RETHINKING ARBITRARINESS – A CONSTITUTIONAL OVERVIEW

This article was written by Hiteshi Agarwal, a student of SS Jain Subodh Law College.

INTRODUCTION

Indian constitutional law has an ambivalent non-arbitrariness connection. It has been a popular doctrine among lawyers and academicians. The thread of reasonableness runs through the entire Constitution and anything unreasonable will be arbitrary. The generic meaning of the word ‘arbitrary’ is random choice or personal whim without any reason and justification. The state action must be equal (be it legislative, executive or administrative) it must not be based on personal whim or caprice rather it must be based on reason and system

TEST OF REASONABLE CLASSIFICATION AND NON ARBITRARINESS

Beginning with, arbitrariness originates from the equality doctrine under Article 14. Article 14 mandates equality before law and equal protection of law. It prohibits class legislation but permits reasonable classification of persons or things. The test of reasonable classification has been used from time immemorial by the Apex Court for testing the Constitutional vires of the legislations and State actions impugned on the basis of being violative of Article 14. The classic nexus test was laid down by SR. Das J. in Anwar Ali Sarkar[1] as:

In order to pass the permissible classification test two conditions must be fulfilled viz. (i) the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from those that are left out of the group. (ii) the differentia must have rational nexus to the object sought to be achieved by the legislation. The differentia which is the basis of classification and object of Act are distinct but there must be rational nexus between them.

A fresh dimension of equality has been discovered based on non-arbitrariness in E.P. Royyappa case[2], Bhagwati .J. stated “Equality is antithetic to arbitrariness and is a dynamic concept with many aspects it cannot be cribbed, cabined or confined within the doctrinaire limits.  Where an act is arbitrary, it is implicit in it that it is unequal both according constitutional law and political logic and is therefore violative of Article 14.” On the basis of this new activist theory of equality few decisions[3] were taken by Supreme Court which were subsequently approved by the Supreme Court in Ajay Hasia v. Khalid Mujib[4] reiterating that “Equality is a dynamic concept with many aspects it cannot be confined to traditional and doctrinaire limits” In Maneka Gandhi’s case it was established that Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The following jurisprudence established the new doctrine that ‘Article 14 strikes at arbitrariness’. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. However the new doctrine has its own critics[5]. H.M. Seervai remarked that “the new doctrine hangs in air because it propounds a theory of equality without reference to the terms in which Article 14 confers right to equality.” Jagdish Swaroop objected to the doctrine in the following words; it fails to lay down any determining principle to find out whether the state action is arbitrary or not.

A discordant note strucked against the doctrine in the Mcdowell[6] and Rajbala[7] case that laws cannot be struck down on account of arbitrariness. It has been argued that the doctrine is a extra constitutional doctrine. The judiciary while examining the validity of a state action under Article 14 must examine whether the classification made was justified and had nexus to the object of the Act any further enquiry would trench upon the matters of the Legislature. Seervai remarked that the fundamental difficulty with the new doctrine is that it virtually redefines and replaces the right of equality as a right against arbitrariness. The proposition that equality is antithetical to arbitrariness should be understood in its proper context. The antithesis of equality is discrimination and it is in this sense that ‘arbitrary’ needs to be understood. It was proposed that it would be futile to apply the doctrine of arbitrariness to strike down legislations as it is surrounded by vagueness and must only test the validity of delegated legislation. Despite such observations, arbitrariness was used as a ground for striking down legislation in Mardia Chemicals[8] and Subramanian Swami[9].

RECENT APPLICATION OF THE DOCTRINE OF ARBITRARINESS

Triple talaq[10] was ruled out as unconstitutional by a majority of 3:2 on the pretext that manifest arbitrariness can be a ground for striking down law.

Justice DY. Chandrachud penned down a dissenting judgment[11] against the majority opinion in the Aadhar verdict holding it to be negation of the privacy rights of the individuals and the  law which enables the executive to intrude in the privacy rights of the individuals as arbitrary.

CONCLUSION

The detachment from arbitrariness of the rational classification test has created significant confusion. It is now commonly thought that two separate, mutually exclusive lines of inquiry can be taken under Article 14 in any challenge to state action. The decision, it appears, is between the fresh arbitrary doctrine and the ancient classification doctrine. This difference overlooks the intersection region between the two tests.  In the traditional test, which is obviously borne out by Supreme Court judgments, Seervai’s statement ignored the rationality element. Consider, for instance, the following paragraph in Charanjit Lal Chowdhury v. Union of India [12] probably the first case on the point: “The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary.” The normative anchor of Art.14 is the presumption that people are fundamentally equal. Where the validity of state action is in question, judicial review of state action must focus on the reasons for such deviation. In other words, the Court is entitled to conduct a review of suitable intensity of reasons of selection of particular class. The Court must confine itself to the reasons for the deviation and not circumscribe it within the doctrinaire limits of any of the two doctrines. Hence, I am not of the view that the two doctrines are similar in scope but they somehow overlap each other. The guarantee of equality as is clear from the above is not exhausted by a mere declaration of the validity of the classification. Under Art.14 an action whether executive or administrative  must be non-arbitrary.

[1] State of W.B. v. Anwar Ali Sarkar 1952

[2] E.P. Royyapaa v. State of T.N. (1974) 4 SCC 3, 38

[3] Maneka Gandhi v. UOI (1978) 1 SCC 248, Ramana Dayaram Shetty v. Airport Authority 1979 3 SCC 489

[4] (1981) 1 SCC 722

[5] H.M. Seervai, Advocate General of Maharashtra (1957-1974), Jagdish Swaroop Ex Solicitor General of India  in their Commentaries on Indian Constitution

[6] State of AP. v. Mcdowell 1996 SCC (3) 709

[7] Rajbala v. State of Haryana Writ Petition (C) No. 671 OF 2015

[8] Mardia Chemicals v. UOI (2004) 4 SCC 311

[9] Subramanian Swami v. Director CBI

[10] Shayara Bano v. UOI & Ors. Writ Petition (C) No. 118 of 2016

[11] Justice KS Putuswamy (Retd.) v. UOI Writ Petition (C) No .494 OF 2012

[12] 1950 SCR 869.