Back to the Basics: The Delhi High Court’s Bail Orders under the UAPA

[Update: At the time of writing, the Supreme Court has, in appeal, directed that the Delhi High Court’s order discussed below “not be treated as a precedent or relied on by the parties.” The effect of this is that while the grant of bail is not (yet) cancelled, the High Court’s judgment itself has been suspended out of existence.

While this phrase – “not to be treated as a precedent” – has become a standard feature in Indian jurisprudence, it is worth repeating – without mincing words – that this is entirely outside the law. When a constitutional court (and the High Courts are constitutional courts) delivers a reasoned judgment on an issue, the task of an appellate court is limited to determining whether that judgment correctly interpreted the law, or did so wrongly. Until reversed, the judgment of a court has the force of law. It is therefore not within the authority of the Supreme Court to act as if the judgment of another constitutional court simply does not exist, or was never delivered – and worse, to deliver an unreasoned command that all other courts also participate in this fiction.

It is also important to note the impact of this order: it means that while the three individuals will not be sent back to jail (until whatever time that the Supreme Court takes a final view on the correctness of the High Court’s judgment), what it does mean is that trial courts (and other benches of the High Court) are barred by fiat from expressly citing the Delhi High Court’s judgment where anyone else’s civil rights are concerned. The judgment itself, meanwhile, exists like a phantom limb – not really there, but still there somewhere. This is wholly destructive of the rule of law.]


On 15th June 2021, a two-judge bench of the Delhi High Court (Mridul and Bhambani JJ) passed three orders granting bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal in the cases relating to riots in Delhi in February 2020 [“the Delhi riots cases”]. Along with many others, the three had been accused of participating in a conspiracy to cause violence in the wake of the anti-CAA protests, charge-sheeted under the Unlawful Activities Prevention Act [“UAPA”], and – at the time of writing – had spent over one year in jail without trial. Bail applications before the trial court had been rejected.

The High Court’s orders are significant, as it is the first instance of regular bail – i.e., bail on merits – being granted to individuals who have been charge-sheeted under the UAPA in the Delhi riots cases. What is of even greater significance, however, is the Court’s reasoning. The bail orders reiterate a simple fact that has, over the years, been repeatedly obscured: that the exceptionally stringent provisions of the UAPA (which make the granting of bail extremely difficult) are meant to apply only to exceptional cases, and not as substitutes for ordinary penal law. This distinction between the state of exception and the state of normalcy has been blurred by laws such as the UAPA, whose broad and vaguely-worded provisions allow State agencies to invoke and apply them indiscriminately, and thus keep people behind bars for years without trial. The Court’s orders today go some way towards restoring that essential distinction (for a background, see these pieces by Abhinav Sekhri, here and here).

As another preliminary point, in order to understand the High Court’s bail orders, it is important to recall the Supreme Court judgment in the Watali case. As we know, Section 43(D)(5) of the UAPA bars the grant of bail if, on a perusal of the case diary, and in the opinion of the Court, there “are reasonable grounds for believing that the accusation against such person is prima facie true.” In essence, therefore, the UAPA limits the Court to looking at the prosecution version, and precludes bail if the prosecution’s version – without having passed through cross-examination or challenge – appears true on the face of it. In Watali, the Supreme Court further held that it was not permissible for even the Court to engage in a detailed analysis of the prosecution’s case while considering bail under the UAPA, and to consider whether the evidence presented by the prosecution appeared sufficient or not. Thus, while the UAPA ties one hand of the defence behind its back (by letting only one side’s version be determinative for the question of bail), the Watali judgment tied the other hand as well, by effectively prohibiting any substantive challenge to that version. The effect of this is to make the grant of bail almost impossible until the end of the trial (which could take years) – a wholly unconstitutional interpretation of the UAPA, to say the least.

Almost, however, is not entirely. Notwithstanding Watali, there remains space for Courts to engage with abusive prosecution cases, and (righty) grant bail nonetheless. One example of this is the pre-Watali Bombay High Court judgments in the Kabir Kala Manch cases, where the constitutional guarantees of free speech and freedom of association were invoked to read down the term “membership” (of an unlawful organisation) under the UAPA to “active membership”, i.e., to the incitement of violence. In those cases, the prosecution case – taken entirely on its own terms, and as presumptively true – did not claim that the accused had been fomenting violence (at the highest, they were accused of participating in some meetings, and some literature had been recovered from them). Consequently, even on its own terms, a “prima facie” case under the UAPA had not been made out, and consequently, Section 43(D)(5) did not apply.

Today’s Delhi High Court orders belong to the same judicial line of reasoning as the Kabir Kala Manch cases: i.e., extending a close scrutiny to the terms of the UAPA, and how a responsible judiciary, committed to the protection of fundamental rights, ought to interpret them. At the heart of the lead judgment/order [Asif Iqbal Tanha v State of NCT of Delhi] is the basic insight that the gravamen of offences under the UAPA is “terrorism”, and the word “terrorism” has to be given a specific meaning – in light of the context and history of the Act – that distinguishes it from offences that are dealt with under ordinary law (paragraphs 28 – 39). This is particularly important, as the Court notes – correctly – that a “sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed” (paragraph 40). Based on these interpretive principles – and prior Supreme Court precedent – the Court goes on to hold:

… the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. (para 49)

The Court buttresses this by noting that the UAPA is a central legislation, and therefore must fall within one of the fields of legislation that the centre is competent to legislate on, under Schedule VII. The appropriate head under List I of the Seventh Schedule – according to the Court – is the “defence of India” (as opposed to “public order”, which is a state subject) (paragraph 57). This – the Court observes – also demonstrates the exceptional nature of the UAPA: “it was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.” (para 57)

Coming to the question of application, the Court then notes that taking the Prosecution case (as set out in its 17000-page charge-sheet) as true, there were no specific accusations against the accused other than that he handed over a SIM card to a co-accused; there was no recovery of weapons or any accusation that the accused was leading the conspirators who actually engaged in violence. In response, the State repeatedly tried to argue that the anti-CAA protest was an “aggravated” protest that was likely to threaten the “foundations” of the nation. The Court’s response to this is striking in its simplicity: it once again notes that none of this is based on any factual assertion, but rather “based upon inferences drawn by the prosecuting agency.” The anti-CAA protest itself was at no point banned or outlawed – and just like Watali prohibits courts from delving into the “merits or demerits” of evidence at the state of bail, logically, so must it preclude taking into consideration “inferences and conclusions”, in the absence of “accusations made against the appellant [that] prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.” [para 58]

This reasoning is extremely important: a scrutiny of the Delhi Riots cases indicate that (i) the actual evidence against the accused is related to organising protests and chakka jam; (ii) violence occurred, but there is no evidence linking the accused to the violence; (iii) the gap in the middle is filled by the State alleging conspiracy and the “likelihood” of causing violence under the UAPA. It is this gap that the Court correctly identifies, and the notes that mere inferences are not sufficient to complete the chain of causation and establish a prima facie case under the UAPA, which could then be used to deny bail to the accused for years.

Having thus established that a prima facie case of terrorism under the UAPA has not been made out, the Court – correctly – considers the general principles regarding bail. Applying those general principles – and in view of the fact that the charge-sheet has 740 witnesses, with no prospect of the trial beginning any time soon (here the Court draws upon the Supreme Court judgment in Najeeb, which also held that S. 43(D)(5) is not inflexible, and does not override constitutional rights such as the right to a fair and speedy trial) – the Court holds that a case for bail has been made out.

The accompanying two orders – in Devangana Kalita and Natasha Narwal’s cases – are based on similar reasoning. In the Devangana Kalita order, the High Court makes the crucial observation that:

The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA. (para 47)

This is extremely important, because it goes back to the initial point of this blog post, which is the distinction between states of exception and states of normalcy. The High Court notes here that there are indeed occasions where initially peaceful protests can spill over into the zone of illegality; in such a case, however, whatever illegalities may have been committed are to be dealt with under ordinary law, because there still remains a gap between illegal protests and terrorism. To make out a case of terrorism under the UAPA, “individual, factual, and particularised” allegations are needed, and that gap cannot be filled – to repeat – by inferences and insinuations.

Similarly in the Natasha Narwal order, the Court observes:

Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. (para 35)

The Court buttresses this point by noting – in all three judgments – that the right to peaceful protest is a fundamental rights under the Constitution. Consequently, insofar as the allegations themselves pertain to the organisation of protests (regardless of the merits of the cause), they cannot be a ground for UAPA offences – including situations where protests – as indicated above – cross the line into illegality. In those situations, ordinary law may be used in response to acts of illegality, but not – in the absence of specific allegations – stringent anti-terror statutes such as the UAPA.

In sum, therefore, the following.- indisputable – principles emerge from the High Court’s three orders:

  1. The UAPA is a special statute, designed to deal with a state of exception, and its operation should not be blurred with ordinary legislation.
  2. Criminal statutes must always be narrowly construed, and their terms given due specificity.
  3. A combination of (1) and (2) implies that the word “terrorism” in the UAPA must be given specific meaning that relates to the defence of India, and is distinguishable from public order offences.
  4. In order to establish a prima facie case of terrorism under the UAPA against an accused, the allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.
  5. As long as that gap exists, the prima facie case under the UAPA – and the prosecution’s prima facie burden – remains undischarged, and normal principles of bail (not S. 43(D)(5) will apply.
  6. This is specifically important when the allegations pertain to organising – and participating in – protests, which are guaranteed rights under the Constitution. The Court will be specially vigilant to prevent the use of UAPA-type statutes to blur the lines between protests, illegalities committed during protests, and terrorism.

These principles, it is submitted with respect, constitute an ideal template for courts to approach the issue of bail and personal liberty under special statutes such as the UAPA. If applied consistently, they can form the basis of a jurisprudence that respects civil rights, even within the restrictive confines of the UAPA.

Intermediary Guidelines and the Digital Public Sphere: Balancing the Scales

The last two posts examined prominent new features of the Intermediary Guidelines 2021, automated filtering (here), and tracing first originators (here). However, the undoubted goal of the Guidelines, demonstrated by the express regulation of “Significant Social Media Intermediaries”, is to hold large social media companies accountable for their role in structuring online speech. This post examines the scheme of the Guidelines to examine how effectively they regulate social media.

I begin by examining the liability for communicating unlawful speech to understand why intermediaries are granted immunity for hosting unlawful content. Next, I explain the power imbalance between tech companies and internet users. Finally, I analyze the Intermediary Guidelines’ attempt to remedy this power imbalance by providing various reliefs to users vis-a-vis online platforms.

Speech models and their inadequacy for online platforms

In determining liability for communicative acts, the law distinguishes between publishers and distributors. Publishers are liable for the content they publish, while distributors are typically not liable for content they distribute because they are not deemed to know if they are distributing unlawful content. For example, a newspaper may be liable for an article it solicited/sourced, compiled and edited but a newsstand selling the newspaper will not be held liable because it could not be expected to know the contents of every article in every newspaper it sells. (Volumes could be written on the myriad of nuances within these concepts but acknowledging the distinction will suffice for now.)   

However, this publisher-distributor distinction breaks down in the case of online platforms. They are not neutral distributors as they actively moderate and rank content to determine what users see. But they are also not quite publishers, as they are not responsible for creating the content on their platforms. Unlike a newspaper, whose employees write the articles, on platforms, it is internet users not a platform’s employees that create content. Thus, the publisher-distributor distinction serves legislators poorly when deciding how to regulate online platforms.

Further, legislators worry that if online intermediaries are held liable for unlawful content on their platforms (like a publisher), intermediaries would either: (1) adapt their behaviour to fall under the distributor model and exercise no control over their platforms, leading to the internet being filled with the worst kinds of content; or (2) follow the publisher route and takedown any content that was remotely unlawful, leading to vast horizontal censorship by online intermediaries and defeating the purpose of the decentralised, user driven internet. Enter intermediary immunity.

Intermediary immunity and voluntary moderation

The approach taken by several legislatures, including India’s, has been to provide online intermediaries legal immunity for unlawful content on their platforms even though they filter and curate content. This approach ensures two very important goals: (1) online intermediaries can voluntarily filter content without worrying about a publisher’s liability, thus resulting in less abusive speech online for users; and (2) intermediaries have enough breathing space to not take down user content en masse, resulting in the protection of users’ free speech against horizontal censorship. Rule 3(1)(d) (third proviso) of the Intermediary Guidelines 2021 expressly notes that intermediaries will not lose their status as neutral entities even thoughthey may voluntarily remove a wide range of presumptively illegal content from their platforms.

