FUNDAMENTALISTS AND FUNDAMENTAL RIGHTS

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Question:
Is the State right in demolishing Kangana Ranaut’s office when there also exist thousands of other illegal constructions in Mumbai?
 
Counter question:
Is a thief, who had been targeted by the State, justified in decrying his arrest because thousands of other thieves are running about scot free?
 
Both questions pertain to the singling-out of an individual or group. On the face of it, they tread upon the sanctity of Article 14 of the Constitution (wherein we are assured of equality before law and equal protection of law within the territory of India.)
 
How, one may ask, does the State manage to target (or favour) an individual (or group) under the glare of Article 14? The answer is ‘policy’. Since the State has limited – and not infinite – resources, how it chooses to deploy those resources depends upon ‘policy’ ,i.e., a chart of priorities & execution plans pursuant to an objective.
 
So, can policy be arbitrary? No it cannot. Established case law dictates that when any criterion(‘differentia’, in legal jargon) is applied to policy in order to single out an individual or group, it has to fulfil two conditions:

1. The differentia has to be ‘intelligible’ (One cannot say all ‘big’ illegal construction will be demolished. One needs to specify what ‘big’ means i.e. how many square feet).
2. There needs to be a rational nexus between the objective of the policy and the differentia (One cannot say houses belonging to ‘tall’ people will be demolished. Tallness has no rational connection with the objective sought to be achieved).

 
Then why, the question arises, is ‘policy’ usually not subjected to the said legal constraints of differentia? Simple. Depending upon the objective a policy seeks to achieve, its priorities and execution-plans are usually nebulous and branched out. Consider for example a policy for the objective of apprehending of outlaws. Here, the social dividend derived from nabbing a particular thief may be more than that which results from nabbing a murderer. Also, available resources may be more amenable to the targeting of a particular thief vis-à-vis another. And so on. It’s obvious that this nebulousness prevents the ascertaining of a clear cut differentia. This, in turn, allows for arbitrariness in State action.
 
Thankfully, not all objectives have nebulousness and branches built into them. For example, the objective of demolishing unauthorised construction is absolutely amenable to a branch-free and non-nebulous policy. It hence demands for the rigour of a lawful differentia.  
 
Of course, it’s us who need to raise that demand.