Legal debate

With triple talaq order, Supreme Court revives ‘arbitrariness’ as grounds to challenge unequal laws

In June, however, the court had in the Aadhaar-PAN case rejected the argument that linking the two numbers was an arbitrary law.

There has been considerable discussion of the Supreme Court’s invalidation of talaq-e-biddat – or instantaneous triple talaq, a practice that allowed Muslim men to divorce their wives simply by uttering talaq three times at one go – on August 22. The divided five-judge bench’s three separate opinions have been debated in detail with commentators disagreeing over what, finally, is the judgement’s impact on the subject of the relationship between the Constitution and religious “personal laws”, which govern matters of marriage, divorce and succession among others. There is, however, another aspect of the judgement that – because of its technical and abstract nature – has not achieved the same degree of attention: the court’s resurrection of arbitrariness as grounds for invalidating legislation.

Article 14 of the Constitution guarantees to all persons “equality before law” and the “equal protection of laws”. For the first three decades of its history, the Supreme Court adopted a rather formal approach to interpreting this article. Adopting as its lodestar the injunction “treat equals equally and unequals unequally”, the court held that unequal laws could be upheld as long as the legislative classification was based on an “intelligible differentia”, and this differentia bore a “rational nexus” with some legitimate state purpose. This was a highly deferential standard, with the court refraining from scrutinising the relationship between the classification and the state’s goal with any great intensity.

In the 1970s, however, the court gradually came to the realisation that equality and inequality were complex issues that could not be resolved simply by assessing the rationality of the government’s classifications. Equality involved a host of other considerations, such as patterns of exclusion and disadvantage, institutional structures that subordinated individuals and sets of individuals, and so on. Consequently, the court fashioned a second test under Article 14, which would complement the old classification test: the test of arbitrariness.

The arbitrariness test

Since its inception, however, the arbitrariness test has had a chequered history. It has been severely criticised by prominent legal and constitutional scholars, such as HM Seervai, for lacking any constitutional foundation and, more simply, for being plain incoherent. Moreover, there has always been a doubt about whether the arbitrariness standard can be used to judge only executive action (such as government notifications and circulars), or whether it can also be used to test and invalidate parliamentary legislation. The argument against the latter is that arbitrariness is essentially subjective, and will involve the court in second-guessing Parliament’s policy choices. However, judgements have gone both ways on this point, often overruling and distinguishing each other, and creating considerable confusion in the law.

Two recent high-profile constitutional cases accepted this argument, and held that arbitrariness could not be used to test and invalidate legislation. The first of these cases was Rajbala versus State of Haryana, where the Supreme Court in 2015 upheld a state law that prescribed educational qualifications, debt qualifications, and a toilet requirement for persons to contest panchayat elections. The second was the constitutional challenge to the Finance Act amendment that required taxpayers to link their permanent account numbers or PAN with their Aadhaar numbers (Binoy Viswam versus Union of India) earlier this year.

It was argued that it was wholly arbitrary to make education, indebtedness and toilets the basis of the right to contest elections, and similarly, the linking of PAN and Aadhaar numbers was an arbitrary law in the context of the government’s claims of detecting shell companies and black money. In both these cases, the court rejected the argument, not by going into the merits of the claims, but by simply holding that arbitrariness could not be a ground to test and invalidate parliamentary legislation.

The majority opinion

It is in this context that the judgement in the triple talaq case (Shayara Bano versus Union of India) becomes significant. Writing for himself and for Justice UU Lalit, Justice Rohinton Nariman embarked on a detailed survey of judicial precedent, and found that arbitrariness was indeed a ground for challenging legislation, and that cases that had taken the other position were incorrectly decided. More importantly, he clarified that arbitrariness essentially meant disproportionality: that is, a law was arbitrary (and therefore unconstitutional) if the state had gone to disproportionate lengths to achieve its goal, when a narrower, more proportionate response would have been sufficient. Crucially, Nariman and Lalit were joined by Justice Kurian Joseph on this point. Joseph, who in a separate opinion that otherwise disagreed with the other two, expressed his agreement with them on the matter of arbitrariness. This created a three-judge majority out of five, and ensured that Nariman’s view would be the view of the court.

