Article 14 and Arbitrariness vis-à-vis Legislative Action [Part II]

Part I of this Article dwelt into the origins of the concept of non-arbitrariness through various judgments delivered in the decades of 1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of E.P. Royappa v. State of T.N.^[1] Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court in K.R. Lakshmanan v. State of T.N.^[2], to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part I thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legislative action in the judgment of State of A.P. v. McDowell & Co.^[3] How post distortion in McDowell[4], the Supreme Court did a systemic course correction in Shayara Bano v. Union of India^[5] and settled the chequered legal position holding the ground today. The article shall also delve into “time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same.

Distortion in McDowell and its Resurrection in Shayara Bano

In State of A.P. v. McDowell & Co.^[6], constitutional validity of certain provisions of Andhra Pradesh Liquor Prohibition (Amendment) Act, 1995 were assailed by the manufacturers of intoxicating liquor. The challenge relating to Article 14 and arbitrariness of the amending provisions was mounted essentially on the ground that though there was an absolute prohibition under the enactment, the exempted categories were allowed to consume intoxicated liquor in Andhra Pradesh. Thus the real purpose of imposing a total prohibition within the territories of Andhra Pradesh stood defeated by provisions relating to exemption of specified categories of manufacturers and consumers of liquor, which was pitched to be completely arbitrary. It was argued that roots of Article 14 were traceable to the Federal Constitution of the United States of America, wherein the power of the Parliament/State Legislature to make the laws is delimited by the Bill of Rights. The 3-Judge Bench of the Supreme Court vide para 43^[7] onwards held that only two grounds are available for striking down any legislation/legislative action viz. “lack of legislative competence” or “violation of any fundamental right under Part III of the Constitution of India” or any other constitutional provision, or both. The Court further held that the ground of invalidation must fall within four corners of the wordings of Article 14, then only can it be struck down. In the context of Article 19(1), it was held that parliamentary/State legislation can be struck down only if it is found to be not saved by any of clauses (2) to (6) of Article 19. The Court in clear and categorical terms held that no enactment can be struck down merely on the argument that it is “arbitrary” or “unreasonable”, but there has to be some other tangible constitutional infirmity to be found before the legislation is declared unconstitutional. The Supreme Court vide para 46 held that applicability of arbitrariness as a ground for invalidating any legislation is confined only to legislative actions and no opinion was expressed insofar as its applicability to delegated legislation is concerned. The Court held that any act which is discriminatory can easily be labelled as arbitrary, but the reverse synthesis is not permissible. Accordingly, the Court repelled the challenge to the constitutionality of the A.P. Prohibition Act, on the specific anvil of the arbitrariness under Article 14 of the Constitution of India.

Thus, the judgment of McDowell[8] was essentially a clear distortion from the linear reasoning being adopted prior to it of legislations being invalidated if found “arbitrary” per se. The Supreme Court in McDowell case[9] thus completely shut the doors to entertain any argument of arbitrariness for assailing any legislative enactment.

Pertinently, McDowell case[10] had in its enthusiastic bid to hold or limit the applicability of arbitrariness doctrine to legislative enactments ignored its own binding decisions delivered prior in point of time. The first one being the Constitution Bench judgment in Ajay Hasia v. Khalid Mujib Sehravardi^[11] by a larger Bench and the second one being the Coordinate 3-Judge Bench judgment in K.R. Lakshmanan[12].

Besides the line of reasoning adopted by the three-Judge Bench in McDowell case[13] was that American Courts have discouraged and dissuaded the employment of “substantive due process” for scrutinising and invalidating legislative actions in the US. Therefore the Court should not sit over the wisdom of the legislature and employ “substantive due process” to strike down legislative provisions. This reasoning was completely flawed as by this time, Maneka Gandhi v. Union of India^[14] and its legacy had come to occupy the field with Articles 21, and 14 imbued with the spirit of substantive due process getting interconnected and interlinked with “reasonableness” under Article 19. This was said in so many words by Justice Krishna Iyer in the celebrated judgment of Sunil Batra v. Delhi Admn.^[15], wherein the Court categorically held that Section 21 encompasses substantive due process and fairness also as a ground for testing any executive decision. Vide para 52, the Supreme Court in Sunil Batra[16] speaking through Justice Krishna Iyer held thus:

True, our Constitution has no “due process” clause or the VIII Amendment; but, in this branch of law, after Rustom Cavasjee Cooper v. Union of India[17] and Maneka Gandhi[18], the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanise and civilise the lifestyle within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III.

