Shayara Bano v. Union Of India And O...

Order of the Court

In view of the different opinions recorded, by a majority of 3:2, the practice of Talaq-e-Biddat — Triple Talaq is set aside.

(Para 395)

L. Constitution of India — Art. 14 — Legislation, whether plenary or subordinate, held (per majority), can be challenged on ground of manifest arbitrariness — Constitutional democracy of India cannot conceive of a legislation which is arbitrary

— “Manifest arbitrariness” means a law being disproportionate, excessive or otherwise being manifestly unreasonable, or when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment — Or, it 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 — Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.

M. Constitution of India — Art. 14 — Two concepts of equality under Art. 14, discussed, per Nariman and Lalit, JJ.

— (i) Equality before law (negative equality) or Art. 14's anti-discriminatory aspect — If classification is “intelligible” having regard to object sought to be achieved, it would pass muster under Art. 14's anti-discrimination aspect — (ii) Equal protection of law (positive equality) — If an action is arbitrary and, therefore, unreasonable, it would negate equal protection of the law contained in Art. 14 it would be struck down and on this ground arbitrariness is a doctrine distinct from discrimination or doctrine of classification — One need not confine denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment — An action which is per se arbitrary, itself denies equal protection by law

N. Constitution of India — Arts. 14, 19 and 21 and Pt. III — Concepts of non-arbitrariness, reasonableness, proportionality and substantive due process — Inter-relationship and their seamless pervasiveness in Pt. III, traced through case law (per Nariman and Lalit, JJ.)

— Concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme — Principle of reasonableness which is an essential element of equality or non-arbitrariness under Art. 14 is omnipresent — Procedure contemplated under Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14 — It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and requirement of Art. 21 would not be satisfied — Fundamental rights must not be seen in watertight compartments

O. Constitution of India — Art. 141 — Rationes decidendi — Multiple grounds for deciding a case — Each such ground constitutes a distinct ratio decidendi of that case — One judgment can have more than one ratio decidendi

— It is impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is also another ground stated upon which, standing alone, the case might have been determined — There is no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also

Held :

Per Kurian, J.

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

(Para 5)

Per Nariman and Lalit, JJ.

Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts—(1) equality before the law, and (2) the equal protection of the law. Judgments of the Supreme Court have referred to the fact that the equality before law concept has been derived from the law in the UK, and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. Whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of the Supreme Court referred to the “discrimination” aspect of Article 14, and evolved a rule by which persons could be classified. If the classification was “intelligible” having regard to the object sought to be achieved, it would pass muster under Article 14's anti-discrimination aspect.

(Para 62)

Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive Article 14 of its glorious content. The doctrine of classification has been described as a “subsidiary rule” evolved by courts to give practical content to the said Article. The “rule of law” or “positive” aspect of Article 14 is that if an action

is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground.

(Paras 62 and 63)

Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

(Para 68)

State of U.P v. Deoman Upadhyaya, (1961) 1 SCR 14 : AIR 1960 SC 1125 : 1960 Cri LJ 1504; Lachhman Dass v. State of Punjab, (1963) 2 SCR 353 : AIR 1963 SC 222; S.G Jaisinghani v. Union of India, (1967) 2 SCR 703 : AIR 1967 SC 1427; United States v. Wunderlich, 1951 SCC OnLine US SC 93 : 96 L Ed 113 : 342 US 98 (1951); State of Mysore v. S.R Jayaram, (1968) 1 SCR 349 : AIR 1968 SC 346; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165; Maneka Gandhi v. Union of India, (1978) 1 SCC 248, followed

R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327, approved

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, cited

Arbitrariness is a doctrine distinct from discrimination. Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal protection by law. Wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.

(Paras 69 to 71)

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258; D.S Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165, followed

Babita Prasad v. State of Bihar, 1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076; K.R Lakshmanan v. State of T.N, (1996) 2 SCC 226; Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : (1979) 3 SCR 1014; A.L Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316 : 1984 SCC (L&S) 497, affirmed and followed

A discordant note was struck in McDowell & Co., (1996) 3 SCC 709, which is by a three-Judge Bench which repelled an argument based on the arbitrariness facet of Article 14. This judgment in McDowell & Co. case failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia, (1981) 1 SCC 722 and second, the judgment of a coordinate three-Judge Bench in K.R Lakshmanan, (1996) 2 SCC 226.

