Distortion begets Distortion: On the Arvind Kejriwal “Interim Bail” Order

Introduction

In a brief order passed yesterday, a two-judge bench of the Supreme Court granted “interim bail” to the Chief Minister of Delhi, Arvind Kejriwal, for the purposes of campaigning for the ongoing general elections. According to the terms of the “interim bail” order, Kejriwal – who was in custody (as an under-trial) in a money-laundering case, is required to surrender and return to custody on June 2, the day after the elections conclude.

The eight-page order is shorn of any detailed reasoning, and – as I shall argue – both reflects certain serious problems with our criminal justice system (many of them the creation of the Supreme Court itself), as well as adding to those problems. Editorials that have therefore offered qualified praise to the Court for its order (such as this one) are wide of the mark.

Before we begin, however, it is important to note that the criticism of the Court’s order is not a criticism of the fact that Arvind Kejriwal has regained his liberty (albeit temporarily). As this blog has consistently maintained, personal liberty is a good thing, and we should have a lot more of it than what our courts allow. The criticism is of the road that the Court has taken to get there, and the malaise that it both reflects and contributes to.

The Order

Let us now look at the order itself. As the Court itself notes, “interim bail” is not a concept that can be found under a statute, but rather, it is a judicial invention that flows from Article 21 of the Constitution. For this reason, there are no real standards that guide or channel the judicial discretion in granting “interim bail”, other than judicial wisdom, as applied to the case before it (it is somewhat striking that out of the four cases the Court cites to justify the power of granting interim bail, none of them are actually cases where interim bail was granted because of the facts – something that would have allowed us to glean some indication of what kinds of facts would be necessary). Historically, “interim bail” has been granted in situations where a situation (often, a situation of distress) necessitates the temporary release of an under-trial: say, for example, the death (and funeral) of a close relative.

In this case, the Court adds a seemingly new category – that of campaigning in a general election. The only reason that we are given is two words – the “prodigious importance” of the General Election (paragraph 8). When, however, you scrutinise this a little closely, a lot of problems arise.

First, the general elections began on 19 April. Arvind Kejriwal was arrested on 21 March. At the time the elections began, he had already spent nearly a month in prison. The proceedings before the Supreme Court (where he challenged his arrest and subsequent custody) had themselves been going on for substantial time before he was released on “interim bail” on 10 May. So, is the General Election prodigiously important enough for Arvind Kejriwal to have twenty days to campaign, but not prodigiously important enough to allow him to campaign for its entire duration?

Secondly, there are other significant Opposition leaders that have been arrested in the run-up to the elections, and continue to remain in custody (the most prominent among them being Hemant Soren, the former Chief Minister of Jharkhand), including leaders from Arvind Kejriwal’s own party. These leaders have also initiated various legal proceedings – many of which have ended up before the same bench that passed the “interim bail” order. Is the General Election prodigiously important enough for the release of one Opposition leader, but not other leaders?

Thirdly, it may then be argued that the distinction is that Arvind Kejriwal is the only sitting Chief Minister who was in custody (Hemant Soren resigned just before his arrest). But Arvind Kejriwal’s Chief Ministerial position is clearly not a relevant consideration, because the Court – as part of its orders – has prohibited him from visiting his office or the secretariat, or from signing any files, while he is at liberty (these are truly perverse directions, but we will not go into them here). The “interim bail” appears to have been granted to Arvind Kejriwal the political leader, and not Arvind Kejriwal the Chief Minister.

Fourthly, if the basis of “interim bail” is political campaigning, then to whom should it apply and to whom should it not apply? There is evidently no constitutional right to campaign, especially when it comes to under-trials. Indeed, something as basic as the right to vote is denied by law to under-trials – thus creating an ironic situation where the “interim bail” order means that the very fact that Arvind Kejriwal is at liberty now means he can vote in the Delhi phase of the elections, while under-trials still in custody cannot (it is important to stress, once again, that Arvind Kejriwal’s ability to vote is a good thing; only, it is something that all under-trials should have).

Now, if the basis is not the right to campaign, then what is it? In a valiant defence of the Order, Soutik Banerjee over at the SCC Observer argues that the Order carves out a “public interest defence” in personal liberty cases, and that underlying premise is that “an incarceration of a national political leader which prevents them from participating in the Lok Sabha election campaign could undermine the federal and democratic framework of the polity and Constitution.”

Let me say at the outset that I respect this attempt to retroactively reconstruct a normatively plausible rationale from eight pages of non-reasoning. Given the thin scraps of gruel that the Supreme Court habitually feeds us when it comes to legal reasoning, reconstruction is something that we are compelled to do a lot of the time. But consider for a moment what this reconstruction means: is the Supreme Court now going to be the judge of who is a “national political leader” and who isn’t? Is the Court going to dole out interim bail orders on the basis of its own judgment of which opposition leaders being in jail during an election might undermine federalism and democracy, and which ones being in jail would be entirely kosher for the sanctity of elections? Is that the kind of power that we want the Supreme Court to exercise in cases of this kind?

Reflecting and Entrenching the Problem

But this brings us to the question of why the Court is exercising this kind of power in the first place. Indira Jaising’s piece in the Indian Express – “Arvind Kejriwal has got bail, but his arrest indicates a broken criminal justice system” – is an excellent summary of the problems. In essence, the restrictive regime of “special laws” in India (PMLA, UAPA etc) – and their interpretation by the Supreme Court – had made it virtually impossible for individuals to get bail pending trial (see also Abhinav Sekhri, “Front-loading Criminal Justice“). In particular, when it comes to the PMLA, there is a direct line between the Supreme Court’s judgment in Vijaylal Madanlal Chaudhary (discussed here), which sanctified a regime of vast and unaccountable investigative agency power, and the situation that we presently find ourselves in. Add to this the habit of the trial courts (sanctified by the High Court and the Supreme Court) of upholding arrest and granting remand without considering whether custody is actually required, and you get a cocktail of incarceration. Indeed, it is worth remembering that before yesterday’s “interim bail” order, Arvind Kejriwal’s claims for relief before other courts had been rejected; the claims of other opposition leaders in custody have also been rejected, including by the Supreme Court (and including, in some cases, by the same bench – or a part of it – that granted “interim bail”).

The “interim bail” order, then, reflects the problems with the criminal justice system: because other avenues for securing personal liberty are blocked off, you get this ad-hoc eight-page order with two words of reasoning (“prodigious importance”), and rife with internal contradictions and problems.

But it also contributes and entrenches the same problem, because what the Supreme Court is doing is adding yet another distortion to an already distorted criminal justice system. On the one hand, when the Court is actually given the opportunity to curtail executive impunity, protect personal liberty, and safeguard the rule of law through its normal jurisdiction – such as in the challenge to the PMLA – it responds by not only upholding draconian laws, but increasing and expanding state power. And then – in orders like yesterday’s – it retains for itself the discretionary power to decide when, and for whom, it can make an exception. But this is not the rule of law: this is the Supreme Court using personal liberty as a form of patronage, deciding whom to dole it out to and whom to withhold it from, on the basis of opaque criteria (in that sense, Banerjee’s reconstruction of the order – “national political figure” – is more damning than a defence).

The other problem here – which comes out in Indira Jaising’s article – is, of course, that this is a power that only the Supreme Court will wield: as we have seen in the case of not only Arvind Kejriwal but those of others as well, orders such as yesterday will rarely – if ever – be forthcoming from the trial court or the High Court. Orders such as these thus tend to further centralise power in an already heavily over-centralised Supreme Court. Thus, instead of a legal system where courts at all levels are deploying legal standards that are solicitous of personal liberty when it comes to arrest and custody, you have the near-mechanical endorsement of executive power in the courts below, followed by the possibility of the Supreme Court choosing to invoke this extraordinary remedy of “interim bail for political campaigning” if it believes that you are a national political figure! This is not how a healthy legal system works.

And in the long run, it will only create more problems for the Court itself. As we have previously discussed on this blog – in the context of anti-defection law – Courts that are seen to be actively intervening in political contests not only open themselves up to criticism from powerful actors, but also present themselves as attractive sites of capture for those same actors. The more the Court discards legal principle for extraordinary remedies such as these, the more that risk grows.

Conclusion

It is important to reiterate that this post does not argue that Arvind Kejriwal should not have been released. There are serious problems with the manner in which laws such as the PMLA operate, their potential for weaponisation, and their impact on constitutional rights. And it is the responsibility of the courts to preserve and safeguard personal liberty and individual rights in the teeth of executive impunity.

But there is a way to do that. That way is to strike down unconstitutional laws, or – if not – to interpret them in a way that rights are protected across the board, for everyone, at all stages, and by all courts: from the first police application for remand before the magistrate, to the bail application following judicial custody. The way is not for the Supreme Court to lay down legal doctrine that defers to executive power at all stages, while exercising an ad-hoc and virtually Schmittian power to make exceptions at will. The eight-page “interim bail” order, with its non-reasoning, its inconsistencies, and even in its sympathetically reconstructed shape, reveals all the problems with the latter route that the Supreme Court has taken.

An Injudicious Judicial Opinion

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case.

Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democratic Reforms vs Election Commission of India) proceeds as follows:

It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such attempt to succeed as long as it (the court) has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

There are two things to note about this paragraph.

