Posted on: July 2, 2020 Posted by: Nachiket Kulkarni Comments: 0
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This article traces the boundaries of the doctrine of arbitrariness originated and evolved in the court of law. The article commences by explaining the doctrine and moves forward with simultaneously explaining its evolution and scope. Moving forward to analyze the effect of the doctrine on the legislative and executive decisions.

An act whose foundation is based on prejudice, bias, or preference rather than on reason and facts is an arbitrary act. Wherever irrelevant facts are the basis of ignoring the relevant considerations the decision-making process and the decision both are arbitrary. Thus arbitrariness can be defined as the quality of being an arbitrary or uncontrolled exercise of will. From a positivistic outlook, arbitrariness is antithetic to equality thus wherever there exists any arbitrariness, equality cannot exist. Equality belongs to the rule of law in a republic while the other to the whim and caprice of a monarch. It is implicit that whenever an act is arbitrary it is unequal according to both the political logic and constitutional law and is, therefore, violative article 14 of the Indian constitution.

In S.G. Jaisinghani vs Union of India the question before the apex court was whether promotion by a seniority by treating direct recruits and protease differently was discriminatory under the income tax act. This was a case of reasonable classification under subordinate legislation. The court held that the rules were unreasonable and arbitrary and were struck down on based on the same. Similarly in State of Mysore vs S.R Jayram the validity of rule 9(2) of Mysore recruitment gazette Probationers’ Rules, 1959 that gave prejudiced unanalyzed power to the Government to appoint any particular candidate whom it considered to be suitable was challenged because it conferred arbitrary power on the government and thus was struck down as being violative of Article 14 read with Article 16(1). In E.P. Royappa vs State of Tamil Nadu the five-judge constitution bench first coined the doctrine of arbitrariness. It was a very seminal judgment that not only introduced the doctrine but also widens the scope and power of article 14. Article 14 of the constitution states that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”. In this case, the apex court laid a basic new dimension to article 14 and held it to be a guarantee against arbitrariness. According to the doctrine of arbitrariness, “equal protection of the law” prohibits class legislation but permits a reasonable classification of persons or things. The objective of this article is to maintain equality and thus arbitrariness in actions strikes at the core of the article 14. Justice Bhagwati sought to further amplify the doctrine of arbitrariness states “ 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.” Bhagwati J advocating the Nexus test supports the doctrine of arbitrariness. He further explains considering that fundamental rights are interdependent and not mutually exclusive that even though an act is in consonance with the established process of law under article 21 if it infringes any other right or is arbitrary, unreasonable etc must also satisfy tests of article 14. Thus procedure established by law to conform to article 21 read with article 19 must not only be just, right and fair but also not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of article 21 will not be satisfied.

The doctrine of arbitrariness has no defined principles basis, in which this doctrine may be made applicable to examine the validity of laws under judicial review inter alia of plenary legislation. The doctrine may give wide discretion to adjudication of judicial review and permits value judgments to be made on the wisdom of parliament. The legislations or executive functions can be scrutinized and only the part that is ultra vires to the constitution or infringes the fundamental rights may be revoked by the judiciary. If the doctrine is made applicable it may create an imbalance between the judiciary and legislature or executive. Thus the contentions over the doctrine and its scope arise as it may give undue power in the hands of the judiciary. In this regard, Dr. Ambedkar in his speech in the constitutional assembly was against the idea conferring judiciary with the power to sit in judgement over the wisdom of the legislature. Various constitution benches have given conflicting opinions on the scope of arbitrariness.

In Ajay Hasia vs Khalid Mujib Sehravaradi the apex court held that the arbitrariness in the state or quasi-judicial actions of the legislature or the executive or any authority under article 12, article 14 must come into play to strike down such state action. Simply because arbitrariness brings in inequality thus such actions are immediately struck down by article 14. However, if an action taken under a section of statutory provision offends any fundamental right then the exercise or action is void but the statutory provision is valid. The doctrine aims at merely determining whether the legislative or executive action in question is arbitrary and therefore it is a judicial formula to constitute a refutation of equality.. The view taken in Ajay Hasia was further amplified in A.L. Karlra to include all state actions irrespective of legislative or executive or any authority under article 12 of the constitution of India.  The concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is the heart and soul of the constitution. However, this view of the court prima facie seems as obiter dictum since there was no pleading regarding the application of this doctrine to plenary legislation but later on in Sunil Batra vs Delhi Administration(hereinafter refereed to as Sunil Batra) where statues were struck down or read down. Soon after that in the case of State of A.P vs McDowell & Co. after considering the submissions of Mr. Rohington Nariman justice Reddy held obsessed that the power of parliament or state legislature can be restricted on in two ways also legislation can be struck down on the grounds of lack of legislative competence and violation o =f any fundamental rights in part III of the constitution of India. Further, it was held that no enactment can be struck down solely based on the ground of arbitrariness. Some other constitutional inconsistencies must be present along with arbitrariness to invalidate an enactment.

Nariman J referring to Maneka Gandhi and R.C.Cooper observes that arbitrariness in legislations is a facet of unreasonableness in articles 19(2)-(6)as has been laid down in several judgments of this court and thus there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down a legislation under article 14 as well. The articles 19(2) to (6) explicitly provide for reasonable restrictions. Reasonableness pervades through the framework of article 19. Arbitrariness antithetical to reasonableness can be a check by itself when it comes to a challenge under article 19. However, it is important to note that arbitrariness ought not to be the sole criterion for invalidating an enactment under article 14.

The Sunil Batra and Mithu vs. The State of Punjab must be given emphasis wherein statutes were struck down or read down as being arbitrary and unreasonable. Mithu was the first case wherein a statutory law was first challenged on the ground of arbitrariness. Here it is pertinent to note that unreasonableness and oppressiveness along with arbitrariness were attributed to the statue qua of article 21 and not article 14 alone. Similarly in Sunil Batra, the question revolved around procedural unfairness of the statute qua of article 21. Thus even though the enactments were struck/read down on the basis of arbitrariness in the presence of other constitutional inconstancies.

There is a heavy presumption of constitutionality in favor of the legislation enacted by the legislature. It is hackneyed that the legislature best understands the needs of society to enact laws and would not readily be assumed to overstep constitutional boundaries and limitations in the capacity of Part III. The necessity of the requirement of some other constitutional infirmity with arbitrariness is in consonance with the doctrine of separation of powers. This avoids conferring undue power over the judiciary. The threshold to invalidate legislation is set much higher by limiting the scope of the doctrine of arbitrariness. The restraints put on the judiciary helps to check the validity of plenary legislation. Thus maintains the faith of the people in the legislature and executive actions and reaffirms that the legislative wisdom cannot be substituted by the judiciary

Nachiket Kulkarni
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2nd Year BALLB student at ILS Law College, Pune

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