Guest Post: Rethinking “Manifest Arbitrariness” in Article 14: Part II – Disparate Impact and Indirect Discrimination

[This essay, a Guest Post by Dhruva Gandhi, is the second in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation. The first part of the series is available here.]


Previously, along with Sahil Raveen (here and here) I have critiqued the use of manifest arbitrariness by Nariman J. in Hindustan Construction and Essar, stating how the use of the doctrine meant that the Supreme Court effectively usurped the mandate of Parliament and showing how the decision-making of the court itself was arbitrary. Commenting on the same doctrine, Naniwadekar seems to suggest that the scope of the doctrine should be confined to administrative law and we adopt a deeper understanding of the classification test. The doctrine ought not to be used to strike down statutes. However, the point remains that the doctrine of manifest arbitrariness is now a part of positive law and can be used to strike down statutes as well. Therefore, it is imperative that we find a way to make the doctrine workable that does not see the Supreme Court make policy decisions. With that objective, I look at Navtej Johar and show how the adoption of the doctrine of manifest arbitrariness by the Constitution Bench was actually an application of the concept of disparate impact or indirect discrimination. While I am not saying that ‘manifest arbitrariness’ must be equated with ‘disparate impact’, it could help us provide some meaning to the doctrine and limit its scope.

The Concept of Indirect Discrimination

‘Indirect Discrimination’ or ‘Disparate Impact’ has been adopted in different forms in various jurisdictions the world over. In the United States, the concept of indirect discrimination was initially spelled out in Griggs v Duke Power Co. as:

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. (emphasis supplied)

Cutting across the Atlantic, several decades later the Equality Act, 2010 in the United Kingdom defined indirect discrimination as,

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Definitions such as these can be multiplied and there do appear to be certain nuances that differentiate them. For the moment, I do not wish to delve into those. A common understanding of these definitions seems to be that when a facially neutral measure has or may have a disproportionately adverse impact on persons who belong to certain protected/vulnerable groups, the measure would be indirectly discriminatory or disparate in its impact.

History of Disparate Impact in India

While there has not been much of a discussion of indirect discrimination in India, there have been a few instances when this concept has been applied. For instance, when examining the constitutional validity of a section in the Hindu Marriage Act, 1955 that provided for a decree of restitution of conjugal rights, the Andhra Pradesh High Court said that such a section irretrievably alters the life of a wife while not having any such impact on the husband. It is the wife who has to beget a child and the practical consequences of such a decree would cripple her future plans. More recently, the Delhi High Court examined the validity of a practice in the Northern Railways where medical insurance was denied to those family members of an employee whose names had been struck off by that employee. The court said that even a facially neutral decision can have a disproportionate impact on a constitutionally protected class. In this case, the disproportionate impact was on women and children. Barring these and a few other instances though, there has been no explicit recognition of ‘disparate impact’ in India by the Supreme Court. Bhatia argues that Anuj Garg v Hotel Association of India could be a precedent to say that the effect of a measure must be observed to see its discriminatory nature, but as he himself concedes this case involved a directly discriminatory provision.

‘Manifest Arbitrariness’: A Finding of Disparate Impact.

With this background of indirect discrimination and its application in India, I now wish to turn to the case which adopted the doctrine of manifest arbitrariness as a doctrine that can be used to strike down a statute- Navtej Johar v Union of India. While it was first discussed by Nariman J. in Sharaya Bano v Union of India, there appears to be a lack of clarity on whether his opinion on that point was supported by a majority. Instead, writing previously on this blog, Abhinav Chandrachud has shown how the judges in Navtej adopted this doctrine as a tool that can be used to invalidate statutes.

The provision in contention in Navtej– Section 377 of the Indian Penal Code, 1860 was a facially neutral provision. It did not directly discriminate on the basis of sexual orientation. Instead, it potentially covered within its ambit, consensual and non-consensual homosexual intercourse, consensual and non-consensual heterosexual intercourse other than penal-vaginal intercourse and sexual intercourse with animals. Therefore, Section 377 was discriminatory in its operation. It had a disproportionate adverse impact on a vulnerable group- consenting homosexual adults. It is in this context that the four opinions in this case need to be studied.