But this is where things start to get tricky. The definition of ‘presumptively illegal speech’ set out in Rule 3(1)(b) of the Intermediary Guidelines is so broad that platforms have immense discretion in what content to take down within the scope of the rule itself. Under Rule 3(1)(b) intermediaries may takedown content that (inter alia):

(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another‘s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force […]

(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation […]

(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person

These are obviously very broad terms and intermediaries may reasonably disagree with their users over whether content falls within these categories. This creates a conflict between the two goals of intermediary immunity. On the one hand immunity is essential to incentivising platforms to freely take down the worst forms of content without risk of liability, but the wide discretion Rule 3(1)(b) gives them results in users eventually complaining of horizontal censorship (as has already happened on both sides of the political spectrum).

(Note: in Shreya Singhal the Supreme Court ruled that the contents of Rule 3(1)(b) should be limited to the restrictions contained in Art. 19(2) of the Constitution. This may be both normatively undesirable and impractical, as there are several categories of content that fall outside of Art. 19(2) that we may want platforms to voluntarily restrict, e.g., copyright and trademark infringing content, sexually explicit content not rising to the ‘public morality’ threshold, fraudulent content causing consumer harm etc.)

Thus, legislation/regulation must balance the protections granted to intermediaries with the risk of horizontal censorship. This is trickier than it sounds, as the underlying interests of platforms (maximising advertising revenue by the collection and sale of personal data) and users (free speech and privacy) can diverge significantly.   

The problem magnified manyfold

As I discussed in much greater detail (here), the problem of horizontal censorship is multiplied severalfold because of two crucial factors. First, large online social media platforms are central to public discourse. Second, because there are only a handful of these platforms, simply leaving a platform (or worse being suspended) can severely curtail a user’s participation in public discourse. As Kate Klonick poignantly notes, ‘we are dependent on these private platforms to exercise out public rights.’

The true extent of how vulnerable citizens are is demonstrated at several layers. First, as moderation is conducted by private entities, it is undemocratic. While platforms may respond to public outcries, this only ensures that the already marginalised are disproportionately impacted with little hope of recourse. Next, platforms do not disclose their moderation policies. While ‘Terms of Service’ and ‘Community Guidelines’ are publicly available, the rules and procedures platforms use to take down content constantly change and are rarely disclosed. For example, Facebook ‘accidentally’ blocked the hashtag ‘ResignModi’, later reinstating the content with no explanation as to the procedure employed either in the take down or reinstatement. Finally, the stranglehold online platforms have over public discourse may be leveraged by democratic governments to entrench their power by silencing criticism.

Balancing the scales

Just as gender and caste have historically constituted centres of private power, modern social media represents a new site where citizens are dominated. Regulation must seek to remedy this power imbalance but also ensure that the other interest behind intermediary immunity (incentivising voluntary moderation by not saddling platforms with a ‘publisher’s liability) is not annihilated. The Intermediary Guidelines leaves the basic structure of intermediary immunity untouched (except for several additional compliance requirements by social media companies geared towards expanding investigative and enforcement powers) but attempts to remedy the power imbalance by granting users several reliefs vis-à-vis online intermediaries.    

Just as platforms have the discretion to both take down and not take downspeech, internet users may also seek both outcomes. A user may be aggrieved by content and want an intermediary to take down content (the “Take Down Relief”). Alternatively, a user may be aggrieved by the decision of a platform to take down content, and want it reinstated (the “Keep-Up Relief”).

The Take Down Relief

One part of the Take Down Relief involves citizens approaching courts seeking orders (typically in the form of an injunction) against content being displayed online. The Supreme Court in Shreya Singhal ruled that it was impermissible to require online intermediaries to take down content merely because someone complained against a piece of content – a judicial order was necessary (¶117). The decision is in line with the above stated twin goals of intermediary immunity. By protecting platforms from liability until they received a court order, intermediaries could continue to voluntarily remove the worst forms of content from their sites. Crucially, by protecting platforms from being sued for content on their sites until a court ruled the content was (at least prima facie) unlawful, intermediaries would not take down content en masse, thus avoiding horizontal censorship. Courts would weed out frivolous complaints and direct intermediaries to take down content after balancing all the interests involved.

Thus, users do have a Take Down Relief against illegal content in the form of courts and the Intermediary Guidelines 2021 do not interfere with this relief (in fact they expressly recognise it). However, this is by no means a perfect relief, given the time and costs involved in getting a court order. Further, Rule 3(1)(b) is so broad that courts have little guidance (and a lot of discretion) when deciding to take down online content. For example, the Delhi High Court noted that some factors that should be considered prior to take down are (i) the comparative importance of the rights at issue; (ii) the availability of less restrictive measures; (iii) the costs associated with implementing the measures; and (iv) the efficacy of the measures implemented by the ISP. However, another bench of the High Court merely noted that the plaintiffs had demonstrated a prima facie case of defamation and directed the intermediary to block the content. Yet another bench directed search engines to de-index content and permitted a plaintiff to directly approach Internet Service Providers (ISPs) to block additional content uploaded after the original take down order by the court, allowing ISPs to challenge the take down if they believed the plaintiff has exceeded the terms of the original order (which they have no incentive to do).

Rolling back Shreya Singhal

Rule 3(2) of the Intermediary Guidelines 2021 also introduces a new Take Down Relief. A user may launch a complaint where content “exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation…” The intermediary is obligated to take down such content within 24 hours of receiving a complaint. On the one hand, the Rule empowers users vis-à-vis social media platforms, and a cogent case may be made that where a user complains over explicit/intimate images of themselves uploaded against their consent, and no other interests are involved, users should not be required to go to court. (Note, they may not even haveto go to court if the intermediary agrees and takes down content once flagged, but that approach puts the relief at the sole discretion of the platform.)

On the other hand, requiring intermediaries to take down content at the behest of a private user was an approach expressly rejected by Shreya Singhal to protect against platforms being swamped by complaints and taking down all content that any other user disagreed with. The simple truth is that hard cases exist. For example, the content complained against may depict two people, one who wants the content to stay online and one who wants it taken down. Now imagine the content is also a matter of public interest. These delicate situations where rights need to be balanced are exactly why Shreya Singhal insisted on court oversight to guard against overzealous complainants and over-cautious platforms.

Efficacy probably lies somewhere between Rule 3(2) and Shreya Singhal and the Guidelines could have: (i) distinguished between cases where interests need to be balanced and where they do not be; (ii) set up an independent body/fast track process to hear take down claims; or (iii) narrowed judicial discretion on when content should be taken down. However, the Guidelines ultimately fails to either improve the court order system of Shreya Singhal but also creates a blanket workaround that may lead to content being taken down at the sole behest of a disgruntled user in delicate cases where rights ought to have been balanced by a court.   

The Keep-Up Relief

Users may also have a grievance when platforms take down content that users believe should have stayed up (e.g., see the suspension of Sanjay Hegde’s Twitter account over: (i) the use of August Landmesser’s photo defying the Nazi salute; and (ii) retweeting a poem by a CPI (Marxist-Leninist) politician). As discussed above, while users can review ‘Terms of Service’ and ‘Community Guidelines’, the actual rules and procedures employed to take down content are not transparent.

Prior to the Intermediary Guidelines 2021, a user could pursue a contractual remedy, arguing that the speech did not violate the platform’s ‘Terms of Service’. Such remedies are unlikely to succeed as contracts are typically skewed in favour of platforms and confer broad discretion to take down content. For example, Facebook’s Terms of Service state that it can “remove or restrict access to your content, services or information if we determine that doing so is reasonable necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”

Hedge is presently pursuing a public law remedy under Article 226, arguing that Twitter performs a social/public function and should thus be required to respect his free speech (Art. 19) and non-discrimination (Art. 14) rights. Without going into the merits of this argument, such constitutional gymnastics could be avoided by legislation/regulation that directly gives users recourse against social media platforms. Enter the Intermediary Guidelines 2021.

Before we begin, it should be noted that the Intermediary Guidelines 2021 risks substantially aggravating the problem of intermediary take down itself, by incentivising/mandating social media platforms to employ automated filtering technologies. The imprecision of such technologies is likely to cause more users than ever to seek out a Keep-Up Relief. (See my previous post on the subject here.)

Rule 4(8) of the Guidelines attempts to provide such a Keep-Up Relief. The Rule states that where a Significant Social Media Intermediary voluntarily disables content, the platform must, prior to the disabling of content, provide the creator/poster of the content a “notification explaining the action being taken and the grounds or reasons for such action”. Next, the platform must also provide the user with a “reasonable opportunity” to dispute the platform’s decision and request the reinstatement of the content. This creates a regime where intermediaries must provide reasoned notice and meaningful review to internet users when content is taken down.

On the face of it, this is a step in the right direction as it forces social media platforms to employ some minimum rationality and allows users a chance to contest take down decisions. But how well will this structure of accountability hold up when confronted with hard cases (which it undoubtedly will be)? First, the obligation merely requires social media platforms to provide an opportunity for users to dispute the decision and does not improve on the standards of content evaluation to be applied by them – recall that Rule 3(1)(b) is broad and does not meaningfully restrict the platform’s discretion in decision making. Judges themselves struggle to impose uniform standards on when content should be taken down. While platforms may seek to ensure a measure of uniformity, unlike judicial decisions, the reasoning by platforms under Rule 4(8) is not required to be publicly available and no system of precedent applies – creating a risk of opaque and haphazard decisions.  

The Achilles heel of Rule 4(8)

It is also important to understand that the Intermediary Guidelines 2021 regulate the conditions for intermediary immunity, i.e., the conditions they must satisfy to not be treated as a publisher and sued for hosting unlawful content. Now, even if an intermediary breaches the notice and hearing obligation under Rule 4(8), the consequence is a loss of this legal immunity for hosting unlawful content. But the intermediary is not hosting the content (indeed the whole dispute is because the intermediary is refusing to host the content), so there is no risk for the intermediary to losing this legal immunity. Simply put, intermediaries cannot be sued for content they are not hosting, so there is no legal risk associated with arbitrary voluntary take downs. This highlights the folly of trying to offer users recourse to moderation decisions through conditions of intermediary immunity, which is what the Intermediary Guidelines are. 

Lastly, Rule 4(8) does not open the door for users to go to more legitimate body and argue for content to be reinstated. In fact, if courts were to intervene under Rule 4(8), this would undermine the structure of Section 79 and the Intermediary Guidelines, which are premised on treating intermediaries as neutral even though they voluntarily take down content. In the case of Take Down Reliefs, where Person A is aggrieved by content posted by Person B and asks the Court to direct Intermediary X to stop publishing the content, a Court can provide this relief while still upholding the legal fiction of intermediary neutrality (i.e. accepting Intermediary X’s decision to not take down the content as it is neutral like a newsstand). Section 79, the Guidelines, and Shreya Singhal are premised on not examining the correctness of Intermediary X’s decision to keep the content up.

However, where a platform has taken down content and the user seeks a Keep-Up Relief, Person A would sue Intermediary X for its decision to take down Person A’s post. A court cannot logically grant relief without: (i) acknowledging that Intermediary X is not neutral, in which case it really is more like a newspaper and should be liable for its moderation decision; and (ii) going against the protection for voluntary moderation expressly provided in the Intermediary Guidelines; and/or (iii) engaging in the sort of constitutional and interpretative gymnastics that the Sanjay Hedge case involves. All this leaves the efficacy of the Rule 4(8) Keep-Up Relief at the mercy of large social media companies, and their internal calculus as to whether offering users such recourse will garner them goodwill (see Facebook’s Oversight Board).

Conclusion

The problem the government sought to address with the introduction of the Intermediary Guidelines is a real one. Large social media companies have unbridled power over what users see online at a time when we increasingly live our lives on the internet. This problem cannot be solved unless regulation accepts two significant realities, (i) that intermediary immunity remains central to incentivising intermediaries to moderate content and protecting users against horizontal censorship; and (ii) the current moderation procedures employed by platforms lack transparency, accountability, legal certainty, and disproportionately impact marginalised communities.

