Arbitrariness
Chapter Thirty-Nine
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action".
Pages 179 to 183 of 304
In one line
Article 14 grew a second test: a State act may be struck down for being arbitrary even where nobody has been treated differently from anybody else.
In the wording a student can write in an exam: the classification test asks whether a law that treats one group differently has drawn the line reasonably. It cannot reach a law or an act which treats everybody the same but does so on no rational basis at all, because there is then no classification to attack. In E.P. Royappa v. State of Tamil Nadu the Supreme Court held that equality is antithetic to arbitrariness, that the two are sworn enemies, and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14. In Ramana Dayaram Shetty v. International Airport Authority of India the Court added that every action of the executive government must be informed with reason and free from arbitrariness, which is the essence of the rule of law. The doctrine now extends to legislation under the name of manifest arbitrariness.
Why a second test was needed
The classification test has a structural limit that is easy to state and easy to forget.
It works only where there is a classification. If a rule applies to everybody in the field identically, nobody can say they were treated differently from a comparable person, and the twin test has nothing to bite on. Yet a rule may be identically applied and still be indefensible: a selection method that bears no relation to what it selects for, a condition imposed for no reason, a benefit withdrawn on a whim.
The classification test also invites a formalism. A court that asks only whether the line is intelligible and connected to the object can end up sustaining almost anything, because a competent draftsman can always supply an object the classification fits.
The arbitrariness doctrine answers both. It asks not "was the line drawn reasonably" but "was there any reason at all".
The founding passage
Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973. A senior IAS officer holding the post of Chief Secretary of Tamil Nadu was transferred to two other posts which he contended were inferior, and alleged mala fides and a breach of articles 14 and 16.
Held. The plea of mala fides failed on the evidence. On article 14 the Court said that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits, and then:
From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.
Arbitrariness
Articles 14 and 16 strike at arbitrariness in State action and require that it rest on relevant principles applicable alike to all similarly situated, free of extraneous or irrelevant considerations.
Why it matters. It is the origin of the doctrine. Note what it does structurally: it makes arbitrariness itself a violation, without requiring a comparator. That is the whole innovation.
Extended to administrative action
Facts. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, (1979) 3 SCC 489, decided 4 May 1979. The Authority published a tender notice confining eligibility to registered second class hoteliers with five years' experience, and then accepted a tender from a party who satisfied neither condition.
Held. Accepting a tender from a party who did not meet the Authority's own published standard was discriminatory, because it excluded others similarly situated, and was arbitrary and without reason. The Court laid down the wider principle:
Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement.
It added that it makes no difference whether the exercise of power affects a right or denies a privilege: the licences, contracts and benefits the modern State dispenses are a new kind of wealth and are not gratuities the State may grant or revoke at pleasure.
Why it matters. It carries arbitrariness from service law into the whole field of government dealing: contracts, tenders, licences, allotments and concessions. It is also the source of the proposition most often quoted in administrative law answers.
Applied to strike down a rule
Facts. Air India v. Nergesh Meerza, AIR 1981 SC 1829, (1981) 4 SCC 335, decided 28 August 1981. Air hostesses retired at thirty-five, or on marriage within four years of joining, or on first pregnancy, whichever occurred earlier, with the Managing Director holding a discretion to extend service.
Held. The provisions were a clear case of official arbitrariness. The words "or on first pregnancy whichever occurs earlier" are unconstitutional, void and violative of article 14 and stand deleted. The Managing Director's uncontrolled option to extend was also struck down, because it allowed him to discriminate between one air hostess and another; the effect is that extensions must be granted as a matter of course where she is medically fit. The offending words being severable, the whole regulation was not struck down.
Arbitrariness
Why it matters. It shows both doctrines working together: the discretion clause fails on the Anwar Ali Sarkar ground of unguided power, and the pregnancy clause fails as arbitrary in itself. Read it accurately: the Court did NOT strike down the different retirement age, and its treatment of air hostesses and male cabin crew as separate classes has been criticised.
Manifest arbitrariness, and legislation
The harder question is whether a statute, as distinct from executive action, can be struck down simply for being arbitrary. For many years the position was contested: one line of authority held that arbitrariness is a doctrine for administrative action and that a law can be tested only by classification.
The modern position uses the phrase manifest arbitrariness, and it means something narrower than mere unreasonableness: legislation which is capricious, irrational or without an adequate determining principle, or which is excessive and disproportionate.
