Introduction
Professor Tarunabh Khaitan, writing in 2015, argued that while the ‘old’ Classification Doctrine was too narrow and in need of reform and J. Bhagwati, despite correctly diagnosing the problem, ended up prescribing the wrong remedy. This statement refers to J. Bhagwati’s almost forceful characterisation of arbitrariness being a “sworn enemy” of equality. Courts, following this turn, have often treated ‘arbitrariness’, ‘unreasonableness’, and ‘irrationality’ as interchangeable, without fully appreciating the distinct standards of review each term invokes.
While the application of ‘non-arbitrariness’ simpliciter to delegated legislation and executive action was relatively settled, its use against plenary laws was debated (¶137-¶139). This debate was put to rest by J. Nariman in Shayara Bano v Union of India, which introduced the Doctrine of ‘Manifest Arbitrariness’ as a ‘separate’ ground for challenging plenary legislations under Article 14. Defined as something done by the legislature “capriciously, irrationally and/or without adequate determining principle,” (¶55) this new test formally extended the arbitrariness inquiry beyond classification-based claims in the context of plenary legislation.
This article contends that while the Classification Doctrine and the older Non-Arbitrariness Doctrine both operate primarily as formal, process-based rationality requirements, focused on the means-end connection, the Manifest Arbitrariness Doctrine introduces a more normative, effects-based evaluation of both ends and means.
To develop this argument, Section II considers the close overlap between the Classification Doctrine and the Non-Arbitrariness Doctrine, showing how courts have frequently framed arbitrariness claims as failures of classification. Section III critiques the ‘rationality’ standard underpinning both doctrines, distinguishing it from a more searching ‘reasonableness’ review. Section IV then turns to the Manifest Arbitrariness Doctrine, examining how it allows for a deeper judicial scrutiny of both the purposes and effects of legislation. Through a study of cases such as Navtej Johar v. Union of India and In Re: Section 6A of the Citizenship Act, it demonstrates how the new doctrine widens the scope of substantive judicial review under Article 14 in ways that were previously foreclosed by the rigid confines of Article 14’s twin doctrines. Part I of this blog series will cover Sections II above, whilst Part II shall cover Sections III & IV.
‘Non-Arbitrariness’: A Facet of the Classification Doctrine
The traditional test under Article 14 for the review of State action has been the Classification Doctrine, which has two prongs – first, the classification must be based on some intelligible differentia and second, there must be a rational relation between the differentia and the object sought to be achieved by the Act. Both prongs must be satisfied for a legislation to pass the anvil of Article 14. Courts often frame arbitrariness as a failure of these prongs, as seen in State of W.B. v Anwar Ali Sarkar:
“Article 14 secures all persons within the territories of India against arbitrary laws as well as arbitrary application of laws. The principle of equal protection of the laws is only given effect to as a safeguard against arbitrary State action”
“Classification must never be arbitrary or unreasonable – The question would be whether the characteristics of the class created provide a rational justification for the differences introduced, or does the differential treatment rest on arbitrary selection”
In effect, striking down plenary legislation on the grounds of ‘arbitrariness’ has mostly stemmed from a breach of the Classification Doctrine, not from arbitrariness per se as an independent basis. The essence of the Classification Doctrine lies in assessing the rationale behind the means adopted to pursue the claimed objectives of the State. This is similar to the enquiry conducted under the Non-Arbitrariness Doctrine, which examines whether the classificatory State action was done “unreasonably, irrationally, or without adequate determining principle.”
The overlap is more evident in judicial reasoning, where ‘arbitrariness’ is often invoked not as an independent ground, but as a reflection of failures under the Classification test. For instance, in State of Mysore v S.R. Jayaram, a piece of delegated legislation was invalidated on the ground of ‘arbitrariness’, but only after the court had examined the “aims and objectives of the parent statute.” There, Rule 9(2) of the Mysore State Civil Services Rules, 1960 permitted the government to appoint candidates to technical posts without requiring them to go through the standard route of selection via the Public Service Commission.
