Why Nariman J’s treatise on arbitrariness may be a big development in SC jurisprudence

Even as Triple Talaq was ruled as unconstitutional by a 3:2 majority of a five-judge Constitution Bench today, another pertinent ruling emerged from the judgment penned by Justice Rohinton Fali Nariman.

The judgment, which Justice UU Lalit concurred with, stated that the 1937 Shariat Act is a law made by the legislature before the Constitution came into force, and would fall squarely within the expression “laws in force” under Article 13(3)(b). Therefore, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution. Three judges would ultimately strike down Triple Talaq.

Perhaps equally significant was Justice Nariman’s affirmation that manifest arbitrariness can be a ground for striking down a law.

To back his decision, Nariman J traced the origins of the doctrine of arbitrariness in Indian Supreme Court jurisprudence. Highlighting early instances of application of the doctrine, he referred to Justice Chandrachud’s judgment in Indira Gandhi v. Raj Narain, which in turn made a reference to AV Dicey’s Rule of Law. The judgments in EP Royappa, Maneka Gandhi and Ajay Hasia were also cited to substantiate his claim.

In what Nariman J described as a “discordant note”, the apex court would, in the 1996 judgment of State of Andhra Pradesh v. McDowell (1996) hold that laws cannot be struck down on account of arbitrariness. It is pertinent to note that Nariman J appeared as counsel for the losing side in this case.

What follows in the present judgment is a complete shellacking of the 1996 judgment delivered by Justice Jeevan Reddy.

Firstly, Nariman J criticises McDowell by saying that it failed to take into account at least two of the aforementioned Constitution Bench judgments which clearly held that laws can be deemed violative of Article 14 if they are found to be arbitrary.

It was also criticised for holding that courts cannot sit in judgment over Parliamentary wisdom. Responding to this, Nariman J held,

“Our law reports are replete with instance after instance where Parliamentary wisdom has been successfully set at naught by this Court because such laws did not pass muster on account of their being unreasonable.”

Further, it was held,

“…there is an apparent contradiction in the three Judges’ Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”.

Nariman J went on to give examples of how the arbitrariness rule was followed by courts even after the ruling in McDowell, and deemed the 1996 judgment delivered by two judges as per incuriam.

Today’s judgment also pointed out that a number of cases had cited McDowell to hold that arbitrariness could not be a ground for striking down a law. These judgments, Nariman J unequivocally held, would be rendered bad in law.

Quite interestingly, one of these cases is Rajbala v. State of Haryana, authored by Justice J Chelameswar in 2015. This decision upheld the law laying down education qualifications for contesting Panchayat polls in Haryana.

A more recent case is that of Binoy Viswam v. Union of India, which dealt with the requirement of Aadhaar for filing Income Tax returns.

Justice Kurian Joseph, in his judgment, concurs with Justice Nariman on the ‘arbitrariness aspect’ stating that,

“However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of  arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary.”

In conclusion, we now have an authoritative Constitution Bench ruling stating, in no uncertain terms, that laws can be struck down for being arbitrary. More importantly, it paves the way for those cases which relied on McDowell to be revisited.

Read the judgment (Justice Nariman’s decision starts from pg 300)

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