Justice Nariman's Revival Of Doctrine Of "Manifest Arbitrariness" To Strike Down Legislation

Manifest Arbitrariness in a legislation is a ground for a Constitutional Court to strike it down as violative of Article 14 of the Constitution of India. The test to determine "manifest arbitrariness" is to decide whether the enactment is drastically unreasonable and / or capricious, irrational or without adequate determining principle.

The latest example of a legislative provision being struck down on this ground is Section 87 of the Arbitration and Conciliation Act. The bench headed by Justice Rohinton Fali Nariman held the provision to be "manifestly arbitrary" and violative of Article 14 of the Constitution of India.

Revival of Doctrine of Manifest Arbitrariness In Triple Talaq Judgment

The Doctrine of Arbitrariness can be traced back to Judgments of early Constitution Benches.

But later, the SC took the view in some decisions, particularly in the 1996 judgment in the 'McDowell' case, that statues cannot be struck down on the ground of arbitrariness. It was held in that judgment as follows :

"No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom".

However, this doctrine saw its revival in the judgment of Justice Nariman in Triple Talaq case. Interestingly, Justice RF Nariman, in his judgment, overruled judgment in 'McDowell case' which he had argued before the bench headed by Justice BP Jeevan Reddy. In State of A.P. v. McDowell & Co 1996 SCC (3) 709, 'Advocate' Nariman's contention was that the total prohibition of manufacture and production of these liquors is 'arbitrary' and the amending Act is liable to be struck down on this ground alone. Addressing the contention, the Court had held that no enactment can be struck down by just saying that it is arbitrary or unreasonable.

Later, in Shayara Bano vs. Union of India (triple talaq case), Justice Nariman observed that McDowell case was per incuriam as it did not notice judgments of Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 and that of a coordinate three judge bench in K.R. Lakshmanan (Dr.) v. State of T.N. (1996) 2 SCC 226. He also referred to Constitution Bench decision in Natural Resources Allocation, In re, Special Reference No.1 of 2012, (2012) 10 SCC 1 and said:

"On a reading of this judgment, it is clear that this Court did not read McDowell (supra) as being an authority for the proposition that legislation can never be struck down as being arbitrary. Indeed the Court, after referring to all the earlier judgments, and Ajay Hasia (supra) in particular, which stated that legislation can be struck down on the ground that it is "arbitrary" under Article 14, went on to conclude that "arbitrariness" when applied to legislation cannot be used loosely. Instead, it broad based the test, stating that if a constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is "manifestly arbitrary"; i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc."

Overruling McDowell, the judge observed that the test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14.

Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such 391 legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.

Justice Nariman added : "The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14".

Agreeing with this proposition by Justice Nariman, Justice Kurian Joseph observed thus:

"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."

Decriminalisation of Homosexuality and Adultery

This doctrine has been again later invoked in his Judgments striking down criminalisation of homosexuality and adultery. In Navtej Singh Johar vs. Union of India (2018) 1 SCC 791, Justice Nariman observed:

"We find that Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate, as a result of which, when applied to such persons, Articles 14 and 21 of the Constitution would clearly be violated."

Similarly, in Joseph Shine vs. Union of India AIR 2018 SC 4898, the judge invoked this doctrine to strike down Section 497 IPC :

What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today's constitutional morality, in that the very object with 36 which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today's day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1,

Aadhaar

In Aadhaar [Justice K.S.Puttaswamy (Retd) vs Union Of India] , both majority judgment by Justice AK Sikri and the dissenting opinion by Justice Chandrachud refers to this doctrine. Justice Sikri observed thus:

"In Shayara Bano case, namely, 'manifest arbitrariness'. An Act which is manifestly arbitrary would be unreasonable and contrary to rule of law and, therefore, violative of Article 14 of the Constitution. Even when we consider the provisions of Section 139AA of the Income Tax Act, 1961 from this point of view, it cannot be said that the provision suffers from the vice of manifest arbitrariness."

Agreeing with the view taken by Justice Nariman in Shayara Bano, Justice Chandrachud in his dissent in Aadhaar observed:

The principle of arbitrariness was applied for invalidating a State law by the three judge Bench decision in Lakshmanan. It was, in this context that Justice Nariman speaking for two Judges in the Constitution Bench in Shayara Bano held that manifest arbitrariness is a component of Article 14. Hence, a law which is manifestly arbitrary would violate the fundamental right to equality.

He also notes the following observation from privacy judgment [(2017) 10 SCC 1].

Article 14, as a guarantee against arbitrariness, infuses the entirety of Article 21. The interrelationship between the guarantee against arbitrariness and the protection of life and personal liberty operates in a multi-faceted plane. First, it ensures that the procedure for deprivation must be fair, just and reasonable. Second, Article 14 impacts both the procedure and the expression "law". A law within the meaning of Article 21 must be consistent with the norms of fairness which originate in Article 14. As a matter of principle, once Article 14 has a connect with Article 21, norms of fairness and reasonableness would apply not only to the procedure but to the law as well."

Though unsuccessful, the challenge made against Constitutional validity of IBC in Swiss Ribbons vs. Union of India, was largely relying on this doctrine. The bench, presided by Justice Nariman, held that the provisions are not manifestly arbitrary. Some other cases in which the principle is invoked are: Malpe Vishwanath Acharya v State of Maharashtra, Mardia Chemicals Ltd. v Union of India, State of Tamil Nadu v K Shyam Sunder, Andhra Pradesh Dairy Development Corporation Federation v B Narasimha Reddy and K T Plantation Private Limited v State of Karnataka.