The short-term consequences of this are likely to include a re-litigation of both Rajbala and Binoy Viswam (in fact, in his judgement, Nariman specifically referred to them as cases that had been decided on the mistaken premise that arbitrariness could not be invoked to challenge legislation). In the long term, it is now clear petitioners challenging the constitutionality of a law have an extra string to their bow. How the court will develop the doctrine of arbitrariness in the coming years remains, of course, an open question.

Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. He also blogs at Indian Constitutional Law and Philosophy.

Support our journalism by subscribing to Scroll+ here. We welcome your comments at
Sponsored Content BY 

Following a mountaineer as he reaches the summit of Mount Everest

Accounts from Vikas Dimri’s second attempt reveal the immense fortitude and strength needed to summit the Everest.

Vikas Dimri made a huge attempt last year to climb the Mount Everest. Fate had other plans. Thwarted by unfavourable weather at the last minute, he came so close and yet not close enough to say he was at the top. But that did not deter him. Vikas is back on the Everest trail now, and this time he’s sharing his experiences at every leg of the journey.

The Everest journey began from the Lukla airport, known for its dicey landing conditions. It reminded him of the failed expedition, but he still moved on to Namche Bazaar - the staging point for Everest expeditions - with a positive mind. Vikas let the wisdom of the mountains guide him as he battled doubt and memories of the previous expedition. In his words, the Everest taught him that, “To conquer our personal Everest, we need to drop all our unnecessary baggage, be it physical or mental or even emotional”.

Vikas used a ‘descent for ascent’ approach to acclimatise. In this approach, mountaineers gain altitude during the day, but descend to catch some sleep. Acclimatising to such high altitudes is crucial as the lack of adequate oxygen can cause dizziness, nausea, headache and even muscle death. As Vikas prepared to scale the riskiest part of the climb - the unstable and continuously melting Khumbhu ice fall - he pondered over his journey so far.

His brother’s diagnosis of a heart condition in his youth was a wakeup call for the rather sedentary Vikas, and that is when he started focusing on his health more. For the first time in his life, he began to appreciate the power of nutrition and experimented with different diets and supplements for their health benefits. His quest for better health also motivated him to take up hiking, marathon running, squash and, eventually, a summit of the Everest.

Back in the Himalayas, after a string of sleepless nights, Vikas and his team ascended to Camp 2 (6,500m) as planned, and then descended to Base Camp for the basic luxuries - hot shower, hot lunch and essential supplements. Back up at Camp 2, the weather played spoiler again as a jet stream - a fast-flowing, narrow air current - moved right over the mountain. Wisdom from the mountains helped Vikas maintain perspective as they were required to descend 15km to Pheriche Valley. He accepted that “strength lies not merely in chasing the big dream, but also in...accepting that things could go wrong.”

At Camp 4 (8,000m), famously known as the death zone, Vikas caught a clear glimpse of the summit – his dream standing rather tall in front of him.

It was the 18th of May 2018 and Vikas finally reached the top. The top of his Everest…the top of Mount Everest!

Watch the video below to see actual moments from Vikas’ climb.


Vikas credits his strength to dedication, exercise and a healthy diet. He credits dietary supplements for helping him sustain himself in the inhuman conditions on Mount Everest. On heights like these where the oxygen supply drops to 1/3rd the levels on the ground, the body requires 3 times the regular blood volume to pump the requisite amount of oxygen. He, thus, doesn’t embark on an expedition without double checking his supplements and uses Livogen as an aid to maintain adequate amounts of iron in his blood.

Livogen is proud to have supported Vikas Dimri on his ambitious quest and salutes his spirit. To read more about the benefits of iron, see here. To read Vikas Dimri’s account of his expedition, click here.

This article was produced by the Scroll marketing team on behalf of Livogen and not by the Scroll editorial team.