(Paras 72 and 73)

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258, followed

K.R Lakshmanan v. State of T.N, (1996) 2 SCC 226, affirmed and followed

State of A.P v. McDowell and Co., (1996) 3 SCC 709, held, per incuriam

State of T.N v. Ananthi Ammal, (1995) 1 SCC 519; Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL); R. v. Secy. of State for Home Deptt., ex p Brind, 1991 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL), cited

According to the Bench in McDowell case, substantive due process is not something accepted by either the American courts or our courts and, therefore, this being a reiteration of substantive due process being read into Article 14 cannot be applied. Clearly, therefore, the three-Judge Bench in McDowell case has not noticed Maneka Gandhi, (1978) 1 SCC 248 cited in Mohd. Arif, (2014) 9 SCC 737 to show that the wheel has turned full circle and substantive due process is part of Article 21 as it is to be read with Articles 14 and 19.

(Paras 74 and 75)

Taken in its modern expanded sense, the American “due process clause” stands as a high level guarantee of “reasonableness” in relation between man and State, an injunction against arbitrariness or oppressiveness. Mathew, J. observed in Kesavananda Bharati, (1973) 4 SCC 225, that when a court adjudges that a legislation is bad on the ground that it is an unreasonable restriction, it is drawing the elusive ingredients for its conclusion from several sources. As observed by him in Kesavananda Bharati, (1973) 4 SCC 225, if one examines the Indian Supreme Court judgments relating to the imposition of reasonable restrictions by a law, it will be found that all of them adopt a standard which the US Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause.

(Para 76)

It is, therefore, clear from the above and from the two Constitution Bench judgments in Mithu, (1983) 2 SCC 277 and Sunil Batra, (1978) 4 SCC 494 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”.

(Para 82)

A binding judgment of five Judges of the Supreme Court cannot be said to be of “no assistance”, as was done in McDowell case, by stating that the decision turned mainly on Article 21, though Article 14 was also referred to. It is clear that the ratio of the said Constitution Bench in Mithu case was based both on Article 14 and Article 21 as is clear from the judgment of the four learned Judges in paras 19 and 23. A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra case, which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell case.

(Para 83)

Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408; Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405; Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, followed

State of A.P v. McDowell and Co., (1996) 3 SCC 709, held, per incuriam

It is clear that one judgment can have more than one ratio decidendi. It is impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is also

another ground stated upon which, standing alone, the case might have been determined. There is no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. We are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment.

(Para 83 and footnote 65)

Commissioners of Taxation for the State of New South Wales v. Palmer, 1907 AC 179 (PC); Jacobs v. London County Council, 1950 AC 361 : (1950) 1 All ER 737, followed

London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA); Cheater v. Cater, (1918) 1 KB 247 (CA), approved

Folkes v. R., (1923) 1 KB 282 (CA); Erskine v. Adeane, (1873) LR 8 Ch App 756, cited

The second reason given in McDowell case is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K Gopalan, 1950 SCR 88 that fundamental rights must be seen in watertight compartments. This view has been overruled by an eleven-Judge Bench of the Supreme Court in Rustom Cavasjee Cooper, (1970) 1 SCC 248 and followed in Maneka Gandhi, (1978) 1 SCC 248. Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of the Supreme Court, some of which are referred to in Om Kumar, (2001) 2 SCC 386 and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.

(Para 84)

Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248, followed

A.K Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383, held overruled

The third reason given in McDowell case is that the courts cannot sit in judgment over parliamentary wisdom. Our law reports are replete with instance after instance where parliamentary wisdom has been successfully set at naught by the Supreme Court because such laws did not pass muster on account of their being “unreasonable”. It would be wrong to assume that there is an element of judicial arrogance in the act of the courts in striking down an enactment. The Constitution has assigned to the courts the function of determining as to whether the laws made by the legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the courts discharge an obligation which has been imposed upon them by the Constitution. The courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking away or in any case eroding the remedy provided to the aggrieved parties by the

Constitution. Abnegation in matters affecting one's own interest may sometimes be commendable but abnegation in a matter where power is conferred to protect the interest of others against measures which are violative of the Constitution is fraught with serious consequences. It is as much the duty of the courts to declare a provision of an enactment to be unconstitutional if it contravenes any article of the Constitution as it is theirs to uphold its validity in case it is found to suffer from no such infirmity.

(Para 85)

State of Punjab v. Khan Chand, (1974) 1 SCC 549, followed

Om Kumar v. Union of India, (2001) 2 SCC 386 : 2001 SCC (L&S) 1039, affirmed

One more reason given in McDowell case is that the proportionality doctrine, doubtful of application even in administrative law, should not, therefore, apply to this facet of Article 14 in constitutional law. Rather, the correct position is that on account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Ever since 1950, the principle of “proportionality” has indeed been applied vigorously to legislative (and administrative) action in India. “Reasonable restrictions” under Articles 19(2) to (6) can be imposed on these freedoms only by legislation and courts had occasion throughout to consider the proportionality of the restrictions. “Reasonable restrictions” which the State can impose on the fundamental rights should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. “Reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible under Articles 19(2) to (6).

