Definition of Arbitrariness:
Arbitrariness is the quality of being “determined by chance, whim, or impulse, and not by necessity, reason, or principle”. [1]
The word “arbitrary” originated from the Latin word “arbitrarius” which means the source of arbiter or someone who is tasked to judge some matter. We call a judgement arbitrary in nature when it is made at the discretion of the judge and is not one that is fixed by law.
Arbitrary decisions are not always the random decisions we make out of our own will just by the virtue of our privileged position. Sometimes, even the decisions made in pursuance of a bonafide interest turn out to be arbitrary in nature. For example, there was a scheme by the Delhi government to curb pollution under which the vehicles with odd last digit in the registration number will be allowed on roads on odd dates and those with even last digit will be allowed on even dates. Even though the scheme was framed in good faith, there was plea in the apex court challenging the constitutionality of the same and the court described odd-even as a ‘half baked’ scheme which was also at odds with article 14 and article 21.
Similarly, children in school are often calling for vivas and practicals according to their surname in alphabetical order, it is not a very new but still arbitrary method, at least in cases where surnames are irrelevant.
A classic example of arbitrariness is the American oil crisis of 1973 where the people were allowed to purchase gasoline only on odd-numbered days if their license plate was odd and on even-numbered days if their license plate was even. Well, the system was the need of the time and not specifically discriminatory in nature but since license plate numbers have nothing to do with a person’s fitness to purchase gasoline, it was still considered to be an arbitrary division of people.[2]
Laws against Arbitrariness all over the world:
Specific provisions prohibiting the arbitrariness of various kinds are enshrined in the constitution of many countries across the world. Say, for example, article 9 of the constitution of Switzerland overrides even democratic decisions which are arbitrary in nature. The US Court has turned down many laws for having no coherent reason to back the same. A recent study of the U.S. asylum system suggests that arbitrariness in decision-making is the cause of large disparities in outcomes between different adjudicators, a phenomenon commonly described as refugee roulette.[3] In Russian penal code, there’s an article which defines ‘Arbitrariness’ as a crime, but with a very broad definition including all actions contrary to the order presented by the law.
Philosophy behind Arbitrariness:
Arbitrariness is often related to teleology, the study of purpose. Actions lacking a particular goal or ‘telo’ are necessarily arbitrary. The arbitrary or random methods may or may not qualify as arbitrary choices from a philosophical standpoint if they were done in pursuance of a larger end. Say for example, pollution control measures, discipline in schools and avoiding overcrowding at gas stations are done in furtherance of a bonafide purpose so they’re not arbitrary in nature, philosophically but constitutionally, they are.
According to the philosophy of Nihilism, every choice is arbitrary as the universe contains no value and is essentially meaningless. Because the universe and all of its constituents contain no larger goal for us to make small goals from, all aspects of human life and experiences are completely arbitrary. So for a nihilist, nothing is right or wrong, neither any thought nor practice as the choices a human being makes is just as meaningless and empty as any other choice he or she could have made otherwise. [4]
Arbitrariness is also related to ethics, the philosophy of decision-making. Even if a person has a goal, they may choose to attempt to achieve it in ways that may be considered arbitrary. Thus, All decisions should be made through reason and logic and not on the whims or caprices of an individual. Randomness may occasionally be acceptable as part of a subtask in furtherance of a larger end, but not in general.
The principle of Absence of Arbitrariness and the Constitution of India: an antithesis of it’s own kind:
The Constitution of India guarantees the fundamental right to equality under Article 14. According to article 14 of the Constitution of India, “The State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.” The right to equality which is a basic feature of our Constitution means that neither any constitutional amendments nor Parliament caca contravene the fundamental right of equality. If there is a violation of the right to equality then it will be considered a violation of the basic structure of the Constitution. Article 14 provides two principles: Equality before the law and equal protection of the laws.
1. Equality before the law:
Equality before the law is a concept from english law which is also known as Rule of Law propounded by AV Dicey. It is said to be a negative concept because it appeals to the duty of the state to not to make any law transgressing the rights of individuals and that the law should be equal, the like should be treated alike come what may. It ensures the absence of any privilege in favour of any individual and equal subjection of all the classes of law. There is no absolute equality in this concept as there are some exceptions such as foreign diplomats, presidents and other governors of the state are immune from the jurisdiction of courts.