The Opinion of Misra J: Parallels with Ladele

Misra C.J. (speaking for himself and Khanwilkar J.) said,

237. Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even ‘consensual acts’, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owing to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meter out to the LGBT community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Constitution…

.. 239. In view of the law laid down in Shayara Bano (supra) and given the fact that Section 377 criminalises even consensual sexual acts between adults, it fails to make a distinction between consensual and non-consensual sexual acts between competent adults. Further, Section 377 IPC fails to take into account that consensual sexual acts between adults in private spaces are neither harmful nor contagious to the society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction. Needless to say, the Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. This being the case, Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.

The opinion of Misra CJ. on the point of manifest arbitrariness was not merely an instance of the court commenting on the policy decision of the legislature and disagreeing with it. Instead, the opinion first notes how the effect of the provision is important because it covers consensual sexual activity. Second, this effect was on a vulnerable group of individuals who shared a common immutable characteristic. Third, this effect had a disproportionately adverse impact- it subjected homosexual individuals to social stigma and even interfered with their privacy. Lastly, the opinion shows how the discriminatory effect came to be- by treating alike those who ought to have been differently. Therefore, it is the disparate impact (see the words, ‘this being the case’) of a neutral measure that made it manifestly arbitrary.

Misra J.’s reasoning is similar to that of English Court of Appeal in Ladele v Islington BC. Ladele, the applicant in that case was a marriage registrar employed by the Islington Borough Council who refused to perform civil partnership proceedings because she believed they were contrary to the will of God. She was then subjected to disciplinary proceedings where she pleaded indirect discrimination on the grounds of religion. While the proceedings were held to be justified, the claim of indirect discrimination was accepted in the following terms,

There is no doubt but that Islington’s policy decisions to designate all the registrars civil partnership registrars, and then to require all registrars to perform civil partnerships, put a person such as Ms Ladel, who believed that civil partnerships were contrary to the will of God, ‘at a particular disadvantage when compared to other persons’, namely those who did not have that belief.

Therefore, it was the failure to distinguish between civil registrars who had a religious belief and those who did not that lead to indirect discrimination as per Neuberger LJ, much like Misra J.

Opinion of Chandrachud J.: Parallels with Mandla v Lee

Similarly, consider the opinion of Chandrachud J.,

Section 377 is based upon a moral notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature….It would have human beings accept a way of life in which sexual conduct without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large….

Even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification given that the penal consequences that follow. Section 377 becomes a blanket offence that covers supposedly all types of non-procreative ‘natural’ sexual activity without any consideration given to the notions of consent and harm.

In Chandrachud J.s’ opinion too, it is the ‘discriminatory effect’ of Section 377 that is tied to a finding of manifest arbitrariness. The words ‘section of our citizens’ in this paragraph are important. When seen in light of the definition that the Equality Act, 2010 in the United Kingdom offers for instance, they show how persons sharing a protected characteristic- ‘homosexuality’ as their sexual orientation- are disadvantaged as compared to those who do not. Chandrachud J.’s reasoning is also similar to the approach adopted by the Andhra Pradesh High Court where the effect on women was observed.

A parallel instance in the United Kingdom furthers this point. In Mandla v Lee, the House of Lords held that a school had unlawfully discriminated against a Sikh student by excluding him from school when he refused to take off his turban. The school had a rule which required boys to come bare-headed to school. While the rule was apparently neutral and applied equally to all students, it was recognised as wanting conformity to a Christian way of dressing and thus, creating barriers for other religions. Chandrachud J. similarly culls out the barriers created to homosexual intercourse by necessitating conformity to a notion that finds the sole purpose of intercourse in procreation.

Even the concluding portions of paragraph extracted above might take a different colour in this light. A differentiating factor between direct and indirect discrimination in the United Kingdom, for one, is that indirect discrimination can be justified whereas direct discrimination cannot. Even in the United States, a measure with a disparate impact is proscribed under Title VII unless it is shown to have some business necessity. Similarly, Chandrachud J.’s opinion says that a provision cannot have a discriminatory impact unless there is a ‘sufficient justification’.