By relying solely on the structures of intermediary immunity, the Intermediary Guidelines demonstrates a singular lack of creativity when it comes to regulating online platforms. One alternative approach would be a separate statute with certain minimum standards of conduct for intermediaries (no easy task, but at least one that begins with an acceptance of the problems that need to be solved). As a result, the new Guidelines not only fail to provide users with efficacious remedies to either take down or keep up online content, but it perpetuates the status quo where online platforms are free to exercise arbitrary and dominating power over Indian citizens – with the only meaningful regulatory intervention occurring through government blocking of content when platforms fail to toe the government line.   

The author is grateful to Praharsh Johorey for his comments on the draft of this post.

Coronavirus and the Constitution – XXXVII: Dialogic Review and the Supreme Court (2)

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[Update: On 7th June, the central government announced that starting from the 21st of the month, 75% of the vaccines quota would be centrally procured, that vaccination would be free for over-18s, and that private hospitals would not be permitted to charge more than an administrative fee of Rs. 150. Many of the elements in this new policy come on the back of the Supreme Court’s 31st May order (discussed below) that had, inter alia, returned a prima facie finding that the procurement and pricing policy, as it then stood, was arbitrary and irrational. While it is, of course, an impossible errand to quantify how much of the policy volte face was because of the Supreme Court’s intervention, it is nonetheless fair to say that the Supreme Court’s three orders on 27th April, 30th April, and 31st May have played a significant role, and vindicate the Court’s bounded-dialogic approach towards the exercise of judicial review over the management of the pandemic.]


The 31st May order of the Supreme Court in In Re: Distribution of Essential Supplies and Services During Pandemic is the third substantive order of the Court’s three-judge bench since it took suo motu cognisance of various issues relating to the management of Covid-19. It follows orders on 27th April (that laid out the scope of the Court’s deliberations, discussed here), and 30th April (that laid out a set of directions, recommendations and questions to the government).

The 31st May order limits itself to the issue of vaccinations, in view of the gradual recession of the second wave. In particular, it focuses on the constitutionality of several features of the central government’s Liberalised Vaccination Policy. Recall that according to the Liberalised Vaccination Policy, vaccination manufacturers are required to supply 50% of their doses to the central government, and 50% (with an even split, i.e. 25% each) to state governments and private hospitals (at a pre-declared price). Central government vaccination centres are limited to vaccinating healthcare workers, frontline workers, and people above the age of 45, while individuals between the ages of 18 – 44 must be vaccinated at state government centres, or in private hospitals. Vaccination appointments are to be booked digitally, via the CoWIN app.

In paragraph 19 of the Order, the Court groups its observations under three heads: vaccine distribution between different age-groups, the vaccine procurement process, and the augmentation of vaccine availability. For further ease of analysis, the Court’s observations under each of these heads can be divided into three categories: directions for further information from the central government [“queries”], recommendations [“recommendations”], and findings of prima facie unconstitutionality, requiring a response from the government [“objections”].

With respect to the vaccine distribution between different age-groups, the Order finds that free vaccinations for over-45s and frontline/healthcare workers on the one hand (through the central government channel), and paid vaccinations for the 18-44s on the other (through the state governments/private hospitals channel) is “prima facie arbitrary and irrational” (para 20) [“objection”]. It is important to note that the question here is not whether the government is allowed to charge for vaccinations or not, but discrimination within the existing policy, where one age-group is asked to pay, and another is not.

With respect to the issues around procurement, the Order asks the government for further information. The Liberalised Vaccination Policy allows state governments to bargain with vaccine manufacturers, ostensibly (and as per the central government’s justification) in order to spur “competitive prices and higher quality [of vaccines].” It was pointed out to the Court, however, that vaccine manufacturers were refusing to negotiate with state governments (inter alia for reasons of guaranteed legal immunity, which state governments cannot provide) – as also the fact that the central government, as a monopoly buyer, would have greater bargaining power to drive down prices rather than individual (or even a consortium of) state governments. The Court also notes that, under the Liberalised Vaccination Policy, the basis of pro rata allocation to state governments is both unclear (with respect to the extent of the central government’s intervention) and incomplete (failing to take into account inter-state migration, healthcare infrastructure, demographics etc). It therefore asks the central government to “specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI.” (paragraph 22) In a later part of the judgment, the Court goes on to add that the very reason that the central government is able to bargain for lower prices raises the question of why it cannot procure 100% of the vaccine doses; on that basis, the Court asks the government to clarify how the allocated budget of Rs. 35,000 crores for vaccinations “ha[s] been spent so far and why [it] cannot be utilized for vaccinating persons aged 18-44 years.” (paragraphs 3031)

With respect to vaccination availability, in view of the central government’s recent declaration that 100 crore people would be vaccinated by December 2021, the Order asks the government to place on record its detailed roadmap explaining how this will be achieved (paragraph 23) [“query”], including information on the (future) vaccination of children, the status of crematorium workers, mechanisms for redistribution in case of a mismatch between the 50:50 distribution and the actual orders placed by a state government/private hospitals (paragraph 24).

In the next section of its order, the Court turns to the specifics of the 25% vaccination disbursal to private hospitals. The ostensible logic of this – as per the central government – is that there exists a certain section of society that is able to pay for vaccinations, which will be diverted towards private hospitals. As the order notes, however, the structure of the vaccination policy is such that this may not actually happen. As the Court notes:

However, the present system of allowing only digital registration and booking of appointment on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. As such, even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it. (paragraph 26)

Because of this – coupled with the profit-making character of private hospitals creating the possibility of price-gouging, the order asks the government to provide a set of clarifications about the manner of disbursal of vaccines to private hospitals, regulatory oversight, and means-testing (if any) (paragraph 28).

In the third sub-section, the Court goes on to consider the issue of differential pricing. A part of it has been discussed above; in addition, given the central government’s financial and regulatory contribution to the development of the vaccine, the Order asks for further clarifications regarding the basis of pricing, the central government’s refusal to intervene statutorily, and whether any contracts have been invited for voluntary licensing (paragraph 33). The Order concludes with some further questions on cold storage facilities and the use of the CoWIN app.

There is little doubt that when it comes to judicial scrutiny of the management of the Covid-19 pandemic, the Court must proceed with caution. The purpose of a bounded-deliberative approach – which is how the Court has described its proceedings thus far – is to elicit information from the government – which may otherwise not be available – that forms the basis of policy. While the merits of the policy, of course, are not subject to judicial review, the purpose of dialogic review is to (a) gauge, on the basis of the information provided, whether the policy is sufficiently backed by reason, to pass constitutional scrutiny; (b) whether, in response to judicial nudges, the political executive tweaks or modifies policy in order to make it constitutionally compliant; and (c) if the answer to both (a) and (b) is negative, then – in the last resort – to invalidate those parts of the policy that violate constitutional rights (in this case, the rights to equality and health). The court’s orders so far have fallen within the first phase of dialogic review, and justifiably so (and on some respects, such as hospital admissions, have resulted in policy changes, moving into phase 2). The question now, no doubt, will be whether the central government’s responses – due in two weeks’ time – will see the proceedings move into phases 2 and 3. In this respect, it is important to note an observation made in this order: that, while at the beginning of the pandemic, the political executive is to be provided maximum leeway and “play in the joints”, given the overall uncertainty, as time progresses – and as more information becomes available – the actions of the executive are to be held to stricter account on the touchstone of constitutional rights. As we are now into the second year of the pandemic, and a few months into the second wave, it remains to be seen what form this stricter judicial review will take in future hearings.

Coronavirus and the Constitution – XXXVI: The Delhi High Court’s Judgment on Taxation and the Right to Health

[Update: in an order passed on June 1, 2021, the Delhi High Court’s judgment – discussed below – has been stayed by the Supreme Court. The only reason provided by the Supreme Court in its stay order is that “arguable issues have been raised” in the appeal. Needless to say, staying a carefully-reasoned High Court judgment that returned a finding of unconstitutionality against State action on the ground that “arguable issues” have been raised is problematic. This is a very low standard that keeps a High Court judgment in abeyance not because there is a prima facie error of law or fact, but because – presumably – it is possible to take another view. Furthermore, the fact that Court has issued notice returnable in four weeks means that the case has effectively been decided in favour of the union government, as – presumably – by the time the Supreme Court gets around to hearing the case, there will no longer be as pressing a need for oxygen concentrators.

One of the most frustrating parts about writing and analysing contemporary Indian constitutional law is the lack of accountability with which the Supreme Court stays High Court judgments. There is no uniform or consistent principle, and in a majority of cases, the Supreme Court does not accord the High Court judgment the courtesy of proper analysis before issuing a stay order. And, as pointed out above, in most cases – and especially in urgent cases – the stay effectively amounts to a decision in favour of the government, but without any judicial reasoning, as the delay between issuing notice and getting around to deciding the issue invariably renders the case infructuous.]


In an interesting judgment handed down on the 21st of May (Gurcharan Singh vs The Ministry of Finance), the High Court of Delhi struck down the levy of Integrated Goods and Services Tax [“IGST] on oxygen concentrators that had been imported into the country, as a gift, and for personal use. The judgment is notable because it is a relatively rare instance of a successful constitutional challenge to a tax levy, and one that succeeded on fundamental rights grounds, rather than on a demonstration that the tax was confiscatory.

The primary basis of the Court’s judgment was that under Notification 4/2021-Customs, imposition of IGST on oxygen concentrators was exempted, as long as they were free and for the purposes of Covid relief, and imported by a State government or by an entity authorised by any State government. This, then, created two categories of persons who were importing oxygen concentrators for Covid relief: those who were doing it through a government-approved entity (exempted from IGST), and those who were not (IGST leviable) – i.e., those who were receiving oxygen concentrators as a gift, for their personal use. The Court found this distinction to be arbitrary and irrational, and consequently, a violation of Article 14 (paragraph 13).

What is of greater interest, however, is the Court’s contextualisation of the issue within the Covid-19 pandemic. The bench of Shakder and Talwant Singh JJ noted that while ordinarily, “tax … does not recognise equity”, “it must, however, in our view, bend to the will of equity in times of calamity which causes wholesale degradation in the human ability to contribute to the coffers of the State.” (paragraph 15) In this case, therefore, the Court had to examine the tax on the anvil of the right to health under Article 21 of the Constitution, keeping in mind the global pandemic (paragraph 15.1). This, in turn, required the State to demonstrate that:

… the revenue, it would possibly garner, as IGST, in respect of oxygen concentrators which are imported in the circumstances, in which, the petitioner is put, would be appreciably more than the cost incurred to administer the collection of IGST on such transactions. These details need not have borne mathematical precision; a broad-brush approach would have sufficed-so that we could be persuaded to hold that denying relief to the petitioner and persons similarly circumstanced would be in public weal. The counter-affidavit filed by the State gives us no clue whatsoever concerning this vital issue. (paragraph 15. 4)

In the absence of any such counterveiling justification, the impact of the tax on the right to health under Article 21 was evidently onerous and burdensome. It also breached the State’s positive obligations under Article 21, which it could have discharged through “delaying its collections, granting rebates, or, as in this case, permitting, import of vital medical equipment, drugs, medicines, for a defined period, till such time, normalcy is restored” (paragraph 15.7) – and which, indeed, the State had done so for other categories involving the import of oxygen concentrators.

The Court’s judgment in this case is undoubtedly correct, and its desire to contain the scope of its reasoning to the extraordinary situation generated by the Covid-19 pandemic is understandable, as it is difficult to displace the many decades of established wisdom that requires a judicial hands-off approach when it comes to testing tax law and policy on the touchstone of fundamental rights. However, when we think about it, the Covid-19 pandemic has only revealed particularly starkly what has always been true: tax law is one of the most potent tools in the hands of the State to shape and direct behaviour (as potent as criminal law), and for that reason, there is no reason why taxation should be given any greater deference by courts when it is subjected to a fundamental rights challenge. Indeed, as the Colombian Constitutional Court’s judgment striking down a tampon tax, and the Canadian Supreme Court’s judgment upholding business deductions, both in the context of challenges on the touchstone of gender equality, show us, issues of taxation are deeply intertwined with issues around constitutional guarantees of equality and non-discrimination. The Covid-19 pandemic (to reiterate) has only revealed this truth, rather than create it.

