Wednesday, June 05, 2013

Arbitrariness, “Doctrinal Looseness”, and other things…

In Chapter 6 of my book, Due Process of Law (published in 2011) [p. 177-206], I had argued that the “arbitrariness” test under Indian constitutional law, famously articulated by Justice Bhagwati in the Royappa and Maneka Gandhi decisions, and its subsequent application by the Supreme Court, suffered from “doctrinal looseness”. I said that the arbitrariness test was an indefinite, unfixed standard which was applied indiscriminately in a variety of contexts. On p. 177, I argued that the terms “reasonableness” and “arbitrariness” “were used interchangeably” by the court. On p. 186, I pointed out that “In March 1996, the doctrinal looseness of the “arbitrariness” test was most visibly highlighted by the Supreme Court of India in State of A.P. v. McDowell…” I concluded, on p. 202, that “The doctrinal looseness of the “arbitrariness” standard in Indian constitutional law is apparent.” (all emphases supplied)

It has come to my attention that the Supreme Court of India agrees with this view. In the 2G Presidential Reference case decided in September 2012, a Constitution Bench of the Supreme Court of India considered the ambit of Article 14 of the constitution. In paragraph 101, the court held that “the expressions ‘arbitrariness’ and ‘unreasonableness’ have been used interchangeably and in fact, one has been defined in terms of the other.”  Speaking for the court, Justice D.K. Jain wrote, “…since Royappa’s case (supra), the doctrine (of arbitrariness) has been loosely applied. This court in State of A.P. & Ors Vs. McDowell & Co. & Ors. stressed on the need for an objective and scientific analysis of arbitrariness….Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries.” [paragraphs 103-104]. (all emphases supplied)

There’s no reason for me to think that any of the judges on the Bench read my book (which wasn’t cited in the judgment). What’s interesting, though, is that the phrase I used in my book: “the doctrinal looseness of the arbitrariness test” was used by the court in its judgment without attribution or citation. Incidentally, a simple Manupatra search will suggest that the court has used the phrase “doctrinal looseness” for the first time in this judgment, so it’s not like the phrase has been around. Of course, I’m flattered that the view I took in my book has found favor in the Supreme Court.

Interestingly, on p. 142 of my book, I also pointed out that Justice Bhagwati’s phrase “cribbed, cabined and confined” in the E.P. Royappa case was “borrowed from Shakespeare’s Macbeth, Act III, Scene 4.” In paragraph 96 of the judgment, the court likewise pointed out that “Justice Bhagwati...borrowing from Shakespeare’s Macbeth, said that the concept must not be “cribbed, cabined and confined” within doctrinaire limits”. To my knowledge, no previous judgment of the Supreme Court (or High Court) points this out. As far as I know, Seervai does not point out the Shakespeare connection either [see H.M. Seervai, Constitutional Law of India, 3rd edition p. 273-274, and 4th edition, p. 437] Once again, I’m thrilled that things which piqued my interest while reading Justice Bhagwati’s judgment also piqued the interest of a judge of the Supreme Court. 

On “arbitrariness”, the McDowell view has now become the accepted view of the court (though one must remember that the 2G case dealt with “arbitrariness” in the context of a government policy, not legislation). The court concluded by holding (at paragraph 105): “From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell's case (supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India.” The court held (at para 149) that though auctions are not the only manner in which natural resources can be alienated, the state’s methods of alienating natural resources can be tested on the touchstone of “arbitrariness”.

While we’re on the subject of the 2G case, I thought I should point out that in Center for Public Interest Litigation v. Union of India, [(2012) 3 SCC 1] decided in 2012, the Supreme Court of India called Shri V.M. Tarkunde a “former Judge of this Court”. Of course, though Shri Tarkunde would certainly have made a great Supreme Court judge, he never served as one. As far as I know, he was a Bombay High Court judge, who subsequently practiced in the Supreme Court.  


Nick Robinson said...

Nice to see judges (clerks?) reaching similar conclusions (with similar phrasing). I also noticed that their opinion is almost the length of your book. Perhaps if conciseness was more of a concern of the Court these interesting similarities would be able to come to light more quickly.

Abhinav Chandrachud said...

Thanks for your comment. I totally agree with you about length, though the majority opinion here was 144 pages and given double-spacing and wide margins, it’s probably not the longest opinion recently written. The first 14 pages of the opinion, though, were taken up with the entire text of the Presidential Reference (without annexures), which could easily have been summed up in a few pages (perhaps even a few lines?). This goes back to your EPW piece about length. Perhaps judges, given their present workload, prefer to reproduce things instead of summarizing them?

Pranav Sachdeva said...

Nice post. Btw, only the initial 2G judgment of 2.2.12 said Justice Tarkunde as an SC judge but the SCC version shows several corrections vide official corrigendums that were issued post 2.2.12. This error was corrected. All the corrections were issued after one of the judges on the bench Justice Ganguly had retired on 2.2.12. So they were presumably made by Justice Singhvi himself, acting alone.
This shows why you should not wait for the last moment to write the judgment and then deliver it on the last day possible. Because if Justice Singhvi (who wrote the excellent 2G judgment) had given himself one more day to make corrections, the judgment could have been even better. And if he had worded the paragraphs dealing with transfer of natural resources in a better manner, as CPIL tried to do while explaining them before the 5 judge bench hearing Presidential Reference, then perhaps it would have been harder for the 5 judge bench to interfere with it in the way they did.

Anurag ojha said...

There is nothing new in "borrowing the phrases articulated by the academic lawyers"in judicial writings without giving recognitions to Author, in India.Prof P K Tripathi lamented a long for such judicial attitude.Even the legal reasonings have been judicially evolved after its first evolution without giving the due to scholars mind.

Abhinav Chandrachud said...

Thank you both for your comments. Pranav – I’m glad to know that the error has been corrected. It seems that the judgment on Manupatra and on other online websites like India Kanoon do not reflect the correction, which says something – the risks of using sources like Manupatra, and the limited value of post-facto corrections (which are perhaps not as widely read as originally pronounced judgments). Is it possible to access the court’s corrigenda online, besides on SCC? A link would be useful and much appreciated. Anurag – thanks for bringing this to my attention. Do you know if Professor Tripathi documented this anywhere?

Pranav Sachdeva said...

Thanks Abhinav for the response. I don't know any link. Pls access (2012) 3 SCC 1, either hard copy or their online subscription. You will see a number of corrections in the 105 para judgment. You can then compare that with the version you have, there are some grammatical corrections also.
Btw, during the hearings when the telecom companies took the argument that cancelling their licences would cause chaos, Justice Ganguly retorted by quoting some jurist who had basically said something in the nature of "let chaos be caused, because from that chaos a beautiful flower called rule of law will emerge". I havn't been able to find the exact quote and of whom. Are you aware of some quote like that. If yes, pls share. When i heard those words from Justice Ganguly, i knew that this bench not only had the courage to allow this writ petition irrespective of any "chaos", but are likely to do so.