Doctrine Of Manifest Arbitrariness Can Be Used To Strike Down Laws: Supreme Court Reiterates In Electoral Bonds Case
A five-judge bench of the Supreme Court in the landmark judgment holding Electoral Bond Scheme to be unconstitutional reiterated that doctrine of manifest arbitrariness can be used to strike down laws.
The court said that doctrine of manifest arbitrariness can be used to strike down a provision where: (a) the legislature fails to make a classification by recognizing the degrees of harm; and (b) the purpose is not in consonance with constitutional values.
The court clarified that there is a distinction between plenary legislation and subordinate legislation when they are challenged for being manifestly arbitrary.
The Union of India had questioned the applicability of the doctrine of manifest arbitrariness for invalidating legislation in this case.
The bench observed: "The doctrine of manifest arbitrariness can be used to strike down a provision where: (a) the legislature fails to make a classification by recognizing the degrees of harm; and (b) the purpose is not in consonance with constitutional values."
Pertinently, the first judgment to propound the doctrine was Shayara Bano v. Union of India, (2017) 9 SCC 1 which the Court heavily relied on. In Shayara Bano, a Constitution Bench of the Supreme Court had set aside the practice of Talaq-e-Bidaat (Triple Talaq) where Section 2 of the Muslim Personal Law (Shariat) Act 1937 was also impugned before the Court.
As per the provision the personal law of the Muslims, that is Shariat, will be applicable in matters relating to marriage, dissolution of marriage and talaq. Justice RF Nariman, speaking for the majority, held that Triple Talaq is manifestly arbitrary because it allows a Muslim man to capriciously and whimsically break a marital tie without any attempt at reconciliation to save it. Thus, Justice Nariman applied the principle of manifest arbitrariness for the purpose of testing the constitutional validity of the legislation on the touchstone of Article 14.
Shayara Bano, particularly regarding the interpretation of Article 14 of the Indian Constitution and the concept of manifest arbitrariness provides the following:
1. No Distinction between Subordinate and Plenary Legislation: The court held that for the purposes of Article 14 of the Indian Constitution, there is no rational distinction between subordinate legislation (laws made by administrative authorities under the authority of a statute) and plenary legislation (laws enacted directly by the legislature). This means that both types of legislation are subject to scrutiny under Article 14, which guarantees equality before the law and prohibits discrimination.
2. Test of Manifest Arbitrariness: The court extended the test of manifest arbitrariness, initially laid down in the context of subordinate legislation in the Indian Express Newspapers case, to plenary legislation as well. Manifest arbitrariness refers to actions taken by the legislature in a capricious, irrational, and/or without adequate determining principle manner. The court emphasized that legislation found to be manifestly arbitrary would violate Article 14.
3. Legislation Excessive and Disproportionate: Furthermore, the court held that legislation that is excessive and disproportionate could also be deemed manifestly arbitrary. This implies that laws that impose unreasonable burdens or penalties without a valid justification could be struck down as unconstitutional.
4. Subsequent Reiteration: The doctrine of manifest arbitrariness, as articulated in the Shayara Bano case, has been reaffirmed by the court in subsequent judgments, indicating its enduring significance in constitutional jurisprudence.
Further while citing Navtej Singh Johar v. Union of India (2018) 10 SCC 1, the judgment said that the standard of manifest arbitrariness was further cemented by the Constitution Bench of the Court. In Navtej Singh Johar, Section 377 of the Indian Penal Code 1860 was challenged, inter alia, on the ground that it is manifestly arbitrary.
“Section 377 criminalized any person who has had ‘voluntary carnal intercourse against the order of nature’. Chief Justice Dipak Misra (writing for himself and Justice AM Khanwilkar) held that Section 377 is manifestly arbitrary for failing to make a distinction between consensual and non-consensual sexual acts between consenting adults.195 Justice Nariman, in the concurring opinion, observed that Section 377 is manifestly arbitrary for penalizing ‘consensual gay sex’. Justice Nariman faulted the provision for (a) not distinguishing between consensual and non-consensual sex for the purpose of criminalization; and (b) criminalizing sexual activity between two persons of the same gender.196 Justice DY Chandrachud noted that Section 377 to the extent that it penalizes physical manifestation of love by a section of the population is manifestly arbitrary. Similarly, Justice Indu Malhotra observed that the provision is manifestly arbitrary because the basis of criminalization is the sexual orientation of a person which is not a ‘rationale principle’”, the judgment read.
While establishing that manifest arbitrariness of a subordinate legislation has to be primarily tested vis-a-vis its conformity with the parent statute, the judgment further read, “Therefore, in situations where a subordinate legislation is challenged on the ground of manifest arbitrariness, this Court will proceed to determine, whether the delegate has failed ‘to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution’. In contrast, application of manifest arbitrariness to a plenary legislation passed by a competent legislation requires the Court to adopt a different standard because it carries greater immunity than a subordinate legislation. We concur with Shayara Bano (supra) that a legislative action can also be tested for being manifestly arbitrary. However, we wish to clarify that there is, and ought to be, a distinction between plenary legislation and subordinate legislation when they are challenged for being manifestly arbitrary”.
The bench headed by Chief Justice of DY Chandrachud and also comprising Justice Sanjiv Khanna, Justice BR Gavai, Justice JB Pardiwala and Justice Manoj Misra pronounced the judgment in the batch of four pleas including those filed by Congress leader Jaya Thakur and the CPI(M).
Cause Title: Association For Democratic Reforms And Anr. v. Union Of India And Ors. [Neutral Citation: 2024 INSC 113]
Click here to read/download the Judgment