Notes From a Foreign Field: The Botswana Court of Appeal’s Judgment Decriminalising Same-Sex Relations [Guest Post]

[This is a guest post by Karan Gupta.]


Earlier this week, a full Bench of the Botswana Court of Appeals (CoA) in Attorney General v Letsweletse Motshidiemang partly upheld the High Court’s (HC) judgment (analysed here) which decriminalised same-sex relations. Commending the ‘erudite’ and ‘searching’ judgment of the HC, the judgment inducts Botswana into a group of countries such as India (here), and Angola (here) which have recently struck down similar provisions criminalising same-sex relations and away from the judgments recently issued by the High Courts of Kenya (here and here) and Singapore (here). In so doing, the CoA affirmed the equal moral membership under the Botswana Constitution of individuals who identify with same-sex relations. The judgment is commendable for its careful navigation of the arguments raised, which I explore, in seriatim.

Setting the context

The case concerned criminal provisions germane across former British colonies. The impugned provisions of the Penal Code 1964 [Sections 164(a); 164(c)] criminalised relations ‘against the order of nature’ which had been judicially interpreted to outlaw same-sex anal intercourse. Both sides presented now familiar arguments in cases concerning the decriminalisation of same-sex relations. The appellant (Botswana Government) argued that the provisions were not enforced, were gender-neutral (and was hence not discriminatory), prohibited only certain sexual acts limited to anal intercourse and did not cause or perpetuate prejudice, stigma and oppression. The Respondents (and the Amicus  – Legabibo) urged that though the provisions were gender neutral, the effect was discriminatory in singling out same-sex relations for criminalisation, they violated the fundamental rights to liberty, dignity, privacy and equality before the law, did not constitute permissible restrictions of these fundamental rights, and amounted to discrimination on the basis of sex.

Section 3 of the Botswana Constitution guarantees to every person in the Country (whatever their ‘sex’), the fundamental right to life, liberty, security and privacy of their home and property. Section 7 guarantees that no individual shall be subjected to torture or to inhuman or degrading punishment or other treatment. Section 15 stipulates the fundamental right against discrimination on enumerated grounds (including ‘sex’). Though arguments were urged before the High Court of Section 7, the CoA restricted itself to the other fundamental rights on the basis that no finding was returned by the High Court on the provision, nor was any appeal filed on this ground (paragraphs 8, 10)

At the arguments before the CoA, the appellant restricted its arguments to three principal grounds (35, 110): First, that the High Court ignored stare decisis in that it was bound by the 2003 CoA decision in Kanane, where a constitutional challenge to the same provisions was squarely rejected (22, 37); Second, a change in law is essentially a policy matter within the exclusive domain of the democratically elected legislation. Any adjudication amounts to impermissible judicial law-making (10, 74); and Third, the High Court erred in failing to apply Section 15(9) – a ‘saving’ constitutional provision which preserved and protected from discrimination-scrutiny statutory provisions which existed at the time the Constitution came into force (35, 36, 91). Consequently, the CoA dedicates a significant part of its judgment addressing these arguments.

Kanane and the tides of change

In Kanane, the CoA rejected a constitutional challenge based on Section 3 and 15 of the Constitution to the impugned provisions. The High Court distinguished the CoA decision in Kanane on the ground that the judgment delivered in 2003 had explicitly noted that Botswana was not then ready for the decriminalisation of same-sex relations. The CoA, on a careful reading of its earlier decision, agrees with the High Court (57). As such, the constitutional findings in Kanane were not categorical, but conditional i.e., the CoA in Kanane, though supportive of the ‘rights of the gay community’ (64), had expressly stated that “the time had not yet arrived” to strike down the provision “at this stage”. Thus, there was no need to distinguish a case, which had left open a window for future evidence to be lead which may point to a different conclusion (55-58). As for the evidence, the CoA reproduces and notes that judicial opinions and public opinion (including statements by Heads of State) since 2003 reflected a ‘progressive change’ (62) which indicated that the ‘tide has turned’ (65). Given the ‘adequate evidence of the change of attitude’, ‘sex’ in Sections 3 and 15(3) was held to include ‘sexual orientation’ as well as gender identity. Consequently, the CoA holds that the HC’s judgment under appeal reflected a logical progression (71) and did not contravene the principles of stare decisis.