Admittedly, there is an alternate broader interpretation that can be conferred upon this opinion. It can be read to mean that the Supreme Court can sit in review over the merits of criminalisation and de-criminalise a measure unless sufficient justification comes forth. This broader interpretation though, strikes at the separation of powers between the judiciary and the legislature. Analysing the concluding portion of the excerpt in light of an understanding of disparate impact offers a narrower interpretation that is in conformity with the separation of powers. This interpretation is also buttressed by the fact that Chandrachud J. himself finds Section 377 to be an instance of indirect discrimination under Article 15 as well. It may seem odd that he finds the same statute to be an instance of indirect discrimination under Article 15, but I will comment on that a little later.

Malhotra J: Some semblance of Disparate Impact

Moving then to the opinion of Malhotra J.:

Section 377 insofar as it criminalises consensual sexual acts between adults in privates, is not based on any sound or rational principle, since the basis of criminalisation is the ‘sexual orientation’ of a person, over which one has ‘little or no choice’.

Further, the phrase ‘carnal intercourse against the order of nature’ in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.

Thus, apart from not satisfying the twin-test under Article 14, Section 377 is also manifestly arbitrary, and hence, violative of Article 14 of the Constitution.

At the outset, this opinion does not seem to link manifest arbitrariness with disparate impact as neatly as the opinions of Misra CJ. and Chandrachud J. did. However, Malhotra J. has identified that in its operation, Section 377 impacts a vulnerable group defined by an immutable personal characteristic and that this impact is adverse in nature (criminalisation of consensual sexual activity and harassment caused by misuse of criminal law). Therefore, this opinion too looks at the discriminatory operation of an otherwise neutral measure and this discriminatory operation is one reason for the provision to be manifestly arbitrary. To this extent, it shares a common denominator with the opinions of Misra CJ. and Chandrachud J. The second reason, namely, the absence of a sound and rational principle is not in common with those opinions.  However, the material fact is that four out of the five judges found Section 377 to be manifestly arbitrary because it had a disparate impact.

Nariman J. found the provision to be manifestly arbitrary because it was based on a capricious and irrational principle, namely, the fact that gay persons suffer from a mental disorder and ought to be penalised. To this extent, in my opinion, Nariman J. would be in the minority.

According to me, this reading of Navtej Johar seems to suggest that a statute is manifestly arbitrary when it has a disparate impact. Reading it in this way would have some direct, tangible benefits. First, it would militate against what Timothy Endicott terms arbitrary decision making by judges citing the doctrine of arbitrariness and to that extent, preserves the rule of law. Second, it might sanction the incorporation of the concept of disparate impact or indirect discrimination in India. While some have argued that Navtej was a precedent for indirect discrimination even otherwise (here and here), I disagree with these opinions. These opinions seem to rely on the observations made by Chandrachud J. in the context of Article 15(1). However, this was only the opinion of one judge and not the ratio. Therefore, there is some merit to unearthing the use of manifest arbitrariness.

Controversy

Nevertheless, this understanding of ‘manifest arbitrariness’ in Navtej unpacks a set of issues as well. The first is that the application of ‘manifest arbitrariness’ in Navtej is not in sync with its application in Joseph Shine, another Constitution Bench decision. This criticism is fairly true, but one could say that the different opinions in Joseph Shine only applied the test laid down by Nariman J in Sharaya Bano. None of them tried to find a common minimum denominator to Navtej’s application of manifest arbitrariness, the first decision which technically incorporated this doctrine.

A second objection could be that the judges in Navtej applied or at least cited the test quoted by Nariman J. in Sharaya Bano and that disparate impact does not appear to be the sequitur of that opinion. Nariman J., in Sharaya Bano collapsed legislation and delegated legislation for the purposes of Article 14 and said that the doctrine of manifest arbitrariness would apply to both. After that, he said:

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 legislation would be manifestly arbitrary.

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

In fact, even the Delhi High Court in Harsh Mander v Union of India did something similar. Delivered a month before Navtej and dealing with the constitutionality of the Bombay Prevention of Begging Act, 1949, the court applied manifest arbitrariness in the following manner:

It is our view that law does not make any distinction between types of begging i.e. voluntary or involuntary as has been urged by the petitioners. The absence of any such distinction exposes the statute to a judicial evaluation on the ground of being arbitrary.

On the contrary, the comprehensiveness of the definition of begging in Section 2(1) (i), appears to indicate a legislative intent to cover a broad area, including in its sweep, all types of begging. It has also been pointed out that the respondents are using homelessness and begging synonymously and are in fact detaining the homeless as if they were begging and implementing the penal provision of the act qua them.