“The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9(1) and the first part of r. 9(2) seek to achieve this aim. The latter part of r. 9(2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage.” (¶15)
The above reasoning indicates that the court first, examined the scheme of the piece of delegated legislation to ascertain its overarching objectives and then, proceeded to consider whether Rule 9(2) was in conformity with those objectives. The term ‘arbitrary’ was being used to refer to the lack of any rational link between Rule 9(2) (the ‘means’) and the overarching objectives (the ‘ends’) of the parent Act. Such reasoning pertains squarely to the Classification Doctrine, specifically, the second prong requiring a rational nexus between the means adopted and the State’s objective, rather than recognising ‘arbitrariness’ as an independent ground for challenge.
This approach also been followed in other cases applying the ‘Non-Arbitrariness Doctrine’ such as Malpe Vishwanath Acharya v State of Maharashtra[i] and Mardia Chemicals v UoI.[ii] One may also consider the judgment of Rajbala v State of Haryana, to understand the reverse relationship between ‘non-arbitrariness’ and the Classification Doctrine. There, the Supreme Court expressly rejected the ‘Non-Arbitrariness’ Doctrine and sought to apply the Classification Doctrine:
“The impugned provision creates two classes of voters — those who are qualified by virtue of their educational accomplishment to contest the elections and those who are not. The object of such classification is to ensure that those who seek election to panchayats have some basic education…..The prescription of an educational qualification is not irrelevant for the better administration of the Panchayats. The classification cannot be said to be irrational or illegal or unconnected with the scheme and purpose of the Act or Part IX of the Constitution.” (¶85)
While the judgment expressly rejected arbitrariness as a standalone ground for challenge, the analysis nonetheless circled back to evaluating the rationality of the classification. This case reinforces the idea that arbitrariness continues to operate, albeit indirectly, through the structure of the “old” Classification test. Moreover, the Supreme Court has categorically held, on multiple occasions, that plenary legislations cannot be struck down on the ground of ‘arbitrariness’ alone, without also pointing out a specific constitutional violation (¶106). It may therefore be asserted that Article 14 was fundamentally intended to serve as a safeguard against arbitrariness in State action, with the Classification Doctrine functioning as a tool to determine whether such arbitrariness exists.
This point on the close overlap between the two doctrines has often gone unnoticed in scholarly literature and by judges who continues to be informed by Seervai’s formulation of the debate as a binary choice between either the Classification test or the Non-Arbitrariness Doctrine.[iii] Seervai’s criticism of the ‘non-arbitrariness’ principle was two-fold – first, Article 14 contains no textual basis for a prohibition against ‘arbitrariness’ and second, that the traditional Classification Doctrine did not require a finding that the law is ‘arbitrary’.[iv]
However, as the above discussion indicates, these criticisms overlook the functional overlap between the Classification Doctrine and the arbitrariness inquiry. While Article 14 may not explicitly refer to ‘arbitrariness’, the traditional test has consistently used arbitrariness, framed in terms of ‘unreasonableness’ or ‘irrationality’, as a key basis for invalidation. Courts have routinely struck down provisions not merely for faulty classification, but because such classifications lacked a rational determining principle, effectively invoking arbitrariness in substance if not in name. Thus, as Professor Khaitan notes, arbitrariness under Article 14 may take both comparative and non-comparative forms, the former dealing with discrimination-based claims and the latter targeting unreasonable State action regardless of how it affects others. In conclusion, the Classification Doctrine and the Non-Arbitrariness Doctrine overlap both conceptually and in practice, as both approaches ultimately converge on the principle of rationality.
Part II of this blog series further does two things – it shall first, critiques the ‘rationality’ standard underpinning both doctrines, distinguishing it from a more searching ‘reasonableness’ review; and second, it shall thereupon turn to the Manifest Arbitrariness Doctrine, examining how it allows for a deeper judicial scrutiny of both the purposes and effects of legislation.
Endnotes:
[i] Although the Supreme Court held certain provisions of the Bombay Rent Control Act to have become ‘arbitrary’ due to a “lapse of time”, it arrived at this conclusion only after examining their suitability with the aims and objectives of the Act.
[ii] Here, the court struck down Section 17(2) of the SARFAESI Act as “unreasonable and arbitrary,” but did so by implicitly applying the Classification Doctrine, holding that borrowers, as a distinct class, were unfairly burdened with a 75% pre-deposit to access a basic civil remedy, which was “contrary to the desired objectives.”
[iii] H.M. Seervai, Constitutional Law of India, (vol 1, 4th edn, Universal 2002) 441.
[iv] ibid 438-441.
The Author is a 3rd-year student of National Law School of India University, Bengaluru.
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