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Doctrine of State Arbitrary Action

Arbitrarily in doctrine means an unreasonable manner, as fixed or done at pleasure, without determining any methods or principle, which is not founded in nature of things, done for own good, not acted according to reason, depended on will alone. Many jurists believe that doctrine of arbitrary state action is reassertion of the reasonable classification also known as nexus test. It was often used in reference of reasonable classification test which concerns the term equality in article 14.

As a consequence of this contradiction it was unclear as to whether the doctrine of arbitrary state action was a simple gloss on the reasonable classification test or standalone test having its own substantive content.

Suppreme court gave some content to the doctrine by equating it with concept of unreasonableness but still it was not clear whether this unreasonableness was related to the 'disperse aspect' article 14.

Articulating Doctrine

In 1976, the period immediately after the emergency and the most cited case A.D.M Jabalpur v. Shiv Kant Shukla also known as habeas corpus case which had remarkable judicial interventions aimed at reclaiming the lost legitimacy of the apex court[1]. Justice bhagwati discarded a 'narrow, pedantic or lexicographical' interpretation to the concept of 'equality' written in article 14 and held thus:Equality is a dynamic concept with many aspects and dimensions and it cannotbe cribbed cabined and confinedwithin traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.

In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.

Another remarkable judgment came from justice Bhagwati in Maneka Gandhi case[2]. Justice Bhagwati concurring with the majority in a 6:1 decision held:
Article 14 strikes, at arbitrariness in State action and ensures fairness and equality of treatment.

Interpretation of judgment comes as, reasonableness, is an essential of equality or non-arbitrariness pervades articles 14 like brooding omnipresence. It was observed by justice Bhagwati that Royappa v. state of Tamil Nadu did nothing more than exploring 'vital and dynamic aspect' of equality. The court said that:[3]

The doctrine of classification which is evolved by the courts is not Para-phrase of Article 14 nor is it the objective and end of that Article. It is just a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality.

Wherever therefore there is arbitrariness State action whether it be of the legislature or of the executive or of authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.

In a similar frame justice Bhagwati in Bachan Singh v. state of Punjab held that[4]: It is now settled law as a result of the decision of this Court in Maneka Gandhi's case that Article 14 enacts primarily a guarantee against arbitrariness and inhibits State action whether legislative or executive, which suffers from the vice of arbitrariness. This interpretation placed on Article 14 by the Court in Maneka Gandhi's case has opened up a new dimension of that article which transcends the classificatory principle.

For a long time in the evolution of the constitutional law of our country, the courts had construed Article 14 to mean only this, namely, that you can classify persons and things for the application of a law but such classification must be based on intelligible differentia having rational relationship to the object sought to be achieved by the law.

But the court pointed out in Maneka Gandhi's case that Article 14 was not to be equated with the principle of classification. It was primarily a guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary rule for testing or determining whether a particular state action was arbitrary or not.

Contradictory to this case was the case of state of A.P v. Mcdowell,[5] justice ready on behalf of a three-judge bench of the Supreme Court, laid down that 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.

Arbitrariness Reviewed

The recent judgment of supreme court in Rajbala v. state of Haryana the Supreme Court's obiter in Rajbala has renewed the juristic and scholarly interest in the appropriate form of equality analysis applicable to statutes. Ever since the enunciation of a seemingly new standard for determining the negation or otherwise of the right to equality in the celebrated case of E.P. Royappa v. State of T.N. , jurists and academicians alike have struggled to put this development in perspective. Even as the controversy surrounding the doctrine was far from clear, a division Bench readily dismissed the applicability of 'arbitrariness' standard to invalidate principal legislations. Even independently of Raj Bala, the aura of legitimacy surrounding the said test remains as elusive as ever.

This mystery cannot be solved without reference to the origin, scope and content of the 'arbitrariness' standard[6]. The dicison of the court cannot be said to be a correct statement of law for a number of reasons. On the grounds of equality the provisions providing varying level of educational competences for contesting an election to the different post in the village panchyat stands unreasonable and arbitrary in its nature. And violates article 14.

The court dismissed the challenge ad upheld the validity of enactment and specially for arbitrariness court held: It is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is arbitrary since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of substantive due process employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation.

