About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

8 Indian J. Const. L. 87 (2019)
Arbitrary Arbitrariness: A Critique of the Supreme Court's Judgement in Shayara Bano v Union of India

handle is hein.journals/ijcl8 and id is 101 raw text is: ARBITRARY ARBITRARINESS: A CRITIQUE OF THE SUPREME COURT'S JUDGEMENT IN SHAYARA BANO V UNION OF INDIA Alok Prasanna Kumar* ABSTRACT Arbitrariness has long been a ground used by courts to strike down administrative action in India. Its appicabiity to legislation has been a matter of contention until the issue was put to rest by the Supreme Court of India in Shayara Bano v Union of India, where it was used by Justices Naiman, Joseph and Lalit to strike down trip/e talaq as unconstitutional. However, this line of reasoning is phiosophical'y and jurisprudentially unsound, and may need re-consideration though the /arger outcome of the triple talaq case is correct. The central idea i b which I write this paper is that while subjecting executive action to the doctrine of arbitrariness may have been constitutionally envisaged, subjecting Parliamentary action to such standards is absolutely not so. I. Introduction A Consttuton Bench of the Supreme Court of India set aside talaq-e-biddat (or triple talaq) in Shayara Bano v Union of India.'While the judgement was initally considered to be a 3-2 judgement against the legal validity of triple talaq, a closer scrutny leaves us with an altogether absurd 2-1-2 result!2 Jus6ce Kurien * The author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy.The author thanks Aarthi Rajan, Shankar Narayanan, Siddharth Sonkar and Zoheb Hossain for their comments on an earlier version of this article. The author also thanks Charith Reddy and Sushmita Patel for their help in research and editing. Any errors are the author's alone. Shaara Bano v Union of India, (2017) 9 SCC 1, T 395. 2 See Girish Shahane, Secular d6il code: nith trzle talaq struck down its time to reform other unjust faith based laws, Scroll.in, available at

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most