The Delhi High Court’s judgment is nonetheless important, as it breaks judicial inertia and for the first time puts these questions on the table. Admittedly, the judgment suggests that the more exacting judicial review that it applied to the IGST Notification – especially on the right to health ground – was because of the extraordinary circumstances created by the pandemic, and that the normal policy of deference would continue to apply otherwise. That said, it is also clear that the Court’s analysis is not – and indeed, need not be – attached to the specific circumstances of the pandemic. Indeed, if we think of the “tampon tax” challenge, for example, one can easily see how the issue of menstrual hygiene – as a continuing concern – is as fundamentally important to the right to health and to equality as is the issue of importing oxygen concentrators to deal with Covid-19. I would suggest, therefore, that the High Court’s reasoning contains the beginnings of a more progressive – and constitutionally more just – approach to the intersection between tax and fundamental rights.

A final point on remedy: the Court refrained from touching the Notification itself, and instead, granted the petitioner relief by reading the term “oxygen concentrator” into separate exemption notifications involving tax exemptions for lifesaving drugs. However, I am not quite sure why this was necessary: would not the purpose have been served equally by simply severing the words “by a State Government or, any entity, relief agency or statutory body, authorised in this regard by any State Government” from the impugned Notification? This would ipso facto have extended the benefit of the exemption, then, to goods “imported free of cost for the purpose of Covid relief”, and would have covered the case of the petitioner.

In any event, the technical quibble aside, the High Court ended its judgment by noting that it was travering “over what was, somewhat, new and uneven terrain.” (paragraph 22) The Court ought to be complimented for doing so judiciously and with wisdom; it is now the task of future benches to chart a further path.

Guest Post: A Critique of the Supreme Court’s Maratha Reservation Judgment – III: The Constitutionality of the 102nd Amendment

[This is a guest post by Vrishank Singhania.]


In the previous two posts (Part I and Part II), Bhatia discussed the Supreme Court’s holding on the 50% cap and the interpretation of the 102nd Amendment, in the Maratha Reservation judgement. With regard the interpretation of clause 4 of the 102nd Amendment, the Supreme Court held that the power to identify socially and educationally backward classes [“SEBCs”] vested solely with the centre, to the exclusion of the states. While Bhatia argues this is an incorrect interpretation, Bhardwaj in response argues that it is correct. In this post, I take as a given the Majority’s interpretation. The next issue that the Supreme Court (specifically the majority) then had to decide was whether, on this interpretation, the 102nd Amendment was constitutional or not.  

There were two arguments advanced on the issue of the constitutionality of the Amendment. First, given that the Amendment takes away the power of the states to identify SEBCs, it should have been passed in accordance with the proviso to Article 368(2) i.e. it should have been ratified by at least one half of the legislative assemblies of all states. Since this procedure was not followed, the Amendment is unconstitutional. Second, that the Amendment is contrary to the basic feature of federalism. Justice Bhat rejected both of these arguments and upheld the constitutionality of the Amendment. I agree that the Amendment does not fall foul of the Constitution’s basic structure. However, I argue that the Supreme Court erred in its decision on Article 368(2). Assuming the Supreme Court’s interpretation of the 102nd Amendment is correct, the Amendment is unconstitutional qua Article 368(2). 

This essay has five sections. In the first section, I look at J. Bhat’s reasoning on the applicability of the proviso to Article 368(2). In the second and third sections, I draw out the test for the applicability of the proviso from its purpose and past Supreme Court precedent. In the fourth section, I apply the test determined in the previous sections to the 102nd Amendment. In the fifth section, I provide a brief analysis of J. Bhat’s reasoning on the basic structure argument. 

I. Bhat J.’s interpretation of Article 368(2)

The power of the Parliament to amend the Constitution is derived from Article 368. Article 368(2) states that –

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: 

Provided that if such amendment seeks to make any change in— 

(a) article 54, article 55, article 73, article 162, article 241 or article 279A or 

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI,or 

(c) any of the Lists in the Seventh Schedule, or 

(d) the representation of States in Parliament, or 

(e) the provisions of this article, 

the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Article 368(2) thus provides for two different types of amendments –

  1. Amendments to the Constitution pertaining to the parts specified in Article 368(2) sub-sections (a) to (e); and 
  2. Amendments to all other parts of the Constitution. 

The second type of amendment has to be passed by a majority in each House of the Parliament. However, the first type of amendment, in addition, also needs to be ratified by the legislatures of not less than one half of the states [as per the Proviso to Article 368(2)]. Thus, Article 368(2) limits the powers of the Parliament to bring about certain types of amendments, and if such procedure is not followed, then the amendment would be unconstitutional. 

As mentioned above, the proviso to Article 368(2) [hereinafter referred to as “the proviso”] applies only when any of the parts or provisions specified in sub-sections (a) to (e) [hereinafter referred to as “specified provisions”] are amended. In the present case, the 102nd Amendment had not directly amended any of the specified provisions. There are two questions that then arise. First, whether the applicability of the proviso, requires a direct amendment to the specified provisions, or would an indirect amendment, that in effect amends the specified provisions also qualify. Second, if an indirect amendment qualifies, would an incidental effect on the specified provisions also suffice to trigger the proviso.  

J. Bhat does not consider this complexity, and consequently his decision on Article 368(2) is lacking in its reasoning. It is unclear as to what the test for the applicability of the proviso is according to him. However, from my reading of his judgement, the following paragraphs indicate his holding on this issue – 

181. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2).

182. The majority judgment [in Sajjan Singh], therefore decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters any of the Entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368 (2) was not necessary. 

It would seem that according to J. Bhat, the proviso is triggered only when there is an actual or direct amendment to the specified provisions. However, in paragraph 181 above, he also looks at the impact (or in other words the effect) of the Amendment on the specified provisions. A harmonious reading of these would suggest that according to J. Bhat, unless there is an actual or direct amendment, the impact on the specified provisions would be considered incidental, and thus, the proviso would not apply. This formalist interpretation of Article 368(2), in my opinion, is incorrect. 

In the next two sections, I shall  look at the purpose of the proviso and Supreme Court precedent on its interpretation to argue that – first, a direct amendment is not necessary i.e. that an in effect amendment is sufficient; and second, that the effect cannot be merely incidental. I will then apply the test to the 102nd Amendment to argue that the proviso is applicable in the present case.

II. Nature of the Amendment – Direct or In Effect?

The first question to be determined is whether the applicability of the proviso requires a direct amendment to the specified provisions, or would an indirect amendment, that in effect amends the specified provisions also suffice. I argue, that based on both the purpose of the proviso and Supreme Court precedent, an in effect amendment would also suffice to trigger the proviso

According to Dr. Ambedkar, the purpose of the proviso was as follows – 

If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to say that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament…without permitting the provinces or the States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution.

As Dr. Ambedkar mentions, the proviso includes provisions that have a bearing on the federal structure of the Constitution, such as the elections of the President, the representation of States in the Parliament, the executive and legislative powers of the States vis-à-vis the Union, and the amending power itself. The purpose of the proviso is to ensure that the Parliament cannot unilaterally amend the federal structure of the Constitution, without the consent of the States. 

A formalist interpretation, such as the one suggested by J. Bhat, would allow the Parliament to in effect alter the federal structure, without directly amending any of the specified provisions. This would defeat the purpose of the proviso. It would also negate the well-established doctrine of colourable legislation – what cannot be done directly cannot also be done indirectly. A purposive interpretation to Article 368(2) has been upheld by the Supreme Court in Sajjan Singh and Kihoto Hollohan – cases which J. Bhat incorrectly relies upon to justify his formalist interpretation. 

Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had amended Part III of the Constitution and had taken away the Supreme Court’s and High Court’s power of judicial review with respect to legislations included in the Ninth Schedule. The petitioners argued that this amounted to modifying the High Court’s powers under Article 226 [a specified provision under Article 368(2)(b)] and thus the amendment required ratification by the states. Similar to the present case, the constitutional amendment did not directly amend any of the specified provisions. While the Supreme Court held that the proviso did not apply, it did not confine itself to looking merely at whether the specified provisions had been directly amended. Instead it formulated the test as follows – 

The proviso would apply where the amendment in question seeks to make any change, inter alia, in Article 226, and the question in such a case would be: does the amendment seek to make a change in the provisions of Article 226? The answer to this question would depend upon the effect of the amendment made in the fundamental rights. (Paragraph 8, Gajendragadkar C.J.)

If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise.” (Paragraph 14, Gajendragadkar C.J.)

Thus, the Supreme Court was concerned with the “effect” of the amendment and not merely the formal provision it amended. 

A similar issue was at stake in Kihoto Hollohan – the Supreme Court had to decide upon the validity of the 52nd Constitutional Amendment, which had introduced the Tenth Schedule, and in paragraph 7, had taken away the Courts’ power of judicial review in matters of disqualification of a Member of a House. The test formulated by the Supreme Court was as follows –

The test applied was whether the impugned provisions inserted by the constitutional amendment did ‘either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136’. Thus the change may be either in terms i.e. explicit or in effect in these articles to require ratification. (Paragraph 158, Verma J.).

In this case, similar to the Maratha Reservation case, Article 226 had not been directly amended by the 52nd Amendment. Nevertheless, the Supreme Court held that paragraph 7 of the Tenth Schedule was unconstitutional because in effect it amended Article 226, but without following the procedure in the proviso

It is unclear then as to how J. Bhat arrived at the conclusion that Sajjan Singh and Kihoto Hollohan require a direct or actual amendment, when they clearly held to the contrary. Thus, a direct amendment is not necessary – an in effect amendment can also trigger the proviso.

III. Effect of the Amendment – Does it include incidental effects?

Having established that an in effect amendment can trigger the proviso, the next question, is whether any effect, including incidental effects, are sufficient to trigger the proviso. The Supreme Court in both Sajjan Singh and Kihoto Hollohan held that an incidental effect on a specified provision would not trigger the proviso. The Court justified this decision on the basis of the purpose and structure of Article 368(2). In Sajjan Singh, it held that – 

It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court, prescribed by Article 226, and as such, the bill proposing the said amendment cannot fall under the proviso; otherwise the very object of not including Part III under the proviso would be defeated.

Given that the Constitutional provisions do not operate in silos, it is likely that an amendment to a non-specified provision will effect a specified provision, thereby triggering the proviso if every effect was considered sufficient. Thus, a harmonious interpretation of the two parts of Article 368(2) requires that amendments which in their true effect seek to amend non-specified provisions, do not trigger the proviso, merely because of an incidental effect on a specified provision.  

It was this question of incidentality, that distinguishes Sajjan Singh and Kihoto Hollohan. In the former, the Court held that the effect on Article 226 was incidental, whereas in the latter it was held that the effect was not incidental. The determination of whether an effect is incidental is based on which provision the amendment truly purports to effect a change in. As mentioned above, if its true effect is on a non-specified provision, then a mere incidental effect on a specified provision, would not trigger the proviso

The Court in Kihoto Hollohan used this test to draw a distinction with the facts of Sajjan Singh – 

159. Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action…in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched…and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished…then the change made is in the remedy and not in the subsisting right.

According to the Court, in Sajjan Singh, the 17th Constitutional Amendment’s objective was to amend the fundamental rights in Part III – that is where its true effect was. Its purpose was not to amend the remedy i.e. Article 226 and thus the effect on Article 226 was merely incidental. On the other hand, according to the Court, in Kihoto Hollohan, the true effect of paragraph 7 of the 52nd Constitutional Amendment was to remove the power of judicial review, and not to change the underlying cause of action itself. The true effect was on the remedy i.e. Article 226 and the thus the effect was not incidental.

Therefore, the determination of incidental effect is not based on the degree of change to the specified provision, but rather on the true effect of the amendment. 

IV. Evaluation of the 102nd Constitutional Amendment

As mentioned earlier, according to J. Bhat, clause 4 of the 102nd Constitutional Amendment grants exclusive power to the Centre to identify SEBCs, taking away the power that the States have enjoyed for over seven decades. Applying the two-pronged test for the application of the proviso to Article 368(2), there are two questions that arise – first, whether the Amendment has the effect of amending any of the specified provisions; and second, if it does, is the effect merely incidental. 

In respect of the first prong, I argue that the Amendment has the effect of amending the specified provisions – specifically, the States’ legislative powers under Article 246 and the Seventh Schedule [as specified in sub-clauses (b) and (c) of the proviso] and their executive powers under Article 162 [specified in sub-clause (a) of the proviso].  

