There has been considerable discussion of the Supreme Court’s invalidation of talaq-e-biddat – or instantaneous triple talaq, a practice that allowed Muslim men to divorce their wives simply by uttering talaq three times at one go – on August 22. The divided five-judge bench’s three separate opinions have been debated in detail with commentators disagreeing over what, finally, is the judgement’s impact on the subject of the relationship between the Constitution and religious “personal laws”, which govern matters of marriage, divorce and succession among others. There is, however, another aspect of the judgement that – because of its technical and abstract nature – has not achieved the same degree of attention: the court’s resurrection of arbitrariness as grounds for invalidating legislation.
Article 14 of the Constitution guarantees to all persons “equality before law” and the “equal protection of laws”. For the first three decades of its history, the Supreme Court adopted a rather formal approach to interpreting this article. Adopting as its lodestar the injunction “treat equals equally and unequals unequally”, the court held that unequal laws could be upheld as long as the legislative classification was based on an “intelligible differentia”, and this differentia bore a “rational nexus” with some legitimate state purpose. This was a highly deferential standard, with the court refraining from scrutinising the relationship between the classification and the state’s goal with any great intensity.
In the 1970s, however, the court gradually came to the realisation that equality and inequality were complex issues that could not be resolved simply by assessing the rationality of the government’s classifications. Equality involved a host of other considerations, such as patterns of exclusion and disadvantage, institutional structures that subordinated individuals and sets of individuals, and so on. Consequently, the court fashioned a second test under Article 14, which would complement the old classification test: the test of arbitrariness.
The arbitrariness test
Since its inception, however, the arbitrariness test has had a chequered history. It has been severely criticised by prominent legal and constitutional scholars, such as HM Seervai, for lacking any constitutional foundation and, more simply, for being plain incoherent. Moreover, there has always been a doubt about whether the arbitrariness standard can be used to judge only executive action (such as government notifications and circulars), or whether it can also be used to test and invalidate parliamentary legislation. The argument against the latter is that arbitrariness is essentially subjective, and will involve the court in second-guessing Parliament’s policy choices. However, judgements have gone both ways on this point, often overruling and distinguishing each other, and creating considerable confusion in the law.
Two recent high-profile constitutional cases accepted this argument, and held that arbitrariness could not be used to test and invalidate legislation. The first of these cases was Rajbala versus State of Haryana, where the Supreme Court in 2015 upheld a state law that prescribed educational qualifications, debt qualifications, and a toilet requirement for persons to contest panchayat elections. The second was the constitutional challenge to the Finance Act amendment that required taxpayers to link their permanent account numbers or PAN with their Aadhaar numbers (Binoy Viswam versus Union of India) earlier this year.
It was argued that it was wholly arbitrary to make education, indebtedness and toilets the basis of the right to contest elections, and similarly, the linking of PAN and Aadhaar numbers was an arbitrary law in the context of the government’s claims of detecting shell companies and black money. In both these cases, the court rejected the argument, not by going into the merits of the claims, but by simply holding that arbitrariness could not be a ground to test and invalidate parliamentary legislation.
The majority opinion
It is in this context that the judgement in the triple talaq case (Shayara Bano versus Union of India) becomes significant. Writing for himself and for Justice UU Lalit, Justice Rohinton Nariman embarked on a detailed survey of judicial precedent, and found that arbitrariness was indeed a ground for challenging legislation, and that cases that had taken the other position were incorrectly decided. More importantly, he clarified that arbitrariness essentially meant disproportionality: that is, a law was arbitrary (and therefore unconstitutional) if the state had gone to disproportionate lengths to achieve its goal, when a narrower, more proportionate response would have been sufficient. Crucially, Nariman and Lalit were joined by Justice Kurian Joseph on this point. Joseph, who in a separate opinion that otherwise disagreed with the other two, expressed his agreement with them on the matter of arbitrariness. This created a three-judge majority out of five, and ensured that Nariman’s view would be the view of the court.
The short-term consequences of this are likely to include a re-litigation of both Rajbala and Binoy Viswam (in fact, in his judgement, Nariman specifically referred to them as cases that had been decided on the mistaken premise that arbitrariness could not be invoked to challenge legislation). In the long term, it is now clear petitioners challenging the constitutionality of a law have an extra string to their bow. How the court will develop the doctrine of arbitrariness in the coming years remains, of course, an open question.
Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. He also blogs at Indian Constitutional Law and Philosophy.
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