Hon’ble Justice R.F. Nariman has now clarified, a Majority in Triple Talaq Judgment (3/5) held, arbitrariness in 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 Majority Judgment of this Court in Shayara Bano v. Union of India, (2017) 9 SCC 1. Majority, in an exhaustive review of case law under Article 14 which dealt with legislation being struck down on ground it is manifestly arbitrary, has observed:

“Manifest arbitrariness, therefore, as laid down in aforesaid Judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by 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 view, arbitrariness in sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

This view of 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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Justice Kurian’s Paragraph 5 in Shayara Bano v. Union of India, (2017) 9 SCC 1 is simply but effectively this:

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

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State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 after considering law laid down by Court earlier, laid down certain grounds on which subordinate legislation can be challenged. There is a presumption in favour of constitutionality or validity of a subordinate legislation and burden is upon him who attacks it to show it is invalid. It is recognized, a subordinate legislation can be challenged under: (a) lack of legislative competence; (b) violation of fundamental rights; (c) violation of any constitutional provision; (d) failure to conform to statute under which it is made or exceeding limits of authority conferred; (e) repugnancy to any enactment; (f) manifest arbitrariness/unreasonableness.    

– Hon’ble Justice B.R. Gavai, Dental Council of India v. Biyani Shikshan Samiti, [Civil Appeal No. 2912 of 2022] decided on 12.04.2022.