First, the judge levels a range of allegations in the first two sentences, but provides no evidence or particulars. He does not identify who these “vested interest groups” are. He does not specify what “the achievements and accomplishments of the nation” are, which are being “undermined” by these unnamed “vested interest groups.” He does not clarify what the “concerted effort” is that is being made by (presumably) the same unnamed “vested interest groups.” He does not explain what “progress of this great nation” is being weakened, and how, and by whom.

There is a term for such language, and it is called a “dog-whistle.” We are all familiar with dog-whistles: especially dog-whistles that allege that a nation’s progress is being held back by unnamed fifth-columnists. We are familiar with dog-whistles that set these unnamed fifth-columnists against the “true and pure” citizenry, the honest labourers and the “sincere work-force.” We are also familiar with what such dog-whistles lead to. Throughout history, these dog-whistles have been the preserve of demagogues and soap-box orators, seeking to whip up public resentment against the chosen targets of their outrage.

The demagogue does not need to spell out whom he is criticising, what he is criticising, or to provide reasons for his criticism. In fact, were he to do so, his demagoguery would lose its force, because his appeal is not to his audience’s reasoning faculties, but to the worst of their prejudices. His success is measured on no metric other than how much passion he can whip up, and what destructive effects he can direct it towards.

But there is a problem when a court engages in judicial demagoguery. The entire purpose of a constitutional court is to resolve disputes through the exercise of public reason, which is open and honest about its priors, and transparent about its assumptions. When a court begins to engage in these nudge-nudge-wink-wink games before a national audience, it abandons its role and functions as a court.

This is not to say that judicial demagoguery has no precedent in history. Perhaps its most famous exponent was Andrey Vyshinsky, the Soviet prosecutor-judge who presided over Stalin’s show-trials, and publicly berated the accused for being fifth-columnists who were intent on undermining the historical progress being made by the great Soviet nation. Is this an example the Supreme Court thinks worthy of emulation? One hopes not.

The second issue in this paragraph is the judge’s gratuitous personal attack upon the petitioner, the Association for Democratic Reforms. I will not here write a screed defending the ADR: their two-and-a-half-decades’ worth of work is in the public domain, it speaks for itself, and they do not need anyone to speak on their behalf. Notice, however, how – much like the first part of the paragraph – the judge provides no evidence for doubting ADR’s bona fides; in fact, the only reason for that, that comes out of the judgment, seems to be the judge’s outrage at the suggestion of replacing EVMs with paper ballots. But it is the opposite of judicial temperament to let one’s distaste for an argument spill over into a distaste for the petitioner.

Moreover, there is something particularly problematic about a personal attack by a judge upon a petitioner that appears in a judicial opinion, especially when these allegations are not put to the petitioner, and the petitioner is given no chance of defending themselves. This is, of course, not the first time that this has happened in recent years; for other examples of what I have referred to as the Court’s “Idi Amin jurisprudence,” see here. If a judge is intent upon castigating petitioners for the temerity of bringing a case to Court, and the basic principles of fairness demand that personal allegations be put to them, and their response to those allegations be recorded in the judgment. Without doing that, such attacks on petitioners are essentially the judicial versions of “shoot-and-scoot.”

There is a deeper irony here. The law of contempt exists – and rightly so – to protect judges from personal accusations (of bias, or dishonesty, or deciding cases for extraneous reasons). This is why losing parties to a case, or those who disagree with the outcome of a case, are not supposed to attribute the outcome to judicial malice. If judicial criticism became a free-for-all, judging would become a much more difficult and forbidding enterprise than it already is. But the law of contempt – which demands a certain temperance from the critics of the court – is not a one-way street. If judges treat petitioners as fair game for personal attacks, then the only effect of this will be to fray the threads that hold together the existing bargain. One wishes, of course, that this never comes to pass.

The Supreme Court’s EVM-VVPAT judgment will have its critics and its supporters. That is not the point here. Regardless of the Court’s findings, it is respectfully submitted that paragraph 5 of the concurring opinion delivered by Justice Dipankar Datta is both gratuitous and unnecessary. A healthy constitutional culture depends on individuals being able to challenge State action without fear of reprisal. If the Supreme Court itself becomes an organ of reprisal, then soon we will have no constitutional culture, but – to invoke another memorable judicial turn of phrase – “the unanimity of the graveyard.”

Developing Workplace Constitutionalism: The Judgment of the Kenyan Employment and Labour Relations Court on “Interns” as “Employees”

On 17th April 2024, the Employment and Labour Relations Court of Kenya delivered an interesting judgment at the intersection of labour law and the Constitution (The Forum for Good Governance and Human Rights vs Teachers Service Commission and Ors.). At issue was the fact that the Teachers Service Commission (a statutory body) had engaged a number of instructors that it called “intern teachers.” “Intern teachers” were engaged on non-renewable eleven-month contracts (as opposed to permanent teachers, who were also entitled to pensions). Their status, therefore, was not that of employees, but that of contractual workers, and they were paid allowances instead of salaries. The State justified this by arguing that this was meant to “benefit young persons entering the job market.” (paragraph 4)

In a terse judgment, the ELRC held that the practice of recruiting “intern teachers” on a contractual basis was illegal and unconstitutional. The core of the Court’s argument was that the so-called “intern teachers” were duly qualified and trained; consequently, classifying them as interns was an attempt by the State to “escape the inescapable effect of the employment relationship and legal safeguards.” (paragraph 8(b)). Importantly, the Court drew upon Article 41 of the Kenyan Constitution (the guarantee of fair labour practices) to hold that the prerogative of the employer to “define the models of the terms and conditions” of work was subject to the requirements of Article 41. In this case, the evidence – which included both the nature of the work and the qualifications of the “intern teachers” – demonstrated that the objectives of classifying them as “intern teachers” was indeed the evasion of labour law obligations. The Court buttressed this finding by referring to the International Labour Organisation’s famous Recommendation 198, which warned against “disguised employment relationships”, which masked an employee’s “true legal status,” and had the effect of depriving them of the legal safeguards that they were otherwise entitled to.

On its own, this finding would be unremarkable: the issue of disguised employment status (or “misclassification”, as it is popularly known) is well-known, and courts across jurisdictions have devised ways to address it by going behind the labour contract, in order to examine the true nature of the relationship in question. This has been particularly stark in the context of gig and platform work (see, e.g., the discussion of the UK Supreme Court in Uber vs Aslam for an example). What is interesting, however, is the Court’s anchoring of its interpretation of labour law within Article 41 of the Constitution (and, relatedly, within Article 27 as well, which sets out the guarantee of non-discrimination). Recall that last year, the ELRC had done something similar when examining the obligations of Meta towards its content moderators, and holding that Meta could not outsource its obligations to local, third-party contractors (see here).

Let us call this “workplace constitutionalism.” We can understand workplace constitutionalism as an approach where the Constitution informs the interpretation and evolution of labour legislation, and where the latter is understood in light of constitutional norms (see e.g. Chapter Six of this author’s PhD Thesis; Horizontal Rights: An Institutional Approach). The merit of workplace constitutionalism is that it brings in autonomous constitutional concepts (such as equality and non-discrimination, structural differences in power, and so on) to bear upon the labour contract, and its construction under labour law. With the Meta case, and now this case, we can see the ELRC beginning to incrementally build a jurisprudence of workplace constitutionalism.

The other interesting feature of the judgment is that at the very beginning of its analysis, the ELRC holds that interns are “employees” for the purposes of labour law. It does so by citing its own precedent from 2021, and considering the definition of “employee” under section 2 of the Kenyan Employment Act, which defines “employee” as including “apprentice” and “indentured learner.” It holds that the definition is wide enough to include “learners” who learn by hands-on experience or technical training someone experienced in the field (the classical understanding of “intern”). While the Court does not go further with this, as its focus is on the holding that the teachers were misclassified as interns, nonetheless, a finding that interns are “employees” and therefore entitled to labour law safeguards is certainly revolutionary (and very much in line with the understanding of workplace constitutionalism, as discussed above). It will be important to see if this is taken forward further, in other cases involving “interns” in other professions.

Finally, the Court’s remedy is somewhat disappointing, as it refuses to order the regularisation of the “intern teachers” or the payment of back-wages, stopping only at holding the contracts to be illegal (presumably, the statutory authority will now have to re-hire individuals against existing vacancies, on the same terms as it engages permanent teachers). In my view, this was a fit case for regularisation and the payment of back-wages; however, that said, the reasoning of the Court is undoubtedly important, and adds another brick to the foundations of workplace constitutionalism in Kenya.

Guest Post: Seeking Proportionality in the FCRA – International and Comparative Perspectives

[This is a guest post by Viraj Thakur.]

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Introduction

NGOs are often funded by foreign sources. However, the ease with which they can acquire such foreign funding differs based on the object and jurisdiction of the NGO. For instance, the United States has specifically exempted NGOs from the purview of the Foreign Agents Registration Act (“FARA”), which involves the receipt of foreign funding by entities undertaking political activities. The Declaration on Human Rights Defenders, adopted by the United Nations (“UN”) General Assembly in 1998, highlights the role of NGOs (among others) in protecting human rights; it is pertinent to note that the declaration does not contain any clause regulating foreign contribution. In fact, as noted by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN treaty bodies have found regulations on fundraising based on the origin of funding deeply problematic.