McDowell21, which was a 3-Judge Bench pronouncement, was followed by multiple other subsequent judgments of the Supreme Court, as also the High Courts, which are not being spelt out herein, since the discussion has to now get routed to the verdict of Shayara Bano v. Union of India[19] of the Constitution Bench of the Supreme Court of India. Here the practice of instantaneous triple talaq was laid challenge to by Shayara Bano who was a Muslim lady and married to Rizwan Ahmed for 15 years, when in 2016, she was divorced by just being pronounced orally talaq thrice.

She approached the Supreme Court praying for writ declaring the orally declared triple talaq void ab initio on the grounds that it violated her fundamental rights. The question arose about the applicability of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provided that “notwithstanding any custom or usage to the contrary, all questions relating to marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaarat, etc. the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)”. Meaning thereby that in case of Muslims, by virtue of Section 2 of the Application Act of 1937, Muslim personal laws became automatically applicable in disputes appertaining to marriage, dissolution of marriage, including talaq.

The majority opinion led by Justice R.F. Nariman held that the practice of triple talaq is inherently unconstitutional. Referring to the long line of judgments of Sunil Batra[20], Mithu v. State of Punjab^[21], the Court held that a law can always be tested on the allegations of it being arbitrary, oppressive and crossing all the bounds of reasonableness. The Court categorically held that McDowell case[22] had perhaps overlooked and ignored the binding nature and efficacy of multiple Constitution Bench and Coordinate Bench (3 Judges) judgments, which being earlier in point of time were all binding on it. Vide paras 82 to 84 of the Shayara Bano case25, the majority speaking through Justice R.F. Nariman held thus:

It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments in Mithu case[23] and Sunil Batra case[24] that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.
… A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra^[25] which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell^[26].
The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras^[27] that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven-Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India^[28] and followed in Maneka Gandhi^[29]. Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of this Court, some of which are referred to in Om Kumar v. Union of India^[30] and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.

Accordingly the Supreme Court expressly overruled the judgment of McDowell[31] and the consequent distortion caused by it. The law eventually resettled by Shayara Bano[32] is that applying the “arbitrariness doctrine”, even the legislative provisions can be struck down if they are found to be discriminatory, with their operation being whimsical, excessive, unreasonable or disproportionate. The Constitution Bench categorically held that this sort of arbitrariness will cut deeply through all kinds of State action, be it legislative or executive and would spare no one. The fine tuning of this doctrine was taken to highest standards in Shayara Bano[33] by holding that Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights as also other rights conferred by the Constitution. Hesitation or refusal on the part of constitutional courts to nullify the provisions of an Act meant to be unconstitutional on the technical grounds of “non-applicability of arbitrariness doctrine” to legislative actions even when such legislative provisions patently infringe constitutional guarantees in the name of judicial humility, would escalate serious erosion of remedies available to the citizens of this country under the Constitution.

The majority opinion of the Supreme Court thus in Shayara Bano[34] ultimately held that triple talaq is gender biased giving uncanalised discretion to a Muslim man/husband to strip off his marital ties with his wife through mere oral recitations. Therefore Section 2 of the Application Act of 1937 was held to be patently unconstitutional being manifestly arbitrary.

Two recent judgments of the Supreme Court in State of T.N. v. K. Shyam Sunder^[35] and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy^[36] reiterated the legal position that even legislative provisions can be struck down if found to be arbitrary and resultantly violative of Article 14. Vide paras 52 and 53, the Supreme Court in K. Shyam Sunder[37] observed as follows:

In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group^[38], this Court held that:

“205. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.”

