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 

The perpetual millennial quest for self-expression just got another boost

Making adulting in the new millennium easier, one step at a time.

Having come of age in the Age of the Internet, millennials had a rocky start to self-expression. Indeed, the internet allowed us to personalise things in unprecedented fashion and we really rose to the occasion. The learning curve to a straightforward firstname.surname@___mail.com email address was a long one, routed through cringeworthy e-mail ids like coolgal1234@hotmail.com. You know you had one - making a personalised e-mail id was a rite of passage for millennials after all.

Declaring yourself to be cool, a star, a princess or a hunk boy was a given (for how else would the world know?!). Those with eclectic tastes (read: juvenile groupies) would flaunt their artistic preferences with an elitist flair. You could take for granted that bitbybeatlemania@hotmail.com and hpfan@yahoo.com would listen to Bollywood music or read Archie comics only in private. The emo kids, meanwhile, had to learn the hard way that employers probably don’t trust candidates with e-mail ids such as depressingdystopian@gmail.com.

Created using Imgflip
Created using Imgflip

And with chat rooms, early millennials had found a way to communicate, with...interesting results. The oldest crop of millennials (30+ year olds) learnt to deal with the realities of adolescent life hunched behind anonymous accounts, spewing their teenage hormone-laden angst, passion and idealism to other anonymous accounts. Skater_chick could hide her ineptitude for skating behind a convincing username and a skateboard-peddling red-haired avatar, and you could declare your fantasies of world domination, armed with the assurance that no one would take you seriously.

With the rise of blogging, millennial individualism found a way to express itself to millions of people across the world. The verbosity of ‘intellectual’ millennials even shone through in their blog URLs and names. GirlWhoTravels could now opine on her adventures on the road to those who actually cared about such things. The blogger behind scentofpetunia.blogspot.com could choose to totally ignore petunias and no one would question why. It’s a tradition still being staunchly upheld on Tumblr. You’re not really a Tumblr(er?) if you haven’t been inspired to test your creative limits while crafting your blog URL. Fantasy literature and anime fandoms to pop-culture fanatics and pizza lovers- it’s where people of all leanings go to let their alter ego thrive.

Created using Imgflip
Created using Imgflip

Then of course social media became the new front of self-expression on the Internet. Back when social media was too much of a millennial thing for anyone to meddle with, avatars and usernames were a window into your personality and fantasies. Suddenly, it was cool to post emo quotes of Meredith Grey on Facebook and update the world on the picturesque breakfast you had (or not). Twitter upped the pressure by limiting expression to 140 characters (now 280-have you heard?) and the brevity translated to the Twitter handles as well. The trend of sarcasm-and-wit-laden handles is still alive well and has only gotten more sophisticated with time. The blogging platform Medium makes the best of Twitter intellect in longform. It’s here that even businesses have cool account names!

Self-expression on the Internet and the millennials’ love for the personalised and customised has indeed seen an interesting trajectory. Most millennial adolescents of yore though are now grownups, navigating an adulting crisis of mammoth proportions. How to wake up in time for classes, how to keep the boss happy, how to keep from going broke every month, how to deal with the new F-word – Finances! Don’t judge, finances can be stressful at the beginning of a career. Forget investments, loans and debts, even matters of simple money transactions are riddled with scary terms like beneficiaries, NEFT, IMPS, RTGS and more. Then there’s the quadruple checking to make sure you input the correct card, IFSC or account number. If this wasn’t stressful enough, there’s the long wait while the cheque is cleared or the fund transfer is credited. Doesn’t it make you wish there was a simpler way to deal with it all? If life could just be like…

Created using Imgflip
Created using Imgflip

Lo and behold, millennial prayers have been heard! Airtel Payments Bank, India’s first, has now integrated UPI on its digital platform, making banking over the phone easier than ever. Airtel Payments Bank UPI, or Unified Payment Interface, allows you to transfer funds and shop and pay bills instantly to anyone any time without the hassles of inputting any bank details – all through a unique Virtual Payment Address. In true millennial fashion, you can even create your own personalised UPI ID or Virtual Payment Address (VPA) with your name or number- like rhea@airtel or 9990011122@airtel. It’s the smartest, easiest and coolest way to pay, frankly, because you’re going to be the first person to actually make instant, costless payments, rather than claiming to do that and making people wait for hours.

To make life even simpler, with the My Airtel app, you can make digital payments both online and offline (using the Scan and Pay feature that uses a UPI QR code). Imagine, no more running to the ATM at the last minute when you accidentally opt for COD or don’t have exact change to pay for a cab or coffee! Opening an account takes less than three minutes and remembering your VPA requires you to literally remember your own name. Get started with a more customised banking experience here.

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