The purpose of Article 14’s equal protection clause is to offer redress to vulnerable groups assailed by discriminatory practices.113
Crucially, ‘vulnerable groups’ and ‘discriminatory practices’ is precisely the language of Article 15(1), which explicitly protects groups marked by five personal characteristics that have been historic and present sites of vulnerability.
To appreciate the transformative force of the petitioner’s arguments, we must note that the Supreme Court has always referred to Articles 14, 15(1) and 16 as the Constitution’s Equality Code, and has specified that they should be read together.114 The relationship, however, has been one-way, flowing from Article 14’s abstract declaration of equality to Articles 15 and 16, which flesh out that guarantee in specific circumstances.115 In Naz Foundation, the petitioner asked the Court to reverse the logic: instead of reading Article 15(1) as applying the principle of equality to sites of discrimination, to read Article 14 as encoding the principle of non-discrimination into the guarantee of equality.
Why did this matter? It mattered because under the traditional, equal-protection-oriented classification test, the petitioner would have faced two hurdles: first, to show a connection between classification of conduct (carnal intercourse with or against the order of nature) and classification of persons (homosexuals and heterosexuals) in order for Article 14’s guarantee of equal protection of laws to all persons to apply at the threshold level; and second, to get around the presumption of constitutionality and the high degree of deference accorded to the State in the standard classification enquiry. But by framing Article 14 in terms of non-discrimination, both hurdles were cleared. The classification attracted Article 14 as long as the petitioner showed that homosexuals, as a class, were disadvantaged by Section 377 (which, as we have seen, they certainly were). And because the correct lens for understanding this issue was discrimination and disadvantage, the Court could focus more on the question of whether the State was able to adequately justify its discriminatory conduct, rather than the question of whether the classification bore a ‘rational nexus’ to the State’s goal.
We are now in a position to reconstruct the Court’s argument in full. Article 15(1) prohibited all discrimination, i.e., unfavourable treatment on the basis of five stated grounds. What united these grounds was that they were, historically, sites of group disadvantage and vulnerability, and were closely connected with personal autonomy. Article 14, which was a general restatement of Article 15(1)’s guarantee of non-discrimination, equally prohibited discrimination on the basis of analogous grounds—personal characteristics not among the five named in Article 15(1), but which were also sites of disadvantage and had the potential to impinge upon personal autonomy.
Where such analogous grounds were concerned, therefore, a court would depart from the traditional Article 14 classification test and apply a framework closer to Article 15(1). This was to be done in three ways: first, the court was not to look at the formal terms of the classification but at what effect the classification had on a vulnerable group, in terms of their dignity and social inclusion; second, legislative purposes that specifically sought to entrench or perpetuate disadvantage on those very analogous grounds were invalid as contrary to constitutional morality—this explained why the Court refused to acknowledge ‘public morality (against homosexuals)’ as a legitimate legislative purpose; and third, instead of the rational nexus test, a deeper scrutiny, requiring the State to defend its actions on a proportionality standard, was to be applied. This three-pronged test—that effectively merged Articles 14 and 15 in cases where analogous grounds were concerned116—finally exorcized the ghost of Justice Patanjali Shastri’s off-the-cuff remarks about the stark separation of the two Articles, made so many years ago, and which had haunted equality jurisprudence ever since.
So much for what the Court did. Was it correct to do so? Was it correct to equate the guarantee of equal protection and the guarantee of non-discrimination in this manner?
I will argue that it was, and that the strongest defence for the Court’s approach is historical. Recall that in its early decisions, the Supreme Court incorporated the classification and rational-review test from US law on the basis that the text of Article 14 was nearly identical to the US Fourteenth Amendment. But that is only part of the story. This is what Section I of the Fourteenth Amendment states, in full:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.117
The ‘due process’ and the ‘equal protection’ clauses together constituted a broad rule-of-law guarantee for the protection of citizens, upon which is based the rational review test for legislation.118 The history of the drafting of the Indian Constitution reveals, however, that the US analogy is not quite as simple as the early Supreme Court believed it to be. Instead of combining an equal protection clause and a due process clause, in the initial stages of the drafting of the Indian Constitution, the equal protection clause was linked with the non-discrimination clause. The Fundamental Rights Sub-Committee’s proposed draft of 24 March 1947 contained an equal protection guarantee, and within the same clause, a guarantee of non-discrimination:
All persons within the Union shall be equal before the law. No person shall be denied the equal protection of laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language, or sex.119
While this was carried over to the Sub-Committee’s Draft Report of April 1947, in the final draft text that was put to the Constituent Assembly for it to begin its discussion and debate, the equal protection clause had disappeared. There was now only a simple non-discrimination guarantee, which had no equivalent in the US Constitution. Clause 4(1) of the April 1947 draft stated:
The State shall not discriminate against any citizen on grounds of religion, race, caste, or sex.120
The equal protection clause, however, had only shifted its location. Clause 9 read:
No person shall be deprived of his life or liberty without due process of law, nor shall any person be denied equality before the law within the territories of the Union.121
Readers will note that this Clause is virtually identical to a significantly larger chunk of the US Fourteenth Amendment than the final version of Article 14. Like the Fourteenth Amendment, Clause 9 links the due process clause with the equal protection clause. Had this been the final text of the Constitution, the Supreme Court’s reliance on the US precedent for construing the equal protection guarantee might have been justified. However, towards the end of the Constitution-making process in 1948, the Drafting Committee (which was tasked with revising the Fundamental Rights Sub-Committee’s proposals in light of the Constituent Assembly Debates) delinked the two, provided the equal protection clause with a stand-alone status (Article 14), and shifted it seven articles before, to stand beside Article 15(1)’s non-discrimination clause. In other words, the Drafting Committee separated equal protection and due process (departing from the US model) and linked equal protection and non-discrimination (the new Indian model). This was the final form of the Constitution: Article 14 (equal protection), Article 15(1) (non-discrimination), and Article 21 (life and personal liberty).
