Article 14 and Arbitrariness vis-à-vis Legislative Action

“So diverse and adverse are the decisions of different High Courts, and of the same High Court, that in examining cases, as precedents by which to try a suit, the lawyer encounters a perpetual change of cloud and sunshine, and occasionally a real thunderstorm, succeeded by a burning sun. What was law at one time, is not law now – what is law in one place, is not in another – locality, individuality, prejudice, and perpetual change, characterise the decisions of Judges learned in the law.”

Levi Carroll Judson

(American Jurist)

Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.

Henry Ward Beecher

(American Congregationalist Clergyman, Social Reformer and Speaker)

The 3-part series of this article attempts to dive deep into “arbitrariness as a testing criteria” for examining the validity and constitutionality of any legislative enactment. In other words, how far “arbitrariness as an independent ground” can be a reason for the constitutional courts to strike down any law having become a havoc for Article 14 of the Constitution of India. A priori, we would have a peep into how the concept of arbitrariness has been expanded to be made applicable to parliamentary/State enacted legislations for nullifying them through the sword of Article 14. The article which shall be split in 3 parts, shall be compartmentalised into the following sub-sections:

Jurisprudence of Arbitrariness: Origins and Growth up to Royappa.
Unconstitutionality of Legislative Provisions vis-à-vis
Distortion in McDowell and its Resurrection in Shayara Bano.
Article 14 and the Time Machine: Initial Judicial Responses.
Obsolescence as a Ground for Arbitrariness and Unconstitutionality.
Outdated Legislations in the Context of K.S. Puttaswamy.
Scrutiny of Certain Legislations as Being Obsolete and Resultantly Unconstitutional.

Jurisprudence of Arbitrariness in India: Origins and Growth up to Royappa

Most of us understand the roots of “concept of arbitrariness” to be originating from the celebrated judgment of E.P. Royappa v. State of T.N.^[1] and its intertwining with other pillars of Part III viz. Articles 19, 21 and 32 of the Constitution of India. However very few of us are actually aware that E.P. Royappa[2] had merely enamoured the content of Article 14 with “concept of arbitrariness” in a well-articulated expression, in a way never done before. The Supreme Court in E.P. Royappa[3] in fact did not actually discover “arbitrariness” in Article 14 for the first time, but had elegantly woven the same thing said before, but on different occasions and in different judgments. We will explain how.

Article 14 has its reflection in the Preamble to our Constitution, the relevant portion of which reads “Equality of Status and of Opportunity”. It is a hybrid amalgam of two different species of equality viz:

(a) Equality before law – (concept borrowed from the UK Constitution).

(b) Equal protection of law – (concept borrowed from 14th Amendment to the US Constitution).

The theory of classification adopted by American Courts was a corollary to the concept underlying equality clause, namely, that a law must operate alike on all persons under like circumstances. In fact, the latter component of Article 14 was the reason for the evolution of the concept of “classification”.

The celebrated dissent of Justice Subba Rao in State of U.P. v. Deoman Upadhyaya^[4] stated that Article 14 comprises both “positive content” as well as “negative content”. Whereas, equality before the law is a negative content, equal protection of the laws exhibits a positive content of Article 14. In this case, the accused Deoman was convicted for offence of murder by the Sessions Court, Gyanpur. The challenge to the conviction arose on the inherent anomaly in Section 27 of the Evidence Act, 1872 making inadmissible the statements of persons under the presence of a police officer, but not actually in police custody. The statement by Deoman purportedly was made in the presence of the police officer and therefore benefit of Section 27 was being pleaded by the accused. The Constitution Bench affirmed the classification of accused persons separately between those actually in police custody and those with police personnel present around them as reasonable. The Court though accepted that the statements may be confessional in nature, however separate treatment of both the categories of accused was found to be justified. Justice Subba Rao, however in his historic dissent accorded a different dimension and colour to Article 14, vide para 24, he has thus:

… This subject has been so frequently and recently before this Court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. … So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.

In yet another landmark dissent in Lachhman Dass v. State of Punjab^[5], Justice Subba Rao cautioned on imperceptible deprivation of Article 14 of its glorious content and shining aura, whilst emphasising too much on the doctrine of classification. The appellants in this case, were a joint Hindu family firm which has been carrying on business since 1911 in grains, dal, cereals, cotton ginning and pressing, oil manufacture and the like, in the erstwhile State of Patiala. The firm had an account called the cash credit account and used to borrow money in this account by pledging its stocks. In 1951-1952 there was a heavy slump in the prices of the commodities with the result that the amounts advanced by the bank on the security of the goods were very much in excess of the market prices thereof. To cover this shortfall the firm entered into an arrangement with the bank and it is this that formed the source of the litigation in this case. The bank sanctioned a loan on “demand loan account”. The amount payable under the demand loan account not having been paid by the appellants, the bank took steps to realise the same in accordance with the provisions of the Patiala Recovery of State Dues Act, 2002. The vires and constitutionality of this enactment was challenged before the Supreme Court on the ground that the Act and the Rules made thereunder became void on the coming into force of the Constitution as being repugnant to Articles 14 and 19(1)(f) and (g), and the proceedings taken under those provisions being illegal. Vide para 47, the dissenting opinion lent importance to the “positive content” under Article 14. Justice Subba Rao while discussing the scope of Article 14 in the aforementioned para, stated that:

47. … It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

Perhaps the first landmark judgment which actually spotted the virtue of non-arbitrariness in Article 14 was S.G. Jaisinghani v. Union of India^[6] . The Court, for the first time held “absence of arbitrary power” as sine qua non to rule of law with confined and defined discretion, both of which are essential facets of Article 14. Quoting the celebrated saying of Douglas, J., in United States v. Wunderlich^[7] :

… when it has freed man from the unlimited discretion of some ruler…. Where discretion is absolute, man has always suffered.

It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in John Wilkes^[8], Burr at p. 2539:

“… means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful….”

In Jaisinghani[9], the constitutional validity of seniority rule in regard to Income Tax Officers was challenged along with the improper implementation of the “quota” recruitment as infringing the guarantee of Articles 14 and 16(1) of the Constitution. Justice Subba Rao (this time majority opinion) elaborating on the wide expanse of Article 14 , vide para 14 held thus:

In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

Another milestone in the development of the concept of arbitrariness in State of Mysore v. S.R. Jayaram^[10] wherein the constitutional validity of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers Rules, 1959 was challenged. Under the first part of the said Rule 9(2), the candidates were provided preferential claim to appointment as per their place on the merit list subject to certain reservations for SC/STs and OBCs. The latter part however vested upon the Government the right of making appointment of any candidate to any particular cadre as it deemed suitable at its discretion. This part of the rule was assailed as arbitrary as can be gleaned from the submissions of the counsels appearing from the petitioner therein. The Constitution Bench of the Supreme Court examining the challenge to Rule 9(2) resorted to the principle of “conferment of arbitrary powers”. Arbitrariness was construed in the judgment of S.R. Jayaram[11] as vesting of uncanalised and unguided discretion of the executive and thus opposed to positive content imbibed in Article 14 r/w Article 16.

Thereafter, in the celebrated judgment of Indira Nehru Gandhi v. Raj Narain^[12], whilst dealing with the challenge to newly inserted clauses (4) and (5) to Article 329-A , the Constitution Bench of Supreme Court imported the concept of “inherent arbitrariness” in the amending Act to strike down the said clause (4). Whilst declaring clause (4) unconstitutional, the Court held that the amendment to the Constitution created a situation of vacuum with no law to be applied for deciding the dispute of election. The explicit opinion of Justice Chandrachud held that newly inserted clauses (4) and (5) to be arbitrary with the potential to altogether destroy the rule of law. Vide para 681, Justice Chandrachud in his concurring judgment employed the “rationale of arbitrariness” to declare clauses (4) and (5) to be violative of Article 14. His observations ran thus:

681. It follows that clauses (4) and (5) of Article 329-A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition of “law” itself.[13]

From the above expositions, one would conveniently comprehend that the foundation stone as also the basic groundwork for embodiment of “concept of arbitrariness” as an essential attribute of Article 14 was laid much before the judgment of E.P. Royappa[14]. It would therefore be prevaricating to state that concept of non-arbitrariness was expounded for the first time in the judgment of E.P. Royappa[15]. As would be detailed below, the Supreme Court in E.P. Royappa[16] just beautifully joined the dots together to meticulously articulate the negative correlation between arbitrariness and Article 14. E.P. Royappa had challenged the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman, State Planning Commission and thereafter as Officer on Special Duty as violative of his Articles 14 and 16 rights. The assail rested on mala fide exercise of power by the State with an inferior officer being appointed to the position of Chief Secretary, overlooking the seniority of petitioner Royappa therein.

The stage was thus set in the peculiar constitutional facts for the constitutional prodigy Justice P.N. Bhagwati who despised any attempt to “crib, cabin or confine” the unlimited reach of Article 14. Vide para 85, speaking for the majority, Justice Bhagwati held[17]:

85. … Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. 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; 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 Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

Thus in E.P. Royappa[18], the concept of arbitrariness came to be formally embedded as a ground for striking down any legislative or executive action being antithetical to Article 14.