Articles 15(4) and 16(4), authorize the “State” to make reservations for SEBCs. According to the Supreme Court in Indra Sawhney, this includes both the Parliament and the State Legislature, as well as the Executive (both Centre and State). However, the question of which authority is competent to provide for reservations in a specific context, is dependent on the legislative competence of the Parliament/Legislature per Article 246. For instance, the regulation of State public services, as per Entry 41, List II, is within the State Legislature’s domain. Thus, the a provision of reservations for SEBCs in the context of State public services, would come within the competence of the State Legislature and not the Parliament. Further, according to Article 162, the State’s executive powers are co-extensive with the State Legislature’s powers. Since the power to regulate State public services belongs to the State Legislature, in the context of executive power, it belongs to the State. 

However, the Amendment takes away both the legislative and executive power of the States to provide for reservations in contexts such as State public services, which before the Amendment had been in their domain as per Article 246 and 162. Thus, even if the Amendment does not directly amend the specified provisions, it does have an effect on them. 

The second prong then is whether this effect is incidental or not. As mentioned above, this requires a determination of which provisions clause 4 of the Amendment truly seeks to effect a change in. To evaluate this, it is useful to compare the 102nd Amendment to the 93rd Constitutional Amendment, which inserted Article 15(5), authorizing the “State” to make reservations for SEBCs even in private educational institutions. The 93rd amendment does have an effect on the powers of States. However, its true purpose was to effect a change in Article 15, and the effect on the states’ powers was merely incidental.  

On the other hand, according to J. Bhat, the true purpose of clause 4 of the 102nd Amendment could not merely have been to continue status quo and grant constitutional authority to the National Commission for Backward Classes. Instead, per his interpretation the true effect and purpose of clause 4 was to shift the power that hitherto States exercised to the Centre (paragraphs 147-152). Unlike the 93rd Amendment, the 102nd Amendment did not seek to effect change in the right in Article 15(4) and 16(4), but sought to effect change in the distribution of powers between the Centre and the States to enforce that right. Thus, the effect on the distribution of legislative and executive powers between the Centre and the States was the main purpose of the Amendment. Therefore, it cannot be said that the Amendment’s effect on Articles 162 and 246 was merely incidental. 

Thus, both prongs of the test are satisfied, and the proviso to Article 368(2) is applicable. However, this does not make the 102nd Constitutional Amendment unconstitutional as a whole. As was held in Kihoto Hollohan, an amendment is invalid only in so far as it would have required ratification by States under the proviso. In that case for instance, applying the doctrine of severability, the Court held that only paragraph 7 of the Tenth Schedule was unconstitutional. Similarly, in the present case, only clause 4 of the 102nd Amendment would be unconstitutional. Alternatively, the Supreme Court could, as it does when exercising its powers of judicial review under Article 13, read-down clause 4 and interpret it in a manner that does not trigger the proviso i.e. interpret the Amendment as not taking away the powers of States to identify SEBCs. 

V. Basic Structure Argument

It was argued that the 102nd Amendment falls foul of the basic structure of the Constitutions in so far as it seeks to change the federal division of powers. However, J. Bhat rejected this argument, holding that – 

187. …the alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution… that the amendment would take away an essential feature or violate the basic structure of the Constitution. 

In my opinion, J. Bhat was correct to hold that the 102nd Amendment could not have been struck down on the grounds of a basic structure challenge. As Bhatia notes, the threshold for a basic structure challenge is quite high. As held in Nagaraj, a basic structure challenge stands only when the constitutional amendment makes the Constitution unrecognizable – not merely when there has been a change in the Constitution. 

Further, the Constitution itself tolerates changes in the distribution of powers between the Centre and States. This has been explicitly provided for in Article 368(2). Thus, even if the Amendment takes away the power of the States to identify SEBCs, this would not be enough to meet the threshold of a basic structure challenge. 

Conclusion

The proviso to Article 368(2) is a fundamental protection against the unilateral usurpation of power by the Parliament. It goes to heart of the federal structure of our Constitution. It is unfortunate, then, that this issue was treated somewhat cavalierly by the Majority judgement, even though it held that a power hitherto exercised by States for seven decades, had been exclusively taken over by the Centre.  According to J. Bhat, the ratification of States per the proviso to Article 368(2) is necessary only when there is a direct amendment to the specified provisions. This is in my opinion is a dangerous precedent – it allows the Parliament to amend the federal structure of the Constitution by stealth, while seeking shelter in the fact that no direct amendments have been made to the provisions specified in the proviso.This formalist interpretation, is yet another instance of what Bhatia calls the Supreme Court’s anti-federal tradition.

The Supreme Court’s Maratha Reservation Judgment – A Response [Guest Post]

[This is a guest post by Shrutanjaya Bhardwaj.]


This is a response to Part-II of Gautam Bhatia’s two-part critique of the Supreme Court’s Maratha judgment. In the post being responded to, Bhatia argues that the Court interpreted the provisions of the 102nd constitutional amendment—mainly Article 342A—wrongly. I will support the Court’s view by rebutting what I believe are Bhatia’s central arguments.

In brief, the issue was as follows. As Bhatia recounts, OBC/SEBC reservations in India have historically had two anchors—Centre (Parliament and President) and States (Legislatures and Governors). Both Centre and States would prepare separate “lists” of backward classes who, in the respective opinions of these authorities, ought to be recognized as OBCs/SEBCs for the purposes of benefits under the Constitution. The two lists had separate purposes. In any given State, only the groups mentioned in the “Central List” would be eligible for reservations etc. in jobs and educational institutions of the Central Government, while only the groups mentioned in the “State List” would be eligible in respect of jobs and colleges of the State Government.

The Maratha judgment put an end to this two-list system. The Court held that the 102nd constitutional amendment strips States of, and exclusively vests in the Centre, the power to identify SEBCs. The main provision under contest before the Court was Article 342A which reads as under:

“(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

According to the Court, this provision mandates exactly the same process for identifying SEBCs which has (admittedly) historically existed for identifying SCs and STs under Articles 341 & 342 respectively—i.e., only President draws up state-wise lists of SCs and STs, and once that is done, only Parliament has the power to amend the lists by adding or removing names. Just as the States have never had a role in designating groups as SCs or STs, they now have no role in designated groups as SEBCs.

Bhatia makes three broad arguments to oppose the Court’s conclusion. The first and main argument, which I shall respond to in this piece, is a textual argument which goes thus. Article 342A doesn’t say that the process it prescribes shall be “the sole process” of identifying SEBCs. In fact, the use of the phrase “Central List” in Article 342A(2)—a marked departure from the simpliciter “list” appearing in the analogous Articles 341(2) and 342(2)—shows that the list prepared by President under Article 342A is not to be the sole list of SEBCs. The President is to only draw the “Central List”; States are free to independently identify SEBCs and accordingly draw their own “State Lists”. Article 342A, thus, is “limited in its operation to the existing process only at the central level”. It follows that States still have the power to identify SEBCs parallelly, which power exists outside of Article 342A and remains unaffected by the 102nd amendment.

[For the sake of completeness, let me also state the two arguments I will not address. The first is that if the text of Article 342A is ambiguous, external aids of interpretation like parliamentary committee reports and “repeated assurances” by the relevant Ministry/Minister should have been relied on. The second is that if Article 342A is capable of two interpretations, the Court should have favoured the interpretation which advances federalism—a component of the basic structure—and preserves the States’ power to identify SEBCs.]

Plain Meaning

Textual interpretation of a provision must always start with its plain grammatical meaning. The text of Article 342A(1) reveals that the President may specify, with respect to any State, “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”. In Bhatia’s reading, this provision doesn’t say that the Presidential List shall be the sole list of SEBCs, or that this process shall be the sole process of identification of SEBCs. With respect, it says exactly that.

Most important for this debate is the word “the” occurring in Article 342A(1) right after the word “specify”. This seemingly innocuous article, known as the “definite” article, when used before the plural form of a noun, usually refers to an exhaustive or definite set of objects described by that noun. To take some examples from English language, it should be obvious that “list the items we need to buy” means list all such items, “list the students who are to be designated as class monitors” means list all such students, and “list the books that need to be procured for the library” means list all such books. Similarly, when Article 342A(1) empowers the President to specify “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”, the plain meaning rule dictates that the President will specify all such groups. The corollary is that the possibility of States being able to specify other groups is not left open by Article 342A(1).

If Parliament truly intended to preserve the States’ powers, nothing prevented more words from being added into the Article. For instance, instead of saying that the Presidential List shall define SEBCs “in relation to that State”, Parliament could have said “in relation to employment and education under the Central Government in that State”. Alternatively, Parliament could have added an explanation in Article 342A to the effect that nothing in this Article shall prevent the State Governments from preparing their own lists of SEBCs. But Parliament chose to say none of that. All that has been said is that President shall draw for every State a list of “the” groups which shall be deemed to be SEBCs “for the purposes of the Constitution” and “in relation to that State”. Absent any further qualifications, the inescapable conclusion is that Article 342A(1) exhaustively covers the subject-matter of identification of SEBCs for the purposes of the Constitution.

“Central List”

The isolated phrase “Central List” occurring in Article 342A(2) cannot alone make a difference to the above reading. Some of the things Bhatia says about this phrase are undoubtedly correct, but don’t take us very far. Yes, the phrase “Central List” is somewhat vague if not seen in its historical context. Yes, the Presidential List under Article 342A(1) is conceptually the same Central List that was being prepared by the Central Government before the 102nd amendment. But none of this implies that clause (2) contemplates or authorizes State Lists. Contrary to what Bhatia suggests, the phrase “Central List” could simply be there for abundant caution, or to make it doubly clear that henceforth there will only be a Central List.

There is good reason to prefer the second interpretation. Under settled rules of interpretation, courts must not readily assume that Parliament enacted conflicting provisions, and must try to read the provisions harmoniously so as to avoid any conflict. Bhatia’s interpretation implies that clause (2) conflicts with clause (1)—as explained above, clause (1) categorically excludes the possibility of States identifying any SEBCs, while Bhatia’s reading of clause (2) suggests the opposite. Such a conflict can be avoided by adopting the other interpretation, i.e., the phrase “Central List” in clause (2) only reinforces the idea that only the historical “Central List” shall exist while the historical “State Lists” shall stand abolished. This is also the interpretation that the majority of the Court adopted, in my view rightly.

But Bhatia rejects it; he argues that the two-list regime is so significant that its invalidation can only be done expressly. This applies even to the sovereign Parliament exercising its constituent power. He argues that if Parliament wanted to “drastic[ally]” change the historical two-list arrangement, it would have done so “in express terms, and not by implication”. Therefore, absent express words of invalidation, Article 342A(1) should be interpreted as having left the State Lists untouched.

This line of reasoning is erroneous in my view. The doctrinal question here is: When Parliament introduces a regime/scheme into the Constitution for the first time, should we presume—unless a contrary indication exists—that Parliament has defined the regime/scheme exhaustively? Respectfully, the answer is that we should. This is not only logically the correct approach (why would Parliament mysteriously leave some part unsaid?) but also a cemented principle of interpretation. Expressum facit cessare tacitum, i.e., the express mention of one thing implies the exclusion of other things. Stated differently, “expression precludes implication” (e.g., see CCI v. SAIL). Contrary to Bhatia’s argument, this maxim allows Parliament to impliedly exclude certain things simply by expressly including certain other things. Hence, once Parliament has laid out a process of identification of SEBCs “for the purposes of this Constitution”, and has said nothing about any other process by which SEBCs can be identified, the assumption should be that the ‘field’ of identification of SEBCs is now occupied by Article 342A and excludes any other processes of identification.

The Definition Clause: Article 366(26C)

If any doubt were still left, a bare reading of Article 366(26C) would cure it. This provision, also inserted via the 102nd amendment, contains the definition of ‘SEBCs’:

366. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;

Bhatia argues that this provision has no bearing on the issue: “we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A autonomously.” Since he believes that Article 342A “itself contemplates separate powers for the centre and the state in identifying SEBCs”, he suggests that Article 366(26C) too—automatically—treats the classes mentioned in both Central and State lists as SEBCs.