If a statute is to be invalidated, there must exist some lucid constitutional basis for the invalidation. No constitutional challenge can be sustained on the ground that the intention of Parliament was suspect indeed there exists a converse presumption: that all statutes are enacted bona fide and the intention of Parliament in enacting the law is beyond question. This is a silent fiction which pervades the Indian Constitution. The presumption is one so fundamental that it continues to be drawn even where the statute suffers from a constitutional infirmity, though it may be invalidated on that account.[7]

To lend this principle to illustration, a law which unconstitutionally seeks to subvert the fundamental freedoms of a citizen under Article 19 of the Indian Constitution will continue to be considered one which was enacted in good faith even though it may be struck down by the courts of India in exercise of the powers conferred by Articles 32 or 226 of the Indian Constitution.

This silent constitutional proposition may appear to be unreasonable at first. How can it be said that a law which seeks to contravene a fundamental right is one which was enacted with the best of intentions?

In the Indian context alone, attempts have been made particularly during the national emergency of 1975 to hurriedly subvert unalterable, basic features of the Constitution to preclude judicial review in matters of constitutional amendment or in the appointment of the Prime Minister even these amendments were invalidated not on the grounds of bad faith, but unconstitutionality.

Such are the silent, strange presumptions which are inherent in the Indian Constitution, one in which the separation of powers between co-ordinate, co-extensive bodies of government is regarded basic. The presumption is always that the motive of Parliament is beyond scrutiny[8].

The decision of the court cannot be said to be a correct statement of law for a number of reasons.

For following reasons:
  1. Firstly, it was not proper to overrule a judgment on the strength of two as earlier cases were laid down by larger bench.
  2. Secondly, the judgment was criticized on the basis of judicial discipline judicial discipline dictates that law laid down by this court in a decision delivered by a bench of larger strength is binding on any subsequent bench of lesser or co-equal strength[9].
  3. Thirdly, the case of Mcdowell was misplaced and misread that mere assertion that an enactment was arbitrary would not be enough to assail its constitutionality. Mcdowell was the decision of three-judge bench and hence cannot be overruled.
  4. Fourthly, the judgement states the term substantive due process which is not part constitution of India and is said to be partly correct. it becomes part of judicial scrutiny under article 21.
In case of Selvi v. state of Karnataka, justice Balakrishnan stated that:
The standard of 'substantive due process' is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of 'personal liberty'.

Further, contradiction to this judgement was the case of, Nariman J. in Mohd. Arif Ashfaq v. t he Reg. Supreme Court of India, speaking for the majority in a five-judge bench decision held as follows:
Substantive due process is now to be applied to the fundamental right to life and liberty.

In Maneka Gandhi case it was well said that any form constitutional analysis with respect to article 21 will attract article 14 and in some cases also article 19. These articles witnessed validity of executive and legislative when subjected to judicial scrutiny.

Hence, it is observed that unless there is an authoritative pronouncement by a larger bench on the issue, the decision in Rajbala case should be seen with an eye of facts of the particular case and not laying down new principle of law for general application.

Rationality or Rationale In Evolution Of Arbitrariness
The supreme court describes arbitrariness as a constitutionalisation of administrative law [10] Establishing the administrative law foundation of the new doctrine, it worth to seek guidance from the administrative law cases employing the reasonableness standard.

Interesting note here is that the term rationality and rationale or reasonableness are often interchangeable and used in that form wisely. The difference between them may drown as not all rational decision is reasonable i.e. all administrative decision is rational in the sense that they are made up for intelligible reasons. But not all of them major up to the legal standard of reasonableness. For basic understanding irrational means 'devoid of reasons' while unreasonable means devoid of satisfactory reasons.

But there lies a conceptual difference between two and it is needed to be analyzed in order to come forth with proper meaning and application of the doctrine of arbitrary state action.

The syllogism:
all arbitrary state actions are antithesis to the principle of equality[11]. If any decision is taken without principle or rule of law and it is unpredictable then it is said to be antithesis of a decision taken in accordance with rule of law. The rule of law in this context means that decisions should be made by the applying principles and rules and not on the basis of own whims or caprice.

  1. Law Review, Summer Issue 2016.
  2. Maneka Gandhi v union of india (1978)
  3. Ajay hasia v. Khalid mujib sehravardi, (1981)
  4. (1982) law review
  5. State of A.P v. mcdowell (1996),
  6. Supra note 5
  8. Supra note 7
  9. Central board of dawoodi bohra community v. state of Maharashtra (2005), law review
  10. Supra note 5
  11. (Dicey law of constitution 10th edition introduction cx), in Shrilrekha Vidyarthi v. union of India

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