October 4, 2022

Article 14 and the test of Manifest Arbitrariness

Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution.

Article 14 gives the right of equality to the people of Indian, when it says-

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Parts of Article 14

The Article naturally divides itself into two parts-

  • equality before the law, and
  • the equal protection of the law.

Judgments of Supreme Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America.

In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya,[1] further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content.

Discrimination aspect of Article 14

The early judgments of Supreme Court referred to the discrimination aspect of Article 14, and evolved a rule by which subjects could be classified. If the classification was intelligible having regard to the object sought to be achieved, it would pass under Article 14’s anti-discrimination aspect.

Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab,[2] warned that: Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content. He referred to the doctrine of classification as a subsidiary rule evolved by courts to give practical content to the said Article.

Article 14 in pre-1974 era

In the pre-1974 era, the judgments of this Court did refer to the rule of law or positive aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground.

In S.G. Jaisinghani v. Union of India,[3] Supreme Court held:

“In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits.

The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.”

Discretionary powers are under the ambit of Rule of law

“Law has reached its finest moments, stated Douglas, J. in United States v. Wunderlick[4], …..when it has freed man from the unlimited discretion of some ruler. Where discretion, is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice.

“Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes[5] …..means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful……”

Supreme Court on Article 14

Supreme court in State of Mysore v. S.R. Jayaram, Indira Nehru Gandhi v. Raj Narain, E.P. Royappa v. State of Tamil Nadu, Maneka Gandhi v. Union of India, A.L. Kalra v. Project and Equipment Corporation of India Ltd., Ajay Hasia v. Khalid Mujib Sehravardi, K.R. Lakshmanan v. State of T.N. and two other Constitution Bench judgments in Mithu v. State of Punjab and Sunil Batra v. Delhi Administration and, eventually, came to hold thus: –

“Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be arbitrary.”

And again: – “…. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”

Section 497 of IPC is manifestly arbitrary if test on the touchstone of the Principle of Article 14

In Joseph Shine Case (2018), Supreme Court struck down the section 497 which provided the offence of ‘Adultery’. In the said case, the question arose whether Section 497 of IPC and section 198 of CrPC contravened Articles 14 and 15 of the Constitution of India.

Supreme Court said that,

“On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.

As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow.

As per Black’s Law Dictionary, adultery is the voluntary sexual intercourse of a married person with a person other than the offenders husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC.

Section 198 CrPC deals with a person aggrieved. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person.

The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate.

We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.”

Thus, Supreme Court declared it void and overruled other cases which held this section as valid and in consonance with Article 14.


[1] (1961) 1 SCR 14 at 34

[2] (1963) 2 SCR 353 at 395,

[3] (1967) 2 SCR 703

[4] 342 US 98

[5] (1770) 4 Burr. 2528 at 2539