The test of manifest arbitrariness to strike down a legislation is an example of Gandhian principles in contemporary law, Justice Akil Kureshi, Chief Justice of the Tripura High Court, said on Saturday. “The justness of law is now codified in our legal system. That if it is arbitrary, it is not just. The law may be made validly but it also has to be just,” he said.
Justice Kureshi, whose transfer as Chief Justice of the Rajasthan High Court is pending government approval, was speaking in a webinar on ‘Gandhian Influence on Law’ – organised by the Delhi High Court Women Lawyers’ Forum on the occasion of Gandhi Jayanti.
Speaking on how Mahatma Gandhi pleaded guilty of sedition charges in 1922, justice Kureshi said that Gandhi insisted that the law itself is not enough but it must have moral authority to rule. One of the two contemporary examples of that idea of law is the evolution of the principle of manifest arbitrariness by former Supreme Court judge Rohinton Nariman, Justice Kureshi said.
While executive actions have been struck down for being “arbitrary”, the SC has extended this to legislation passed by Parliament since 2017.
Before 2017, the Supreme Court had only two qualifications for laws to pass the constitutionality test – whether Parliament has legislative competence to enact a law on the subject and whether the law violates fundamental rights or any other provision of the Constitution. A third — whether the law is not manifestly arbitrary – was added in 2017.
The principle was first used by Justice Nariman in 2017 to set aside the practice of instant triple talaq. Subsequently, the court used the doctrine in cases to decriminalise homosexuality and adultery.
Major legislation, including the presidential orders diluting Article 370 of the Constitution and the Citizenship Amendment Act, are under challenge before the Supreme Court for being “arbitrary”.
Another example of Gandhian influence on legislation is former American Supreme Court justice Benjamin Cardozo’s advocacy of the pragmatic approach to law. “The final cause of law’s very existence is the well being of society,” Justice Kureshi said, quoting Justice Cardozo.
Reminiscing his lineage with close ties to Mahatma Gandhi, Justice Kureshi said that “he owed it to his ancestors” to make an effort and speak on the subject. He recalled his ancestral home in Gandhi Ashram called Imam Manzil that was built by his great grandfather.
“Imam Sahib who built this house was settled in South Africa…had made a small fortune for himself. Influenced by Gandhiji’s philosophy, he joined Gandhiji when he left South Africa and came to India and built this house. That’s where his grandson and my father Hamid Kureshi was born,” he said.