The holding of the CoA on this count is broadly in line with the constitutional interpretive technique in Botswana committed to living-tree constitutionalism. Broadly speaking, this asserts that constitutions do not reflect stable and fixed pre-commitments and legitimate constitutional interpretation involves development and change in constitutional law through interpretation by judges, in a manner keeping it abreast of changes in society, politics, culture and legal systems. The CoA had earlier affirmed in Attorney General v Dow (1992) that the Constitution is not a “lifeless museum piece” but a living constitution which should “meet the just demands and aspirations of an ever-developing society”. Similarly, the High Court below had held that the “living and dynamic charter of progressive human rights, serving the past, the here and now, as well as the unborn constitutional subjects.” (HC, 76).

Interestingly however, whilst the doctrine is often employed to interpret constitutional provisions in their application to circumstances unforeseen/unimaginable to the drafters (for instance, privacy in an emerging digital age), the CoA employs it to interpret the substance of constitutional rights on the basis of changing public opinion. Such approach beckons obvious caution – public opinion, is by its very nature, in a state of flux and influenced by majoritarian tendencies. Constitutional principles cannot be subject to the vicissitudes of public opinion. The CoA, in then recognising that public opinion cannot on its own be grounds for striking down provisions (66), finds support for its conclusion in the ‘proper independent evidence’ which to it demonstrates the effect of such provisions – the perpetuation of stigma and exclusion, which undermines the constitutionally guaranteed rights to liberty, privacy, dignity and the equal protection of law (67). To distinguish its earlier holding in Kanane, the CoA is pushed to build on the window left open by it. Despite this, it carefully reiterates common-place principles of constitutionalism – that it is rights-violation and not public opinion which invites judicial review.

Separation of Powers and democracy deficit

Perhaps the most interesting observations are in CoA’s rejection of the Government’s argument that the separation of powers reserves to the legislature exclusive power in matters of policy. It is the sole prerogative of a democratically elected legislature, it was argued, to amend or repeal the impugned provisions.  The CoA decisively rejects this and holds that policy matters, though within the domain of the legislature, are tested against the anvil of constitutional provisions and principles (86, 90). Where fundamental rights are breached, it is the role and responsibility of courts to ‘tweak’ the meaning of legislation to bring it in line with the Constitution (81, 83). So far as constitutional principles go, this is now fairly well-settled. It is the observations thereafter that are significant in inviting attention to political processes and judicial review.

The CoA effectively observes that that political process by which legislation is enacted is often tainted by the will of the majority and may not be suited for the protection of minorities (82). It observes:

“82…the views and concerns of individuals, or of minority or marginalised groups will carry as little weight as their voting power dictates”

“88. It is most unlikely that the popular majority as represented by its elected members of Parliament, will have any inclination to legislate for the interests of vulnerable individuals or minorities, so the framers, in their wisdom, allocated the task and duty to the judiciary.”

These observations are significant. In recognising that legislative reform may take two distinct paths (one through the democratic mandate of the elected parliament, and second, through judicial review of legislation by courts in a bid to protect minority rights (89)), the CoA squarely positions itself to give effect to the constitutional guarantee of equality by addressing and remedying majoritarian democratic deficit in legislative and political processes. Where elected legislatures may represent majoritarian desires, the political process is ill-suited for the protection of certain identities and minorities. To argue then that the protection of identities and minorities is a policy matter within the domain of the elected legislature alone, is to subject such protection to purely majoritarian impulses and insulate it from principles of equality enshrined in the Constitution.

Recall here a similar observation in the infamous ‘fn 4’ in United States v Caroline Products by the Supreme Court of the United States. Justice Stone noted that a more ‘searching judicial enquiry’ (which was later interpreted to mean strict scrutiny)may be required where prejudice against minorities curtail the operation of the very political process relied upon for their protection. In such cases, it is futile to assert that the judiciary has no role whatsoever. In making the above observations, the CoA sets up a normative defense of judicial review of legislation which arises from a specific role attributed to it – a role informed by the equality guarantee in the constitution. In rejecting the Government’s contention, the CoA affirms that constitutional values prevail over majoritarian politics.

Section 15(9) and the ghost of a colonial past

The Government argued that the Penal Code 1964 was promulgated prior to the coming into force of the 1966 Constitution. Section 15(9), a saving clause, insulated from challenge these laws against discrimination claims arising from Section 15. The CoA recognises that these statutes are ‘legislation for the people, not by the people (93), and noted that this form was common to former British Colonies.

