Guest Post: The Rejection of the ‘Arbitrariness Doctrine’ in the Panchayati Raj Judgment

(In this guest post, Mihir Naniwadekar explores the Supreme Court’s rejection of the arbitrariness test in the Panchayati Raj judgment).

There has been plenty of discussion on this blog in connection with the issues arising in the Panchayati Raj case. This (very) short post is not an attempt to discuss all the issues (or even one single issue exhaustively) arising from the decision. Instead, I only wish to draw the attention of readers towards part of the reasoning employed by the Hon’ble Court – in particular, the Court’s rejection of the ‘arbitrariness’ challenge to the impugned provisions.

When the Court rejects ‘arbitrariness’, it proceeds on the basis of AP v. McDowell. It seems that McDowell did not absolutely rule out arbitrariness, but only insisted that the mere formulation ‘arbitrary’ is meaningless: the issue of why something is arbitrary must depend on constitutional analysis. What the Court said was, “Some or other constitutional infirmity…” is needed. Naturally: nothing is invalid because one asserts that it is arbitrary: if one says something is arbitrary, one must point out why it is arbitrary having regard to the constitutional scheme. Nobody denies that: the Petitioners in Panchayati Raj were not saying that the law is arbitrary because they dislike it. Rather, the law is arbitrary because it restricts a constitutional right (and this is admitted by the Court) without any constitutionally valid basis.

Secondly, in Malpe Vishwanath, a Bench seems clearly to leave open the arbitrariness window for challenging laws. Dealing with certain legal provisions of the Bombay Rent Control Act, the Court concluded its judgment by noting:

“It is, however, made clear that any further extension of the existing [legal] provisions without bringing them in line with the views expressed in this judgment, would be invalid as being arbitrary and violative of Article 14 of the Constitution and therefore of no consequence.”

Thirdly, in Mardia, on the question of whether a condition of pre-deposit prior to filing an appeal was invalid, the Court held that this was “unreasonable and oppressive” and ultimately uses the arbitrariness standard to strike down a law.

Merely relying on McDowell then is not sufficient to reject the ‘arbitrariness’ challenge. What the Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme. There does not seem to be any independent reasoning on this aspect.

Both Malpe and Mardia are cited only in footnote 34 of Panchayati Raj; and there is no independent analysis of these aspects. In footnote 34, the cases are cited as part of Petitioner’s submissions in another case. Nothing negative about these cases (on the grounds of arbitrariness) seems to have been stated in the other case.

In the circumstances, the present 2 judge bench should not have gone into this question to conclude that arbitrariness is irrelevant: at the highest this should have been referred to a larger Bench.

Furthermore, whatever one thinks of the correctness of Royappa, it is surely not open for a Bench of 2 Hon’ble Judges [and the Bench did not even indicate anything to the contrary] to reconsider Royappa. If one assumes Royappa to reflect the current position, there seems to be no reason in principle as to why the content of Article 14 would change depending on what is under challenge. Either Article 14 embodies an arbitrariness test or it does not. The answer to ‘what is the correct test as a matter of law under Article 14’ cannot turn on whether the challenge is to an executive action or to legislation, as the Court seems to indicate. Of course, what is being challenged may be relevant to the standards of review in the application of the test. Thus, one could argue that a legislative act requires greater deference than a purely executive act. At the same time, there are surely arguments which indicate that the standard of deference must also consider the nature of the rights at issue. I do not wish to examine issues pertaining to standards of scrutiny: the only point I wish to make is that the content of Article 14 cannot change in the manner suggested by the Court.

Perhaps, one could reconcile the cases and say that Article 14 embodies the standard equality test of whether there is a reasonable nexus with the object. However, the ‘arbitrariness’ keeps in check both, the object and the method for achieving the object. In other words, a law making it compulsory for red-haired IFS officers to get a haircut cannot be defended on the basis that “red-headed people are the butt of jokes, and having red headed people conduct international negotiations results in Indian prestige going down” [even if it is true that red-headed people in general are the butt of jokes]. In other words, ‘arbitrariness’ helps in determining what differential is intelligible and further, what methods are rational: and also reminds the State that constitutional morality means that certain objects and methods are always off the table.

