Arbitrariness, subordination and unequal citizenship. Issue 2 (3rd May 2020) - Ahmed, Farrah
ABSTRACT: 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. 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 paper similarly articulates a test for the anti-subordination principle inherent in the equality provisions of the Constitution. The paper then demonstrates how the Citizenship (Amendment) Act 2019 is unconstitutional when measured against these tests. The paper demonstrates why, contrary to common assumption, the Act implicates Article 15, as well as Article 14, of the Constitution.