The CoA notes that whilst the Botswana judiciary has frowned upon blanket insulation of these laws from constitutional scrutiny, two reasons peculiar to the impugned provisions are grounds to reject the arguments – first, prior to rape laws being made gender-neutral to include men as potential victims/survivors, the impugned provisions protected men and boys from the act (101). Thus, the ‘public interest’ role earlier served by the impugned provisions was subsumed by virtue of the amendments to the rape law. What remained then was ‘ancient biblical condemnations’; second, the saving clause protected laws vis-à-vis the discrimination scrutiny at a time when neither sex nor sexual orientation were its part. (103). Given their inclusion, the impugned provisions are not protected by Section 15(9). The CoA rightly notes that where legal provisions derogates from fundamental rights, the saving clause must be accorded a restricted and narrow interpretation (103, 108). Consequently, Section 15(9) could not be read to protect from scrutiny the impugned provisions.

Privacy beyond a closet (spatial sense)

As the arguments urged orally were restricted to three grounds, the CoA briefly marks its agreement with the High Court’s reasoning on liberty, privacy and dignity vis-à-vis Sections 3 and 15 (110). Here however, the judgment is worthy of commendation for another reason. Despite its short approval of the observation by the HC, it rightly sets an expansive idea of privacy by noting that the ‘full scope and reach’ of the constitutionally guaranteed right is not restricted to a spatial sense, but extends to personal choices (112). What this means is that the right to privacy is not limited to the private confines of the bedroom, but more broadly to decisional autonomy.

This is crucial because as I have argued before, provisions such as those impugned do not criminalise specific acts, but a set of identities.  Many times, the HC errs in reducing the right to privacy to a spatial sense in its constitutional scrutiny of the impugned provisions (HC, 3, 126, 127, 189, 214, 215, 223. “Should private places and bedrooms be manned by sheriffs to police what is happening therein”). This is because the HC also reduces sexual orientation from an identity to merely a sexual act (HC, 144, 151, 164, 169, 206. “…only mode of sexual expression is anal penetration”). Though the CoA falls to a similar reduction occasionally (7, 15, 54), the brief observations on privacy towards the end rightly set the ground for a more expansive jurisprudence which could argue that the public assertion of identities by those who identify with same sex relations are just as crucial to ensuring the equal moral membership of these individuals. Recall here that the move from acts to identities and from private (spatial) to private (decisional autonomy) animated the entire judgment of Justice DY Chandrachud in Navtej. Though the CoA sometimes falls to the trap of brief in these observations, the observations of CoA are bound to progressively inform and influence the development of jurisprudence in Botswana.

Conclusion

In carefully navigating the arguments urged by the Government as well as its previous decision in Kanane, the CoA explicitly recognises the stigma, prejudice, vulnerability and exclusion faced by same-sex relation individuals by relying on expert evidence filed by the Amicus as well as studies authored by the Botswana government itself (15-17). It calls to attention the fear of arrest and the exclusion from access to public health facilities. Crucially, it notes that such sitgmatisation persists ‘at all levels of society’ which will continue even after the striking down of the impugned provisions (16). In so doing, the CoA signals that ensuring the equal moral membership of these individuals is not restricted to circumscribing state action alone, but must be informed by a broader cultural permeation of constitutional rights in the horizontal and inter-personal relations between individuals. The recognition of this aspect rightly brings to attention that judicial intervention is but a first step towards ensuring equality, not conceptualised merely as the absence of legal barriers but as creating an environment sans social barriers as well in which these identifies can foster, thrive, and be afforded the guarantees enshrined in the Constitution. In political theory that is oft-dominated by the jurisprudence of western courts and authors, the judgment of the CoA promises to ring loud. The judgment is worthy of commendation.

Guest Post: Judicial Review of Legislative Process – Analyzing Calcutta High Court’s Decision in Ambika Roy

[This is a guest post by Anmol Jain.]


On 28 September 2021, the Calcutta High Court delivered a significant order in a plea filed by Ambika Roy, a sitting MLA of the West Bengal Legislative Assembly elected on BJP’s ticket, against the appointment of Mukul Roy as the chairperson of the Public Accounts Committee (PAC). The primary ground of challenge was that once Mukul Roy defected from BJP to TMC, the Speaker could not have chosen him to chair PAC given the long tradition of choosing a legislator from the opposition parties for the position. While the Court did not finally rule on the validity of Roy’s selection as the chairperson as his disqualification petition for defection is still pending before the Speaker, it made certain observations on the ambit of judicial review of legislative actions, which form the basis for this short opinion piece.

Judicial Review of Legislative Process

Articles 122 and 212 of the Constitution define the ambit of judicial review of legislative processes in India. Article 122(1) states that ‘the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ A similar prohibition is set for judicial review of proceedings of state legislative assemblies under Article 212 of the Constitution. The Supreme Court has interpreted these provisions as limiting judicial review only in cases of procedural irregularity and not when substantive illegality is found. For instance, in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors, a Constitution Bench of the Court noted that

“On a plain reading. Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. … The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the broad principle laid down in Bardlaugh acknowledging exclusive cognizance of the legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution.”