This argument proceeds on a misreading of Article 366(26C). The clause doesn’t define SEBCs as the classes contemplated by Article 342A, or those merely permitted by that provision to be designated as SEBCs. Rather, SEBCs are defined as classes that are “deemed under article 342A” to be SEBCs “for the purposes of this Constitution”. This is an unmistakable reference to the deeming provision in clause (1)—and clause (1) alone—of Article 342A, which provides that the groups specified by President shall “for the purposes of this Constitution be deemed to be socially and educationally backward classes…”. Even if Bhatia’s argument about the meaning of “Central List” is accepted, the sequitur being that States still retain the power to draw up their own State Lists, it’d be a stretch to argue that SEBCs mentioned in the State Lists are “so deemed under article 342A for the purposes of this Constitution”. Even if there were any deeming, it would be under the relevant State legislation authorizing the creation of State Lists, and not under Article 342A. [This also shows that Bhatia’s argument is self-defeating: it is his stand that Article 342A(1) refers only to the Central List.]

Thus, the clear meaning of Articles 342A & 366(26C) is that throughout the Constitution, the phrase ‘SEBCs’ shall refer only to the Presidential List drawn under Article 342A(1). This shall be so irrespective of the parallel existence of State Lists framed under State laws, even assuming arguendo that such lists can be prepared.


[Note: Since I was in the team of lawyers representing the Petitioners in this case, readers may take my views with a grain of salt. I am grateful to Ayush Baheti for his inputs.]

Guest Post: Concerns Around the Tribunals Reform Ordinance

[This is a guest post by Shubhansh Thakur.]


Tribunals were introduced into our justice dispensation system with the expectation to ease the burden of the traditional courts by bestowing upon them the jurisdiction to deal with certain specified matters. Certainly, it turns out that they have attained a prominent place in the adjudication of statutory rights and liabilities. The genesis of these tribunals can be traced to Articles 323A and 323B, where the former provides for the establishment of administrative tribunals as the parliament may by law provide, while the latter authorises the establishment of other tribunals falling within the subject matter specified in the second clause. The legislature has, in the exercise of its authority, established numerous tribunals to date for adjudication of several subject matter-specific disputes and correspondingly made convoluted attempts to encroach upon the independent functioning of these tribunals. One such attempt of the legislature will form the subject matter of this post: the recently promulgated “The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021” (“Ordinance”) amending the Finance Act,2017 (“Act”).

The Ordinance among other things has amended Section 184 of the Act dealing with the qualification and appointment of Chairperson and other members of the tribunal. To give a broad overview, the said section is the result of various directions rendered by the Supreme Court (“SC”) in the course of thwarting legislative attempts to retain control over the appointment for tribunals. On an overt reading of the amended section, the legislature seems to follow what has been laid by the SC but the detailed scrutiny indicates to the contrary. Here, I shall delve upon those details to highlight the dichotomy.

Initially, I shall set the background by discussing the major decisions of the court which have culminated in the Ordinance. Against this backdrop, I will argue that the Ordinance does little to solve the already existing issues, and creates scope for the creation of new ones. The Ordinance as a whole shows the need for the SC to revisit its theory of “the casting vote to CJI” as a sole means to ensure judicial dominance. The Ordinance violates several directions of the SC, but I shall restrict myself to the composition of the committee responsible for making appointments to tribunals and its impact on the primacy of the judiciary.

BACKGROUND

Before moving on to the substantive parts of the Ordinance, it is necessary to take a bird’s-eye view of the long-drawn litigation around appointments to these tribunals. The controversy erupted from the case of S.P. Sampath Kumar v. Union of India, where the ‘Administrative Tribunals Act, 1985’ was challenged. The court struck down Sec.6(1)(c) of the impugned Act, which made civil servants eligible for appointment as Chairman in these tribunals. The court saw these tribunals as complete substitutes for the HCs and thus viewed the chairman as akin to a High Court (“HC”) judge and held that such posts must be acquired by a person of proven competence with experience in the legal background, like retired HC judges. The court believed public trust and confidence would be breached if civil servants without any legal experience in fair adjudication would be left to decide the disputes. Another provision conferring exclusive discretion with the government for appointments to tribunals was also held to be unconstitutional for the reason that the government cannot have an unfettered discretion in appointing members to tribunals which are akin to HC. The court recommended alternative approaches to overcome executive control i.e. either to consult the CJI before making an appointment to these tribunals (and no appointment should be made over his/her disagreement unless for cogent reasons), or to form a high powered committee headed by the CJI, or another SC judge, or an HC judge as a nominee of the CJI, to select appointees. 

Thereafter, in L. Chandra Kumar v. Union of India, the appointment of administrative members to tribunals was challenged for their non-expertise in fair adjudication. The court annulled those challenges and noted that blanket removal of such members would strike at the very idea behind the establishment of tribunals, which were envisioned as specialised bodies where trained administrators with grass-root experience will pool in their subject-specific knowledge with the judicial members (“JM”) to reach a fair and reasoned decision. The court, by overruling the view in Sampath Kumar, held these tribunals to be supplemental to the existing HC rather than acting as their substitutes. Moreover, the decisions of the tribunals were held to be reviewable by a division bench of the HC (¶93). The court also believed that a committee headed by the CJI would ensure the recommendation of competent administrative members.

In 2010, part I-C and I-D of the Companies Act,1956 were challenged in the case of Union of India v. R. Gandhi (“R Gandhi”). The impugned parts authorised the transfer of cases from several courts to tribunals arising out of the Companies Act. The SC repelled those challenges and upheld the competence of the legislature to transfer the matters from courts to tribunals and to prescribe the eligibility criteria for appointees. However, such eligibility criteria were held to be alterable by the courts as a part of judicial review to make them comply with the independence of tribunals. The court also altered the composition of the committee responsible for appointments in tribunals due to the absence of members from judicial wing. The government was directed to include two members from the judiciary, consisting of CJI or his nominee, and any other SC or HC judge to be nominated by CJI, apart from two members from the executive wing. In the case of Madras Bar Assn. v. Union of India (“NTT case”), the aforementioned principles were reiterated to quash the formation of the National Tax Tribunal to substitute the HC, without having the salient features of a HC (¶128). 

Then came the recent case of Rojer Mathew v. South Indian Bank (“Rojer Mathew”), wherein the provisions contained under Section 184 of the Act (which has been now amended) and rules framed thereunder were challenged on the ground of excessive delegation and as being contradictory to the previous directions of SC. The SC upheld Sec. 184 but the committee responsible for recommending appointees to these tribunals was overruled since the role of the judiciary in the committee was absent except for virtual representation. The court directed the government to include members from judiciary on the lines of the Gandhi Case. The court by relying upon the fourth judges’ case also observed:

“We are in complete agreement with the analogy elucidated by the Constitution Bench in Fourth Judges case [SC Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1] for compulsory need for exclusion of control of the executive over quasi-judicial bodies of tribunals discharging responsibilities akin to courts.”

This exclusion of executive control as per the fourth judges case is a means to preserve the independence of judiciary (¶921). The primacy of the judiciary in appointment includes two elements i.e. initiation and finalisation of the names to be appointed (¶1071 of fourth judges case). The primacy is rendered to the judiciary because (or so these judgments argue) it is best suited to judge the competence of the appointees in comparison to the government, which is certainly not better qualified or equipped to do so. It is for this reasoning that the government cannot reject the names recommended by judiciary (¶692) for appointments in HC and SC. Applying these principles, the role of judiciary in tribunal appointment should also be as imperative as in judicial appointments, especially when the SC has acquiesced to the principles in fourth judges case. This premise will be used subsequently while dealing with the Ordinance.

ANALYSIS

Vexatious Provisions

Sec. 184 (3) of the Ordinance lays down the composition of the Search-cum-Selection Committee (“Committee”), which will recommend the names to the government for appointments to be made in the Tribunals mentioned in the Eighth Schedule of the Act. This Committee will consist of (i) CJI or any other judge of the SC nominated by CJI, as the Chairperson with a Casting Vote; (ii) two Secretaries, to be nominated by the government; (iii) one other member who will vary depending upon the Tribunal and post concerned. Such a member for the appointment of a new chairperson will be the outgoing chairperson of the Tribunal while in cases of an existing chairperson seeking re-appointment, a retired HC or SC judge is to be nominated by the CJI. Moreover, if the appointments relate to the Industrial Tribunal, Debt Recovery Tribunal or in a case where the chairperson to be appointed is not a retired judge of an HC or SC (usually a technical member) or for any other notified tribunal, the fourth member in the committee will necessarily be a retired HC or SC judge, to be nominated by the CJI. All the aforementioned members of the committee will have voting power. Additionally, the Committee will also have a Secretary from the concerned department or ministry, under which the Tribunal has been constituted, who will act as a convenor, without voting authority. 

Broadly speaking, the Committee will include the CJI or her nominee as the sole representative of the judiciary, while others include outgoing members of the tribunal or the retired judge of SC or HC along with a couple of representatives from the executive wing. While the composition per se may not appear to be troublesome, it becomes so when seen in conjunction with other provisions of the Ordinance. One such provision is Sec.184(8) which grants immunity to appointments from being declared invalid merely due to the absence of a member or a vacancy in the Committee (“vacancy provision”). 

Thus, applying the principles of the Fourth Judges’ case as accepted in Rojer Mathew, primacy must be rendered to the opinion of the judiciary (which includes initiation and finalisation of names). Since the Committee has a sole representative from the judiciary, its role is pervasive and imperative. Any appointment made in defiance to the opinion of such a representative will defy primacy to the opinion of the judiciary, which cannot withstand constitutional scrutiny. It is also essential to point out that the appointees also include technical members, who are usually retired Civil Servants and whose competency can be best judged by the government and not the judiciary. The government can certainly recommend the person to be appointed, however, that advice will have to be approved by the representative of the judiciary before the name can be initiated and mulled in the committee.

However, there can be two situations where the role of CJI/its nominee is at the risk of being undermined due to vacancy provision. The two situations have been discussed below:

Situation IWhen the CJI/its nominee due to some contingency could not attend the committee meeting and a name has been recommended for appointment.

At the outset, it is essential to point out that the subsections do not prescribe a valid quorum for a committee meeting; instead, immunity is granted via vacancy provision to appointments made in the absence of members. However, while the Committee is free to frame its procedure, this power cannot be extended for prescribing a valid quorum for the meeting as the same would stand to nullify the effect of the vacancy provision. In other words, such a rule of procedure, if framed, would be ultra vires the parent legislation and hence invalid.

Thus, a valid quorum in the absence of a rule/provision fixing the quorum will be governed by the case of Ishwar Chandra v. Satyanarain. The SC, in this case, has held that a meeting of a committee will be valid as long as the majority of the members are present in the meeting. This majority has been interpreted to mean the majority of the members possessing voting power, which in the scenario under discussion adds to 3 [i.e. half of total plus one (4/2+1)].

A conjoint reading of the aforementioned paragraphs goes on to show that a meeting can be held to be valid even in the absence of the CJI and the recommendation made in the meeting will remain unaffected due to vacancy provision.  In such a case, consultation with the CJI can be avoided altogether, let alone the aspect of primacy to her opinion.

Situation IIWhen the CJI has attended the meeting but does not agree to a particular proposal while other members do.

It would also not be an unlikely scenario to imagine that the CJI does not agree to a particular proposal for an appointment, while the other three members of the Committee may. In such a case, can the appointment be held to be valid? Unfortunately, based on the Ordinance, the answer is in the affirmative. In such a case, Casting Vote will do no good because it cannot be exercised unless there is a deadlock in the Committee concerning a particular proposal.

The primacy of the judiciary in these appointments cannot be ensured unless a particular proposal receives the concurrence of CJI along with the rest of the members. This is because she/he is the sole representative of the judiciary and best suited to judge the competence of the appointees for their effective and independent discharge of functions. The primacy will be completely vitiated when a name is recommended to the disagreement of CJI and Casting Vote does nothing to make up for such disagreement. 

Escaping the Constitutional Safeguards

The importance of consultation with the CJI (as a representative of the Judiciary) and its opinion can also be understood by drawing an analogy with the appointment process of traditional courts, which are sought to be replaced by Tribunals. The Committee is primarily responsible to recommend names for appointment in the Scheduled Tribunals. These Tribunals can be bifurcated into those which are established to replace the subordinate courts exercising original jurisdiction while others include Appellate Tribunals established to supplement the supervisory jurisdiction of HC. In both of these courts, a duty to consult the judiciary has been provided for before an appointment is made by the Governor or President, as the case may be. In appointment to subordinate courts, consultation has to take place with the HC (Art.233) while in the case of appointment to HC, consultation has to be made with the CJI and CJ of HC (Art.217). It is vital to mention that the advice tendered as a result of such consultation process is binding on the government (¶133 of Fourth Judges case). When the Tribunals sought to replace/supplement the traditional courts and perform their jobs (except which the Constitutional Courts have been specifically authorised to do), safeguards in appointment imbibed in the traditional set-up must also be carried forward to the Tribunals. Therefore, consultation with the judiciary cannot be compromised and the advice so tendered as a result of the consultation will have to be adhered to by the government. If this safeguard is not carried forward, the appointments to the Tribunals will provide an indirect route to the government for interfering in judicial appointments, something that the executive has been barred from doing. 

