The Doctrine Of “Manifest Arbitrariness” – A Critique

Eklavya Dwivedi does a critical analysis of the doctrine of ‘Manifest Arbitrariness’.

Introduction

Any act founded on prejudice or preference, rather than on reasons or facts, is arbitrary. ¹ Whenever both decision making process and the decision are based on irrelevant facts, while ignoring relevant considerations, such actions reflect“arbitrariness”. Arbitrariness can be defined as the quality of being arbitrary or uncontrolled in exercise of will ². Legislative enactments must be based on discernible principles and the impugned act must be reasonable in order to satisfy the test of “arbitrariness”. ³ Where the procedure of decision making is followed but reasons are not recorded, such actions fall under “arbitrariness”.⁴

As things stand post the judgement in ShayaraBano⁵ case, “manifest arbitrariness” would essentially be something done by the legislature “capriciously, irrationally and/or without adequate determining principles. Also something which is excessive or disproportionate.”

One may ask – What is the need to look into this doctrine ? The answer is fourfold :-

• a) There are no defined principles basis which this doctrine may be made applicable to examining the validity of laws under judicial review, especially plenary legislation
• b) The doctrine gives wide discretion to the Judge sitting in Judicial review, and permits value judgements to be made on wisdom of Parliament
• c) Various constitution benches have given conflicting opinions on the scope of “arbitrariness”
• d) There is a divergence in the view of the Supreme Court qua the scope and width of this doctrine, as can be seen from the judgements in ShayaraBanoand K.S. Puttaswamy (9-JJ) ⁶.

I. EVOLUTION OF ARBTRARINESS

In S.G. Jaisinghani v. Union of India⁷ , the question before the Supreme Court was whether under the Income Tax seniority rules, promotion by seniority by treating direct recruits and promotees differently was discriminatory. This case was on reasonableness of classification under subordinate legislation. The rules were held to be unreasonable and arbitrary and were struck down. It was observed that “absence of arbitrary power is the first essential of rule of law”.

Similarly, in State of Mysore v. S.R. Jayaram, (1968) 1 SCR 349,validity of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers' Rules, 1959 framed by Governor of Mysore in exercise of his powers under the proviso to Article 309 of the Constitution was challenged. Rule 9(2), which gave uncanalised power to the Government to appoint any particular candidate whom it considered to be suitable, was held to confer arbitrary power on the govt. and was struck down as being violative of Article 14 read with Article 16(1).

E.P. Royappa v. State of T.N., (1974) 4 SCC 3,is the seminal case wherein arbitrariness and its application to State action was developed as a distinct doctrine on which State action could be struck down as violative of rule of law contained in Article 14.Bhagwati, J., speaking for the majority, categorically laid down that along with unjustness and unfairness, arbitrariness is a distinct facet of Article 14. The three facets form independent anvils on which impugned State actions were to be tested when assailed on the touchstone of Article 14.

• “From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

The ruling in Royappawas followed in Maneka Gandhi ⁸ , wherein the validity of the Passports Act, Sections 10 (3) and 10 (5) in particular,was impugned. The petitioner had filed a writ petition challenging the action of the Government in impounding her passport and declining to give reasons for doing so.The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that Section 10(3)(c), insofar as it empowers the Passport Authority to impound a passport “in the interests of the general public” is violative of the equality clause contained in Article 14 of the Constitution, since the condition denoted by the words “in the interests of the general public” is vague and undefined and, thus, the power conferred by this provision is excessive and suffers from the vice of “over-breadth”.

Bhagwati, J. (fresh off the ruling in Royappa case), sought to further amplify the doctrine of arbitrariness. It would be apposite to reproduce the oft-quoted para :-

• “equality is antithetical to arbitrariness…… Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.”

As can be seen from the above para, the scope of“arbitrariness” was furtheramplified in its operation. Procedure established by law,in order to conform to Article 21 read with Article 14, would not only have to be “right, just, and fair” but also not arbitrary, fanciful oroppressive. And, thus, the seeds were sown for the tree of arbitrariness to grow in the sun light of Indian jurisprudence, and attain its full and (not so) proper growth.

