The Doctrine of Manifest Arbitrariness, to invalidate plenary legislation, has evoked mixed reactions. If there have been acerbic critics, there have been astute fans, too. Three judges in Shayara Bano (Shayara) held that the doctrine would apply to invalidate legislation as well, under Article 14. If something was done capriciously, irrationally, without adequate determining principle, excessively and disproportionately, why cannot it be struck down as manifestly arbitrary, they asked.
Can the legislative wisdom be substituted? Are critics right when they say that the principle itself, if applied to plenary law would be arbitrary? Has not the judgment in Mcdowell, subsequently applied, in several cases, expressly rejected this approach?
History shows that all new concepts had faced resistance. Public Policy, which today finds statutory recognition, was called an unruly horse; Negligence and Natural Justice were not well received initially. Closer home, even the Doctrine of Basic Structure was not spared, leave alone Constitutional Morality. Lord Reid’s memorable words “That just because something cannot be cut and dried or nicely weighed and measured, it cannot be held not to exist”, rang in memory.
Justice Nariman (for himself and Justice Lalit), after finding that Triple Talaq was not part of Article 25(1), examined whether the Muslim Personal Law (Shariat) Application Act, 1937 , in so far as it sought to recognise and enforce Triple Talaq, was in violation of any fundamental right. They ultimately found so, since Triple Talaq was instant and irrevocable, with no scope for examining any possible reconciliation and could also be exercised without reasonable cause. Consequently, that form of Talaq was held to be manifestly arbitrary, since marital ties could be broken capriciously and whimsically. Justice Kurian Joseph endorsed the principle of manifest arbitrariness to invalidate legislation.
For the Shayara bench, Mcdowell’s case was a major roadblock. Mcdowell, had categorically held that:- no legislation could be struck down as arbitrary; that lack of legislative competence and violation of fundamental rights or any other constitutional right were the only grounds; that a court cannot sit in judgment over the legislative wisdom; that substantive due process has not been accepted in India; that Mithu was predominantly an Article 21 case, with Article 14 being an additional ground; that representatives of the people are supposed to know and be aware of the needs of the people ; that proportionality as a doctrine was a debatable issue even in administrative law and that it was one thing to say that a restriction imposed upon the fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Repeating the passage in Mcdowell a whole host of cases, including a bench of five judges had laid down that arbitrariness as a ground to strike down legislation was not available.
The majority in Shayara , closely examined Mcdowell. For a start, they said that even before Royappa, there had been appeals to the brooding spirit of the law to the effect that Article 14 is not just about classification. That eternal dissenter, Chief Justice Subba Rao was zealous in not letting the said article be fossilised with the theory of classification alone. Justice Bhagawati’s passage in Royappa, that equality is antithetic to arbitrariness, and that the dynamic concept cannot be cribbed, cabined and confined to doctrinaire limits, had already attained immortality. While Royappa involved only a challenge to an executive order of transfer, it had given a sheen to the positive content of Article 14. Passages in Indira Gandhi’s case had reinforced the theory that absence of arbitrary power, was a facet of the Rule of Law.
Secondly the bench said, the Bank Nationalisation case, had put paid to the theory in A.K. Gopalan, that fundamental rights operated in compartments. Interplay was recognised and reiterated in Maneka The bench held that substantive due process was part of Article 21 as it is to be read with Articles 14 and 19, and that Mcdowell had missed that principle.
Thirdly, as early as in 1952, explaining the meaning of reasonableness of restrictions in Articles 19(2) to (6), Chief Justice Patanjali Sastri had ruled that among other things, the disproportion of the imposition ought to be kept in mind. Not only this, the doctrine of Proportionality had been firmly accepted in many judgments. If restrictions could be tested on the anvil of being disproportionate excessive or unreasonable, there was no logic or reason to exclude the same touchstones being applied to test legislation.
Fourthly, the doctrine of arbitrariness had been developed and then concept of the threshold of Manifest Arbitrariness had been prescribed in Indian Express Newspapers, Khoday Distilleries and Sharma Transport, for testing the validity of delegated legislation. The touchstones of unreasonableness, capriciousness, lack of adequate determining principle and irrationality were thus begotten.
