Can Arbitrariness in State Action Be Defended?

According to some observers and commentators, recent actions by different state agencies such as the Enforcement Directorate (ED) and the police point towards an arbitrariness, which according to the former is difficult to defend on constitutional or legal grounds. This observation makes it necessary for us to address the question that is raised in the title of this column itself. To answer this question, we need to delimit the meaning of arbitrariness by separating it from the universal humanitarian context.

Arbitrariness or an action involving a discriminatory element, when viewed from the humanitarian concerns, is likely to receive unconditional endorsement from the sentient or morally decent public. Such a public will condone humanitarian acts such as the traffic police allowing the ambulance carrying a critically ill patient to cross the traffic signals on priority. Or, the disaster management task force saving small children on priority during a flood disaster, without waiting to follow the official protocols or guidelines, would not receive any objection, at least not on normative grounds. These actions that overtly look arbitrary, however, could be defended on the grounds that such state actions are aimed at restoring an ethical moral element in the administrative process. Put differently, arbitrariness that is driven by humanitarian consideration is less likely to enjoy the support of those defenders of a kind of positivism according to which the set procedures cannot be compromised on any moral ethical grounds.