Naturally, this requires the Court to analyze the Constitution to determine what is arbitrary in the constitutional sense. Not wanting to do this is, respectfully, not a ground for saying that one cannot challenge a law as arbitrary in any case.

[I do not add anything in this post on why the object is or is not arbitrary: that aspect has been dealt with in several other posts.]

(Mihir is a Bombay-based lawyer)

Blog Author’s Note: While agreeing with all that Mihir has said, I would add that Rajbala exhibits, in stark terms, the urgent need for a sustained judicial conversation about Article 14. At the root of Justice Chelemeshwar’s unease with the arbitrariness test appears to be, well, its arbitrariness. In Royappa, the arbitrariness test arose out of a justified judicial dissatisfaction with the formalism and emptiness of the traditional classification test under Article 14. As Mihir correctly notes, under traditional Article 14 scrutiny, you could have laws requiring red-haired IFS officers to get a haircut in the interests of maintaining national prestige. There is an intelligible differentia, a purpose, and a rational nexus. The deeper point is that at bottom, the classification test is empty and almost circular – any classification can be defended by producing some purpose with which it bears a rational nexus. Therefore, all that it achieves is to prevent governmental opacity – the State has to produce some justification, and the very requirement of making its reasons public will, in some sense, constrain the kinds of purposes it puts forth.

In order to move beyond this, a Court can do one of two things: put a constraint upon what counts as a “legitimate purpose” (this is what the High Court tried to do in Naz Foundation and in Subramanian Swamy), or subject the ‘rational’ nexus to more rigorous scrutiny. In her article on Indian gender discrimination law, Catherine MacKinnon reads E.P. Royappa to have attempted both through its new arbitrariness test: replacing doctrinaire equality with something more substantive. The problem is that the Court never really advanced upon this; ironically enough, one of the most egregious applications of the arbitrariness test was in Nargesh Mirza, where the Court held that compulsory termination upon first pregnancy was “arbitrary”, but upon the third pregnancy was not! Sitting here at the end of 2015, we’ve had 41 years since Royappa, and it is still unclear what the arbitrariness test is really about.

The absence of a meaningful complement to Article 14’s classification test must rank as one of the most serious failures in the Supreme Court’s history. This is compounded by the fact that it is precisely over the last forty years that other commonwealth jurisdictions have made great strides in their equality/discrimination jurisprudence. The United States has developed a tiered structure of review (strict scrutiny for race-based classifications, intermediate scrutiny for sex-based classifications, rational review for economic legislation etc.), which is focused upon the strength of the connection between the classification and the purpose. Canada and South Africa have developed a complex discrimination-law jurisprudence that speaks to preventing and ameliorating structural disadvantage, or remedying systemic indignities. The ECHR and the UK courts have made legislative and doctrinal advances of their own.

If we’re to escape from the Scylla of classification and its empty formalism, and the Charybdis of arbitrariness’ arbitrariness, going forward, the Court needs to have a serious conversation about the place of equality within our Constitutional scheme. This might require clarifying and concretising the arbitrariness test: what, exactly, does it mean for legislation to be ‘arbitrary’? Does arbitrariness rule out certain legislative goals that are contrary to the constitutional scheme (such as, say, endorsing invidious stereotypes or perpetuating group disadvantage)? Or does it require more rigorous levels of scrutiny, such as narrow tailoring and substantial relationship (instead of mere rationality), in certain specific cases, such as where vulnerable groups are involved? Alternatively, the Court might take its cue from Justice Chelemeshwar, and abandon ‘arbitrariness’ altogether in favour of a more direct approach to Article 14. Either way, it is a conversation that we can only hope will happen soon.

13 thoughts on “Guest Post: The Rejection of the ‘Arbitrariness Doctrine’ in the Panchayati Raj Judgment

  1. Supreme Court’s pick & choose approach to precedents could be identified in almost every case involving constitutional law. For instance, almost every commentator has celebrated Justice Nariman’s opinion in Shreya Singhal. But there is not even a single critique which has pointed out that even Shreya Singhal has ignored binding case law. For instance, all the gyaan in Shreya Singhal about American free speech case law ignores two paragraphs from Babulal Parate v State of Maharashtra, (1961) 3 SCR 423 (paras. 23 & 24):

    23. The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Scheneck case [ Scheneck v. U.S. 249, US 47] that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under Article 19(1) of the Constitution are not absolute rights but, as pointed out in State of Madras v. V.G. Row [ 1952 SCR 597] are subject to the restrictions placed in the subsequent clauses of Article 19. There is nothing in the American Constitution corresponding to clauses (2) to (6) of Article 19 of our Constitution. The Fourteenth Amendment to the U.S. Constitution provides, among other things, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; ….”.