India, however, has a strict regime for regulating foreign funding to NGOs, implemented through the Foreign Contribution (Regulation) Act, 2010 (“FCRA”). The legitimacy of the act has recently been hotly debated with the search of Harsh Mander’s home, which some view as a ‘vindictive witch-hunt.’ These searches were carried out due to alleged FCRA violations by Harsh Mander’s NGO, Centre for Equity Studies.

The FCRA was amended in 2020, and these amendments were challenged in Noel Harper v. Union of India (2022). However, in this case, as has been argued earlier, the judiciary omitted legal principles entirely, presenting rhetoric as a substitute, entirely glossing over the question of proportionality.

Naturally, now, a question arises. If the FCRA is disproportionate, can a rational nexus be struck between the purpose of the Act and the means adopted? In other words, what alternatives can be adopted to make the impact of the FCRA proportionate?

In this article, I shall attempt to answer this very question. First, I consider international standards in regulating foreign funding to NGOs. I focus on a recent report released by the Financial Action Task Force (“FATF”) and focus on policy-based improvements. Secondly, I look closely at the Foreign Donations (Voluntary Activities) Regulation Act, 2016, which is in force in Bangladesh, to suggest means to temper the FCRA while pointing out a notable problem in both. Finally, I look at an international judgement which provides for a specific test of proportionality in dealing with the right to freedom of association of NGOs. In doing so, I argue for greater proportionality within the FCRA by suggesting measures to improve the existing shortcomings.

International Standards in Regulating Foreign Funding to Civil Society

While entities such as the UN believe that foreign funding must not be regulated, bodies such as the FATF have noted before that terrorist funding to NPOs (non-profit organizations) can pose a threat to a country. To this end, the FATF recently released a paper detailing best practices in dealing with such a situation, which may provide some answers as to how to balance the right to freedom of association of NGOs and national interests. Relying on this FATF paper, my primary objective shall be to propose a framework that would push India towards a rational policy intervention via the risk-assessment model proposed in the paper.

The first step would be to conduct a survey in order to determine which organizations fall within the FATF definition of an ‘NPO’:

A legal person or arrangement or organisation that primarily engages in raising or disbursing funds for purposes such as charitable, religious, cultural, educational, social, or fraternal purposes, or for the carrying out of other types of “good works.”

The next step is to identify any “vulnerabilities”(sectoral or organisational) that can be exploited by “threats” (referring to terrorist funding or misappropriation). According to the report, if no action is taken at all, NPOs serving as fronts for terrorist funding may infiltrate civil society. However, overregulating the sector can create regulatory barriers that can force legitimate NPOs to shut down. These vulnerabilities must be assessed based on data analysis, and not just rhetoric.

Next, public consultations and greater deliberation on legislative action is a must. This must be done periodically, as using tenuous and old data is unlikely to allow a balance between the spectrum of no action and overregulation, as the report shows. Additionally, involving the primary stakeholders will help build trust and ensure a balanced approach through the inclusion of diverse perspectives. Moreover, as noted in Annexure A to the report, the 2023 French National Risk Assessment involved a systematic analysis of NPOs and the risk of terrorist funding affecting them at a national-scale. In doing so, it also established certain classes of NPOs that may be more susceptible to terrorist funding. For example, NPOs that provide humanitarian aid in conflict areas/high-risk areas may warrant greater scrutiny than another NPO not fitting these criteria. Hence, creating intelligible differentia between groups of NPOs is another step to be considered, to prevent disproportionality.

Lastly, financial transactions of registered NPOs that utilize foreign funds can be made public to promote transparency. In India, currently, only a state-wise list of organisations registered under the FCRA is available, but not their financial statements.

The government must ensure that it does not discourage social welfare altogether. Regulation is important, but taking a rational research-driven approach is the first step in ensuring balanced regulation.  The normative message it ends up sending to NPOs currently is to enter at their risk and find their own sources of funding—resorting to foreign funding brings too many regulations and too much additional risk. 

Manifesting Proportionality via the FDVA in Bangladesh

Another good starting point may be a similar legislation from Bangladesh. The Foreign Donations (Voluntary Activities) Regulation Act, 2016 (“FDVA”) deals primarily with NGOs, and bears strong resemblance to the FCRA. However, it is less stringent in terms of imposing strict requirements on NGOs receiving foreign funding, and hence may serve as a reference point for tempering the language of the FCRA.

Section 7 of the FDVA, for instance, deals with the same subject matter as Section 7 of the FCRA, i.e., dealing with transfer of foreign funds between NGOs. Yet, their approach is radically different. The FDVA allows the transfer of foreign funds between NGOs, provided three basic conditions are met:

• The entity receiving the grant must be a registered organization under prevalent laws of Bangladesh;
• The NGO granting foreign funds must provide a proposal of the project to be undertaken. This proposal must include the details of the NGO receiving funds and contain an outline of the funds to be granted;
• The granting NGO or individual shall guarantee the implementation of the project in accordance with the conditions of approval of the project.

Section 7 of the FCRA instead imposes a blanket ban on any transfer of foreign fund, without any specific rationale. One of the reasons for such routing of funds is that large NGOs support smaller ones that do work at the grassroots level. It was noted in the parliamentary debate over the FCRA that this provision has been made absolute for no well-defined reason.

Furthermore, a parallel can be drawn between Section 9 of the FDVA and Section 17(1) of the FCRA, both providing for the bank account in which an NGO may receive foreign funds. While the former allows an NGO to open a bank account in any scheduled bank, the latter requires an NGO receiving foreign funds to open an account in an SBI branch in New Delhi. Moreover, as was pointed during the parliamentary debates over the amendment, there was no cogent rationale for this move. This is especially worrying, given that 93% of NGOs have accounts outside of Delhi.

Finally, Section 17 of the FDVA provides for an appellate tribunal in case of grievances and prescribes a time limit for redressal. Instituting such an alternate mechanism in India would be ideal, given that the delays of the Indian legal system imply that any NGO challenging its FCRA license being suspended, would find itself embroiled in a long struggle of litigation. This would impose another financial barrier on the NGO, making it harder for them to function. Currently, no such dedicated mechanism exists in India.

One common issue can be spotted in both legislations. Section 8 of the FCRA and Section 6(5) of the FDVA both prescribe that foreign funds can only be used to meet up to 20% of administrative expenditure requirements.

In the context of India, reading Section 8 in conjunction with the Foreign Contribution (Regulation) Rules, 2011 (“the Rules”) shows that under Rule 5, only expenses that are associated with field work or directly with the purpose of the organisation can be met freely through foreign funds. Anything else is categorised as ‘administrative expenditure.’ In light of the same, how does the Centre expect NGOs to expand, when foreign contribution can no longer be used to meet expenses such as rent, legal charges, accounting charges, etc? Such a severe restriction on the usage of administrative expenses only impedes social welfare, especially when this particular section has no justification in the FCRA or the amendment bill.

Conclusion

The FCRA has definite fault lines and displays signs of disproportionality. However, attempting more neutral policy making such as that in the FDVA would prove immensely useful for India, as would ensuring an empirical approach derived from the FATF paper. However, it is also important to note that apart from formal requirements such as through the FCRA, informal requirements also pose a hurdle. For example, requiring registration through government officials at the local level (as in Bangladesh, via the FDVA) often means jumping through bureaucratic loops that create prolonged delays. A more holistic policy overhaul must consider this as well in the Indian context too, apart from making the FCRA itself less rights-intrusive. This would allow a balance to be struck between the rights of civil society and national interest for security.

Judicial Review of Administrative Action: A Critique of the Judgment of the High Court of Kenya [Guest Post]

[This is a guest post by Joshua Malidzo Nyawa.]

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Introduction

Under traditional common law, judicial review of administrative decisions is a highly constrained enterprise. It is limited to testing only the process through which a decision has been arrived at, and not its substance. Limited judicial review is a part of the broader, deferential tradition of the common law, in the context of parliamentary supremacy.

The promulgation of the Constitution of Kenya on  27 August 2010  was a legal watershed, and was – in the opinion of this writer – delivered a coup de grace to the common law understanding of judicial review. However, yesterday’s decision of Justice Chigiti shows that there is persistence reluctance among the Kenyan courts to appreciate the sweeping effect of the new broom in town, the 2010 Constitution, and to acknowledge that the legal system’s marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

By paying unquestionable allegiance to the dead hands of the past without considering the demands of the Constitution, the learned Judge makes the Constitution subservient to the Common law, instead of reading the Constitution autonomously, and bringing administrative law in line with its principles.

The decision and common law shackles

The shackles of the common law exhibit themselves in various ways. Firstly, as noted above, it is the understanding of common law that judicial review is restricted to the review of process alone and not merits. Secondly, the remedies offered in Judicial review are limited to certiorari, mandamus and prohibition. Thirdly, since Judicial review orders are prerogative, one has to apply for leave before filing the motion seeking the judicial review orders.