While the Drafting Committee did not record detailed reasons for the shift, its significance is unmistakable. As we have seen, at first, the Fundamental Rights Committee’s 1947 sub-chapter titled Rights of Equality had only a non-discrimination clause, suggesting that equality was understood in terms of non-discrimination. The equal protection clause was within the sub-chapter titled ‘Rights of Freedom’, along with a due process guarantee of life and liberty. But one year later, the Drafting Committee chose to rearrange the Articles by shifting equal protection from ‘Rights of Freedom’ to ‘Rights of Equality’. This sugges
ts strongly that primacy in understanding the constitutional commitment to equality was always meant to be in terms of non-discrimination, an understanding that was meant to be supplemented by bringing in a more generally worded equality clause.122
And what did it mean to think of equality in terms of non-discrimination? An answer is to be found, once again, in the Fundamental Rights Sub-Committee and, in particular, in the ‘Notes on Fundamental Rights’ submitted by K.T. Shah and B.R. Ambedkar (who ultimately chaired the Drafting Committee), two of the most vocal members of the Constituent Assembly. K.T. Shah noted:
… equality is not merely equality of treatment before the established system of Law and Order but also of opportunity for self-expression or self-realization that may be inherent in every human being. One important condition for the due maintenance of such equality is that no restriction be placed in such matters on any human being on the grounds of sex, race, speech, creed, or colour. All these have in the past been used as excuses for exclusiveness, which must go if equality is to be real and effective for all persons.123
Ambedkar submitted a draft bill of rights, which stipulated:
All citizens are equal before the law and possess equal civic rights. Any existing enactment, regulation, judgement, order, custom or interpretation of law by which any penalty, disadvantage, or disability is imposed upon or any discrimination made against any citizen shall, as from the day on which this Constitution comes into operation, cease to have an effect.124
It is here that we see the language of Naz Foundation: the linkage between equality and non-discrimination, the identification of sites of group exclusion, the focus on disadvantage, disability, and self-realization (‘dignity’), and the attention to the actual experiences of the subjects of a law (‘real and effective equality’). Here was a deep, rich, and substantive understanding of equality, grounded in an understanding of the structural and systemic hierarchies of exclusion and subordination that had historically characterized Indian society, and the determination to remedy them. And the careers of the equality and non-discrimination clauses—their initial linking, then delinking with only the non-discrimination clause remaining under the sub-chapter of equality, and their final relinking in two separate Articles under the sub-chapter titled ‘Equality’ reflect, according to me, the triumph of Ambedkar’s and K.T. Shah’s exhortation to understand equality as non-discrimination, instead of the American classification approach to the concept.125
This reading is borne out by other provisions of the Constitution. While the Supreme Court has stopped at Articles 14, 15, and 16 as the Equality Code, that is not all that the Constitution has to say. Article 17, for instance, prohibits the practice of ‘untouchability’ in any form.126 Untouchability, the caste-based practice of exclusion and subordination that was at the heart of the discriminatory social order, was prohibited in a clause that was also placed within the sub-chapter ‘Rights of Equality’.
So was Article 18, which prohibits the taking of titles by Indian citizens, and was framed as a specific response to the British practice of rewarding loyalty by exalting some Indians above others.127 Both Articles 17 and 18 speak to specific historical situations of subordination, which the Constitution was attempting to remedy. And suddenly, it is Article 14’s overarching ‘classification test’ that seems the odd one out. Articles 15, 16, 17, and 18 are all aimed at the Constitution’s transformative purpose—as invoked by several members of the Constituent Assembly128—of doing away with the hierarchies of subordination and exclusion based on personal characteristics which characterized the pre-constitutional polity.