This, however, cannot be achieved with an Ordinance where a mere Casting Vote has been conferred to the CJI. Additionally, the incorporation of vacancy provision would certainly make non-consultation with the CJI in appointments a possibility, if not a certainty. 

Executive Discretion in Finalisation of Names

Apart from this, the government has also kept to itself the power to take a final call on the appointments to be made. This has been done by employing Sec.184(7), wherein the Committee is required to recommend a panel of two names for the government to choose from within three months. It is pertinent to point out that this section has been brought to overrule the judgement of Madras Bar Assn., wherein a rule of like nature has been quashed by the SC (¶53(iii)). The court had explicitly directed the government to limit the recommendation to a single name while keeping the other person waitlisted, to be recommended if the previously recommended name has not been approved by the Intelligence Bureau. The SC’s direction is also intending to preserve the primacy rendered to the opinion of the judiciary, of which finalisation of the name to be appointed is an integral part. The executive by this has made yet another attempt to impinge upon the task exclusively reserved for the judiciary. Hence, this provision violates the primacy of the judiciary in such appointments and abridges separation of power forming part of the basic structure of the Constitution, which cannot be abridged even in the cases of ordinary legislation

WHAT NEEDS TO BE CORRECTED

As reflected above, therefore, the conferment of Casting Vote alone will not ensure judicial dominance in line with the principles laid down in the Fourth Judges’ case. Rather, a veto must lie with the CJI to overturn the Committee’s decision, to make primacy to the opinion of the judiciary meaningful in such appointments. This veto power will at all times be guarded with judicial review, giving the aggrieved party a remedy for overturning it, when exercised arbitrarily. If this cannot be done, then the court must issue a writ of mandamus and direct the government to replace or supplement the vacancy provision with a proviso that a meeting cannot be valid unless the CJI is present in the meeting and an appointment in the absence and without the concurrence of the CJI shall be null and void. Apart from this, the court is expected to strike down the provision where the government has kept to itself the power to take a final call on the names to be appointed and reiterate its previous direction of limiting the recommendation by the Committee to a single name to exclude executive discretion in such appointments.

CONCLUSION

The court has to appreciate the distinction between the existence of an SC judge and an HC judge as against a retired member of the judiciary. The latter cannot be considered to be a representative of the judiciary, even if nominated by the CJI. The purpose is not merely judicial dominance, but primacy to the opinion of presently serving judiciary to ensure independence and competence of these members and the Tribunals as a whole. With these shortcomings in the present system and continuous reluctance on the part of the government to accept the already laid down directions, the time is ripe for the formation of the National Tribunal Commission (“NTC”) to oversee the administrative requirements and appointments to Tribunals. NTC has been discussed at length in Rojer Mathew(¶343), to liberate Tribunal appointments from executive menace. 

NTC will include- three serving judges of the SC along with two serving HC judges, all of them to be nominated by the CJI. The others include two members to be nominated by the government while two experts will be appointed by the government in consultation with the CJI. NTC is sufficiently safeguarded as against the present set-up because the judiciary will be represented by five serving judges in a nine-membered committee. The CJI will also have a role to play in the appointment of experts, leaving the executive representation to a meagre two in a nine-membered committee. Such a majority of the judicial members will ipso facto ensure effective consultation among judicial members and there will always be a couple of members from the judiciary to make its representation in any valid meeting. The government must distance itself from judicial appointments as their role is limited to serve as a system of checks and balances and not to drive and control the entire process. 

The Ordinance has already been challenged on several other grounds and one can only expect that the Apex court will reassess its Casting Vote theory and examine the impact of vacancy provision in its adjudication, in order to preserve the public trust in the judicial system.

Notes From a Foreign Field: An Instant Classic – The Kenyan High Court’s BBI Judgment

On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Ors vs The Attorney General and Ors. [“the BBI Judgment”]. Through the course of this judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world, in the days to come.

The Context

The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” [“BBI Taskforce”], which was mandated to come up with “recommendations and proposals for building a lasting unity in the country.” After the BBI Taskforce submitted its report, the President appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report.” The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution [“The Constitution of Kenya Amendment Bill, 2020].

Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257(1)). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its component parts – was challenged before the High Court, through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.

The Court framed a total of seventeen issues for disposal.

The Basic Structure

As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the Constitution itself (the “basic structure” question).

The Constitutional Provisions

To understand this better, let us briefly consider Articles 255 – 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the Constitution: through Parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission [“IEBC”], approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).

Article 255 of the Kenyan Constitution places a further requirement for certain kinds of amendments. If an amendment falls into one of ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, Presidential terms etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum, by simple majority (and certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.

The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257); it also divides the Constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 – 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.

The History

To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model … of participatory constitution building process.” (para 402) This meant that the public was meant to be involved with every step of the Constitution-making process, as opposed to the “20th century model”, where Constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version (para 403).

Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from Independence in 1963). The first was a “culture of hyper-amendment” (para 406), where Presidents amended Constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “Constitutions without constitutionalism” (para 407).* This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party State, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.

The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at para 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the President sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” (para 413), efforts to centre the citizen in the Constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya” (para 415), and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process (para 420). The Constitution of Kenya Review Commission [“the CKRC”] implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the Commissioners’ Report (para 425). After a long process that included considering more than 35,000 submissions from the people, a draft Constitution was prepared by 2002. This process was, however, short-circuited when the then-President Moi dissolved Parliament before the 2002 general election (para 427).

In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory Parliamentary process that resulted in a fresh document called “the Wako Draft.” Attempts to force through the Wako Draft were forestalled when the High Court of Kenya, in 2004, famously held that the draft would have to be put to a referendum; in 2005, when the referendum did take place, the Wako Draft was voted down 58-42 (paragraph 433).

Constitutional reform came back onto the table after the large-scale violence in the aftermath of the 2007 Kenyan election, which needed international mediation (paragraph 435). The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft Constitution was passed with 68.55% of Kenyans voting in its favour (paragraph 450).

The Analysis

Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.” (para 469) This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation – in the Constitution-making process – required four distinct steps:

a) Civic education to equip people with sufficient information to meaningfully participate in the constitution-making process;

b) Public participation in which the people – after civic education – give their views about the issues;

c) Debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and

d) Referendum to endorse or ratify the Draft Constitution. (para 469)

The Court thus found:

What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010. (para 470)

The Court labeled this the “primary Constituent power” – i.e., the power possessed by the People themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256) (para 472). The “primary Constituent power” was located outside of the Constitution’s amendment provisions, and was plenary and unlimited; it followed that there were substantive limitations upon the which amendments secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a Constitution – lay only with the primary Constituent power, i.e., with “the People.” (paragraph 474)

Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order, but – for obvious reasons – does not spell that out. The assumption is that if a Constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan Constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-Constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.

It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the Constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis (para 474), while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).

A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the Constitution could not be altered without going back to the People. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.

The Popular Initiative and the BBI Process

A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?

The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. (para 481) Here, the President’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters (para 491). This was also impermissible because the scheme of 257 made the President the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match” (para 492), if he was also allowed to initiate proceedings. Thus, as the Court summed up:

It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests. (para 497)

While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.

In this case, however, it meant that the BBI Process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal (para 553). An executive-led amending process was unknown to the Constitution: it had to be Parliament (Article 256) or People and Parliament (Article 257).**

The Court also found the BBI Process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10 (readers will recall similar arguments being made before the Supreme Court of India in the Central Vista Case), that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages (readers will recall a similar issue about changes to Indian environmental legislation, that were made available only in English). Thus the Court held:

The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments. (para 572)

Constituency Apportionment and Delimitation

A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units.” The Bill sought to introduce seventy new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”) The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission [“IIBRC”] had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89 (para 650).

The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies were not part of the eternity clauses, the provisions dealing with the method of delimitation were:

Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level … Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies. (paras 669 – 670)

Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional (paragraph 681). Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):

We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law. (paragraph 696)

Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.

Miscellanous Issues

There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.

Conclusion

If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.

But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the Constitution. In a world that is too full of Imperial Presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of Courts and Constitutions at their very best.


*Although Indians, with our 103 amendments in seventy years, may be bemused by the twenty-six constitutional amendments between the twenty-seven year period of 1964 – 1991 that the Court singled out as an illustration!).

** This depends, of course, on Parliament being a relevant, independent, and powerful body, which is no longer the case in many formally parliamentary democracies.

Guest Post: Muddied Waters – The Supreme Court’s Decision in Gautam Navlakha’s plea for Statutory Bail

[This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt Blog, with permission.]


The decision of a Division Bench of the Supreme Court in Gautam Navlakha v. National Investigation Agency [Crl. Appeal No. 510 of 2021 (Decided on 12.05.2021) (“Navlakha“)] continues the rich tradition of poorly authored judgments which frequently emerge from the Supreme Court of India and other High Courts on matters of criminal procedure and personal liberty. The judgment is unclear, to say the least, and peppered with needless extracts throughout. The result is a laborious 206 page exercise which judges, lawyers, and law students will struggle with for some time to come (and, curious laypersons would be well-advised to avoid reading it altogether).  

The Facts

The Appellant was arrested in August 2018 and transit remand was granted to the police to take him from Delhi to PS Vishrambaug. But the arrest and remand were challenged in a habeas corpus petition filed on the same day before the Delhi High Court. Since it was unable to decide the petition on the same date, the High Court did not order the Appellant’s release but directed that he be detained under “house arrest” till the petition could be decided. Later, in a separate public interest litigation, the Supreme Court extended this “house arrest” of the Appellant till it could decide that litigation. 

What we have then is a clear chain of events: the Appellant was arrested and remanded to custody by the trial court, and the terms of this custody were modified by the High Court till it decided a habeas corpus petition. The terms of this detention were clearly spelt out: the Appellant was not permitted to leave or interact with persons save his lawyers or doctors; his house was guarded by police, and crucially; he was not available for interrogation either. This detention was then extended by the Supreme Court. Ultimately, on 01.10.2018, the High Court ruled that the remand order was illegal. 

This did not spell the end of the litigation, of course, and as is well known the Appellant was arrested later and taken into custody in April 2020. In June, the Appellant raised a plea of statutory bail (or default bail) before the trial court in Maharashtra. This is a concept critical to criminal procedure and personal liberty in India. Once custodial detention during investigation crosses certain time-periods and the investigation is yet to be concluded, it triggers a right to bail for an accused under Section 167 of the Code. This “statutory bail” under Section 167 is distinct from the liberty that accused persons have to file bail applications and plead for release, because while judges retain vast discretion to grant or refuse ordinary bail applications, there is no such discretion when it comes to statutory bail. 

The Appellant claimed this right to bail because, according to him, the time spent by him in custody had to include the 34 days of custody he suffered in 2018 as well. Both the trial court and the Bombay High Court disagreed because the “house arrest” suffered by the Appellant could not been as custodial detention of the kinds envisioned under Section 167 of the Code. Even if that kind of detention could be seen as the kind of detention contemplated by Section 167, in this case the Delhi High Court had anyway held that the remand order and subsequent custody was illegal and thus stood wiped out. 

In essence, then, these were the two issues presented before the Supreme Court.

The Supreme Court’s Verdict: A Dishonesty of Convenience 

Navlakha holds that the period of custody undergone by an accused during investigation into commission of non-bailable offences must be counted towards computing the total time spent in such custody as under Section 167 of the Criminal Procedure Code 1973, even if a superior court later rules that the accused had been illegally remanded. Furthermore, it holds that confinement in “house arrest” after being apprehended by the police can be a form of custodial detention that is sanctioned in law under Section 167. In doing so, the Court expands the notion of custody beyond the usual dichotomy between “police custody” and “judicial custody”, which was traditionally seen as detention in police lock-up and being sent to jail. This custodial detention at one’s home would, by extension, also be included towards computing time spent in custody by an accused. Not only this, the judgment in Navlakha goes on the offensive and pushes for looking at house arrest more seriously at all stages of the process as an alternative to traditional judicial custody so as to reduce the prison population [Paras 137-140]. 