    24. The framework of our Constitution is different from that of the Constitution of the United States. Then again, the Supreme Court of the United States has held that the privileges and immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down in Scheneck case [ Scheneck v. U.S. 249, US 47] has to be understood.

    Shreya Singhal doesn’t even cite Babulal Parate. Supreme Court needs to introspect. This don’t distinguish, don’t quote policy is disappointing. But the strong Monday-Friday SLP culture is here to continue. And it comes at a price.

  2. Excellent post and very valid intervention by Gautam. I had some of the same reactions while reading the lead opinion. I was expecting, at the very least, that if the Court was inclined to voice its disapproval for the arbitrariness test, it would at least attempt to cite Seervai. Very very weak, and expected more from Chelameswar J.

  3. I for one realized Chelmeswar J. ability, right after his dissent in the NJAC! He who quotes Ruma Pal on Independence of Judiciary, in my honest civil opinion, cannot be expected to write a brilliant judgment! Well, it is my opinion! Great Job Mihir! I wish you would write more.

    I am surprised none, not even this blog, has even mentioned substantive due process! beating around the bush somewhat. So much written on it. even a book by another grandson in the profession! what are your specific comments on that!?

  4. The dissenting opinion of A.C. Gupta J., in R.K. Garg v. Union of India (1981) 4 SCC 675 would make interesting reading in this regard. In Page 712 at Paragraph 27, Justice Gupta observes:

    “If the differentia, that is, the basis of classification, and the object of the Act are distinct things, it follows that it is not enough that the differentia should have a nexus with the object, but it should also be intelligible. The presence of some characteristics in one class which are not found in another is the difference between the two classes, but a further requirement is that this differentia must be intelligible. If the basis of classification is on the face of it arbitrary in the sense that it is palpably unreasonable, I do not think it is possible to call the differentia intelligible.”

    According to Justice Gupta, a differentia is intelligible only when the classification is not arbitrary i.e. not unreasonable. He then goes on to cite certain observations of Bose J. in Anwar Ali Sarkar’s case that supports his view and then concludes:

    “To pass the test of reasonableness if it was enough that there should be a differentia which should have some connection with the object of the Act, then these observations (arbitrariness being antithetic to equality) made in Maneka Gandhi and Royappa would be so much wasted eloquence.” (Emphasis added)

    He then proceeds to equate “intelligible” and “rational” as “reasonable” and also proposes a test to determine reasonableness of an action.

    Prof. Tarunabh Khaitan in his work “Equality: Legislative Review under Article 14” after describing how the traditional test is formalistic and does not invite more probing inquiry into the reasonableness of an action observes that:

    “Since the classification doctrine does not invite inquiry into any of the other potentially relevant questions listed above, some judges have been tempted
    to cheat by somehow incorporating these other dimensions into the two
    available to them”

    He then provides A.C. Gupta J.’s dissent as an example and observes:

    “For example, Gupta J’s dissent in the RK Garg case was really based on the finding that the rule engaged (and breached) another important principle: that dishonesty ought not to be rewarded. Since he could not directly access this additional dimension independently, he sought to fit it within both elements of the available test. He claimed that the classification between dishonest and honest taxpayers was not intelligible, and that this differentia did not have any rational connection with the objective (to unearth black money). As the majority judgment clearly showed, he was wrong on both counts. The classification was clear and intelligible; what Gupta J was trying to do was to update the intelligibility test and turn it into a normative inquiry, by asking if a reasonable fair-minded person would find it intelligible.”

    An updation of the classification doctrine along the lines discussed by Prof. Khaitan would be fitting to better scrutinise State actions provided it is done so expressly to ensure certainty and uniformity.

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