In the present decision, the applicant challenged an administrative decision of the Public Procurement Administrative Review Board. The genesis of the dispute was a tender award by one of the respondents, a government parastatal. The Judge started by looking at the nature of judicial review powers. He held that in a judicial review proceeding, the court is concerned with the lawfulness of a process by which the decision was arrived at (para 74) and that

It is my finding that this court cannot conduct a merit or a substantive merit analysis of the foregoing. To do so would go against the principles of Judicial review. It is my finding that the proceedings of the Review Board were regular, and the 1st  Respondent had jurisdiction to adjudicate upon the matters raised in the Request for Review; it was as much entitled to decide those matters wrongly as it was to decide them rightly in arriving at the impugned decision (para 86).

It is this finding that this short blog piece explores.

An all-pervasive Constitution and Judicial review

An all-pervasive Constitution requires its normative principles to govern all areas of law. The impact of an all-pervasive Constitution must penetrate all areas of the law, including common law – a phenomenon that is known as the “radiating effect” (its origins are in German constitutionalism, but it has since come to be accepted in multiple jurisdictions).

Undoubtedly, the 2010 Constitution can be described as an all-pervasive Constitution. The Constitution declares its supremacy and also requires that all laws be developed to ensure that they are in line with the Constitution (it is worthwhile to note that “law” would include the common law). These explicit constitutional injunctions have an important consequence. The all-pervasive Constitution rejects a parallel system of law outside the orbit of the Constitution. This is to mean that there can only be one system of law, and as Justice Chaskalson once held:

There is only one system of law. It is shaped by the Constitution, which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

In sum, the common law understanding of judicial review must be interpreted to be consistent with the reformist and transformative agenda of the Constitution. It cannot be insulated from the effects of the Constitution’s principles and values.

How, then, does the 2010 Constitution bring the shift? Article 47 of the Constitution, which constitutionalises the right to a fair administrative action, and the Fair Administrative Action Act of 2015 have signalled constitutional bells for expanding the scope of judicial review. Today, an administrative action and the remedy of judicial review, as Justice Majanja once held, is not left to the realm of common law, but it must be measured against the standards established by the Constitution. Most importantly, article 47 and the Fair Administration establishes new standards of review (such as proportionality, efficiency, procedural fairness and the duty to give reasons) and remedies that are unknown in common law, beyond the three traditional ones.

Another invention is that the constitutionalisation of a right to a fair administrative action elevates judicial review as a remedy for the protection and promotion of human rights and fundamental freedoms. Therefore, in Kenya, we now have a rights-centered approach to administrative law. Additionally, the right to a fair and administrative action must also be interpreted with the values and principles set out in Article 10 (transparency, accountability, good governance) in mind.

This constitutional architecture has led to a shift of judicial review to include aspects of merits review of administrative action. The current architecture goes beyond the traditional approach restricted to procedural considerations which was previously the focus of judicial review, to now include a consideration of the merits of administration action or decision forming the subject of the judicial review proceedings.

Put differently, the Constitution and the Fair Administrative Action Act allow the application of the “hard look doctrine” in judicial review, which permits Courts to also consider the merits of a case as opposed to the traditional process-only inquiry. Courts are called upon to engage in deeper scrutiny, hard look, merit-based standard of review mode and not the hands-off approach adopted by Justice Chigiti. The constitutional architecture demands more from a judge; a judge is not required to not pore over the process but also ensure that, in substance, there is justice for the petitioner. The traditional law common law principles are no longer the decisive factor.

Controlling precedents: Supreme Court, Court of Appeal and the High Court.

Apart from failing to engage with the demands of the Constitution, another worrying trend is that the Judge ignores controlling precedents. In his consideration of the dispute, Justice Chigiti does not pay homage to the decisions of courts above him and also courts with similar status. He replicates the decisions that were decided prior to the promulgation of the Constitution in 2010. If the Judge had checked the jurisprudence emanating from the other courts, he would have quickly realized that he was the only visitor in Jerusalem.

The Court of Appeal has, in several decisions, held that the 2010 Constitution and the Fair Administrative Action Act have expanded the limits of judicial review and that the legal framework has today shifted judicial review from process-based to merit-based. For instance, in Judicial Service Commission & another v Lucy Muthoni Njora [2021] eKLR, while rejecting the argument of the Judicial Service Commission, the Court of Appeal (Leading decision by Justice Kiage) held that the traditional process only approach to judicial review must involve a measure of merit analysis. The Court further held that:

I think that it would be unrealistic for a court to engage in a dry and formalistic approach, steeped in process alone, while eschewing a measure of merit examination. Such merit review is a sine qua non of meaningful engagement with the question of reasonableness and fairness as the antidote to the arbitrary, capricious or illegal conduct of authorities that invite judicial review in the first place.

The Court proceeded to hold that:

We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.

Similar pronouncements have been made  by the Court of Appeal in Super Nova, with the court holding that when the Constitution expanded the grounds of judicial review above the conservative grounds to include the principles of proportionality, this resulted in ‘greater intensity of review of the merits as it invites a court to evaluate the merits of the decisions by assessing the balance to make.’ The Court of Appeal was more explicit in Suchan Investments that ‘this important conceptual development in modern judicial review theory and practice has been interpreted to mean a shift from exclusively reviewing the process by which a decision is made, to reviewing, in appropriate cases, the merits of the decision in question.’ The High Court has also held that Judicial review after the promulgation of the 2010 Constitution includes a merits review in the KHRC and DKUT decisions.

The Supreme Court has also held that Judicial review in Kenya now includes some form of merits review. In Dande, the Court held that:

It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case.

In Saisi, it was also stated that:

74. It is our considered opinion that the framers of the Constitution, when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans… In order for the court to get through this extensive examination of section 7 of the FAAA, there must be some measure of merit analysis.

Shackled to the Common Law

The new dawn in administrative law ushered by the Constitution might not be fully realised if justices remain shackled to the common law are not liberated. Justice Chigiti’s unquestioning allegiance to the received common law from the United Kingdom has the effect of preventing the unlocking of the revolutionary potential of Article 47 of the Constitution.

Articles 20(3) and 259 obligate judges to develop the law, including common law, to reflect the purpose, object and spirit of the Bill of Rights. Where a common law principle falls short of the spirit of the Constitution, judges should therefore develop it to make it compliant with the Constitution, rather than levelling down the Constitution to the level of common law.

Conclusion

Prof Gathii cautioned against developing a two-tracked system of judicial review – with cases influenced by the common law, on the one hand, and cases decided under the 2010 Constitution’s principles of judicial review, on the other. To him, this has the effect of undermining the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution. Justice Chigiti fails to adhere to this timeless caution. It is respectfully submitted, therefore, that the decision ought to be reconsidered and reversed on appeal.

Guest Post: The Constitutionality of a State-Enacted Water Cess

[This is a guest post by Rahul Pandey.]

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Introduction

In the first unequivocal decision of its kind, the Himachal Pradesh High Court (“Himachal HC”) has struck down the The Himachal Pradesh Water Cess on Hydropower Generation Act, 2023, in NHPC Ltd v. State of HP (“NHPC”). While disputes pertaining to imposition of cess on usage of water for electricity generation are not unprecedented, this is the first instance that such a cess has been struck down in its entirety. A similar legislation was upheld by the Uttarakhand High court (“Uttarakhand HC”) in Alaknanda Hydro Power v. State of Uttarakhand (“Alaknanda”), and another is subject to a pending challenge before the Jammu and Kashmir High Court.

Despite being endowed with rich natural resources, these hill states often face a revenue crunch due to a lack of sources to generate income. They thus expect the imposition of cess on water usage for hydro-power generation fetched from their vast rivers to make up the shortfall However, the imposition of such a cess arguably comes at the cost of important constitutional principles relating to legislative competence, taxation and federalism being compromised. This is because the use of river water has ramifications beyond single states: it is utilized to produce renewable and clean energy for several neighboring states and territories. This article shall endeavor to highlight how the imposition of such a levy is invalid as rightly pointed out in NHPC and in the judgement of Maithani, J. in the split verdict arising out of a special appeal from Alaknanda in T.H.D.C. India Ltd. and Ors. v. State of Uttarakhand. (“THDC”).

The scope of this article shall be restricted to the issues of legislative competence and pith and substance. The article shall not engage with the issues of Article 288, promissory estoppel and the reading down of the tax as a fee.

Legislative Competence

In the present set of cases, the states relied upon Entry 17 (Water), Entry 45 (Land Revenue), Entry 49 (Taxes on land and buildings) and Entry 50 (Taxes on Mineral Rights) of List II to the 7^th Schedule to justify the levy of the water cess. However, as per contentions presented by The Union of India, none of these are valid fields for the state legislatures to enact such legislation as the questioned act, in its true substance, is a tax on generation of electricity. This is exclusively a field for the parliament, as held by the SC in the case of M/s Hoechst Pharmaceuticals Ltd. & Ors. vs. State of Bihar & Ors. 1983 (4) SCC 45. (“Hoechst Pharmaceuticals”).