While the Supreme Court delineated substantive illegality from procedural irregularity, the understanding of ‘substantive illegality’ remained unclear. In later decisions, the Court tried to define the phrase by connecting it to the violation of any constitutional mandate. For instance, in his dissenting opinion in the K.S. Puttaswamy (II) judgment, Justice Chandrachud observed that a legislative process would be amenable to judicial review ‘if it suffers from illegality or from a violation of constitutional provisions’. The Constitution Bench in Roger Mathew followed the same definition and noted that Article 122 does not prohibit judicial review when a challenge is made on the ground of illegality or unconstitutionality under the constitutional scheme.

The Calcutta High Court adopted and extended the this approach in Ambika Roy v. Hon’ble Speaker, West Bengal Legislative Assembly and Ors. to conclude that judicial review under Article 212/122 would even include violation of constitutional conventions. The Court noted, particularly by referring to the comments made by the Speaker on the floor of the House, that a rich tradition and convention is being followed for at least the last 54 years to appoint a legislator form the opposition party as the chairperson of PAC. Further, as the Speaker found himself bound by such a tradition, it elevated the tradition to the status of a constitutional convention, the violation of which would be amenable to judicial review under Article 212.

While such a formulation of Article 122/212 expands the scope of judicial review of legislative processes, it still keeps ‘substantive illegality’ linked to the violation of a constitutional norm. There is no clarity on whether the courts would also include a violation of parliamentary rules as a ground for allowing judicial review, a scenario which has occurred on multiple instances in the near past, for instance, when the Deputy Chairperson of Rajya Sabha did not allow division of votes in clear violation of the ‘Rules of Procedure and Conduct of Business in the Council of States’.

In this backdrop. I argue that the Indian judiciary ought to adopt the comparative political process theory as advocated by Prof. Stephen Gardbaum and allow judicial review in all those scenarios that constitute as ‘political process failure’. In his paper titled ‘Comparative Political Process Theory’, Gardbaum refines and builds on the work of John Hart Ely on judicial review as a tool for the protection of representative democracy by broadening the types of political process malfunctions that a representative constitutional democracy might face on account of autocratic governance. As against Ely’s two-pronged understanding of political process failures – (1) where the incumbent government attempts to entrench itself to avoid political change in power; and (2) where the majority suppresses and systematically disadvantages the minority, Gardbaum includes ‘all the processes by and through which public power is allocated, exercised and held to account’ as part of his comparative political process theory. Based on this understanding, he develops a normative theory of judicial review and the specific manner in which the courts could secure the structures and processes of representative democracy which gives central importance to the deliberative model of law-making.

One of the political process failures that Gardbaum discusses is the failure of the legislature to hold executive accountable (a fundamental constitutional principle, an offshoot of the separation of powers). Applying this theory to the scenario in Ambika Roy, it could be argued that appointment of a legislator who holds allegiance to the majority party as the chairperson of the PAC could impact legislative ability to hold the executive accountable, and thus warranting judicial review. It would then make irrelevant the inquiry of whether the tradition has taken the shape of a constitutional convention. The mere fact of it being an important parliamentary rule or tradition integral to the legislature’s ability to hold executive accountable would support judicial review in case of its violation.

There are two benefits of adopting the comparative political process theory. First, adopting this approach would delink ‘substantive illegality’ from the violation of a constitutional norm and allow courts to quash any legislative action, including the passing of a law, in cases of violation of core parliamentary rules and tradition designed to achieve this manner of accountability. For instance, it would make it possible to quash any law only on the ground that the political majority did not extend legislative due process to the opposition parties and fast-paced the bill without any meaningful deliberation.

Second, adopting this approach would also equip judges with a definite tool to determine whether a particular violation calls for judicial review or not. Under the present framework, and as evident from the chain of cases pertaining to the possibility of judicial review of Speaker’s certification of a bill as a Money Bill, the determination that a particular violation is an irregularity or an instance of substantive illegality is a highly discretionary process. The comparative political process theory could guide the exercise of such discretion and may bring certainty in decision-making.

