'Who is Equal': A unique look at equality and its legal complexities

Who is Equal: The equality code of the constitution  Author: Saurabh Kirpal  Publisher: Penguin Vintage  Pages: 273  Price: Rs 699  “Most of us react angrily if we feel we are being treated unequally. While the rhetoric of equality is often used as a mere slogan by politicians, most people intuitively feel that it captures something truly important about the human essence. Forget academic debates concerning the distribution of government benefits and historic patterns of inequality, even very young children will reject the idea of being treated unequally. Thus equality seems to capture something unique, almost primeval, about us as persons”. 

With these words, Saurabh Kirpal, a senior Supreme Court lawyer, sums up the results of a research study carried out on employees of corporations in California in regard to equality in Who is Equal: The equality code of the constitution, a wonderfully unusual book on an aspect of law that concerns us at a basic humanitarian level but is often buried in technicalities and polemics. Writing deftly and in an easy style, he takes the reader through a philosophical and jurisprudential understanding of equality as a concept and thence, through its historical progress and judicial handling in Indian law

and society. 

At the base of the book is the author’s contention that “there are multiple and often competing visions of what it means to be equal and how best to achieve that goal”. As he writes, “When we look around and ask, who is equal, the short answer is not very many.” Expounding on the complexities of the concept he points out that a “Dalit or a woman, may suffer discrimination at the workplace, but their experiences would not be identical. The experience of a Dalit woman would also be distinctive because it’s an amalgamation of the two axes of discrimination”. 

Introducing us to the ideas and philosophical thinking behind the concept, he moves on to the practicalities of how our society attempts to achieve varying concepts of equality via law. He takes us from the originally narrow interpretations of Article 14 (which sets out our fundamental right to equality), using the classification test that allows the state to classify individuals into different groups for specific purposes, as long as the classification is rational, based on intelligible differentia, and has a rational nexus with the object sought to be achieved by the law. 

This expanded over time through judicial interpretations to add “manifest arbitrariness” as a test for Article 14. After familiarising the reader with the development of these tests and how they impacted or were used in various cases, he presents a situation where in October 2023 the Supreme Court randomly chose the classification test in deciding that the Special Marriage Act is not discriminatory by not including queer couples. As the author, who is also an LGBTQ rights activist, muses, they could just as well have chosen the test of manifest arbitrariness, and wonders, “perhaps this is what happens when faced with a bewildering array of possibly conflicting precedent”. 

On forms of discrimination in education, employment, disabilities, caste, religion, marriage and so on, the author takes us nimbly through the historical backgrounds, the decision making of the Constituent Assembly and its members, as well as the progress in case law (along with inconsistencies in judicial decisions). We are shown how we moved from the decision of a judge in an early post-Independence case where his sensibilities were such that, “the fact that system was so rigged that no member of the scheduled castes would have qualified, but for the reservation, did not occur to the learned judge” to a more empathetic understanding of “substantive equality” that are seen in later judgments such as in the N M Thomas case (1976), which addressed the constitutionality of reservations in government jobs. 

An interesting comparison was the judgment of the Supreme Court in T M A Pai Foundation (2002), which contains elements of “substantive equality” with the US Supreme Court’s majority decision banning quotas or racial communities on the basis of race in public or private educational institutions. The minority judgments of Justice Ketanji Brown-Jackson and Justice Sonia Sotomayor are highlighted, where Justice Sotomayer wrote that the majority opinion “cements a superficial rule of colour blindness as a constitutional principle in an endemically segregated society”. As the author points out, “rather than focusing on the rights of the educational institutions, the US Supreme Court focused on the rights of the excluded candidate”. 

Mr Kirpal suggests moving on beyond only reservation as a sole solution to issues of discrimination and proposes more and better anti-discrimination legislation. As he writes, “A comprehensive anti-discrimination law ought to examine ‘disadvantage’ as a systemic organising principle”. 

The book takes us through issues of equality in other spheres of life as well, such as the courts dealing with the rights of businesses and issues of maintaining equality in the democratic process. Towards this, he examines aspects such as the pros and cons of the first-past-the-post system or proportional representation and how constituency mapping can create inequalities. 

Popular histories are currently in demand. Here is a book that does with law what some of our better writer-historians have done to make history more accessible. The author has put together a cross-section of material containing complex ideas, historical information and critical analyses of case law with a delightfully light hand, erudition, empathy and even an occasional splash of humour.  The reviewer is a lawyer practising in Delhi