Revival of Doctrine of Manifest Arbitrariness

“Rights like the right to equality were empty vessels into which each generation pours its content by judicial interpretation.” [1] This article provides an analytical overview on evolution of “Doctrine of Manifest Arbitrariness” as a ground for the Judicial review of legislative action (herein after legislative review). The applicability of ‘arbitrariness’ as the ground for legislative review has been Res integra for a very long period of time until recently settled in case of Shayara Bano v. Union of India . [2] In Indian context the doctrine traces its evolution from the Art 14 of the Constitution. However, in Indian Constitution the concept of ‘equality’ with respect to legislative review under Art 14 has been seemingly, equated to just ‘reasonableness of classification’ and has been reduced to a mere formula (classification test) ignoring the true essence of concept of equality. Article 14 contains a powerful statement of values, ‘Equality before the law’ and ‘Equal protection of laws’. By reducing it to a formal exercise of ‘classification test’ we are missing the true value of ‘equality’ as a safeguard against arbitrariness in state action. Wherein state action implies all the administrative, as well as legislative action. ‘Non Arbitrariness’ test for a very long time was not considered as a standalone test to determine the validity of a legislation. However, it was a relevant and recognized test in Judicial review of administrative action (herein after administrative review) since the famous British decision in ‘Wednesbury case’. [3] The question which then arises is why the courts in India have adopted different level of scrutiny in examining the pervasiveness of arbitrariness in different organs of government (legislative and executive). The introductory part of this paper deals with the scope of Art14 with respect to the legislative review or more precisely, only with one aspect of Art14 that is ‘Doctrine of Manifest arbitrariness’. The second part of this article analyses adequate volume of cases in which time and again the doubt has been expressed as to the applicability of this doctrine. For convenience the cases have been classified in three categories as ‘Pre Mc-Dowell Decisions’, ‘Mc- Dowell and Post Mc-Dowell Decisions’ and ‘Post Shayara Bano Decision’. In the third part through empirical study we will find out how frequently this claim has been raised post Shayara Bano decision and the future prospects. [1] Ruma Pal, ‘Judicial Oversight or Overreach’ (2008) 7 SCC J 9, J16. [2] MANU/SC/1031/2017 : (2017) 9 SCC 1. [3] Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (CA).