These rulings were followed and affirmed in Ajay Hasia ⁹ and A.L. Karlra ¹⁰ .In Ajay Hasia (supra), the scope of this doctrine was further expanded to include all State actions, whether of the legislature, or executive or any other “authority”. Paragraph 16 from Ajay Hasia would not be amiss :-

• “It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality………….Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.”

It is important to bear in mind that up until now the doctrine was invoked only quasubordinate legislation and/or executive orders. Even the observations in Ajay Hasia, prima facie, seem to be obiter in nature as there was no pleading regarding application of this doctrine to plenary legislation.

Mithu v. State of Punjab ¹¹ and Sunil Batra v. Delhi Admn. ¹², were both cases where statutes were impugned and struck down/read down. These cases will be discussed at a later stage.

In K.R. Lakshmanan v. State of T.N. ¹³, a three Judge bench of this Court struck down a plenary legislation (Tamil Nadu Act, 1986) on the ground that it was arbitrary and, hence, violative of Article 14. The action of the State Govt., in so far as it declared horse racing as a ‘public purpose’, was found to be arbitrary and in contradiction with the object sought to be achieved by the 1974 Act (which had declared betting on horse racing as an illegal activity). It was held that “arbitrariness is writ large on the face of the provisions of 1986 Act”.

Close upon the heels of this judgement, a discordant note was struck in State of A.P. v/s McDowell & Co. ¹⁴ After considering the submissions of Shri Rohington Nariman (as he then was), Jeevan Reddy,J., observed that the power of Parliament or State legislature can be restricted in two ways. A legislation can be struck down on the grounds of :-

• - Lack of legislative competence
• - Violation of any of the fundamental rights in Part III of COI

Further, it was held that no enactment could be struck down only on the ground of arbitrariness.Some other constitutional infirmity has to be found along with arbitrariness in order to invalidate an enactment which has come through the parliamentary route. ¹⁵ Although the Bench stated that it was not going into the discussion of procedural unreasonableness and substantive due process, which are essentially American doctrines, it was observed that these concepts have proved to be rather controversial in US Courts as well - “The main criticism against substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting particular piece of legislation”. ¹⁶

II. The ShyaraBano case

In ShayaraBano v. Union of India ¹⁷, the Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, was assailed as being constitutionally invalid. Section 2 of the aforesaid Act specifically sanctioned Triple Talaq as a means for divorce. The question which arose for consideration before a constitution bench of this Court was whether the 1937 Act can be said to recognize and enforce Triple Talaq as a rule of law to be followed by the courts in India and, if not, whether NarasuAppa ¹⁸ case, which states that Personal Laws are outside the pale of Article 13(1) of the Constitution of India,lays down the correct position in law.

After perusing case laws on the various nuances pertaining to the issue under consideration, this Court by a narrow margin of 3 : 2, held that Triple Talaq is “manifestly arbitrary” in the sense that the marital tie can be broken “capriciously and whimsically” by a Muslim man without any attempt at reconciliation, which is against the fundamental tenets of the Shariat.

As for now, we are not concerned with the conclusions of the said case. What we are concerned with though, is the evolution of the doctrine of “manifest arbitrariness”. After tracing the history of “equality before law” and “equal protection of law”, Nariman, J., moved onto the evolution of the doctrine of arbitrariness in the context of Indian jurisprudence. Heavy reliance was placed on the judgements of this Court, which have been culled out in the preceding paragraphs. It is imperative to take note of Paragraph 84, wherein the learned Judge referred to Maneka Gandhi (supra) and R.C. Cooper ¹⁹, and observes thus :

• “Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2)-(6), as has been laid down in several judgements of this Court, therefore, there is no reason why arbitrariness cannot be used in aforesaid sense to strike down legislation under Article 14 as well”

It is important to note that Articles 19(2)-(6) expressly permit imposition of “reasonable restrictions”. The thread of reasonableness runs through the framework of Article 19. Thus. arbitrariness, which is antithetical to reasonableness, can be a check by itself when it comes to a challenge under Article 19, but it ought not be the sole criteria for invalidating an enactment under Article 14.