Nor did the work of the Drafting Committee, and Ambedkar and Shah’s visions of equality, spring from a vacuum. The Constitution’s Equality Code was the culmination of more than half a century of Indian theorizing about equality in the grammar and vocabulary of ‘rights’. In Samya, which we discussed in the previous chapter as perhaps the first important modern Indian political text on equality, Bankim Chandra Chattopadhyay organized his discussion not around an abstract principle of classification and formal equal treatment, but around three specific group-based sites of discrimination: caste, sex, and race/class (all of which finally found their way into Article 15[1]).129 In Bankim’s view, thinking about equality could not be divorced from social hierarchies that had been created on the basis of ‘artificial differences’ between individuals and groups. Instead, the core of his argument was structured upon the premise of inclusion: ‘There must be equality in access to rights. No one should be deprived from access to a right, even though that individual does not possess the strength.’130
Bankim’s understanding that a guarantee of equality must address questions of access to rights, i.e., questions of exclusion and inclusion, was reflected in the many constitutional documents composed during the early twentieth century on the long march towards Independence and the Constituent Assembly. The Congress party’s Karachi Resolution of 1931—a sustained and detailed attempt at an Indian Bill of Rights131—guaranteed that ‘all citizens are equal before the law, irrespective of religion, caste, creed or sex’,132 and followed it up immediately with ‘no disability attaches to any citizen by reason of his or her religion, caste, creed or sex, in regard to public employment, office of power or honour, and in the exercise of any trade or calling’.133A few years later, the famous 1935 Government of India Act eschewed the equal protection guarantee altogether, and limited itself to a non-discrimination/non-disability promise of access.134 And all of this must be understood in the context of decades of prior reflection and action, which did not speak the language of constitutions and rights, and might not be construed as political thinking in the way we understand it today, but nonetheless conceptualized equality in terms of anti-hierarchy. This conceptualization, in turn, was responding directly to a polity and society that was deeply stratified in terms of access to public goods and the right to full participation in the economic and social life of the community, primarily upon the grounds of caste and sex.135
It is therefore clear that the tradition the Constituent Assembly was tapping into was one that perceived equality before law as a question of non-discriminatory inclusion. However, questions might then be asked: if that was the case, why did Article 14 take the specific form that it did? Why did the framers borrow the specific language of the US Fourteenth Amendment if they did not wish it to be interpreted as the Fourteenth Amendment was? How did they wish it to be interpreted?
Any answer to these questions must be speculative but, based on the material outlined above, my answer would be this: the five ‘grounds’ of Article 15(1), viz., race, religion, caste, sex, and place of birth, were grounds that were known and salient in 1950 as sites of unjustified discrimination. The framers, however, were experienced individuals, who were surely aware that they had no eternal monopoly over wisdom. They were aware that new grounds might come into existence or, with new generations and new struggles, acquire a salience and a valence that they never had before.136 For this reason, they provided a closed list of grounds under Article 15(1) to deal with the present. And they also brought in the equal protection clause under Article 14 to leave courts to deal with the future on the basis of the principles underlying Article 15(1) (‘analogous groups’). Any other reading would have committed the Constitution to a completely rigid vision of non-discrimination, which would be entirely at odds not only with its structure, but also with the experiences of the men and women who drafted it. Justice Kennedy expressed this when he concluded his judgement in Lawrence v. Texas:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in
their own search for greater freedom.137
As Ronald Dworkin argues, the very fact that Bills of Rights are framed in abstract language implies that they lay down concepts (of equality, freedom, and so on), and not specific conceptions of how those concepts are to be applied in concrete situations.138 Interestingly, the framers of the Indian Constitution, when dealing with equality and non-discrimination, chose to take both paths: Article 14 embodied the concept (‘equal protection’), while Article 15 instantiated the conception (‘non-discrimination on five specific grounds’). This, I suggest, is because the framers recognized that there would be countless situations where the equal protection clause was attracted, but no question of discrimination against analogous groups arose. For these situations, what better standard than the tried and tested ‘classification’ standard?
This explains the final structure of the ‘Equality’ sub-chapter: within the overall theme of remedying structural subordination and disadvantage, the equal protection clause—with its US-inspired language, redolent of the classification test—had a stand-alone Article to itself. But at the same time, it did not enjoy an altogether separate existence (as it did when part of the ‘life and liberty’ clause in the ‘Right to Freedom’ sub-chapter). The understanding of Article 14 could not be segregated from the principles of non-discrimination underlying the rest of the sub-chapter. In this sense, the relationship between Articles 14 and 15 is better understood as being akin to the non-discrimination clauses of the Canadian and South African constitutions, which of course came much later. For instance, Section 15 of the Canadian Charter of Rights and Freedoms reads:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.139
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