Chief Justice of Tripura High Court Justice Akil Qureshi on Saturday said the test of manifest arbitrariness to set aside a law is an example of Gandhian principles in contemporary law. “Equity of law is now codified in our legal system. That if it is arbitrary, it is not justified. Law can be made legitimately but it must also be just.
Justice Qureshi, whose transfer as the Chief Justice of the Rajasthan High Court is pending approval of the government, was speaking at a webinar on ‘Gandhiian influence on law’ organized by the Delhi High Court Mahila Vakil Manch on the occasion of Gandhi Jayanti.
Speaking on how Mahatma Gandhi was convicted of sedition charges in 1922, Justice Qureshi said that Gandhi insisted that the law alone was not enough, but it should have the moral right to govern. Justice Qureshi said that one of the two contemporary examples of the idea of law is the development of the theory of arbitrariness as revealed by former Supreme Court Justice Rohinton Nariman.
While executive actions have been stayed for being “arbitrary”, the SC has extended it to a law passed by Parliament since 2017.
Before 2017, the Supreme Court had only two qualifications for laws to pass the test of constitutionality – whether Parliament has the legislative ability to legislate on the subject and whether the law violates fundamental rights or any other provision of the Constitution. Is. A third – whether the law is not explicitly arbitrary – was added in 2017.
This principle was first used by Justice Nariman in 2017 to set aside the practice of tatkal triple talaq. Subsequently, the court used the principle in cases of decriminalizing homosexuality and adultery.
Key laws, including Presidential orders that dilute 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 law is former US Supreme Court Justice Benjamin Cardozo’s advocacy of a pragmatic approach to law. Justice Qureshi quoted Justice Cardozo as saying, “The ultimate reason for the existence of the law is the good of the society.”
Recalling his lineage with close ties to Mahatma Gandhi, Justice Qureshi said “he was indebted to his ancestors” for trying and speaking on the subject. He remembered his ancestral home in Gandhi Ashram called Imam Manzil which was built by his great-grandfather.
“The Imam who built this house had 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. It was here that his grandson and my father Hamid Qureshi were born.”