Abstract
India and South Africa emerged from the histories of institutionalised exclusion and British colonialism, however their constitutional responses to equality show different architectural choices. While Article 14 of the Indian Constitution guarantees equality before law, Section 9 of the South Africa’s constitution takes a step further by mandating restitutionary corrective measures to remedy historical discrimination. India’s journey toward substantive equality has mostly been judiciary driven from Justice Bhagwati’s declaration in E.P. Royappa v. State of Tamil Nadu to Justice Chandrachud’s opinion in Navtej Singh Johar. In contrast South Africa’s constitutional court from the very outset settled that remedial measures aren’t exceptions to the right to equality but rather they are an essential part of achieving equality in true sense under Section 9 of the African Constitution. The article argues that India’s substantive equality jurisprudence despite being progressive remains structurally vulnerable owing to its dependence on courts rather than explicit constitutional mandates. As a result courts can narrow these protections in future, a gap that South Africa’s Section 9 forecloses by original mandate.
Introduction
The constitutional promise of equality becomes difficult to operationalise particularly in the societies where centuries of institutionalised exclusion rendered equality as a legal fiction. India and South Africa present two nations having instructive post-colonial experiments in constitutional equality as both nations emerged social hierarchies. While both commit to equality as a foundational constitutional value, yet both have diverging mechanisms to deliver the promise of equality. This divergence became important in India after the 103rd constitutional amendment and reignited debates about the limits of Article 14. Justice Ravindra Bhat in his dissent in Janhit Abhiyan v. Union of India warned that excluding the sections of society for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution. In South Africa persistent post-apartheid inequality similarly tested whether the Section9’s restitutionary mandate results in real transformation or if it remains an aspirational text .Against this backdrop the article analyses whether the interpretations of Article 14 of the Indian Constitution and Section 9 of the South African Constitution provide substantive equality through comparable mechanisms or is it an architectural difference between the two constitution provisions .This difference is depicted in Minister of Finance v. Van Heerden, where Justice Moseneke held that remedial measures aren’t a derogation from, but a substantive and composite part of, equality protection envisaged by the provisions of section 9 and the Constitution as a whole, a constitutional position which isn’t adopted in Indian constitutional text. The article argues that India’s substantive equality jurisprudence while progressive remains vulnerable owing to its dependence on judiciary rather than constitutional design. However, South Africa’s Section 9 embeds equality as a constitutional mandate. The article examines evolution of article 14 through judicial decisions from the classification test through the anti-arbitrariness doctrine of E.P. Royappa to the substantive equality framework of Navtej Singh Johar. It focuses on Section 9’s architecture and the Constitutional Court’s restitutionary equality doctrine as developed in Van Heerden.
From Classification to Substantive Equality
Article 14’s journey towards substantive equality has been judge driven. The doctrine of reasonable classification is only a subsidiary rule evolved by courts to give a practical content to Article 14 with the judiciary constructing substantive equality via litigation rather than constitutional text.
The earliest doctrinal framework of reasonable classification test required state created distinctions based on intelligible differentia and a rational nexus to the legislative object as held by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar. However this approach focused on preventing arbitrary classifications and overlooked groups which were historically or structurally disadvantaged. The foundational shift came in E.P. Royappa v. State of Tamil Nadu where justice Bhagwati declared that “equality is a dynamic concept with many aspects and dimensions and it can’t be ‘cribbed and confined within doctrinaire limits. She mentioned that equality and arbitrariness are sworn enemies where one belongs to the rule of law and the author to an absolute monarch. This reformulation was significant as the courts moved beyond locating whether the government created a reasonable classification and shifted judicial scrutiny from state created categories to quality of the state’s reasoning to create the categories. However, this doctrine focused on arbitrary state action and didn’t address the deeper social inequalities of caste, gender etc.
Further one of the most explicit articulations of equality under Article 14 was depicted in Navtej Singh Johar v. Union of India, where Justice Chandrachud held that Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built and reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence. However, this formulation remained individual focused as it farmed equality as an individual right rather than addressing structural group disadvantages. This shows the ceiling of the judge created substantive equality in India. While this had a progressive ambition it limited structural reach of equality as it depended on judicial composition.
Section 9 and Substantive Equality
The idea of equality under Section 9 of the South African Constitution inscribed in the design of the constitution. Section 9 (2) of the constitution mandates that legislative and other measures designed to protect or advance persons, or categories of persons, are disadvantaged by unfair discrimination. This shows that Section 9 does not envisage a negative concept of equality but rather requires a mandate to constitutionally redress past disadvantages which India’s Article 14 never adopted in its text. Further Section 9(3) provides nineteen prohibited grounds of discrimination. Thus Section 9(2) and 9(3) together creates a self-executing equality framework. In Minister of Finance v. Van Heerden, the court held that remedial or affirmative measures meant to help historically disadvantaged groups aren’t in violation of the right of equality but rather form an essential part of it. This holding resolved a question which remains contentious in India – whether affirmative measures themselves be challenged as violations of the equality right? By answering this question in negative, the court held that remedial measures are expressions of equality. Thus, transforming Section 9 from a shield into a mandate for structural transformation.
Judicial Dependence versus Constitutional Mandate
The comparison between Article 14 and Section 9 highlights a significant divergence in constitutional philosophy. While one model treats substantive equality as dependent on the judiciary the other one treats it as a mandatory constitutional command. The Indian framework shows two structural disadvantages over the south African. Firstly Article 14 ‘s substantive content remains dependent on judicial interpretation. Thus, its interpretation can be narrowed by a future bench as seen in Janhit Abhiyan where a single bench separated progressive equality from regressive formalism. Secondly the idea of equality remains predominantly individual-focused where equality focuses on addressing fair treatment of the person rather than focusing on eliminating group based systemic disadvantage experienced collectively.
In contrast in the South African constitutional framework redresses disadvantage, addresses stigma, enhances participation and accommodates difference. This four-dimensional framework that South African Constitutional Court has operationalised through Section 9 in ways Indian courts haven’t replicated under Article 14. While India has made significant progress in readdressing disadvantages via several provisions including reservations. However, it struggling to incorporate the remaining dimensions unlike South Africa. This divergence is of constitutional structure as India rely on judges to build the idea of equality, however South Africa provides its judges a blueprint.
Conclusion
The comparative analysis reveals a constitutional question of whether constitutional equality is better secured through judiciary’s verdict or original constitutional design itself. India’s stance of judicial construction comes with a cost as highlighted in Jane Kaushik v. Union of India. In this case even when the Indian Supreme Court wanted to adopt a substantive equality framework, it shies away and limited itself to administrative directions without embedding redistributive measures that could recalibrate social identity. This shows the failure of constitutional architecture. When substantive equality isn’t mentioned in the constitutional design courts cannot be compelled for structural redistribution but rather their roles remain confined to recommend it. Thus, the gap which Article 14 promises and delivers is within constitutional design. Section 9 of South Africa’s constitution closes this gap by incorporating enactment, a long-term project, committed to transform country’s political and social institutions and power relationships in a democratic and egalitarian direction. However, it also shows that a transformative constitutional text alone does not guarantee equality in reality. Persistent post-apartheid inequality shows that Section 9’s mandate isn’t sufficient for substantive equality. Thus, while India needs to incorporate ideas from South Africa’s constitution, South Africa needs to prove that it delivers the constitutional promise in reality.
About the author: Shreya Maheshwari is a second-year B.COM LLB student at O.P Jindal Global University. She is interested in law and public policy.
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