The power to tax cannot be interpreted as being ancillary to a regular entry and has to be derived clearly from a taxation entry. These are separate from general entries that are only regulatory in nature. The principle has been reiterated by the SC time and again in decisions such as Hoechst Pharmaceuticals, Bimolangshu Roy v. State of Assam, etc. This was also recognised by judgements of the Himachal and Uttarakhand High Courts in the decisions in NHPC and THDC respectively. However, in a glaring error, the single judge in Alaknanda, at various points in the judgement, referred to Entry 17 as a valid provision for the imposition of the said levy. (Paras 36, 75, 81). Based on previous SC decisions that make it clear that imposition of a tax cannot be inferred as being incidental or ancillary to regulation via another general entry, the states’ contention of the laws being competent via Entry 17 of the List II falls flat.

Placing reliance on the principles of constitutional interpretation, namely that each entry within the three lists must be given its widest possible amplitude, it was argued by the states that the Entries 45 and 49 of List II, dealing with land and land revenue, should be interpreted to include water within their meaning. Extensive reliance was placed upon the Constitutional Bench’s decision in W. B. vs. Kesoram Industries Ltd. & Ors., which declares that the word ‘land’ needs to interpreted in a wide manner as to include each and everything below and above it. These contentions were accepted by the Uttarakhand High Court in Alaknanda and by Vipin Sanghi, CJ, in THDC. However, as rightly pointed out by the judgement in NHPC, if the interpretation to the term ‘land’ has to be so wide as to include flowing rivers within it, then each and every object on earth would be directly and indirectly covered by the field of legislation provided by such an entry. (Para 50). Such an interpretation would run counter to the important principle expounded by the court in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., that no entry should be interpreted in such a manner as to render another superfluous.

If the constitution really meant for land and water to mean one and the same, there would have been no need to introduce different entries, Entry 17 (Water) and Entry 18 (Land) for the purpose of their regulation as rightly pointed out by Maithani J in THDC (para 83). In fact, a whole list of entries that would lose their relevance if land was given a meaning as extensive as that demanded by the states, has been provided in NHPC. (para 50) Even if the state’s contentions of a river being an extended part of land is accepted, any tax levied on via Entry 45 shall be directly on the land as a unit, as per the judgement of the SC in India Cement Ltd. v. State of T.N.

However, it was the repeated submission of states that the tax is not on water itself but the drawing of water for hydro-power generation. If water is really an extension of land and such land in the form of water is liable to levies by the State Government, such a levy being on the drawing of it is neither a tax on the land via Entry 45 nor a form of Land Revenue via Entry 49; rather, it is a tax on its drawing which is an activity only incidental to “water”, based on principles as laid down in Sea Customs Act, S. 20 (2). (paras 26 and 94). The incidence of taxation is on the drawing of water for hydro-power generation and not on the land itself thus making the legislature incompetent to levy such tax via virtue of Entries 45 and 49 of List II.

For justifying the imposition of the tax via Entry 50 (mineral rights) of the List II, in all three cases, the judgement in Ichchapur Industrial Coop. Society Ltd. vs. Competent Authority, Oil & Natural Gas Commission (“Ichchapur”) was cited to argue that the Supreme Court has held water to be a mineral under Entry 50. This was accepted by the court in Alaknanda (para 41) and by Vipin Sanghi, CJ. in THDC (paras 58 and 62). However, as rightly pointed out in NHPC (para 57) and by Maithani, J. in THDC, water was read into minerals in the Ichchapur case only for the purpose of Petroleum & Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (User Rights Acquisition Act), considering the definitions in The Mines Act, 1952. Such an interpretation cannot be applied while reading a constitutional field of legislation. No universal declaration has been made with regard to water being a mineral under the meaning of entry 50. Furthermore, even if water is considered a mineral for the purpose of Entry 50, the tax has to be on ‘mineral rights’ and not the mineral itself. Placing reliance on the decision in Hingir Rampur Coal Co. Ltd. V. State of Orissa, AIR 1961 SC 459, Maithani, J. in THDC has correctly pointed out the levy in question has nothing to with any mineral rights being conferred, thus making Entry 50 not a valid field for the enactment of such legislation. (para 100).

Pith and Substance

While the doctrine of plenery powers states that each and every entry must be given the widest possible meanings, it needs to exercised with a certain degree of caution in respect to entries in the three lists that concern taxation. Taxation Entries cannot be subject to the ordinary rules of interpretation for they are distinct vis-à-vis general entries. The same was reiterated by the court in the judgement of All India Federation of Tax Practitioners v. Union of India (para 527). In this regard, it is necessary for the courts to enquire into the ‘pith and substance’ with regard to the true nature of a particular levy with reference to the legislative competence. 

As noted above, the states have contended that the tax is on the ‘drawing of water for electricity generation’ rather than the water of the electricity generation itself. However, a bare perusal of the text of the act would reveal that the tax is on the singular event of the drawing of water for the purpose of hydro-power generation. The generation of hydro-power is impossible without the drawing of the water for the purpose for it. Himachal Pradesh, via a notification dated 16.02.2023 and Uttarakhand, via notification dated 07.11.2015, have made the height at which the water falls from a measure for determining the quantum of the tax. Both NHPC (para 40) and Maithani, J. in THDC (para 176) have taken a note of the same. The height from which the water falls from is directly related to the amount of electricity generated and thus the tax in no way can be said to be concerned with the mere drawing of water as argued by the states. It is not the mere usage of water that is being taxed but the use of water for the purpose of hydro-power generation by a user that is the taxable event.

Based on the taxable event, user and measures for the said tax, it can clearly be concluded that the state legislatures have tried to cloak a levy on hydro-electricity generation as a levy on the mere drawing of water and thus being an exercise of colorable legislation, the tax, in its present form and shape, needs to be struck down.

Conclusion

It is submitted that the states of Himachal Pradesh and Uttarakhand clearly lack the legislative competence to enact such a tax on use of water for hydro-power generation. The enactment of such a levy is clearly in contravention to the scheme under Schedule VII of the Constitution. When the issue comes up to the SC, this article comments the approach of they must take note of the judgements of NHPC and Maithani, J. in THDC for the Court’s consideration.

Sanjay Singh’s Bail: Judicial Evasion by Non-Order?

On 2nd April, the Supreme Court granted bail to Aam Aadmi Party [“AAP”] MP Sanjay Singh, in what has come to be known as the “liquor scam” case. At the time of writing, Singh had spent around six months in jail.

While the order is undoubtedly significant in that this is the first time that one of the accused in the “liquor scam” case has received bail, the manner in which it has been passed raises a number of crucial issues pertaining to the role and function of the Supreme Court as a court of law. Let us set out the order:

Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent – Directorate of Enforcement was asked in the morning session to obtain instructions. He states that the respondent – Directorate has no objection in case the appellant – Sanjay Singh is released on bail during the pendency of the proceedings arising out of ECIR no. HIU-II/14/2022 dated 22.08.2022 instituted in respect of offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

We must record that the concession has been made on behalf of the respondent – Directorate before commencement of arguments on their side. In view of the statement made, we allow the present appeal
and direct that the appellant – Sanjay Singh will be released on bail … []

We clarify that the concession given in the Court today would not be treated as a precedent. We also clarify that we have not made any comments on the merits of the case.

There are three issues with this Order – better called a “non-Order” in my view – that I discuss below.

First, a perusal of the oral arguments reveals that in the morning session (referred to in the Order), the Court made it clear in its remarks that it believed there was no case to be made out against Sanjay Singh. The Court itself encouraged the lawyers for Enforcement Directorate to take instructions from the Agency, and noted that if it came to the examining the case, it would have to pass certain observations about Section 45 of the PMLA (presumably to the detriment of the ED’s powers). As a result, in the afternoon session, the ED’s lawyers came back and told the Court that they had no objection to Sanjay Singh being released on bail. The Order, thus, was passed on the basis of a concession by the State.

However, if you pause to think about this for a moment, there is something bizarre about a Court actively seeking the State’s cooperation so as to avoid ruling against the State. This is no part of the functions of a Court of law. Nor is this the kind of inter-personal dispute where a Court sometimes acts as a mediator. This is a criminal case, where an individual has spent six months in jail, and where multiple courts below have rejected his bail application (needless to say, there was no question of the ED making any concessions as long as it was winning before the lower courts). In other words, it is exactly the kind of case where it is incumbent upon the Court to hold the State to legal and constitutional standards, and to make it abundantly clear – through written, enforceable judicial orders – if the State is failing in its obligations.

Secondly, the concession order has a downstream effect. Recall that the “liquor scam” has seen multiple political leaders behind bars, including the Chief Minister and Deputy Chief Minister of Delhi. While individual cases are, of course, different, there is a common substratum of facts that underlies those cases. While the Court’s reasoned order granting bail to Sanjay Singh need not necessarily have affected those other cases, it might well have done so. The point is, however, that we shall never know, as the Court evaded passing a reasoned order. The result of this is that the other accused in the “liquor scam” case are deprived of even the opportunity of using Sanjay Singh’s bail order in their own, respective future applications for bail. This – for no justifiable reason – tips the balance in favour of the State, and against the individual. And this has become an unfortunate habit of late: recall how, in 2021, the Supreme Court injuncted lower courts from treating the Delhi High Court’s Asif Iqbal Tanha bail order as precedent, for absolutely no reason. The asymmetry here is glaring: when bail applications are rejected, the Supreme Court writes detailed orders explaining why the accused are not entitled to bail (going so far as to observe that “bail is the exception, jail is the rule”), and you can bet that the prosecuting agencies take full advantage of those reasoned orders! But when the boot is on the other foot, we get concession orders or “not to be treated as precedent” remarks, where – at best – one individual might be released from jail, but there is no legal consequence of note that follows.