In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board[39] and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd.^[40], this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article 14, the court must be satisfied in respect of substantive unreasonableness in the statute itself.

In the same vein, the Supreme Court vide para 29 in A.P. Dairy Development Corpn.[41] reiterated the legal proposition as follows:

It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.

Completing the whole picture on the issue, it is luminescent that there is no inhibition for the constitutional courts to resort to arbitrariness doctrine for striking down any legislative enactment or provision. I am deliberately avoiding reference to a long line of judgments (more than 10 in number) where the Supreme Court in the last 10 years has struck down statutory provisions of any enactment on being found unreasonable, harsh, oppressive, onerous and resultantly arbitrary. It struck down legislative provisions on being found arbitrary even if not strictly discriminatory.

Article 14 and the Time Machine: Initial Judicial Responses

After an indepth analysis and scrutiny of correlation between “arbitrariness doctrine” and its applicability to legislative action, we shall undertake discussion on the specific topic as to how far passage of time can be a testing criteria for the validity of any legislation or legislative provision. In other words, whether any statutory provision which was constitutional to start with at the time of its enactment can be struck down on the ground of arbitrariness with the efflux of time; what impact “time as a factor” has on the applicability of arbitrariness doctrine to any legislative provision or enactment. Under these subheadings we shall be referring to some of the landmark judgments of the early decades of the 1950s, 60s and the 70s, wherein through various judgments of the Supreme Court, the constitutionality of any legislative provision was anchored on the tide of time as the testing criteria.

The first in the fray is the Constitution Bench judgment of the Supreme Court in Bhaiyalal Shukla v. State of M.P.^[42] In this case the petitioner who was a government contractor challenged the levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts. Levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts, in District Rewa, which was falling under formerly State of Vindhya Pradesh, specifically after merger of that area in the newly constituted State of Madhya Pradesh formed on 1-11-1956 under the States Reorganisation Act. The sale of building materials in works contract was not subject to any levy of sales tax in another part of (the newly constituted) State of Madhya Pradesh. However the Court rejected the said contention holding that “the laws in different portions of newly constituted State of Madhya Pradesh were enacted by different legislatures and till they are repealed or altered by the newly constituted legislature, they shall continue to operate. Different laws in different parts of Madhya Pradesh, which were earlier part of a different demerged State which was earlier part of another State prior to its merger, would be sustained on the grounds of geographical classification arising out of historical reasons….”^[43]

Thus in Bhaiyalal Shukla[44] the Supreme Court did not directly answer the issue of effect of passage of time over validity of any legislation.

The next judicial milestone on the subject under discussion is State of M.P. v. Bhopal Sugar Industries Ltd.,^[45] wherein the levy of agricultural income tax in Bhopal, formerly a part of Bhopal State was continued even post merger with the newly constituted State of Madhya Pradesh in 1956. In all other parts of the State, the levy was not being imposed on the identically placed landowners or assessees. The Supreme Court again referring to Section 119 of the States Reorganisation Act, 1956 held that differential treatment arising out of application of the laws pre-existing from the merger of said regions/States in the newly constituted merged State does not invite discrimination or offend equality clause under Article 14. However the Supreme Court acknowledged the impact “efflux of time” would have on the validity of any legislative provision, even though enacted with justifiable cause or reason on the date of its enactment, but later on becoming constitutionally pernicious for perpetuating a treatment not having reasonable cause or rational basis to support it. Vide para 7 (p. 6), the Constitution Bench of the Supreme Court held thus:

… This in the view of the High Court was unlawful because the State had since the enactment of the States Reorganisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income Tax Act in the Bhopal region would be consistent with Article 14 of the Constitution. We are unable to agree with the view of the High Court so expressed. It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. That initially there was a valid geographical classification of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether the continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after a full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circumstances, if any, which obliterated the compulsion of expediency and necessity existing at the time when the Reorganisation Act was enacted.

