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, 3^rdedition p. 273-274, and 4^th 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.  

Substantive Due Process

In a book published this month by the Eastern Book Company, entitled “Due Process of Law”, I analyze the doctrine of substantive due process, in particular its evolution in American constitutional law, and its emergence in Indian jurisprudence. In it, I expand upon themes I previously wrote about (here and here), arguing that the term “substantive due process” has evoked three meanings in American constitutional jurisprudence, (i) “federal-state” due process, (ii) “fundamental rights” based due process, and (iii) substantive scrutiny of life, liberty and property deprivations. I examine the origins of the phrase “due process of law” in per legem terre in the Magna Carta, exploring the intellectual disagreement (though centuries apart) between Lord Coke and Blackstone over its meaning, its adoption into the fifth and fourteenth amendments to the American constitution, the tussle between Justices Frankfurter and Black on the American Supreme Court in the manner of its interpretation (at approximately the time that B.N. Rau met Justice Frankfurter and was advised to drop the clause), the “false start” of substantive due process doctrine during the Lochner era (leading up to its new beginnings during the Warren era), B.N. Rau’s own reservations with the “due process” clause even prior to his meeting with Frankfurter, the strong apparent support for the words “due process of law” on the sub-committee on fundamental rights and later on the constituent assembly of India itself and Dr. Ambedkar’s ambivalence towards the clause. I explore what I believe are three emanations of substantive due process doctrine in India: (i) the blending of boundaries between constitutional provisions beginning with the end of the Gopalan era and culminating in our “basic structure” jurisprudence, (ii) the strong substantive “arbitrariness” test with its origins in the moral illegitimacy of the court during the emergency, and (iii) the well known “right to life jurisprudence”. This book explores the juristic techniques employed by the Supreme Court of India in interpreting the Indian constitution and their strong resemblance to American "substantive due process" doctrine, but it does not attempt a history of the court’s handling of socio-economic legislation. I would like to invite interested readers to read further.

Ask, and You Shall Receive

The September 9 opinion of the United States District Court (Central District of California) in the case of Log Cabin Republicans v. USA is available here. In its 85 page opinion, the court found fault with the US Military's “Don’t Ask Don’t Tell” policy on the touchstone of the fifth and first amendments to the American Constitution (although definitive relief has not yet been issued). Like Naz Foundation the opinion reminds us that constitutional law does not begin with the Supreme Court, although it may end there.

Due Process, Through the Barrel of a Gun

1. The US Supreme Court's latest opinion in the case of McDonald v. Chicago (available here) maps the trajectory of substantive due process doctrine, while holding that the second amendment right to bear arms for self defense applies against the states.

2. I had discussed in this op-ed piece in the Hindu some time ago how the Selvi and R Gandhi cases were Indian substantive due process cases.