This brings us to the last point, which is the Supreme Court’s statement that it is not commenting on the merits of the case. This may be a fair comment in general bail cases, but – as we have discussed previously on this blog – when it comes to laws such as UAPA or the PMLA, which encode the “twin test” for bail, this is disingenuous. The reason for this is that the “twin test” statutorily brings in merits considerations into the stage of bail. When the “twin test” says that an accused shall not be released on bail unless “there are reasonable grounds for believing that he is not guilty of such offense,” this is, by definition, merits hearing bundled up into a bail hearing (see the previous discussion, in the context of the UAPA, here). Indeed, the very asymmetry and injustice of the “twin test” lies in the fact that it forces the defence into a merits hearing without the tools normally available to the defence in a criminal case (leading evidence, cross-examination etc). And it is because of that very reason that UAPA/PMLA bails are overwhelmingly rejected, and individuals have to spend months and years in jail without trial.

But this, in turn, means that if an accused individual runs the gauntlet and succeeds in getting bail even under the twin test, he or she should be entitled to benefit from that during the merits phase of the trial as well: what is sauce for the goose is sauce for the gander. Indeed, as I have noted above, it is actually impossible for a “twin test” bail to be granted without an examination of the merits. The concession order, therefore, additionally deprives Sanjay Singh of the very tangible and very real benefits of a reasoned bail order. Again, one would have thought that if you have spent six months in jail without trial, this would be the least you are entitled to from a court of law.

Over the years, it has become increasingly clear that “special laws” such as the UAPA and the PMLA, with their twin test for bail, overwhelmingly stack the deck in favour of the State, and against the individual. In such a context, with the scope of scrutiny of State action already so limited, “concession orders” like the one in Sanjay Singh are disappointing. Arguably, they constitute judicial evasion by another name: an evasion of holding the State to account for its actions that have far-reaching consequences for individual liberty.

The High Court of Kenya Strikes Down Life Imprisonment

In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional.

The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably short, coming in at six pages. It was an appeal from both a conviction and a sentence (for incest), and indeed, much of the judgment is concerned with re-appraising evidence. The Court finds that the conviction was justified, and upholds it. This then brings it to the question of sentence: the magistrate had imposed a life sentence. The Court finds it unjustified not specifically on the facts of this case, but rather, on the basis that the sentence of life imprisonment itself is unconstitutional. The heart of the analysis is in paragraph 10, where the Court notes:

A life sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime.

Variants of this analysis are repeated in the succeeding paragraphs, before Sifuna J concludes that the sentence is, therefore, archaic, unreasonable and absurd, and violates the right to human dignity under Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its heart, the issue appears to be that unlike all other sentences, life imprisonment is not definite, but pegged to a contingent event (the end of the convict’s life), which could happen at any given time. Sifuna J. therefore compares it to the death penalty (paragraph 16), and also highlights the potential absurdity of a person who dies in prison soon after being sentenced for a heinous crime, as opposed to another person who spends years behind bars for a less serious crime (paragraph 12).

Neither of these two arguments are, however, entirely convincing. The analogy with the death penalty is striking and powerful, but it is unclear if it supports the argument for unconstitutionality, given that the death penalty itself has not been struck down yet (in fact, a situation where life imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the potential absurdity of someone dying an early death behind bars is not quite an absurdity if we consider that the primary penological goal of life imprisonment is prevention – i.e., to prevent a convict from committing a crime again. From that perspective, there is nothing particularly absurd about a convict dying soon after being sentenced, as there is no question of recidivism after death. It is, of course, another matter whether punishment based solely on prevention, and completely ignoring reformation or rehabilitation, can pass constitutional muster; that, however, is not considered in the judgment.

We therefore come back to the question of indefiniteness, and the violation of the right to dignity. I think that the argument – although it is not spelt out in the judgment itself – is essentially one of dehumanisation, or considering the convict purely in instrumental terms. In assuming that an individual can never be re-integrated into society, the life sentence entirely strips them of agency, or the ability to make different choices in the future. The locus of the violation of human dignity, I would suggest, lies in this assumption.

Two points then arise with respect to the judgment itself. The first – as noted above – is that the judgment does not, in its consideration of the dignity question, engage with penology, or the goals of criminal punishment. In my view, striking down a sentence provision as unconstitutional is difficult without at least considering what the stated goal of the punishment is, and how the punishment itself relates to that goal. Indeed, that is a vital element of the proportionality test, which is the overarching basis of constitutional challenges, especially of this nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself going back to the penological goals of the life sentence (as it must).

The second point is a point of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this case (if it was, then the entirety of this paragraph can be ignored). I do not have access to the pleadings, but let us go by the Court’s own framing of the question of sentence: “Whether the imprisonment sentence imposed by the trial court was unreasonable, excessive, or too harsh.” This is not the language of a constitutional challenge, but a plea for sentence mitigation on the facts of the case. The question then arises: can the High Court strike down the life sentence without it being under challenge? Would not, for example, the State have to be put to specific notice, so that it can defend the constitutionality of the sentence in those specific terms?

While, therefore, I agree with the High Court’s decision to strike down the life sentence, and I find locating the analysis in how indefiniteness violates the right to dignity, the Court’s reluctance to engage in a full-blown analysis of the dignity question (including applying the proportionality test), as well as the possibility that there was no constitutional challenge made, might leave the judgment vulnerable upon appeal. It will be interesting to see what happens at the Court of Appeal!

The Supreme Court’s Electoral Bonds Judgment – III: A Critique of Double Proportionality [Guest Post]

[This is a guest post by Chiranth Mukunda.]

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This essay considers the doctrine of “double proportionality” in the Electoral Bonds Case. In brief: the majority opinion, written by Chandrachud CJI, holds the various amendments brought through the Finance Act 2017 unconstitutional for being in contravention of right to information protected under article 19. Once it is established that the foundational design of the scheme was to make political donations through electoral bonds confidential, the enquiry proceeds to analyse whether the right to information is engaged (i), and whether the restrictions placed on right to information are reasonable and justified (ii).  On aspect (i), the court, following Association for Democratic Reforms (2002) and PUCL (2003), holds that information about political funding is essential for the voter to exercise choice and their freedom to vote, and as a corollary, for the effective exercise of freedom of speech and expression. Aspect (ii) is where the application of proportionality and double proportionality is used by the majority to determine whether the restriction of the right to information is reasonable vis-à-vis the purpose(s) of the scheme. Hence, In part I, I highlight the necessity of application of the double proportionality. In part II, I analyse whether the test of double proportionality is correctly laid down.

Balancing fundamental rights

Chandrachud CJI recognizes two purposes of the scheme in restricting access to information. These are then assessed on the touchstone of proportionality i.e., whether the abridgement of the right is disproportionate to the legitimate aim sought by the purpose(s)/objective(s) of the scheme.

Chandrachud CJI identifies the two purposes of the scheme as a) curbing black money and b) donor privacy. The majority opinion accepts the State’s’ submission that donor privacy or confidentiality is not only a means to achieve the aim of incentivizing political donations through legitimate banking channels, but also a substantive end in itself. It therefore holds that “the Constitution guarantees the right to informational privacy of political affiliation” under article 21, and that extends to political donations being confidential (para 141). Having held so, the question now is whether the Electoral Bond Scheme adequately balances the right to information against right to informational privacy of political affiliation.

Donor privacy as a legitimate aim and double proportionality

According to the majority, the conflict is between the right under restriction i.e., the right to information (Right A) and the countervailing right i.e. right to privacy of the donor (Right B). The traditional balancing exercise to resolve or avoid the conflict can be conducted by various means, for instance:

• It can be held that the right A trumps right B because the former right subserves the ‘larger public interest.’
• Alternatively, it can be held that held that there is ‘no real conflict’ between the rights either because one of the rights is not engaged, or the boundaries of the rights are circumscribed in such a way as to avoid conflict.

However, the application of proportionality in the ‘contextual balancing’ exercise between two competing rights is considered to bring in a ‘structured balancing exercise’ where both rights are given equal importance and weightage. It will be fruitful to highlight the reasons for double proportionality in balancing two fundamental rights, in order to analyse the test laid down by Chandrachud J (Para 157), and whether it is in consonance with the principled reasons behind the application and structure of the double proportionality test.

Reasons for Double-Proportionality

Reason 1: Equal Importance of both competing rights

In Re W,  reason 1 was expressed in these terms: “… each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other”.  Application of the double-proportionality test to balance two competing rights of equal importance is said to secure ‘procedural justice’ by recognizing that both rights require full protection, and that this is accomplished by application of the proportionality test to the restriction on each right. It structures the enquiry in ways that minimizesthe interferences with both right A and right B, thereby giving fair and equal value in the enquiry to both the interests exemplified by competing rights.