(emphasis supplied)

From the above observations it can safely be inferred that the Supreme Court delved upon the inevitable effect time would have on the validity of any legislation, especially in the context of its failure to pass the litmus test of “equal protection of laws” guaranteed under Article 14 of the Constitution of India. As would be detailed below, this jurisprudence has since thereafter been expanded again and again in various dimensions by the Supreme Court.

Another controversy which cropped up before the Constitution Bench of the Supreme Court in Narottam Kishore Deb Varman v. Union of India^[46] was pertaining to the legality of Section 87-B of the Code of Civil Procedure, 1908. The provision under challenge required prior consent of the Central Government as a prerequisite for institution or trial of any suit against the ruler/maharaja of any State/Province, which got merged with the Indian Union. Though the Supreme Court repelled the constitutional challenge to validity of Section 87-B for historical and geographical justifications produced before it including the protection adumbrated under Article 372 of the Constitution of India. However at the same time, after affirming the constitutionality of Section 87-B, the Supreme Court required the Central Government to review and re-examine the extent of period to which the said protection of prior consent of the Central Government to be available as against the said provision being there on the statute book in perpetuity. Vide para 11, the Constitution Bench held thus:

Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow Section 87-B to operate prospectively for all time. The agreements made with the rulers of Indian States may, no doubt, have to be accepted and the assurances given to them may have to be observed. But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that Section 87-B should continue to operate for all time. For past dealings and transactions, protection may justifiably be given to rulers of former Indian States; but the Central Government may examine the question as to whether for transactions subsequent to 26-1-1950, this protection need or should be continued. If under the Constitution all citizens are equal, it may be desirable to confine the operation of Section 87-B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and rulers of former Indian States. With the passage of time, the validity of historical considerations on which Section 87-B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.

Next in the series is the Constitution Bench judgment of the Supreme Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Department^[47]. As in the earlier cases, the dispute in this case also arose out of the reorganisation of States in various parts of the country in 1956. The South Kanara District, formerly a part of State of Madras was reconstituted to be merged with the State of Mysore (now Karnataka) in 1956, and by reason of Section 119 of the States Reorganisation Act, Madras Hindu Religious and Charitable Endowments Act, 1951 continued to apply to South Kanara District nonetheless when it ceased to be part of erstwhile State of Madras. The challenge to applicability of Endowments Act of 1951 was mounted on the ground that South Kanara District was the only district in the whole State of Mysore (now Karnataka), which continued to be governed by the Madras State enactment, which was thus starkly offensive of Article 14.

The Supreme Court on the point of “time” rendering the purpose of any legislation ineffective or constitutionally offensive referred to celebrated Latin maxim of “cessante ratione legis cessat ipsa lex”, that is, “reason is the soul of the law and when the reason of any particular law ceases, so does the law itself”. It held that an indefinite extension and application of unequal laws for all times to come starts militating against the true character and laudable intent of being a “temporary measure” to serve a “temporary purpose”. Though the challenge to the constitutionality was repelled by the Supreme Court, but the majority speaking through Justice Y.V. Chandrachud reminded the legislature to wake up timely to the altered necessities of time. The majority opinion directing for suitable tailoring of the legislative provisions, lest it would lead to enactment being left vulnerable to constitutional attack observed vide para 31 of H.H. Shri Swamiji case48 thus:

But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation – apart from two abortive attempts in 1963 and 1977 – to remove the inequality between the temples and mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the district of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the district of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem.

From the narrative of the various judgments in the early decades of the 20th century, it can safely be inferred that indefinite extension and application of unequal laws militates against their real character as also the true intent behind their enactment. The strong foundation on which the edifice of any legislation is erected gets weakened with the passage of time if inequality amongst equals continues unabated without sufficient justifications for continuing them. The Supreme Court has always batted for timely reviews and introspections of such categories of legislations, failing which the legislations are bound to become discriminatory and arbitrary attracting the wrath of Article 14.

With this, we are nearing completion of Part II of the three part series article. Part III of the series, which shall also be the concluding part, shall delve into the remaining issues of “obsolescence as a ground for arbitrariness” of any legislation and the extant position of law on the said proposition.