In the facts of the case before it, though, the Supreme Court was compelled to conclude that this particular house arrest suffered by the Appellant for 34 days could not have been ordered under Section 167 of the Code. As a result, it could not be said that his custodial detention during investigation had crossed the time-limit which entitled his release on bail.

Why does the Court conclude that the house arrest suffered by the Appellant, though certainly a kind of custodial detention, was not of the kind contemplated under Section 167 of the Code? The best chance at understanding this comes from closely reading the judgment from Para 131 onwards where reasons are offered — which are neither compelling nor consistent. It would be unhelpful to go through each of these individually and instead I’ll highlight the underlying point, which is that the terms of this house arrest were such that it would not fit within the framework of Section 167 of the Code. No case diaries were inspected before directed house arrest and, furthermore, there was no possibility of interrogating the accused given the directions of the High Court. Thus, as the judgment puts it at Para 134.

That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.

With due respect, this is bogus. It does not matter what was “apparently in the minds” of judges when they passed certain orders. In fact, because it is impossible to fathom with any degree of certainty what might have been in the mind of an authority when it took a decision, judicial review always implores judges to refrain from engaging in such an inquiry. Instead, judges must locate the decision within the framework of law, and consider whether the exercise of discretion which lay behind the decision was not arbitrary. Thus, once the Court in Navlakha concluded that house arrest is custodial detention within the meaning of Section 167 of the Code, it cannot conveniently revisit this conclusion in the facts of a particular case and locate a specific instance of house arrest outside of Section 167, because of what it thinks was “apparently in the minds” of judges. If the detention was not in terms of Section 167, then it was illegal, but that would not stop the clock for statutory bail under Section 167 as the Court concludes. 

Conclusion

As convenient as it may have seemed, it was still wholly impermissible for the Court to locate the 34 days of custody suffered by the Appellant in a no-man’s land which is both within the law and beyond it. This kind of judicial exceptionalism in the face of hard cases not only unmoors the concept of judicial review from its very foundations, but flips it entirely to permit a pick-and-choose of the worst sort imaginable. 

At this point, one would be forgiven to think this is too harsh a criticism of the judgment in Navlakha. After all, and this is a point that the judgment itself puts forth, even the Appellant and other accused persons did not imagine house arrest as a liberty-depriving measure at the time when the orders were passed. I agree; and if the Court was still unconvinced of its conclusion on this front, it could very well conclude that house arrest was not custodial detention within the framework of law. It could do this while also airing its concerns about prison overcrowding to suggest that perhaps the legislature should start to look at house arrest more seriously as an alternative to existing judicial custody detention. 

But the Court chose to not adopt this restrained course of action, which is why its conclusions are a perfect exercise in adopting what I label a dishonesty of convenience. Or, to put it more plainly, an effort to have its cake and eat it too. 

Guest Post: RTI and Transparency in Electoral Bonds

[This is a guest post by Siddhanth Sharma and Ashwin Vardarajan.]


Background

On 21st December 2020, the Central Information Commission (‘CIC’), a body authorised under the Right to Information Act (‘RTI Act’) to receive and inquire into the complaints of RTI applicants, dismissed an appeal from an application which sought, inter alia, the disclosure of the details of those who made political donations through the Electoral Bonds Scheme (‘EBS’), which was introduced under the Finance Act, 2017 (‘Finance Act’). The CIC held that disclosure of such information would amount to an infringement of Section 8(1)(e) and 8(1)(j) of the RTI Act. Further, they held that there was no ‘larger public interest’ involved and that the applicant was not justified in interfering with the ‘right to privacy’ of the donors, without really explaining how.

Subsequently on 26th March 2021, the Supreme Court of India (‘SC’), refused to stay the sale of electoral bonds that would be issued between April 1 and April 10, 2021, in the backdrop of elections in four Indian states. 

Earlier, donors and donees were mandated to reveal the details of political donations made and received under the Companies Act, 2013 (‘Companies Act’) and Representation of People’s Act, 1951 (‘RP Act’), respectively; however, this mechanism is not available anymore, after the Finance Act amended them. The efficacy of the RTI Act too, in culling out such information, has been compromised through the CIC’s formulaic December order. While the CIC’s and SC’s rulings are based on different legal questions and facts, there is an underlying commonality between them: both establish in definite terms that there is no public interest in revealing details of anonymous political donors under the EBS and that the apprehensions about illicit political funding are totally misconceived.

In this essay, we argue that the disclosure of information on political donations, via the EBS, is possible under the RTI in ‘larger public interest’. We thereafter conclude by briefly reading the effects of the CIC’s and SC’s orders together.  

Disclosure in ‘Larger Public Interest’ under the RTI Act

The right to information is traceable not only to the RTI Act, but also to Article 19(1)(a) of the Constitution, as has been observed by the SC in State of U.P. v. Raj Narain (1975). The RTI Act prescribes a formal process to extract information from the authorities subjected to it. Section 4(a) of the RTI Act states that all public authorities shall “maintain all its records … in a manner and form which facilitates the right to information”, while Section 8 lists down a number of exceptions whereby the information sought may be exempted on narrowly worded grounds. Sections 8(1)(e) and 8(1)(j) exempt disclosure of information held in a fiduciary capacity, and if it is personal information, respectively. However, the Central Public Information Officer (‘CPIO’), or a competent authority under the RTI Act, may disclose the information if a ‘larger public interest’ exists.  

The RTI Act neither defines the expression ‘larger public interest’ nor lays down any parameters to be followed by the deciding authority in interpreting it. However, recently, the SC’s ruling in CPIO v. Subhash Chandra(2019) gave pertinent insights on how such a ‘larger public interest’ is to be determined by an authority under the RTI Act. According to the SC, a larger public interest would be satisfied if the disclosure relates to a matter of public concern (para.71). A matter of public concern includes matters which are integral to free speech and expression and entitle everyone to seek the truth and comment fairly about. The SC, further, had cited Union of India v. Association of Democratic Reforms (2002), wherein judicial directions had been issued for the disclosure of information relating to the personal assets, educational qualifications and criminal antecedents of election candidates, despite the same being personal and confidential information. Such a disclosure, the Court had held, was justified in light of the ‘larger public interest’ of having an informed electorate, fair elections and a dialectal democracy. The SC further noted that a larger public interest would exist if the disclosure would contribute to debates on inefficiency or wrongdoing, and the accountability of officials. Even though such debates may even ‘offend, shock or disturb’, the court/information officer, must not interpret the effect of the disclosure according to their personal value judgment.  (see, paras.99-101).

While Sections 8(1)(e) and 8(1)(j) of the RTI Act guarantee protection of informational privacy of individuals, the SC, in Subhash Chandra, observed that the right to privacy is not absolute and can be infringed, provided that the infringement adheres to the test of proportionality laid down in Puttaswamy v. Union of India (2017). Accordingly, an authority, while dealing with challenges under Sections 8(1)(e) and 8(1)(j) must see the following before disclosing private information in ‘larger public interest’: (Puttaswamy, para.180)

  1. There must be ‘law’ enabling the measure violating someone’s privacy; 
  2. Such violation must be pursuant to a legitimate aim;
  3. The measure adopted under the law must have a reasonable nexus with the legitimate aim; and
  4. The measure must be the least-intrusive of the right to privacy.

After applying these prongs to each and every category of information sought in an application, the deciding authority must cumulatively assess,  and after giving precedence to the right to information, disclose through a cogently reasoned order whether the disclosure is justified (on a case-to-case basis). Keeping this test in mind, we shall see whether disclosure of information of donors and donees under the EBS is justified under the RTI Act.

Anonymity of Electoral Bonds and Public Interest

In a multi-party democracy like ours, political parties perform significant public functions. As non-state actors, they act as pressure groups influencing Governmental policies. They also enjoy tax exemptions and substantial indirect financing through the Government exchequer. Once elected, they hold the power to decide the functions of the Government and its various policies, which directly affect the lives of billions. Thus, public interest operates against political parties too and citizens have a right to know about their activities, including the sources of their campaign funding. This necessity led the CIC to extend the RTI Act to political parties in Anil Bairwal v. Parliament of India (2013). 

In the midst of such demands for greater financial transparency, the Government introduced the EBS in the Parliament, claiming that that it would formalise political donations and maintain the purity of free and fair elections. The EBS allows political parties to purchase bonds in denominations ranging from Rs.1,000 to Rs. 1 Crore, issued by specified branches of the State Bank of India (‘SBI’), available for a period of 10 days at the beginning of every quarter of a year. The EBS is notified by the Central Government under Section 31(3) of the Reserve Bank of India Act, 1934. Any individual or company can purchase such bonds within 15 days of being issued. However, the donor’s identity is kept anonymous and only known to the SBI. The EBS is a popular source of donation amongst political parties. Between March 2018 and October 2020, bonds worth Rs.6492.43 Crore were purchased.

The value of money power in elections is not new. The 255th Law Commission Report has highlighted that political donations enable big donors to secure favourable policies from legislators and also mislead and align public interest with their vested motivations. Democracy becomes a bidding process, where the highest contributor gets to influence the policies affecting billions (pp.7-11). In the midst of it all, hefty campaign donations translate to financial superiority in elections, which enables political solicitation, advertising and publicity and eventually increases the chance of winning elections. Furthermore, the EBS also allows funding from foreign persons and companies, thereby making India’s electoral process prone to external influence. Identifying who funds political parties would ensure an informed electorate. Voters be enabled to conduct thorough fact-check on the antecedents of parties, and elect only those to power whom they believe possess and incorruptible sense of public duty. 

The arguments of anti-disclosure proponents – that the identity of the donors must be kept private – are mistaken. Section 29C of the RP Act and Section 182(3) of the Companies Act had anyways required disclosure of such information in the financial statements of the donee and donor, respectively. Although formalising the process of political funding through the EBS is welcome, there were no arguments presented by the Government as to why the identity of the donors must be protected. However, for the sake of an argument, let us assume that privacy of donors must be protected. By applying the test of proportionality to justify the violation of the donor’s right to privacy, we see that the object sought to be achieved (i.e., electoral transparency, in line with the preceding paragraph) finds a rational nexus with the legitimate action (i.e., revealing the donor’s identity) through a valid law (i.e., the RTI Act) in the least intrusive way (merely revealing the identity of the donors, which happened earlier too). Since the proportionality test squarely applicable, and since public interest evidently outweighs the right of privacy of the donors, it would be justified to disclose the identity of the donors in ‘larger public interest’ under Sections 8(1)(e) and 8(1)(j) of the RTI Act. The CIC’s order, unfortunately, did not discuss any of the points enumerated above, and thus was evidently deficient in its reasoning.

Conclusion

We now briefly discuss the SC’s refusal to stay the EBS. The SC, in its order, had an (inutile) conversation on how persons seeking information on funds received by political parties under the EBS can cull out the information through the financial statements of the corporate-donors and party-donees. Thus, they felt that the existing scheme was sufficiently transparent, and it was not as though the transactions were behind “iron curtains”, “incapable of being pierced”. However, the SC did not consider the amendments to Section 29C(b) of the RP Act, and Section 182(3) of the Companies Act vide the Finance Act, whereby corporate-donors and political parties are not obligated to disclose such information to either the registrar of companies or the Election Commission, respectively. Ironically, the SC also noted that the only grounds for disclosing of the donors’ identity is when it is “demanded by a competent court or upon registration of a criminal case by any law enforcement agency” (para.18). Thus, they assumed that the filing of annual incomes by donor-companies and other financial statements by political parties would enable a person to cull out information on party funding through a ‘match the following’ without even considering the opaque changes introduced the Finance Act. 

Such loose reasonings manifesting in a formal SC Order, tagged alongside the CIC’s ruling, leaves very little, or no room for someone to know the identity of those who donate considerable sums of money to political parties, perhaps even in return for political favours. That is sincerely against the right to information guaranteed to all citizens, and imperils the electoral process in India of becoming a corporate-run show. The CIC’s order is a dangerous precedent, and the position of law must be obverted in the interest of a truly transparent, fair and free electoral process.