Fifthly, in Sunil Batra the court had expressly invoked the principle of arbitrariness and Article 14 to read down a provision which prescribed solitary confinement to a death row convict, even before the conviction and sentence had attained finality. Article 21 had additionally been invoked.
Sixthly, another bench of five judges in Mithu, had struck down Section 303 of the Indian Penal Code as arbitrary, irrational and oppressive in mandating death penalty for the offence of murder by a convict undergoing life imprisonment. The court was aghast that the statutory provision had excluded judicial discretion and taken the judicial scales from the hands of the court, and an irrevocable penalty was prescribed without the application of judicial mind. Article 14 and Article 21 had been invoked. Additionally, in Dr. K. R. Lakshmanan, Mardia Chemicals case, and in two other judgments ,the Supreme Court had already struck down legislation as being arbitrary.
Seventhly the prized possession for the court in Shayara was AjayHasia, in which a five judge bench had categorically said that,wherever there is arbitrariness, whether it be of the LEGISLATURE,executive or of an authority under Article 12, Article 14 would springinto action, and strike down the said action.
No doubt Ajay Hasia did not involve a challenge to any law but, it was a case where the contours of Article 14, had been elucidated by a Constitution Bench. While Ajay Hasia and Sunil Batra were not noticed in Mcdowell, Mithu was held to be of no assistance on the ground that it had only additionally invoked Article 14. Shayara brought out that an additional reason is as much a ratio.
The undermining of Mithu, the overlooking of the Proportionality principle and the failure to refer to Ajay Hasia, Sunil Batra and the cases that had invoked arbitrariness to strike down legislation, inter alia turned out to be the achilles heel for Mcdowell. Once Mcdowell itself was held to be per incurium, and its reasoning being flawed, the bench in Shayara held that the judgments that followed Mcdowell, were also no longer good law.
The criticism that courts cannot question the wisdom of the Legislature, is really a challenge to the Judicial review power. The principle of ‘Presumption of Constitutionality’ is only a rebuttable presumption. Even in matters of interpreting legislative entries and in considering arguments of violation of other fundamental rights and in interpreting reasonableness of restrictions, there is an element of subjectivity. Cases are not uncommon where the High court having taken a particular view, the Supreme Court while reversing had taken an altogether different view . Even among the different benches of the Supreme Court, views have differed.
The contours for the application of the Doctrine have been set out. Fixing a higher threshold to pass muster and exercise of the Doctrine, with caution and circumspection and strictly within the contours ought to be the prescription. For that alone will inspire confidence and guarantee credibility for the institution of Judiciary.
Infact post Shayara, courts have in fact, refused to apply the doctrine when not warranted. The cases where Shayara has been successfully applied on this score, actually make a strong case in favour of the doctrine. In Navtej Singh Johar the Constitution bench, read down Section 377 I.P.C to exclude, from its ambit the case of consenting adults of the same sex. Similarly, in Independent Thought a provision which excluded from the ambit of rape, sexual intercourse or sexual acts by a man with his own wife, where the wife is between the age of fifteen and eighteen, was struck down.
Justice D.Y. Chandrachud in the first Puttaswamy case has held that substantive due process, as referred to in some earlier judgments, was essentially a reference to a substantive challenge to the validity of a law on the ground that its substantive provisions violate the Constitution. Even if we stick to this ratio, and don’t go as far as Shayara went on substantive due process, the substratum of the doctrine, is not affected.
Ashoka Kumar Thakur, which excluded “unreasonableness” as a ground of challenge and the interpretation of the observations in In re Natural Resources and the Indian Express Case, have been favourite weapons of the critics. However, they don’t really impinge on the core reasoning of Shayara.
Not only Shayara, but cases like Mithu and, Joseph Shine which eviscerated adultery as a criminal offence from the penal code, indicate that strictly going by the traditional classification test, the cases may not have resulted in the same outcome. Some critics have said that while all discriminatory actions may be arbitrary, all arbitrary actions may not be discriminatory. They give the example of expelling red haired students, which is arbitrary being discriminatory as opposed to expelling all students, which may not be discriminatory but arbitrary. This actually supports the Doctrine. There have been and in future may emerge cases, where the statute may not be discriminatory but may smack of manifest arbitrariness. Should such acts be immune, merely because they are dressed up neatly as a Statute?
The author is a Senior Advocate.