to classify or not to

classify and what to classify and what not to classify. There have been only two conditions to be

fulfilled, one there being the rule that there should be intelligible differentia between those who

have been included in the group and those that have been left out. Even here marginal deviations

have been ignored because the rule has been that what is required is a broad approximation and

not complete perfection. This has been the traditional rule. Naturally, where the Court intervenes

in certain cases it will intervene only on the ground that at least one of the two conditions has not

been fulfilled. In the Mithu case discussed above the Court overrode the legislative judgment by

being influenced by the enormity of the loss which one class would suffer from. The court also

examined whether the belief of the legislator that a life convict was more prone to commit a

murder than other prisoners is tenable from the facts available. And after examining the facts the

17
(1980) 2 SCC 684
court concluded that it was not tenable. In other words the court did not defer to the judgment of

the legislator in the matter. Similar is the decision in Indian Council of Legal Aid and Advice v.

Bar Council of India.18 The Supreme Court while invalidating a rule debarring a person from

getting enrolled as an advocate after becoming 45 in age did not agree with the judgment of the

Bar Council that the group targeted was more likely to pollute the bar than the rest. The court

found that the rule was meant to target primarily former government servants and other public

sector employees. Similarly, in Deepak Sibal v. Punjab University19 the Court did not defer to the

judgment of Punjab University that if employees of the private sector and self employed people

were made eligible to be admitted to the evening shift classes of the law faculty they were likely

to submit forged certificates which it was impossible for the University to investigate.

At the end let us take the cases of D.S. Nakara v. Union of India20, Deepak Sibal v. Punjab

University and LIC of India v. Consumer Education and Research Centre.21 It has already been

mentioned earlier that in the area of reasonable classification the only limitations on the

legislative power have been two that there should be intelligible differnentia and there should be

nexus between the purpose of the law and the basis of differnetia. Earlier, the Courts didn’t

bother to interfere with the choice of the legislative body either with regard to the basis of

differentia or with regard to the appropriateness of the purpose sought to be achieved. All these

matters were left to the care of the political process. But the Supreme Court decisions in these

cases indicate that the court questioned the law on both the grounds. In D.S. Nakara the Court

did not accept this to be correct that the newly introduced pension scheme should not be
18
(1985) 1 SCC 732

19
(1989) 2 SCC 145

20
(1983) 1 SCC 305

21
(1995) 5 SCC 482
available for the benefit of the existing pension holders. In Deepak Sibal it did not accept it

appropriate that the private sector employees should be excluded from the benefit of being

eligible to be admitted to the evening classes of the university. And in LIC v. Consumer

Education and Research Centre the Court did not approve of the limitation which excluded a

large sector of the people from the benefit of the new scheme. In all the three cases what was

involved was that the exclusion of a section of people from certain material benefits had been

considered by the legislator not to be improper. But the Court appears to have taken the view that

the benefit which had been denied was something in the nature of a basic material right which

did not permit the government to limit its availability only to some and keep the other deprived.

It appears that the Court was indirectly influenced by the new equal protection doctrine operating

in the United States of America. 22 There too certain benefits have been considered basic and

fundamental and if the law limits them to only a limited group the Court would apply the strict

scrutiny test to judge the constitutionality of the classification.

Section IV

Correct View of Right to Equality

The dissenting view of Pantanjali Shastri, J. in Anwar Ali Sarkar and ambiguous observations by

Bhagawati, J. in Ajay Hasia leave ample scope for one to conclude that the rule of reasonable

classification is not the sole mode for deciding the right to equality cases. Here the crucial

question is as to what the term equality means. Bhagawati, J. understands it as a right to be

treated fairly. It is respectfully submitted that equality in the true sense has connotation of a

22
See P.G. Polyviou, The Equal Protection of the Laws ( London: Duckworth, 1980) Ch. 5.
guarantee against a particular kind of unfair treatment, that is that one shall not be treated

differently from another person except for justifiable relevant reasons. And this is what the

doctrine of reasonable classification means. Right to be treated fairly and right to be treated

equally are distinct rights, though they may overlap. When the United States Supreme Court in

Brown v. Board of Education23 unanimously rejected the separate but equal doctrine, it

conclusively demonstrated that mere adequate provision for all necessary facilities by itself is not

enough if equal treatment in some form is denied. Our Supreme Court also in Re Special Courts

Bill 197824 affirmed the same thing when it held that right to equal treatment and right to fair trial

are two distinct rights and an accused is entitled to both. We shall recall that the principle devised

by Shastri, C.J. in Anwar Ali Sarkar suffered from this drawback that if differentiated treatment

by itself is not bad, it does not require to be justified for being differentiated. On the other hand,

Bhagwat, J.’s formula of rule against arbitrariness gives an extended meaning to equality right.

He does not disturb the proposition that every differentiated treatment requires to be justified.

What has happened is that the classical doctrine of classification now admits of more searching

judicial scrutiny of many things where earlier the courts used to defer to legislative judgment.

The most radical aspect of the new doctrine is that it is not limited to a right against

discrimination or right against unjustified differentiated treatment. It has the extended meaning

of a general right against everything that is arbitrary. However, unjustified differentiated

treatment of different persons has always to be considered to be arbitrary unless the different

persons are proved to be dissimilarly circumstanced.

The above submission can be supported by an analytical treatment of the concept of

equality. No person is equal in himself or by himself. He is equal to somebody. Equality is a

23
347 US 483 (1954)

24
(1979) 1 SCC 380
relational concept and the element of duality is implicit in it. This is the first element inherent in

the very concept of equality. As the word is understood etymologically. It is true that in A.L.

Kalra v. P&E Corporation of India,25 D.A. Desai, J. told the then Attorney General Mr. Lal

Narian Sinha that it was too late in the day to assert that for the application of Article 14 the

presence of the element of duality is a must. But with all due respect it is submitted that it is true

only in relation to the newly added extended concept of equality which we have noted earlier.

Again, like duality, the linguistic connotation of the word equality leads to its second inherent

element. Violation of the right to equality is called discrimination. It again has a comparative

connotation. For this reason it is said that right to equality is a procedural right which means that

the right does not entitle a person to any prescribed standard of treatment. The only entitlement

that the right gives is that one shall not be treated worse than other persons unless there are

justifiable relevant reasons for it. This brings us to the third inherent element of the concept of

equality. It is that the differential treatment by itself does not constitute violation of equality.

What is prohibited is unjustified unequal treatment. And justification is furnished by proving that

differently treated persons belong to two distinct categories, categorisation being based on

intelligible grounds and made for serving some relevant purpose. This is popularly known as the

principle of reasonable classification.

25
Supra Note 11.