Some thoughts on Article 14 Post-DSPE

Previously on this blog, Manish has criticised the Supreme Court’s opinion in Subramanian Swamy v. CBI, which was handed down earlier this month (I have done the same here). To recap: S. 6A of the Delhi Police Special Establishment Act (“DSPE”) required governmental sanction for investigation of offences under the Prevention of Corruption Act, in case the allegations concerned senior government officials (Joint Secretary or above). The Court struck down this provision on Article 14 grounds, holding that different rules for different classes of officials with respect to investigating corruption were unconstitutional, but – as I’ve tried to demonstrate – got its reasoning hopelessly entangled. The case, however, provides us with an opportunity to reflect upon the current state of Article 14 jurisprudence.

One particularly worrying trend – exemplified in the DSPE case – is the increasing reliance that the Court is placing on the “legitimate state interest” prong of its Article 14 analysis. Traditionally, Article 14 scrutiny of governmental classification consisted of two prongs: an intelligible differentia between the classes that the challenged law had created, and a rational nexus with a governmental purpose. In cases like the Delhi High Court’s Naz Foundation judgment, and now in DSPE, the Court has also required that the State purpose itself be legitimate, and this requirement has played a pivotal role in the outcomes of these cases.

This, however, is extremely problematic. Who judges whether a State purpose is legitimate or not? Traditionally, the Court has the power to strike down laws enacted by a democratically elected legislature under two circumstances: first, if the legislature lacks the competence to pass that law (for example, if it is a State legislature passing a law upon a central subject, like defence); and secondly, if the law violates a fundamental right. In other words, the touchstone for legal legitimacy is the Constitution itself – which lays down rules of competence, and enshrines fundamental rights. As long as those two requirements are satisfied, it is not for the Court to examine the merits of the law, its wisdom or its desirability, or its efficiency – that is within the domain of the parliament, and the remedy for bad laws lies at the ballot box. Lack of competence and violation of fundamental rights, however, are independent grounds for striking down legislation – so on what basis then is the Court creating this extra criterion of legitimate state purpose, which is neither related to competence nor to fundamental rights, as part of its Article 14 analysis?

It is easy to see why the Court feels the need to bring in this analytical construct: a traditional Article 14 enquiry is very easy to satisfy. In most cases, the government will be able to construct some purpose that can bear a rational connection with the classification (in the DSPE case, for instance, the government’s stated purpose was administrative efficiency). Consequently, the legitimate purpose prong is one way for the Court to ensure that Article 14 doesn’t become almost entirely toothless. Yet this is not the right way to go about things, because it essentially transforms the Courts into super-legislatures, passing judgment on the “legitimacy” of laws, based upon standards of its own creation.

There is, however, another ways in which Article 14 can be given some bite. The first is to create a tiered structure of scrutiny, based on the model adopted by the United States Supreme Court. In the US, equal protection violations are judged on three levels: rational review, intermediate scrutiny and strict scrutiny. Rational review – like a standard Article 14 analysis – requires only a “rational connection” between the classification and the purpose. In certain cases, however, which involve “fundamental rights” (for example, if the classification is based on race), the Court requires the government to show a compelling interest, and also that the challenged legislation is the narrowest method of achieving that interest (strict scrutiny has been used to strike down affirmative action policies). Government almost never succeeds under this standard. In between rational review and strict scrutiny, there is “intermediate scrutiny”, which the Court uses in its sex-discrimination cases. Intermediate scrutiny requires the government to show a substantial interest (in between compelling and any interest), and a reasonable connection (in between rational and narrowly tailored) between the law and the purpose. The government’s success rate, unsurprisingly, lies somewhere in between rational review (almost always successful) and strict scrutiny (almost never successful).

The key question, of course, is to determine which tier of scrutiny will apply to which set of cases. Judgments of institutional competence and the gravity of the interests involved play a part in this determination, which is ultimately the task of the judiciary. For instance, adjudication upon the merits of economic policy will – given concerns of institutional competence – necessarily involve the weakest form of review (rational review). The DSPE case, however, involved setting up two different legal procedures for different classes of persons, involving fundamental rule of law concerns (as the Court itself acknowledged). Given that the classification raised rule of law concerns, there is a clear argument in favour of ratcheting up the level of scrutiny to intermediate or strict. Under intermediate scrutiny, for example, the Court would have required the government to come up with evidence to demonstrate that administrative efficiency was actually served by the classification in question (as opposed to taking the government’s claims on face value, as it would do in a rational review case).

This leads us to another important point: tiers of scrutiny also involve questions of burdens and standards of proof. Under rational review standards, the Court will not itself look into whether the government has shown beyond doubt that is classification actually serves its stated purpose. As we move up the levels, however, given the importance of the interests involved, the government has a heavier burden of making such a demonstration to the satisfaction of the Court. The basic idea here is to prevent the government from invoking legislative purposes as a colourable method for screening otherwise illegitimate classifications. So, for example, in the DSPE case, the idea behind requiring the government to show – by evidence – that there is a connection between its classification and administrative efficiency, is to prevent the efficiency argument from acting as a screen, shielding corrupt high officials from investigation.

The tiered scrutiny framework does away with the problems of the legitimate-purpose enquiry. Of course, a full version of the argument will need to be developed, over time, by the judiciary. The present state of the law, however, is untenable: “legitimate purpose” is an entirely free-floating concept that will, in the end, become a plaything of individual judges. Tiered scrutiny, I suggest, is one coherent method by which to bring a degree of order to Article 14, while performing the same function that legitimate purpose does – prevent the government from doing an end run around its constitutional obligations by coming up with false or colourable purposes.


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Filed under Article 14, Equality

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