In a judgment that is sure to surprise many, Justice J Chelameswar of the Supreme Court has held that arbitrariness cannot be a ground to strike down a law.
He held so while refusing to strike down the Haryana Panchayati Raj (Amendment) Act, 2015, in Rajbala vs State of Haryana, delivered yesterday.
The Act created five new categories of persons rendering them incapable of contesting elections for any of the elected offices under the Act: (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than 10 years, (ii) persons who fail to pay arrears, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank (iii) persons who have arrears of electricity bills, (iv) persons who do not possess the specified educational qualification and lastly (v) persons not having a functional toilet at their place of residence.
The petitions challenged the validity of all five categories except the first, even though the three petitioners before the court mainly lacked the requisite educational qualification to contest local body elections.
Click here to read our report of some of the petitioner’s arguments.
Although the petitioners had challenged the Act on various grounds, Justice Chelameswar confined himself to three major challenges, namely that:
(i) the impugned provisions (laying down the new categories of disqualification) are wholly unreasonable and arbitrary and, therefore, violative of Article 14 of the Constitution: they create unreasonable restrictions on the constitutional right of voters to contest elections under the Act.
(ii) they create an artificial classification among voters (by demanding the existence of certain criteria which have no reasonable nexus to the object sought to be achieved by the Act), an otherwise homogenous group of people who are entitled to participate in the democratic process under the Constitution at the grass-roots level, and
(iii) the classification sought to be made has no legitimate purpose which can be achieved.
While Justice Chelameswar rejected the contention that the classification is unreasonable, saying there is a reasonable nexus between the object sought to be achieved by the Act and the categories created, he did not try to refute the petitioners that the categories are not arbitrary, as they claim.
Instead, his answer was that ‘arbitrariness’ is a value judgment, and judges are not expected to test the validity of a law on the basis of their value judgments.
Strangely, even the AG, who represented the State of Haryana, did not make any submissions on why ‘arbitrariness’ per se cannot be a ground for striking down a law.
Premiere doctrine
It is the first time the Supreme Court has specifically held that arbitrariness cannot be a ground for striking down a law.
Justice Chelameswar specifically considered five previous instances which bordered on striking down laws on the ground of arbitrariness, and reasoned why they could not assist the petitioners in this case.
Justice Chelameswar devoted considerable part of his judgment to discussing the question whether right to vote and right to contest are Constitutional rights, although there was no serious disagreement on this between the petitioners and the respondents on this issue. His answer, after a painstaking academic discussion, is that they are Constitutional rights, and therefore, restrictions on these rights, backed by the Constitutional provisions, are reasonable.
Lacunae
But what about the petitioners’ grievance that these categories are violative of the basic features of the Constitution, which include universal adult franchise and equality of elective posts? After all, if a candidate is free to contest the assembly or Lok Sabha election, without having to fulfil any of these categories, why should it become mandatory for a candidate contesting the local elections? Justice Chelameswar has no answer for this specific question.
He has adopted the easy way of repeating the arguments advanced by the respondents on why the categories make sense, rather than answer the specific grounds of challenge, invoked by the petitioners.
Justice Chelameswar’s view that it is only education which gives a human being the power to discriminate between right and wrong, good and bad, is debatable.
Although he concedes that a large number of persons would be disqualified from contesting because of the educational qualification, he says it is not irrelevant for better administration of Panchayats.
As Brinda Karat pointed out in this article, it was the unlettered Kondh tribal communities of Odisha, and their elected panchayat representatives and gram sabhas, who refused to give consent for a project to one of the most powerful mining companies.
Having failed the constitutional challenge to a discriminatory law, the petitioners and the intervenors have no option but to turn to politics and seek people’s support in other forums to expose the flaws in the Supreme Court’s judgment, and to reverse the categories, introduced by the state assembly, which were widely criticized as “elitist”.
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I cannot see how any Court can even sit in judgment over whether a Law as made by a State Legislature or Parliament, which comprises of elected representatives of the citizenry (and supposedly represents the will of the people) is arbitrary or not. If it is in violation of Part III (including breach of the equality doctrine in Article 14), the court will strike it down. If it is ultra vires the law making power of the legislature, the court will strike it down. But to strike down law on the sole ground of arbitrariness means the Court would in effect be saying that it knows better than the legislature what is the will of the people and what is good for the people. I do not think this is the role of Courts in our constitutional set up.
Interestingly, I think you can see shades of Chelameshwar, J's approach to his dissent in the NJAC come out in a different context in this judgment...
P.S - This comment is only on a proposition that law as made by the legislature cannot be struck down by court on the ground of arbitrariness alone. Outside of this, I have deep reservations about the correctness of the judgment and constitutionality of the Act involved on various other grounds including an Article 14 violation (as discriminatory)
On the arbitrariness point - does that not go towards other constitutional provisions by being good evidence that a law is discriminatory?
I.e., if a law is arbitrary, that is very good evidence of it violating the rule of law, equality, discrimination, etc, as you point out...
Similarly, I am sure you can also appreciate the difference between co-relation and causation...
Having said that and having read the next comment ("are") as well, is it not possible to have reasoned debate without personal potshots, irrespective of what is "right" ?
Will do some more research on this and let you know.
Go read some case laws first before jumping to write an article.
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