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 AdulteryThis...

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

Ashok Kini

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