Article 14 Scrutiny and Review Mechanism
Written By: Pulkit Taneja
The doctrine of manifest arbitrariness was used as a standard for legislative review in the recent case of Shayara Bano v. Union of India. The apex court while judging the constitutionality of triple-talaq, concluded that the doctrine of manifest arbitrariness could be applied to review legislation and in some cases invalidate them if they are in violation of article 14. This case according to my opinion is the perfect transition from the traditional approach of article 14 scrutiny in regards to arbitrariness.
The traditional approach of the supreme court in relation to article 14 and arbitrariness entails evaluation of two questions, 1) whether the classification made by the law in question was based on an ‘intelligible differentia’ 2) whether the classification had a reasonable nexus with the object the law sought to achieve. The above evaluation criteria were developed in the case of Ajay Hasia Etc vs Khalid Mujib Sehravardi.
Considering that article 14 of the constitution deals with equality, the court had a firm belief that not only any difference or classification if created between members of the society it has to be made on a reasonable basis but also the objective of creating that classification in the first place should also be achieved by creating the classification. This test was pointed out to be inadequate after many supreme court judgments which were based on this test, one of such cases was Air India v. Nargesh Meerza.
A challenge was made against the employment policy of Air India on the grounds of Article 14 and is discriminatory in nature towards women. Air India had an employment policy that restricted the rights of only the women employees having a similar job function as that of the male employees. The court put this policy under the test established in the Ajay Hasia case.
The court started by establishing intelligible differentia by stating that the male and the female employees belong to different classes as their job functions might be similar but the job description was different. Therefore, the court was satisfied with the policy of Air India on the basis of intelligible differentia. In regards to the policy fulfilling the requirement of reasonable nexus, the court had to evaluate the objective behind making this classification in the first place. It was pointed out that the objective of making this classification between the male and the female employees was to not compromise on the business efficacy and efficiency. The court accepted this argument and concluded that the objective and the classification are in reasonable nexus.
The traditional approach was based on making comparisons i.e as per the traditional approach article 14 scrutiny is allowed when a person claims to be treated differently vis-à-vis another person. Prof. Tarunabh Kaitan expressed his contentions towards the traditional comparison approach. He called the old notion of equality unreasonable comparison. He believed that comparing two people on the basis of which one of them is being discriminated against is unreasonable. Pointing out that the notion of equality doesn’t require comparisons but proving unreasonableness is enough.
With the case of EP Royappa v. The State of Tamil Nadu, the old doctrine and the traditional approach were replaced. The court, in this case, opened up on arbitrariness and its application under Article 14. Arbitrariness and equality were observed as ‘sworn enemies’ i.e. where an act is arbitrary it is bound to be unequal and violative of Article 14. This came to be known as the new equality approach, where you only need to prove arbitrariness and need not prove anything else.
Before reverting back to the concept of manifest arbitrariness as a standard of legislative review, it is essential to understand that any legislation or an order passed by the parliament is presumed to be constitutional and reasonable until proved otherwise. Apart from Shayara Bano, recent cases Navtej Singh Johar v Union of India and Joseph Shine v. Union of India used the doctrine of manifest arbitrariness for legislative review and article 14 scrutiny. In the case of Navtej Singh Johar, the supreme court found section 377 of the Indian Penal Code to be manifestly arbitrary in nature and ordered to strike it down.
The court observed that discriminating on the basis of the sexual orientation of a person to which he/she has little or absolutely no control over is arbitrary in nature. They also pointed out the difference between public morality which is the majoritarian view of the society and constitutional morality. The court also questioned the objective behind the law and found no nexus for classification. Considering the court found no relevance behind the foundational idea of this very section, it held that section 377 is manifestly arbitrary.
The case of Joseph Shine v Union of India concerned with section 497 of the IPC which provides for punishment of a man who is involved in a sexual relationship with a wife of someone else. This section was observed to be fundamentally arbitrary. The court held that this section promotes patriarchy and considers women to be the property of men. The consent of the wife in a situation like this was considered to be irrelevant. The court built upon the idea of Navtej Singh Johar and held that section 497 and the objective behind 497 is not in nexus.
The court, therefore, declared the law manifestly arbitrary in nature and stuck it down. I believe that relying on the old doctrine of classification and finding a reasonable nexus between the objective and the classification is extremely narrow. Considering the entire notion of equality is narrowed down to the question of judging the basis of classification is not very ideal. Prof. Tarunabh Khaitan, mentioning increasing the scope of the old approach of equality and substantiating on was essential. It is critical to involve other rights and aspects within the ambit of equality considering it is a dynamic concept. As far as the new notion of equality i.e. judging the arbitrariness is concerned, it has found its way into being a reviewer mechanism for legislations and article 14 scrutiny.