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Manifest Arbitrariness and Judicial Review

Evolution of the Doctrine of Manifest Arbitrariness: have we finally reached the pinnacle?  

By: Vaibhav Singh, Third Year, Symbiosis Law School, NOIDA 

Manifest Arbitrariness, as it stands today, has the power and judicial backing to invalidate plenary legislation. This article throws light upon evolution of the doctrine of manifest arbitrariness in light of catena of landmark rulings with a view to understand whether the prudence and sagacity of the Legislature should be substituted?

The doctrine has been subjected to much discourse and contention during the last decade. There are two different views related to it. The traditional view of the doctrine, was critiqued majorly because of not being exhaustive and. Whereas, the contemporary view of the doctrine suggests that the judiciary went overboard. The decision to strengthen this doctrine was taken in Shayara Bano v. Union Of India And Ors. (1) where the judges held that the doctrine would be applicable to question the legislation, by means and power of Article 14 of the Constitution of India. The reasoning stated by the judges became the benchmark for passing the test of manifest arbitrariness. The test ascertains as to whether any act of the legislature is done ‘capriciously’, ‘irrationally’ and/or without any ‘adequate determining principle’. 

The Traditional View 

Traditionally, the test used to determine the compatibility of Article 14 with the idea of Reasonable Classification, that initially governed judicial interpretation. This was later elaborated upon and laid down as a test for arbitration. (2) In The State of West Bengal v Anwar Ali Sarkarhabib and Ors., (3) it was laid down that in order to clear the test, the classification must be established on an ‘intelligible differentia’ which distinguishes those that are clubbed together from others and the differentia must have a ‘rational nexus’ with the object sought to be achieved by the very act. Bhagwati J. soon propounded a more expansive view of Article 14 in E. P. Royappa vs State of Tamil Nadu & Anr (4) where he stated that, “equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined”. He further opined equality and arbitrariness to be the ‘sworn enemies’. This made it quite clear that the test of manifest arbitrariness is arguably subsumed in the test of classification.  

One of the most distinctive benefits offered by the Doctrine of Arbitrariness was that the Article 14 violations were not conditional upon any comparative differentia. Even non-comparative unreasonableness will also come within the periphery of Article 14.(5) However, this test of ‘arbitrariness’ was soon denounced for a lack of clarity and for ‘hanging in the air’.(6) This condemnation led to the Supreme Court decision in McDowell,(7) where Reddy J. categorically stated that a constitutional infirmity, namely, a lack of legislative competence or an express violation of any constitutional right, is needed for striking down an enactment.  

The Gradual Shift 

This disposition was soon restated in the Re Natural Resources Allocation (8) and the Rajbala (9) case. Arguably, it can be said that these decisions erroneously comprehended the test of arbitrariness and were per incuriam for countering a five-judge bench decision in Re E.P. Royappa. However, they did not really impinge on the core reasoning stated in Re Shayara Bano. Nevertheless, there seems to be no clarity as to whether the doctrine of arbitrariness is a liberated scale for adjudicating applicability of Article 14. 

A distinct attempt to clarify such an ambiguity was made by Nariman J. in Re Sharaya Bano, where the doctrine of manifest arbitrariness was adopted by him (along with Lalit J.). Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 was struck down which permitted a Muslim man to divorce his wife by reciting the word ‘talaq’ (divorce), thrice. Unfortunately, the stance of Joseph J. on the doctrine adopted by his peers remained uncertain, it could not be assumed that a liberated test of arbitrariness had been expressly adopted by a majority of the bench. 

In Navtej Johar v. Union Of India,(10) the apex court unanimously adopted the doctrine of manifest arbitrariness, making it one of the most significant cases involving the doctrine. The case finally concluded the eternal question of whether Article 14, beyond the classification test, comprises any residual positive content. That being said, the requirements of the doctrine remain uncertain and therefore, vulnerable to criticism hammered against the E.P. Royappa doctrine by H.M. Seervai and others.

The prevailing issue, whether the courts can question the wisdom of the Legislature is a palpable challenge to the power of Judicial Review. While the principle of ‘Presumption of Constitutionality’ stands to be only a rebuttable presumption and the element of subjectivity presents itself every time a matter is to be interpreted vis-a-vis the applicability of the doctrine.   

The Standoff between Legislature and Judiciary 

The prevailing issue, whether the courts can question the wisdom of the Legislature is a palpable challenge to the power of Judicial Review. While the principle of ‘Presumption of Constitutionality’ stands to be only a rebuttable presumption and the element of subjectivity presents itself every time a matter is to be interpreted vis-a-vis the applicability of the doctrine. There have been cases in the past where while reversing a decision of a High Court, the Supreme Court has taken an alternative and altogether a different view. Even among the benches of the Supreme Court, views have been different.  

Conclusion 

The contours for the application of the doctrine of arbitrariness has been set out. The prescription ought to be fixing a higher threshold to clear the test and exercise the doctrine, with circumspection and caution.

The prescription ought to be fixing a higher threshold to clear the test and exercise the doctrine, with circumspection and caution.

In fact, post-Shayara, courts have abstained from applying the doctrine when it has not been warranted. Also, the cases where the ruling and observations in Re Shayara have been applied through, actually makes a compelling case in favour of the doctrine. The prime example of that is Navtej Johar, where the Constitutional Bench read down Section 377 of the Indian Penal Code, 1860 to exclude, from its ambit, the case of consenting adults of the same sex.

In Joseph Shine v Union Of India,(11) the Constitutional Bench eviscerated adultery as a criminal offence from the Penal Code, which indicates that the application of Shayara has been instrumental in some landmark cases because in cases like Joseph Shine, the traditional methods of classification may not have led to the same outcome.

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