Arbitrariness, subordination and unequal citizenship

The equality provisions of the Indian Constitution proscribe legislation that is arbitrary and, this paper argues, legislation that subordinates. The tests for arbitrariness and subordination are currently unclear. The author of this paper articulates a test for arbitrariness, making sense of the doctrine of manifest arbitrariness under Article 14, using philosophical literature on arbitrary decision-making. The author similarly articulates a test for the anti-subordination principle inherent in the equality provisions of the Constitution. The author of the paper then demonstrates how the Citizenship (Amendment) Act 2019 is unconstitutional when measured against these tests. The author demonstrates why, contrary to common assumption, the Act implicates Article 15, as well as Article 14, of the Constitution.

Farrah Ahmed, Arbitrariness, subordination and unequal citizenship, Indian Law Review, 2020.