Emphasis was also placed on Mithu v. State of Punjab ²⁰and Sunil Batra v. Delhi Admn. ²¹[both constitution benches], wherein statutes were struck/read down as being arbitrary and unreasonable. Pertinently, Mithu was the first case in which a statutory law was challenged on the anvil of arbitrariness. It is imperative to note that in Mithu, arbitrariness, unreasonableness and oppressiveness were attributed to the statute qua Article 21 and not Article 14 alone. Similarly, in Sunil Batra, the question before this Court revolved around procedural unfairness of the statute qua Article 21. Therefore, these cases cannot be said to have turnedonly upon the arbitrary nature of statute in order to strike it down. Although Article14 was referred to in the context of constitutional validity of statutory law, it was not the sole factor which led to the falling of guillotine.

Nariman, J., then proceeded to examine the McDowell case. According to the learned Judge, the dicta of McDowell, which laid down that arbitrariness cannot be the sole ground on which an act of Parliament can be struck down, was not good law as it did not follow the ratio of AjayHasia, Lakshamanan , Mithu (supra). This view may not be correct, as will be shown below.

In Ashoka Kumar Thakur v. UOI ²², a constitution bench of this Court held that a legislation cannot be challenged only on the ground of unreasonableness. The relevant part is reproduced as under :-

• “219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and thevalidity of plenary legislation have to be decided purely as questions of constitutional law.”

K.T. Plantation (P) Ltd. v. State of Karnataka ²³, is yet another constitution bench judgement of this Court, wherein reliance was placed on McDowell to hold that arbitrariness or unreasonableness cannot be the sole criteria to invalidate an Act. It was further held that “plea of unreasonableness, arbitrariness, proportionality, etc. always raises an element of subjectivity on which a court should not strike down a statute, otherwise the court will be substituting its wisdom to that of the legislature”.

Natural Resources case ²⁴ was also been considered, wherein another constitution bench of this Court placed reliance on McDowell to hold :-

• “107. From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell case has said.”

In spite of referring to all these cases and taking note of the fact that not one but three constitution benches of this Court aligned themselves with the views expressed in McDowell, Nariman, J., held McDowell to be per incurium and, finally, in paragraph 101, proceeded to hold that the test of “manifest arbitrariness” may be resorted to in order to invalidate an Act. Further, it was held that since subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation, there exists no rational distinction between the two when it comes to an attack based on Article 14, andthus, the doctrine of “manifest arbitrariness” may be applied to invalidate both plenary and subordinate legislation.

III. K.S. Puttaswamy and the Dilution of “Manifest Arbitrariness”

In K.S. Puttaswamy case, nine Judges of this Court assembled to determine whether privacy is a constitutionally protected value. The issue therein reached out to the foundation of a constitutional culture based on the protection of human rights and enabled this Court to revisit the basic principles on which our Constitution has been founded and their consequences for a way of life it seeks to protect.

As we are not concerned with the aspect “informational privacy”, it would be prudent to straight away dilate on the principles of judicial review, as laid down in the majority judgement.

Chandrachud, J., speaking for himself and three other Judges, dealt with the submissions of the Respondent qua “substantive due process”. It was observed that the history surrounding the drafting of Article 21 indicates a conscious omission by the Framers of the expression “due process of law”. ²⁵

It is pertinent to refer to Dr. Ambedkar’s speech in the Constituent Assemble in this regard. Dr. Ambedkar was against the idea of giving the judiciary the power to sit in judgment over the wisdom of the legislature. Although he was vacillating between the two streams of thought prevailing at that point in time, he ultimately thought it best to leave this decision to the will of the House. ²⁶ Ultimately, the amendments proposed by some members to reintroduce “due process” were rejected on 13-12-1948, and the phrase “due process of law” was deleted from the original draft Constitution.

