The Doctrine of Arbitrariness / Substantive Due Process II

In State of A.P. v. McDowell & Co., (1996) 3 SCC 790 a 3 Judge Bench of this Court held that an enactment could be struck down, if it is being challenged as violative of Article 14, only if it is found that it is violative of the equality clause, equal protection clause or violative of fundamental rights. Court went on to hold that an enactment cannot be stuck down only on the ground that Court thinks that it is unjustified. This Judgment need not detain us for long because in Shayara Bano v. Union of India & Ors., 2017 (8) SCALE 178 popularly known as the “Triple Talaq Case”, this Court held that this Judgment did not take note of binding Judgments of this Court passed by a Constitution Bench, in the case of Ajay Hasia and a 3 Judge Bench in the case of Dr. K.R. Lakshmanan. After discussing the entire law on the subject, Nariman, J, in his Judgment held as follows:

It is, therefore, clear from a reading of even the aforesaid two Constitution Bench Judgments 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”

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.”

Therefore, there can be no dispute that a law can be struck down if Court finds it is arbitrary and falls foul of Article 14 and other fundamental rights.”

Hon’ble Justice Deepak Gupta, Independent Thought v. Union of India, [Writ Petition (Civil) No. 382 of 2013].