GOPAL KRISHNA BORA Vs. STATE OF ASSAM

JUDGEMENT

(1.) ARBITRARINESS is anti-thesis of the rule of law, for, arbitrariness encourages the State and its rulers to act on their whims and fancies making thereby their actions unpredictable and non-transparent. The greatest advantage, therefore, of a civil society, which is governed by rule of law, is that it does not permit the persons, at the helm of its affairs, to indulge in arbitrariness or act on the basis of mere whims and fancies, the result being that the decision to be reached by the State may not be known, but the methods to be chosen or the steps to be adopted by such a State and its instrumentalities to arrive at their decision remain known and are predictable. Such a decision-making process does not suffer from any element of unpredictability and/or arbitrariness. Such a society is, therefore, regarded as transparent, fair and non-arbitrary.

(2.) OURS is a society based on a Constitution, which makes all possible provisions to save its citizens from becoming victims of arbitrariness of the acts of the State and its instrumentalities. Article 14, which forms the bedrock of our Constitution, rests on the principle of ensuring non-arbitrariness by the State and its instrumentalities, while dealing with any person.

(3.) EVEN while awarding a commercial contract, the State or its instrumentalities cannot be permitted to act arbitrarily with its citizens. Since it is well-known that the power of judicial review cannot be exercised against the decision, but against the decision making process, the question, which logically arises is as to how it can be ensured that the State does not indulge in arbitrariness, while awarding contracts or while granting State largess. The easiest way to ensure all possibilities of exclusion of the State or its instrumentalities from acting arbitrarily on their whims and fancies or from favouring anyone is that the State and its instrumentalities must make it known beforehand to the persons, who are to participate in the selection-making process as to what method the authorities concerned would adopt or what procedure they would follow or what factors, they would choose and what considerations, they would allow to prevail to arrive at the decision to award the contract or the State largess. To put it differently, if in any selection process for awarding of a contract, lease or settlement by the State, the State chooses a method or selects a factor or allows a particular consideration to prevail upon it for arriving at a decision to award the contract without having made the same known from before to the persons, who are invited to participate in the selection process, such a selection, for lack of transparency and for giving room to arbitrariness in making the selection, cannot but be interfered with.