(Para 86)

So far as Article 14 is concerned, the courts in India have examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, even when the courts considered the question whether the classification was based on intelligible differentia, the courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality.

(Para 86)

The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell case when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

(Para 87)

Om Kumar v. Union of India, (2001) 2 SCC 386 : 2001 SCC (L&S) 1039, affirmed

State of A.P v. McDowell and Co., (1996) 3 SCC 709, held, per incuriam

West Virginia State Board of Education v. Barnette, 1943 SCC OnLine US SC 134 : 87 L Ed 1628 : 319 US 624 (1943); Chintamanrao v. State of M.P, AIR 1951 SC 118 : 1950 SCR 759; Bachan Singh v. State of Punjab, (1982) 3 SCC 24 : 1982 SCC (Cri) 535; Air India v. Nergesh Meerza, (1981) 4 SCC 335 : 1981 SCC (L&S) 599, cited

Even after McDowell case, the Supreme Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. See Malpe Vishwanath Acharya, (1998) 2 SCC 1; Mardia Chemicals Ltd., (2004) 4 SCC 311; K. Shyam Sunder, (2011) 8 SCC 737 and A.P Dairy Development Corpn. Federation, (2011) 9 SCC 286 wherein the position of law that a legislation can be struck down on the ground that it is arbitrary and therefore violative of Article 14 of the Constitution was reiterated and applied.

(Paras 88 to 90)

Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1; Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311; State of T.N v. K. Shyam Sunder, (2011) 8 SCC 737 : 6 SCEC 65; A.P Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286, affirmed

On a reading of Natural Resources Allocation, In re, (2012) 10 SCC 1, it is clear that the Supreme Court did not read McDowell case as being an authority for the proposition that legislation can never be struck down as being arbitrary. Indeed the Court, after referring to all the earlier judgments, and Ajay Hasia, (1981) 1 SCC 722 in particular, which stated that legislation can be struck down on the ground that it is “arbitrary” under Article 14, went on to conclude that “arbitrariness” when applied to legislation cannot be used loosely. Instead, it broad based the test, stating that if a constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary” i.e when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.

(Para 95)

Another Constitution Bench decision in Subramanian Swamy, (2014) 8 SCC 682 dealt with a challenge to Section 6-A of the Delhi Special Police Establishment Act, 1946. A specific reference had been made to the Constitution Bench as to whether arbitrariness and unreasonableness, being facets of Article 14, are or are not available as grounds to invalidate a legislation. Since the Court in Subramanian Swamy, (2014) 8 SCC 682 ultimately struck down Section 6-A on the ground that it was discriminatory, it became unnecessary to pronounce on one of the questions referred to it, namely, as to whether arbitrariness could be a ground for invalidating legislation under Article 14. Indeed the Court said as much.

(Paras 96 and 98)

However, in Bihar Distillery Ltd., (1997) 2 SCC 453, SCC at para 22, in Rakesh Kohli, (2012) 6 SCC 312, SCC at paras 17 to 19, in Rajbala, (2016) 2 SCC 445, SCC at paras 53 to 65 and Binoy Viswam, (2017) 7 SCC 59, SCC at paras 80 to 82, McDowell case was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted earlier in this judgment, McDowell case itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise

being flawed. The judgments, following McDowell case are, therefore, no longer good law.

(Para 99)

Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1, explained and relied on

Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 6 SCC (Cri) 42 : (2014) 3 SCC (L&S) 36, clarified

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35; K.T Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414, considered

State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453; State of M.P v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481; Rajbala v. State of Haryana, (2016) 2 SCC 445; Binoy Viswam v. Union of India, (2017) 7 SCC 59, overruled on this point

Subramanian Swamy v. CBI, (2005) 2 SCC 317 : 2005 SCC (L&S) 241; State of Rajasthan v. Union of India, (1977) 3 SCC 592; Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806; Sharma Transport v. State of A.P, (2002) 2 SCC 188; Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, cited

To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. A Constitution Bench of the Supreme Court in Indian Express Newspapers (Bombay) (P) Ltd., (1985) 1 SCC 641 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14.

(Paras 100 and 101)

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. Thus, arbitrariness in the sense of manifest arbitrariness as discussed above would apply to negate legislation as well under Article 14.

(Para 101)

Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121, affirmed and followed

Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703, affirmed

SS-D/59011.CV