Facts. Shayara Bano v. Union of India, decided 22 August 2017 by five judges. The petitioner's husband pronounced talaq three times at once. She sought a declaration that talaq-e-biddat is void and that the practice is unconstitutional as violating articles 14, 15 and 21; the respondents said it was personal law protected by article 25 and recognised by section 2 of the Muslim Personal Law (Shariat) Application Act 1937.
Held. The order of the Court records that "by a majority of 3:2 the practice of talaq-e-biddat, triple talaq, is set aside". The three in the majority did not agree on why. Kurian Joseph J. held the practice was not part of Islamic law at all. Nariman and Lalit JJ. held it was manifestly arbitrary and therefore void under article 14. Khehar C.J. and Nazeer J. dissented, holding it was protected personal law and that Parliament should legislate.
Why it matters. It is the leading modern application of manifest arbitrariness, and it is also a warning about citation: the result is clear, the ratio is not, and a student should say which opinion he is relying on.
The criticism
An LL.M. answer should engage with the objection rather than recite the doctrine approvingly.
It has no textual anchor. Article 14 speaks of equality, not of reasonableness. Reading arbitrariness into it converts a guarantee of equal treatment into a general power to review the quality of legislation.
It has no standard. "Arbitrary" is not a test in the way the twin test is a test. It gives a court a conclusion rather than a method, and different judges reach different answers on the same facts.
It trespasses on the legislature. Striking down a statute because a court thinks it lacks an adequate determining principle comes close to reviewing policy, which is what the separation of powers reserves to Parliament. See [Judicial Activism, Restraint and Overreach].
Arbitrariness
The answer to the criticism is that the alternative is worse: a doctrine confined to classification cannot reach a law that harms everybody equally and for no reason, and the qualifier "manifest" is what keeps the standard from swallowing ordinary policy disagreement.
A worked example
A university frames a rule that every applicant for a teaching post must submit a certificate of physical fitness issued by one named private hospital, at the applicant's cost. The rule applies to all applicants without distinction. An applicant challenges it under article 14.
Can the classification test reach it? No. The rule applies to everybody identically, so there is no group treated differently and no differentia to test. A student who stops here concludes wrongly that article 14 is not engaged.
The arbitrariness route. On Royappa, State action must rest on relevant principles and be free of extraneous considerations. Requiring fitness may be relevant to a teaching post; requiring it from one named private hospital is not, unless some reason is shown. On R.D. Shetty, every action of the executive must be informed with reason.
What the university must show. Not that the rule is wise, but that there is a reason for it: that the named hospital alone has some capacity the others lack, or that a uniform standard could not otherwise be secured. If no reason is offered, the rule is arbitrary.
And if the rule were in a statute? Then the higher threshold applies. The question would be whether it is manifestly arbitrary: capricious, irrational, or without an adequate determining principle. A merely unwise legislative choice survives.
The lesson. Where nobody is treated differently, plead arbitrariness. Where a group is singled out, plead both.
Quick revision
- The classification test needs a classification. Arbitrariness needs none, which is why the second doctrine exists.
- Royappa: equality and arbitrariness are sworn enemies; an arbitrary act is by that fact unequal and violates article 14.
- R.D. Shetty: every action of the executive must be informed with reason and free from arbitrariness, the bare minimal requirement of the rule of law; and it applies to privileges as well as rights.
- Nergesh Meerza: retirement on first pregnancy is official arbitrariness and void; an unguided power to extend is void on the Anwar Ali Sarkar ground.
- For legislation the standard is MANIFEST arbitrariness: capricious, irrational, without an adequate determining principle, or excessive.
- Shayara Bano set aside triple talaq 3:2, but only two of the three used manifest arbitrariness. State which opinion you rely on.
- The criticism: no textual anchor, no standard, and a risk of reviewing policy.
Arbitrariness
Test yourself
1. What is the structural limit of the classification test, and how does the arbitrariness doctrine answer it?
2. Quote the Royappa passage and explain what it changed.
3. What did R.D. Shetty add, and why does its reference to privileges matter?
4. What exactly was struck down in Nergesh Meerza, and what was not?
5. Distinguish arbitrariness from manifest arbitrariness, and say why the qualifier is needed.
6. Set out three criticisms of the doctrine and the best answer to them.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.