Unconstitutionality of Legislative Provisions vis-à-vis Arbitrariness

Post the verdict of E.P. Royappa[19], the Supreme Court found itself armed with a dynamic tool for testing the constitutionality of any legislative or executive action on the touchstone of arbitrariness. The substantive right of “equal protection of law” came to be acknowledged as synonymous to a substantive right and protection against “arbitrariness per se”. Though Seervai in his treatise on Constitutional Law of India^[20] has argued that the new doctrine of arbitrariness “hangs in the air” as it is propounded without reference to the terms in which the right to “equal protection of laws” is conferred. Courts have misunderstood the relation between “arbitrariness” and “discrimination”. From the Supreme Court’s reasoning, it appears that “arbitrarness” involves a voluntary action of a person on whom the arbitrary power has been conferred. However, according to Seervai, one cannot attribute will or intention to a legislature. Whatever violates equality is not necessarily arbitrary, though arbitrary actions are ordinarily violative of equality.

Equality vis-à-vis arbitrariness was further polished and fleshed out in the celebrated judgment of Maneka Gandhi v. Union of India^[21], where the Supreme Court held that the trinity of three articles i.e. Articles 14, 19 and 21 fertilise and cultivate each other mutually. The Court correlated the principle of reasonableness under Article 19 with non-arbitrariness under Article 14 with substantive due procedure under Article 21.

The Supreme Court thereafter in A.L. Kalra v. Project and Equipment Corpn. of India Ltd.^[22] and D.S. Nakara v. Union of India^[23] accorded new dimension to Article 14 by holding that arbitrariness does not always require a comparative/relative evaluation between two persons for recording a finding of discriminatory treatment. The Court held in absolute terms that an action per se arbitrary, (even in the absence of any correlation with any other similarly circumstanced person) shall be violative of second part of Article 14. Kalra[24] thus impliedly extended the applicability of non-arbitrariness to legislative action as well.

Thereafter, in Ajay Hasia v. Khalid Mujib Sehravardi^[25], the Constitutional Bench of the Supreme Court (five Judges) in no uncertain terms, held the concept of reasonableness and non-arbitrariness to be applicable even to legislative actions. Vide para 16, the Court speaking through Bhagwati, J. held thus:

… Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “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.

Thus, the collateral nurturing of the doctrine of non-arbitrariness and reasonableness throughout for both legislative as well as executive actions, cannot be said to be confined only to the latter. It would therefore, be a constitutional fallacy to state that arbitrariness applies only to executive actions and not to legislative actions. This is evident from the analysis of the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 in K.R. Lakshmanan v. State of T.N.^[26] on the touchstones of arbitrariness and unreasonability. The Madras Race Club, a limited liability company registered under the Companies Act, 1956, was formed in the year 1896 by taking over the assets and liabilities of the erstwhile unincorporated club known as Madras Race Club. Race meetings were held in the club’s own race course for which bets were made inside the race course premises. The Tamil Nadu Legislature enacted law by bringing horse racing under the ambit of the definition of “gaming”. The said law was challenged by the club on the grounds that “chance” is a controlling factor in gaming which does not include games of skill like horse racing and thus the said enactment was unconstitutional. The Tamil Nadu Legislature during the pendency of the appeal however, enacted the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (the 1986 Act) which provided for acquisition and transfer of the undertaking of the Madras Race Club on the basis of “public purpose and public good”. The said Act was challenged as violative of Articles 14 and 19(1)(g) of the Constitution of India being irrational and arbitrary. The Court struck down the legislative enactment for being arbitrary and discriminatory. The Supreme Court in Lakshmanan[27] thus established beyond any cavil of doubt that a legislative enactment could be assailed as being arbitrary. This proposition however, stood distorted later owing to an erroneous interpretation of Article 14 subsequently by a lesser Judge Bench (3 Judges) in State of A.P. v. McDowell & Co.^[28]

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.

† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in constitutional law matters.

†† Final year student, BA LLB (Hons.), National University of Study and Research in Law (NUSRL), Ranchi.

^[1] (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1974) 4 SCC 3 : AIR 1974 SC 555.

[3] (1974) 4 SCC 3 : AIR 1974 SC 555.

^[4] (1961) 1 SCR 14 : AIR 1960 SC 1125.

^[5] (1963) 2 SCR 353 : AIR 1963 SC 222.

^[6] (1967) 2 SCR 703 : AIR 1967 SC 1427.

^[7]1951 SCC OnLine US SC 93 : 96 L Ed 113 : 342 US 98 (1951).

^[8]R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327.

[9] (1967) 2 SCR 703 : AIR 1967 SC 1427.

^[10] (1968) 1 SCR 349 : AIR 1968 SC 346.

[11] (1968) 1 SCR 349 : AIR 1968 SC 346.