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.

We welcome your comments at letters@scroll.in.
Sponsored Content BY 

Relying on the power of habits to solve India’s mammoth sanitation problem

Adopting three simple habits can help maximise the benefits of existing sanitation infrastructure.

India’s sanitation problem is well documented – the country was recently declared as having the highest number of people living without basic sanitation facilities. Sanitation encompasses all conditions relating to public health - especially sewage disposal and access to clean drinking water. Due to associated losses in productivity caused by sickness, increased healthcare costs and increased mortality, India recorded a loss of 5.2% of its GDP to poor sanitation in 2015. As tremendous as the economic losses are, the on-ground, human consequences of poor sanitation are grim - about one in 10 deaths, according to the World Bank.

Poor sanitation contributes to about 10% of the world’s disease burden and is linked to even those diseases that may not present any correlation at first. For example, while lack of nutrition is a direct cause of anaemia, poor sanitation can contribute to the problem by causing intestinal diseases which prevent people from absorbing nutrition from their food. In fact, a study found a correlation between improved sanitation and reduced prevalence of anaemia in 14 Indian states. Diarrhoeal diseases, the most well-known consequence of poor sanitation, are the third largest cause of child mortality in India. They are also linked to undernutrition and stunting in children - 38% of Indian children exhibit stunted growth. Improved sanitation can also help reduce prevalence of neglected tropical diseases (NTDs). Though not a cause of high mortality rate, NTDs impair physical and cognitive development, contribute to mother and child illness and death and affect overall productivity. NTDs caused by parasitic worms - such as hookworms, whipworms etc. - infect millions every year and spread through open defecation. Improving toilet access and access to clean drinking water can significantly boost disease control programmes for diarrhoea, NTDs and other correlated conditions.

Unfortunately, with about 732 million people who have no access to toilets, India currently accounts for more than half of the world population that defecates in the open. India also accounts for the largest rural population living without access to clean water. Only 16% of India’s rural population is currently served by piped water.

However, there is cause for optimism. In the three years of Swachh Bharat Abhiyan, the country’s sanitation coverage has risen from 39% to 65% and eight states and Union Territories have been declared open defecation free. But lasting change cannot be ensured by the proliferation of sanitation infrastructure alone. Ensuring the usage of toilets is as important as building them, more so due to the cultural preference for open defecation in rural India.

According to the World Bank, hygiene promotion is essential to realise the potential of infrastructure investments in sanitation. Behavioural intervention is most successful when it targets few behaviours with the most potential for impact. An area of public health where behavioural training has made an impact is WASH - water, sanitation and hygiene - a key issue of UN Sustainable Development Goal 6. Compliance to WASH practices has the potential to reduce illness and death, poverty and improve overall socio-economic development. The UN has even marked observance days for each - World Water Day for water (22 March), World Toilet Day for sanitation (19 November) and Global Handwashing Day for hygiene (15 October).

At its simplest, the benefits of WASH can be availed through three simple habits that safeguard against disease - washing hands before eating, drinking clean water and using a clean toilet. Handwashing and use of toilets are some of the most important behavioural interventions that keep diarrhoeal diseases from spreading, while clean drinking water is essential to prevent water-borne diseases and adverse health effects of toxic contaminants. In India, Hindustan Unilever Limited launched the Swachh Aadat Swachh Bharat initiative, a WASH behaviour change programme, to complement the Swachh Bharat Abhiyan. Through its on-ground behaviour change model, SASB seeks to promote the three basic WASH habits to create long-lasting personal hygiene compliance among the populations it serves.

This touching film made as a part of SASB’s awareness campaign shows how lack of knowledge of basic hygiene practices means children miss out on developmental milestones due to preventable diseases.

Play

SASB created the Swachhata curriculum, a textbook to encourage adoption of personal hygiene among school going children. It makes use of conceptual learning to teach primary school students about cleanliness, germs and clean habits in an engaging manner. Swachh Basti is an extensive urban outreach programme for sensitising urban slum residents about WASH habits through demos, skits and etc. in partnership with key local stakeholders such as doctors, anganwadi workers and support groups. In Ghatkopar, Mumbai, HUL built the first-of-its-kind Suvidha Centre - an urban water, hygiene and sanitation community centre. It provides toilets, handwashing and shower facilities, safe drinking water and state-of-the-art laundry operations at an affordable cost to about 1,500 residents of the area.

HUL’s factory workers also act as Swachhata Doots, or messengers of change who teach the three habits of WASH in their own villages. This mobile-led rural behaviour change communication model also provides a volunteering opportunity to those who are busy but wish to make a difference. A toolkit especially designed for this purpose helps volunteers approach, explain and teach people in their immediate vicinity - their drivers, cooks, domestic helps etc. - about the three simple habits for better hygiene. This helps cast the net of awareness wider as regular interaction is conducive to habit formation. To learn more about their volunteering programme, click here. To learn more about the Swachh Aadat Swachh Bharat initiative, click here.

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