The Doctrine of Arbitrariness / Substantive Due Process III

Hon’ble Justice R.F. Nariman has now clarified it was a majority in The Triple Talaq Judgment (3 out of 5) that held arbitrariness in the sense of manifest arbitrariness would apply to negate legislation under Article 14.

In so far as “manifest arbitrariness” is concerned, it is important to advert to the majority judgment of this Court in Shayara Bano v. Union of India, (2017) 9 SCC 1. The majority, in an exhaustive review of case law under Article 14, which dealt with legislation being struck down on the ground that it is manifestly arbitrary, has observed:

“The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

This view of the law by two learned Judges of this Court was concurred with by Kurian, J. in paragraph 5 of his judgment.

Hon’ble Justice R.F. Nariman, Nikesh Tarachand Shah v. Union of India [Writ Petition (Criminal) 67 of 2017].

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The relevant portion of Justice Kurian’s paragraph 5 in Shayara Bano v. Union of India, (2017) 9 SCC 1 is simply but effectively this:

“However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary.”

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