Chandrachud, J., then proceeded to examineManeka Gandhi, Sunil Batra and Mithu, Mohd. Arif, R.C. Cooper (supra), but arrived at a divergent view from that taken in ShayaraBano. The learned Judge observed that in Mithu,while the Court did not use the expression “substantive due process” it recognised that a law would be amenable to challenge under Article 21 not only on the ground that the procedure which it prescribes is not fair, just and reasonable but, also, on the touchstone of having imposed a penalty which is “savage” or, as the Court held, an anathema of civilised jurisprudence.

Having dilated upon the ratios of the afore stated judgements, the learned Judge then proceeded to make reference to Rajbala V. State of Haryana ²⁷, wherein a bench of two judges struck a note of caution by observing that in light of McDowell case, it would inappropriate to incorporate notions of substantive due process while examining the constitutionality of Indian legislation.

Chandrachud. J., further observed that there exists a ‘heavy’ presumption of constitutionality in favour of legislation enacted by the legislature. It is trite that the legislature best understands the needs of society ²⁸ and would not readily be assumed to transgress constitutional limitations qua Part III. This stance would also be in line with the doctrine of separation of powers which requires the court to give deference to the will of the legislature, whose duty it is to frame laws, and to the executive whose duty it is to enforce those laws. This also best reflects the true essence of democracy, where the decision of the chosen representatives of the people are not second guessed by the judiciary.

In the above context, reliance was placed on the decision of a constitution bench judgement of this Court in V.G. Row ²⁹, which is a locus classicus on reasonableness of State Action. In paragraph 15 of this judgement, this Court held that while testing the reasonableness of the statute impugned no “abstract standard or general pattern” of reasonableness can be laid down as applicable to all cases, and the courts should refrain from value judgements when sitting in judicial review.

• “The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit of their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.”

Thus, placing the aforestated observations in juxtaposition, it would be clear that the learned Judge was of the opinion that the threshold for striking down plenary legislation ought to be much higher than subordinate legislation. ³⁰ It would be inappropriate to make use of “substantive due process” to examine the validity of a law. This position is further reinforced by paragraph 296, 310 of the judgement, as under :

• “296. The danger of construing this as an exercise of “substantive due process” is that it results in the incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial interpretation. Particularly having regard to the constitutional history surrounding the deletion of that phrase in our Constitution, it would be inappropriate to equate the jurisdiction of a constitutional court in India to entertain a substantive challenge to the validity of a law with the exercise of substantive due process under the US Constitution. Reference to substantive due process in some of the judgments is essentially a reference to a substantive challenge to the validity of a law on the ground that its substantive (as distinct from procedural) provisions violate the Constitution.


• 310. ….The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial review does not reappreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”

IV. Concluding Remarks

In my opinion, the judgement in Puttaswamyhas effectively neutered the doctrine of “substantive due process”.Since it is no longer permissible to look into the core of the legislation in order to examine its validity, the scope and width of doctrine of “manifest arbitrariness” has been tailored as well. The threshold for invalidating plenary legislation has been set much higher than subordinate legislation or executive actions, and until and unless an Act which shocks the conscience of the courts or is patently illegal or perverse, the courts should give due deference to the will of the legislature.

Judicial restraint should be the guiding light in testing the validity of plenary legislation. The wisdom of Parliament or State Legislatures ought not to be substituted by the judiciary. In this regard, the profound statement of Justice Frankfurter ³¹ is apposite to reproduce:

• “For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians—those impersonal convictions that make a society a civilized community, and not the victims of personal rule.”

In light of the conflicting views expressed in various constitution bench judgements on the applicability of arbitrariness as a ground to invalidate legislation, and reliance placed on the doctrine by counsels whilst impugning State actionsad nauseum, it is of imminent need that a larger bench of this Court resolves this conflict.