Arbitrariness: The Newer Doctrine

In one line

Article 14 strikes at an act for which no reason can be given, whether or not anybody else is being treated better.

In the wording a student can write in an exam: the classification doctrine tests a law by comparing those inside a class with those outside it. From E.P. Royappa v. State of Tamil Nadu a second doctrine grew, which does not require a comparison at all: equality is antithetic to arbitrariness, and where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14. Maneka Gandhi v. Union of India joined articles 14, 19 and 21 into a single scheme, so that a procedure which is arbitrary is no procedure at all. Ajay Hasia v Khalid Mujib Sehravardi applied the doctrine to an executive act, holding that allotting a third of the marks to an interview conducted in that way was EXCESSIVE AND ARBITRARY. And in Shayara Bano v. Union of India Nariman and Lalit JJ. applied MANIFEST ARBITRARINESS to strike down a rule of law itself.

Where the doctrine came from

In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Facts. A Chief Secretary complained that his transfer to another post was mala fide and violated articles 14 and 16. Held. The plea of mala fides failed on the facts, and the importance of the case is its reasoning: that article 14 is the GENUS and article 16 a SPECIES; that equality is a DYNAMIC CONCEPT with many aspects and dimensions and cannot be cribbed, cabined and confined within traditional and doctrinaire limits; and that "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." Why it matters here is the last sentence: arbitrariness is not evidence of inequality; it IS inequality.

Four years later the doctrine acquired a structure. In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 in the public interest, without reasons and without a hearing. Held. That articles 14, 19 and 21 are NOT MUTUALLY EXCLUSIVE but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three; that the procedure established by law in article 21 must be RIGHT, JUST AND FAIR, and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is NO PROCEDURE AT ALL; that the right to travel abroad is part of personal liberty; and that the audi alteram partem rule applies to the impounding of a passport, though a post-decisional hearing may suffice in urgent cases. Why it matters here is that it made article 14 a control on the QUALITY of a procedure and not merely on its distribution, which is how arbitrariness became a substantive test.