Reason 2 : Single-Proportionality favours the right under restriction (Right A) over the competing interest of Right B

Chandrachud CJI recognises that the ‘priority-to-rights’ effect of proportionality enquiry, as it tends to give prominence to the fundamental right under restriction over the competing interests (para 153), and that single proportionality might not be appropriate when two fundamental rights are involved. When the competing interest is a fundamental right in itself, the prominence given to the ‘invoked right’ i.e. restriction of right A under challenge in the proportionality enquiry cannot be a ‘balanced exercise.’ This is because single proportionality enquiry, especially in the third stage, requires the minimization of interference to the right under restriction (right A) at the expense of the competing interest.

For example, the conflict in Campbell v MGN was between freedom of speech (Right A) and the right to privacy (Right B), both of which are equally protected rights under the ECHR. If the court were to adopt a single proportionality test to review the restriction of the invoked right (A), the furthering of competing right B would form the legitimate aim and the restriction of the right to freedom of speech (A) would have to have a rational nexus to the protection of privacy (right B). However, in the third stage, the court would have to consider whether the restriction on right A is the “least restrictive measure” to further the competing interest of right B. This entails prioritizing and maximizing the protection of right A, but not maximizing the interests of competing right B. This is incompatible with the proposition that both rights require equal and full protection.

Reason 3 : Single Proportionality is insufficient to take into account the interest of the competing right

It should be noted that it is not conceptually impossible to account for the fundamental importance of the competing interest (Right B) within the single proportionality test while testing the restriction of right (Right A). However, it would require modification, or what some call ‘distortion’, of the single proportionality test in order to recognise the importance of the competing fundamental right. For example, the third stage of proportionality would require not the maximum protection of right under restriction to which proportionality is applied, but maximum protection for both the rights. Instead of asking the question whether the measure is least restrictive of the right under restriction (A) and achieves the end in ‘real and substantial degree,’ the question would be whether the alternative measure would be least restrictive of both rights and achieves the purpose in ‘real and substantial degree.’

Then, the third stage of proportionality test is no longer about prioritizing and providing maximum protection to the right under restriction, but an equilibrium position of right under restriction and competing interest (right B).This modification is considered unsatisfactory for giving maximum protection and importance to both right A and right B. Therefore, double proportionality is envisaged as the same question being examined from two perspectives, rather than two different perspectives being considered under a single proportionality review of restriction on one right (invoked right). This flows directly from the reason 1 that both the rights are fundamental and deserve equal importance and consideration.

Chandrachud CJI’s three-step test

The major case after Campbell v. MGN  where the ‘balancing of rights’ was required was In Re S. The facts were that there was a gag order on news outlets, to prevent the publication of details and photographs of a 5-year-old child whose brother had been killed by their mother. The case concerned a conflict between freedom of speech of the newspapers (invoked right) and privacy of the child (competing right). Lord Steyn laid down the four propositions for the ‘ultimate balancing test’, last three of which include those laid down by Baroness Hale in Campbell, which Chandrachud CJI relies on.

First, neither Article has precedence over the other.

Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

Thirdly, the justifications for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each.

Chandrachud J modifies this test by holding that that second and third propositions are subsumed within the balancing (fourth) prong of the proportionality analysis. Further, he holds that:

a. if under the constitution, no hierarchy has been presented for the rights under consideration (firstly above), then :

the following standard must be employed from the perspective of both the rights where rights A and B are in conflict:

b. Whether the measure is a suitable means for furthering right A and right B.

c. Whether the measure is least restrictive and equally effective to realise right A and right B; and

d. Whether the measure has a disproportionate impact on right A and right B.

However, it is argued below that this distorts the double-proportionality enquiry and prioritizes the right under restriction (right A) over competing right B, and approximates towards a modification of single proportionality test, rather than a double-proportionality test. This is essentially evident from the subsequent analysis which Chandrachud CJI undertakes, where the contradictions of the test he lays down become apparent.

Subsequent Analysis and Contradictions

The first prong of proportionality is satisfied as each right ( A and B) provides a legitimate aim for the restriction of other.

On proposition (b):

 (b): Whether the measure is a suitable means for furthering right A and right B.

The question is framed in such a way that it is not possible to fulfil the requirement of suitability from both sides but is only possible from the side OF the invoked right (Right A). As Chandrachud CJI holds, the measure that places restriction on right to information(right A) is suitable for purpose of realizing the informational privacy of the donor (right B). However, the measure can never be suitable for purpose of realizing the right to information (right A).

“… the purpose of securing information about political funding can never be fulfilled by absolute non-disclosure. The measure adopted does not satisfy the suitability prong vis-à-vis the purpose of information of political funding. However, let us proceed to apply the subsequent prongs of the double proportionality analysis assuming that the means adopted has a rational nexus with the purpose of securing information about political funding to voters.”(para 162)

This is obvious. It is because the anonymity of the contributor (privacy of the donor, right B) is intrinsic to the Electoral Bond scheme (para 158). The measure can never be suitable to realise right to information (right A) because the measure places no restrictions on the right to privacy (B). It is the invoked right A i.e. right to information which has the potential to place restrictions on competing right B if the challenge is successful. The court’s responsibility is to balance the involved right against the competing right by application the proportionality analysis separately to right each, by considering protection of each as a restriction on another.

Is the question posed by Chandrachud CJI analytically sound for application of Double-Proportionality analysis? The answer is no. As Prof. Huge Collins commenting on Campbell v HGN and  In re S writes : “Given that there are [equal]competing interests, rights…the correct approach appears to be a double proportionality test. In other word, the case for interference with the separate rights of each party needs to be assessed separately according to a test of proportionality. The legitimate aim that may justify such an interference with a fundamental right ….include the protection of the fundamental right of the other party”

As Chandrachud CJI himself opines, the “standard must be employed from the perspective of both the rights where rights A and B are in conflict”. So, the question must be whether the restriction of the invoked right A (right to information) by the measure is suitable/rational to achieve right B (right to privacy). The answer might be yes/no. On inverse application, the question would be whether the potential restriction on competing right B (right to privacy) by protection of invoked right A is suitable/rational to achieve right A (right to information). The answer might be yes/no. There is no logical impossibly, as Chandrachud CJI finds to be engaged by the question framed. The assumption which Chandrachud CJI makes could be avoided if there was true application of the double proportionality test as shown in the table below.

It might be said that separate application of proportionality to each right considering the other right as legitimate aim is merely unnecessary repetition that has no substantive bearing on the final conclusion reached. However, that is not the case, as a single proportionality review in case of conflict of two equal rights has the potential to skew the balance in towards the invoked right to the disfavour of the competing right that is furthered by the measure. The ‘preferential framing’ negates the reasons mentioned above for balancing two equal fundamental rights by applying double-proportionality test. The test ensures that both the rights deserve maximum judicial protection by application of proportionality test to the restriction on each right.

Restriction of invoked right A (first stage)	Potential Restriction of  competing right B by the invoked right ( second ‘inverse’ stage)	The test Chandrachud CJI lays down
Legitimate aim: Conflicting operation of right B of equal value.   Suitability/rational nexus: Whether the restriction of right A is suitable to realize right B. Whether the restriction on right A is least restrictive measure and equally effective and whether the alternative such measure realizes the purpose of right B in real and substantial degree.     Balancing stage: Comparative importance of fundamental rights and justifications for restrictions on the same; Whether the restriction on right A is disproportionate to the purpose of right B	Legitimate aim: conflicting operation/protection of right A of equal value.   Suitability/rational nexus: whether the restriction of right B suitable to realize right A     Whether the restriction on right B  is least restrictive measure and equally effective to realise  and whether the alternative such measure realizes the purpose of right A in real and substantial degree     Balancing stage: Comparative importance of fundamental rights Justifications for restrictions on the same. Whether the possible restriction on right B by invoking of right A disproportionate to the purpose of right A	b. Whether the measure is a suitable means for furthering right A and right B.   c. Whether the measure is least restrictive and equally effective to realise right A and right B; and    d. Whether the measure has a disproportionate impact on right A and right B

On proposition (c)

Consider question (c): Whether the measure is least restrictive and equally effective to realise right A and right B.

If we bifurcate the question into two parts as Chandrachud CJI does for the above question (b), then we see that the question is either illogical (as it is similar to the above), or prioritizes the invoked right against the competing right B. Non-bifurcation essentially becomes a modified version of the necessity stage of single-proportionality test (reason 3).

i. whether the measure is least restrictive [on right A] and equally effective to realised right B [right to privacy].

The framing of this question itself prioritizes right A over right B. This is because right B i.e., the right to privacy is intrinsic to the measure. The question effectively being asked is whether the restriction on right to information (right A) by the measure (in furtherance of right B) is the least intrusive. This is prioritizing and  maximization protection offered to the invoked right against the competing right B that is effectuated by the measure.

However, if the question is asked differently, i.e. whether the alternative measure would be least restrictive of both rights and achieve the purpose in a real and substantial manner( conjoined question), it is then merely a modification of the least restrictive stage in the single-proportionality test to take into account of the competing right B, with limitations of that approach to effectively maximize the protection of both the competing rights (as explained in Reason 3).

ii. whether the measure is least restrictive (on right B) and equally effective to realise right A (right to information).

