Rethinking “Manifest Arbitrariness” in Article 14: Part I – Introducing the Argument

[This is the first in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation.]

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Writing in 2015, Prof. Tarunabh Khaitan argued that while the “old doctrine” of equality is too narrow, the solution ought not to be the “new doctrine” of arbitrariness. Instead, the old doctrine itself can be developed further. The old classification doctrine in a traditional sense enquires into the questions of (a) whether there is an intelligible differentia, and (b) whether there is a rational connection between the measure and the objective. Prof. Khaitan argues that theoretically, the classification doctrine itself can be developed by expanding the range of questions to look beyond just those two. Illustratively, the following are questions which a court could ask in this regard over and above the traditional two questions (for a fuller list, see Prof. Khaitan’s piece):

• Does the rule have a disproportionate impact on different classes of persons?
• Is the differentia presumptively impossible?
• Is the apparent objective genuine?
• Is the apparent objective legitimate?

Prof. Khaitan ultimately concludes:

The following conclusions emerge: (a) the ‘classification test’ (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules; (b) it is a limited and highly formalistic test applied deferentially; (c) the ‘arbitrariness test’ is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (at least in the actor-sensitive sense). Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…

The Supreme Court has now confirmed in recent decisions that the “arbitrariness” doctrine is indeed part of Article 14, and that legislative measures can be challenged on the basis of “arbitrariness”; and point (e) above is seemingly no longer reflective of the current position. However, the question of what exactly amounts to a breach of the arbitrariness standard is still unclear.

Several posts on this blog have considered some of the recent judgments of the Supreme Court; but an enunciation of the actual standard remains elusive. This series of essays argues that although the recent cases are labelled as accepting an “arbitrariness” challenge to legislation, they ought not to be taken as referring to the ‘arbitrariness’ of administrative law. When one is thinking through the lens of administrative law, ‘arbitrariness’ is a ground for review of administrative actions. But when one speaks of ‘arbitrariness’ as a matter of constitutional law, one is not speaking of the same thing. ‘Arbitrariness’ in constitutional law is distinct from the ‘arbitrariness’ of administrative law. The constitutional law test is of ‘manifest arbitrariness’; and this series of essays will suggest that “manifest arbitrariness” is not simply “an extreme form of administrative law arbitrariness”: the difference is not merely of degree.

To arrive at a workable test for determining what the content of the Article 14 arbitrariness standard is, this series will examine the judgments of the Supreme Court upholding an arbitrariness challenge to legislation. This is because in cases dealing with challenges to legislation, whatever label the Court may apply, it is clear that the Court is necessarily dealing with Article 14 and not a general administrative law / common law principle. Before proceeding to analyse those cases, however, a brief introductory detour to Royappa (which although not a challenge to legislation is the case most associated with bringing ‘arbitrariness’ into the fold of Article 14) would be valuable. Accordingly, the present post takes a brief look at Royappa; and subsequent posts in this series will then proceed to analyse the other most relevant judgments on Article 14 arbitrariness.

In a famous passage Royappa, Justice Bhagwati noted [para 85 of the SCC report in (1974) 4 SCC 3]:

Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… 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 Article 14…

This passage has seemingly attained a life of its own. A very quick scan on the SCC Online database for the phrase “in fact, equality and arbitrariness are sworn enemies” results in the following results: 36 judgments of the Supreme Court of India, 223 from the High Courts, and 8 foreign cases (from Bangladesh, Sri Lanka and South Africa). However, mere reproduction of this passage is not sufficient to understand what Royappa holds (and – as importantly – what it does not hold).

There were two judgments in Royappa – one by Ray CJ (for himself and Palekar J.), and another one by Bhagwati J (for himself, Chandrachud J. and Krishna Iyer J.). The two judgments concurred in the result, but there were some differences in the reasoning.

The petitioner in Royappa was a senior member of the Indian Administrative Service. He was appointed to act as the Chief Secretary of Tamil Nadu. In April 1971, he was appointed as Deputy Chairperson of the State Planning Commission. He did not contest this appointment, which he considered to be equivalent in status to that of a Chief Secretary. Thereafter, in June 1972, the Petitioner was appointed as an “Officer on Special Duty”. This post was a non-cadre post; and the Petitioner was aggrieved by this appointment. In a petition under Article 32 of the Constitution, he alleged that the transfer to a non-cadre post was illegal and unconstitutional, and further prayed for a direction to be re-posted as Chief Secretary.

Ray CJ’s concurring judgment found on a detailed evaluation of the facts that the post of “Officer on Special Duty” was not lower in status and dignity that the other posts held by the Petitioner, and that the appointment was not motivated by mala fides. The main difference between the judgments of Ray CJ and Bhagwati J relates to the burden of proof: while Ray CJ found as a fact that the two posts were indeed equivalent, Bhagwati J found that the Petitioner could not demonstrate that the posts were not equivalent.

In dealing with the contention regarding violation of Article 14 because of the transfer, Bhagwati J. framed the question in the following terms (para 86 of the SCC report):

… What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons?

This was answered by holding that the post of Officer on Special Duty was not demonstrably inferior in status and responsibility to that of Chief Secretary. Although prima facie the Court did have doubts about the equivalence of the posts, the materials on record did not enable the Court to reach a conclusive finding about the inferiority of the post.

What is interesting is that the Court also considered the contention that (whatever be the true position on equivalence of the two posts) the transfer was also illegal because the State Government did not apply its mind to the question of equivalence. The Court in fact agreed with this contention, but refused to give relief to the Petitioner. The Court found (para 84):

… the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty… There was thus no compliance with the requirement of Rule 9…

If that were so, one would have thought that the Court would then go on to hold that this non-application of mind to relevant materials is arbitrary. Yet, the Court held:

But we cannot in this petition under Article 32 give relief to the petitioner by sinking down his appointment to the post of Officer on Special Duty… mere violation of Rule 9… does not involve infringement of any fundamental right…

 

 It would seem, then, that the State Government was under a specific duty in terms of the relevant Rules to apply its mind and objectively determine the equivalence of the posts. The Court found that the State did not in fact apply its mind. Yet, this non-application of mind did not rise to the threshold of an Article 14 violation: that is why “in this petition under Article 32”, relief could not be granted to the Petitioner. Thus, non-application of mind – which may well amount to ‘arbitrariness’ in an administrative law sense – would not itself amount to a violation of ‘arbitrariness’ in the Article 14 sense.

The next essays in this series will consider the judgments of the Supreme Court applying the arbitrariness doctrine in adjudicating on the constitutional validity of legislation. It will be suggested that the best understanding of the doctrine is that “manifest arbitrariness” is simply shorthand to expand on the traditional two questions of the classification test. As Prof. Khaitan had argued, “Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…” That is indeed what has happened: “manifest arbitrariness” is just the label given to the “expansion and substantiation”.