This in our view is manifestly arbitrary.

… As a result of the detention of the bread earner of the family, the entire family may be reduced to financial deprivation and penury. Such can never be the object, spirit and intendment of a welfare state by way of what is touted as a social benefit legislation.

The first reason to find the law arbitrary was in response to a contention of the petitioner within the classification framework. It is the second reason that is more interesting. The petitioners contended that 74% of those arrested belonged to the informal labour sector and 45% of those arrested were homeless. It is in response to this contention that the court says that the State was treating homelessness and begging synonymously. What the court thus found was a disproportionate impact on a vulnerable group- the homeless. The disadvantage caused to them was that they were detained and even exposed to criminal sanction. Not to mention, their families were pushed into penury as a consequence. Therefore, the finding of manifest arbitrariness was contingent on a finding of disproportionate impact.

The disproportionate impact becomes clearer when we compare this to DH v Czech Republic, heard by the ECtHR, where a claim of indirect discrimination was upheld. This was a case where ‘psychology tests’ were administered to determine whether or not children should go to special schools, which were in practice undemanding and inferior. Statistics showed that these tests had a disproportionate impact on Roma students, who were over-represented in special schools. Similarly, before the Delhi High Court it was the homeless who were over-represented before the Beggars Court.

The third and more structural objection to this placement of ‘indirect discrimination’ in Navtej is that the court applies manifest arbitrariness in the context of Article 14. Chandrachud J. even says that discrimination under Article 15 could be indirect. This raises interesting questions about the nexus between Articles 14 and 15. Does Article 15(1) only cover direct discrimination? Would all cases of disparate impact only be covered by Article 14? Is one way to reconcile Chandrachud J.’s opinion that Article 14 covers indirect discrimination for markers other than the grounds covered by Article 15? However, what then is so unique about direct discrimination? Is it harm? Is it intention? Similarly, if we are to say that Article 15 covers direct and indirect discrimination for the grounds and Article 14 covers indirect discrimination for other grounds, what is the significance of Article 15(1)? Why do we even have grounds?

While I cannot deal with all these questions at present and may do so at a subsequent stage, my point remains that this reading of Navtej and Harsh Mander might help us add substance to the doctrine of ‘manifest arbitrariness’.

The Supreme Court’s 4G Internet Order: Evasion by Abnegation

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Evasion by Abnegation: A new facet of the Doctrine of Judicial Evasion?

This blog has often spoken of judicial evasion. However, the Supreme Court today demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion. Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court today shows us in its order disposing of FMP v UT of J&K and anr. (“Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation. In a writ petition pertaining to the validity of restrictions on 4G in Jammu & Kashmir, the Court held:

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored…

 We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions…

 The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir. With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…

 The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.

It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be. It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law. In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court held:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…

With great respect, the Order does not take into account the significance of this position.

The Zamora and Deference

In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”. Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate:

… there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

This statement was made in the context of deference on factual determinations of the executive. The Court noted:

Their Lordships are of opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact

In its Order in FMP, what the Supreme Court has done is not simply a deference to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Respondents after the matter was reserved for orders. This “Note” was – according to the Petitioner’s responsive submission – not supported by any materials on affidavit. But leaving that aside, what the Note indicates is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020. However, as the Petitioner’s responsive submission pointed out, this was much after the impugned restrictions in any case: how do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place? The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.) The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions? The Court makes no attempt whatsoever to engage with this legal question. [Further, another relatively minor point may perhaps be that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.]

In any case, The Zamora was a case involving the wartime requisition of copper (the copper admittedly being contraband of war) from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port. The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out:

 If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…

And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords clarified in Council of Civil Service Unions about Lord Parker’s statement about national security:

These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable” (p. 108). The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security.

The Zamora consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security. Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights. The Court might as well have relied on the majority in Liversidge v Anderson. It might have expressly clarified for once and for all that however deep ADM Jabalpur is buried, Lord Atkin’s dissent (“In this country, amid the clash of arms, the laws are not silent…”) was not applicable in India.

The constitution of the Special Committee; and a (forlorn?) hope

Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear. The question raised before the Court would require findings on questions such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):

the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone

If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid. Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision. The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive. One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment  (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.

Conclusion

To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking. In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:

 The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…

One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?

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.]


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”.