The measure is not placing any restrictions on right to privacy (right B), but is placing restrictions on right to information (right A). In fact, right B is intrinsic to the measure. If that is the case, the question is redundant. However, it is not redundant if the question is whether the alternative measure would be least restrictive and equally effective to realise rights A and B. But the question is not framed in that way.

Chandrachud CJI previously holds that the measure can never be suitable to realise right to information (right A). If that is the case, then this question is also one of logical impossibility, as a measure which can never be suitable to realise A can never be the least restrictive means of doing so. However, Chandrachud CJI avoids the second logical impossibility by framing the question conjoinedly as mentioned above.

Example: How would the third stage work in proportionality, applied separately from both perspectives

It would involve asking the same question from perspective of both right A and right B. From the perspective of right A, the question would be whether the restriction of right A is least restrictive means of realizing interest of right B. From the perspective of right B, the question would be whether the restriction on right B would be the least restrictive measure to realize right A. On the latter question, it might be said that there is no restriction on right B. However, the double-proportionality enquiry is merely tasked with balancing competing interests of right A and right B in the judicial setting. The competing rights mark a conflict for the space to be occupied by the judicial outcome, where giving protection to one involves restriction on another.

Consider section 29C of the Representation of Peoples Act 1951, which Chandrachud CJI holds to be minimally restrictive of both rights and secures the purpose of both rights in a real and substantial manner (para 165). The said alternative measure has to be considered from both sides as placing some restrictions on each right. Then, the question would be whether such restriction is minimized interference with each right vis-à-vis the purpose (competing right) considered from both perspectives, rather than a single question of whether the measure under challenge is least restrictive of both rights.

On Proposition (d) whether the measure has a disproportionate impact on right A and right B.

This question suggests that the measure can have disproportionate impact on the right B. However, at the risk of repetition, the right B is intrinsic to the measure. The question makes sense only if the question is modified into whether the identified alternative has disproportionate impact on either right. As table A shows, this involves separately asking two questions from two perspective by considering protection of each right (example: in the identified alternative measure) as a restriction on each other.

However, Question (d) is not applied at all as the Chandrachud CJI holds that the necessity stage (c) has not been satisfied, and therefore there is no need of applying the balancing stage (para 167). Having held that double proportionality standard formulated by Baroness Hale in Campbell v MGN is adopted, and having held that the first two components of the Campbell standard of  “comparative importance of the actual rights being claimed in the individual case” and “justifications for interfering with or restricting each of those rights” is to be submerged within the balancing stage, Chandrachud J does not complete the said double-proportionality standard adopted. As discussed above, even the last component of Campbell standard of “applying the proportionality test to each” is not satisfactorily applied, as the questions are framed in a way that prioritizes the invoked right A against the competing right B: thus negating the very reasons for application of the double-proportionality test.

Conclusion

The Court fails to apply proportionality separately to each of the rights. Having held that there were two competing rights, the balancing exercise by application of proportionality in relation to each other is required to give due recognition to the equal importance and maximum protection to each right. Although the outcome of the case might not differ, the propositions laid down suffer from lack of clarity for future application. The question is framed in a way that would either lead to no answers or one which would prioritize the right under restriction i.e., the invoked right A. It is argued in this essay that what the majority opinion effectively applies is a modified single-proportionality test with all the analysis happening in the necessity (third) stage, making most of the questions in the test laid down redundant without a modification in the framing. This, it is submitted, makes the test incomplete.

The Unexamined Law: On the Supreme Court’s Stay Order in the Election Commissioners Case

In a previous post (“The Mysterious Disappearance of the Stay Hearing“), I had pointed to the Supreme Court’s refusal to hold stay hearings in cases involving time-sensitive constitutional challenges. Perhaps the only thing worse than a refusal to substantively decide a stay application is a judicial order that purports to decide it, but on scrutiny, turns out to be a caricature, or a parody, of legal reasoning. This is the Supreme Court’s order of 22nd March, that dismisses the applications for staying the Election Commissioners Act (that we have discussed extensively on this blog).

The striking thing about the Supreme Court’s ten-page order – authored by Khanna and Datta JJ – is its refusal to engage with the core of the constitutional challenge before it – indeed, its refusal to even advert to it. Recall that the challenge was, in effect, that by replacing the Chief Justice of India in the selection committee for the Election Commissioners (the “interim arrangement” set out in the Anoop Baranwal judgment) with a cabinet minister nominated by the Prime Minister, the impugned legislation impermissibly modified, or overturned, the Court’s judgment. In paragraph 9 of its order, the Court purports to deal with this argument by stating that the committee constituted in Anoop Baranwal (the CJI, the PM, and the LoP) was a “pro-tem measure.” This is correct on its own terms, but also, it is a highly selective reading of Anoop Baranwal. As noted in this blog’s analysis of Anoop Baranwal, the interim committee constituted by the Court did not pop out of thin air. The basis of Anoop Baranwal was that Article 324 of the Constitution encoded a constitutional expectation that the manner of appointment of the Election Commission would ensure institutional independence from the executive. This is repeated multiple times in Anoop Baranwal, most specifically in paragraphs 32-33, and then even more categorically in paragraph 215:

We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusion. The power of appointment of the Members of the Election Commission, which was charged with the highest duties and with nearly infinite powers, and what is more, to hold elections, not only to the Central Legislature but to all the State Legislatures, was not to be lodged exclusively with the Executive. It is, accordingly that the words ‘subject to any law to be made by Parliament’ were, undoubtedly, incorporated. 

The “pro-tem measure” that the Supreme Court’s order refers to – as is therefore obvious from a very basic reading of Anoop Baranwal – was pro-tem because Parliament had failed to enact a law consistent with its obligations under Article 324; these obligations were – to repeat – to ensure that, under the legislation, the Election Commission would be institutionally independent, and not subject to executive dominance. The “pro-tem measure”, thus, was not “pro-tem until parliament passes any law that it pleases”, but “pro-tem until parliament passes a law consistent with maintaining EC independence from the executive.”

The real question before the Court in the stay application, therefore, was whether the impugned law – on a prima facie reading – violated the institutional independence of the EC. This is a question which the Court entirely evades answering, for the very good reason that it has no answer: under the impugned law, the members of the EC are, in effect, appointed by the executive. Quite apart from the fact that this would be impossible to reconcile with institutional independence, it would also by hypocritical, given that the Court, in considering the question of its own independence, has held that executive dominance in appointments was inconsistent with institutional independence (the NJAC judgment). No wonder, then, that the stay order passes delicately over the real question that it had to answer, and instead answers a question that nobody has asked.

To mask the absence of reasoning, in paragraph 10, the Court then recites well-worn principles of judicial deference when considering stay of legislation, but – unsurprisingly – does not apply those principles to the case before it, and does not explain how they apply. Remarkably, however, the order then gets even worse. In paragraph 11, the Court states that “any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election, which has been scheduled and is now fixed to take place from 19.04.2024 till 1.06.2024.” On a bare reading of this paragraph, one would think that the Petitioners had only shown up to Court the day before; however, as the order sheet demonstrates, the case was first called for hearing on 12th January, 2024, and posted to April 2024 for hearing. One would be hard-pressed to think of a more self-serving piece of judicial reasoning: the Court itself schedules a stay hearing more than two months after the case is filed, and then uses its own delay as a ground to deny stay, because it is now too close to the general elections. One is reminded of the Chief Justice Ranjan Gogoi’s infamous order declining stay of the electoral bonds scheme ahead of the 2019 General Elections, on exactly the same grounds – and after the Supreme Court had, itself, refused to consider the issue for two years. Readers of this blog will, of course, be well aware of what finally happened to the electoral bonds scheme, and consequently, how much damage the Court’s six-year delay in considering the issue caused.

Quite apart from the self-serving nature of this reasoning, the Court never explains why the administrative difficulties caused by a stay outweigh the potential “irreparable injury” caused by an election conducted by an Election Commission where two out of three Commissioners have been unconstitutionally appointed: indeed, one would imagine that when placed in the balance, electoral integrity would outweigh administrative inconvenience (for which, again, no empirical evidence is actually provided). However, there is no reasoning as to why the administrative concern outweighs the constitutional concern, other than a statement of simple judicial fiat.

To sprinkle salt on the (constitutional) wound, the Court then records numerous procedural issues with the selection, including lack of information provided to one of the Committee members (the LoP) (paragraph 14). Having said this, it then goes on to note that “in spite of the said shortcoming, we do not deem it appropriate … to pass any interim order or directions.” One wonders why, if the Court is not minded to pass any orders, it felt the need to make comments on the procedure: it behooves a Constitutional Court to decide the legal questions before it, and not to engage in moral sermons which are not attended by any legal consequences. Instead, the Court finishes with a classic exposition of its unique brand of “hope and trust jurisprudence”, noting that “the assumption is that they [the election commissioners] shall adhere to constitutional role and propriety in their functioning.” No justification is provided for this assumption, but there is – of course – the obligatory quote from Dr. Ambedkar that follows (paragraph 15).

Socrates was said to have observed at his trial that the unexamined life is not worth living. For the Supreme Court, however, it seems that the unexamined law is certainly worth upholding. Its order on the Election Commissioners stands as a stark example of that aphorism.