2. Equal Protection of laws:
Equal protection of the law is originated from the concept of the 14th Amendment of the American Constitution. It is a positive concept because here the state is assigned with a positive task to protect the rights of the individual. It ensures that among equals the law should be equal and equally administered. The guarantee of equal protection applies against substantive as well as procedural laws. This concept is not only restricted to a natural person but also includes juristic persons such as corporations etc which are to be benefited from this concept.
Now the question is that how does the concept of arbitrariness come into the picture?
It is in Royappa Case that article 14 was further interpreted and wider scope was given to it and the doctrine of arbitrariness came into picture.
Right to equality ensures that every person is to be treated equally without any discrimination made on any ground be it sex, caste, religion, age, position or politics. In this regard, the Supreme Court came up with the new dimension to Article 14 and held it to be a guarantee against arbitrariness. According to the Doctrine of Arbitrariness, “equal protection of the law” prohibits class legislation but permits reasonable classification of persons or things.
The test for this reasonable classification originated in State of West Bengal v. Anwar Ali Sarkar. In order to pass the test of reasonable classification, two conditions are to be fulfilled:
(a) Intelligible differentia: the classification must be founded on an intelligible differentia where like should be treated alike and unlike should not be treated alike.
(b) Rational Nexus: In this test, the differential should have a rational nexus with the object of the act. Each case has to be examined independently in the context of Article 14 and not by applying any general rule.[5]
The explanation behind the test of intelligible differentia and rational nexus:
Article 14 does not in any way states that all laws have universal application. They may or may not be general in character. Also, it doesn’t mean that the same laws should apply to all individuals. It only means that likes should be treated alike and the state is free to treat different persons differently if circumstances justify such treatment. Thus, it was further maintained that Article 14 forbids class legislation but does not forbid reasonable legislation.
Arbitrariness occurs when the classification is made without any specific reason, and the likes are not treated alike. If Article 14 makes classification arbitrarily, then it amounts to be discriminatory in nature which proves to go against the very nature of our constitution. Thus, it is now clear that arbitrary state actions (legislative and executive) are the antithesis to the principle of equality. Thus, all arbitrary state actions will fall foul of article 14. Furthermore, all state actions falling foul of article 14 will attract article 13.
Delving into some more case laws for better understanding of the topic:
In Ajay Hasia v. Khalid Mujib Sehravardi, the court held that wherever there is arbitrariness in the actions of the state, be it of the legislature or of the executive or of any “authority” under Article 12, Article 14 must immediately come into action to turn down such act of the state. Article 14 is to counter the arbitrariness because any action which is arbitrary is ultimately the negation of equality. The concept of reasonableness and non-arbitrariness is the very essence of the constitution which runs deep through its fabric.[6]
In E.P Royappa v. State of Tamil Nadu, the traditional concept of equality i.e. reasonable classification was challenged in the apex court and a new concept was laid down in the judgment. It was held that equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined, and confined with traditional doctrinaire limits.
The same judgment was used in other landmark cases such as of Maneka Gandhi v. Union of India and R.D Shetty v. International Airport.
In Maneka Gandhi case, Bhagwati J very clearly read the principle of reasonableness in article 14. He said: “The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence”.[7]
In R.D Shetty v. International Airport, it was held that the doctrine of classification which is involved by the Court is not a paraphrase of Article 14 nor is the objective and end of that Article. It is legislative or executive action in question which is arbitrary and therefore constituting the denial of equality.[8] Therefore, where an act is arbitrary, it is considered as unequal and hence, a violation of Article 14 which strikes arbitrariness in state action and ensures fairness and equality of treatment.
[1] Merriam Webster definition of Arbitrariness
[2] Jason Kawall, Moral Realism and Arbitrariness, Southern Journal of Philosophy, 2005
[3] Nancy Frishberg, Arbitrariness and Iconicity: Historical Change in American Sign Language
Language, Linguistic Society of America, Vol. 51, No. 3, 1975
[4] Jason Kawall, Moral Realism and Arbitrariness, Southern Journal of philosophy, 2005
[5] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
[6] E.P Royappa v. State of Tamil Nadu, AIR 1973 SC 555
[7] Maneka Gandhi v. Union of India, AIR 1978 SC 597
[8] RD Shetty v. International Airport Authority, AIR 1979 SC 1628
This article is authored by Sadaf Parvez Rajput, 2nd Year BA.LLB Student at Faculty of Law, Jamia Milia Islamia.