Concluding Remarks

Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive. To quote a few instances from the recent past, the Speaker in Shivraj Singh Chouhan adjourned the house to avoid floor test; the Speaker of the Lok Sabha has virtually stopped referring bills to departmentally-related standing committees and wrongly certified many bills as Money Bills; and the Deputy Chairperson of Rajya Sabha denied division of votes despite legislators specific demand. Instead of being a neutral player envisaged to ensure legislative due process to all political parties, the Chair thus is being reduced to just another partisan office. While expecting any reforms from the legislature might not be reasonable in the present political scenario, the judiciary could definitely play important role in regulating the wide powers of the Chair. It is, therefore, important that courts approach such cases of abuse not as independent inquiries, but as a part of the larger scheme towards ensuring independence of the Chair.

Guest Post: The Supreme Court’s judgment granting suo motu powers to the NGT

[This is a guest post by Swapnil Tripathi.]


Earlier last month, the Hon’ble Supreme Court of India in Municipal Corporation of Greater Mumbai v. Ankita Singh & Ors., C.A. 12122 of 2018, examined the question whether the National Green Tribunal (‘NGT’) has the power to exercise suo motu  jurisdiction while exercising its functions under the National Green Tribunal Act, 2010 (‘Act’).

They two key arguments against the proposition were, (a) the Act is applicable to disputes and necessarily refers to a lis between two parties, which is necessitated by an applicant/claimant; and (b) lack of the power of judicial review by the NGT shows that it is not the same as writ Courts. The Court ultimately held that the NGT should have suo motu powers primarily because of its special role and also because the Parliament intended to vest it with such powers.

The Court reached this conclusion by adopting a purposive interpretation. In this post, I shall argue that the Court’s conclusion is incorrect. I shall critique the judgment on two grounds i.e., (a) the Court erroneously applied a purposive construction rather than the golden rule of interpretation; and (b) even a purposive construction of the Act would show that the Parliament did not intend for the NGT to have suo motu powers.

Erroneous Application of a Purposive Construction

The principle of purposive construction means that while ascertaining the meaning of a provision, the Court should adopt an interpretation which serves the purpose behind the provision. However, it is trite law that a purposive interpretation only comes into play when the literal rule or golden rule leads to absurdity or defeats the purpose of the provision. (Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619 at par. 33).

A perusal of Section 14 or 18 of the Act (both deal with the jurisdiction of the Tribunal and who may approach it), makes it crystal clear that an application is a must before the Tribunal can exercise its jurisdiction.

For instance, Section 14 (3) reads, ‘No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose…’  

Reaching a conclusion that an application is only one of the methods of exercising its jurisdiction (suo motu being the other) would be absurd. The Section discusses the jurisdiction of the Tribunal and  mentions the limitation for the application so made, which shows that an application is a must. Further, if one is to assume that the Parliament was desirous of clothing NGT with suo motu powers and Section 14(3) is not exhaustive of the modes of invoking those powers, then these suo motu powers will be without any limitation whatsoever. Such an interpretation is again absurd and allows the Tribunal untrammelled powers akin to a Constitutional Court, which could not have been the intention of the Parliament.

Similarly, Section 18 which specifically deals with who may approach the Tribunal nowhere mentions the existence of suo motu powers. The provision is worded extremely expansively and has rules of standing akin to Public Interest Litigation petitions (‘PIL’). This exclusion by the Parliament is a clear indication that NGT lacks suo motu powers.  The Court reaches an opposite conclusion and argues that omission of clear words ‘that an application is necessary to trigger the NGT into action’ shows that it can be triggered suo motu. I believe this is an incorrect interpretation because by adopting this approach one can clothe a Tribunal with massive powers, only because the Parliament did not use specific words excluding a power.

In fact, Section 18(1) also mentions that every application is to be accompanied with certain particulars, which logically means that an application is a must in the first place. 

Arguendo: Parliament did not intend for suo motu powers-

Despite the golden rule hinting against suo motu powers, I am cognisant that the Court’s approach on golden v. purposive construction has been inconsistent. For instance, in S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370 the Court had observed,

36. The conflict between giving a literal interpretation or a purposive interpretation to a statute or a provision in a statute is perennial. It can be settled only if the draftsman gives a long-winded explanation in drafting the law but this would result in an awkward draft that might well turn out to be unintelligible. The interpreter has, therefore, to consider not only the text of the law but the context in which the law was enacted and the social context in which the law should be interpreted.’

This conflict was evident in the recent decision of Abhiram Singh v. CD Commachen, wherein the majority (writing through Lokur J.,) adopted a purposive construction whereas the minority led by Chandrachud J., adopted the golden rule. Chandrachud J., had observed (rightly in my opinion) “The legislature has carefully drafted Section 123(3) to reach out to a particular corrupt practice, which is even more evident when the ambit of Section 123(3A) is contrasted with Section 123(3). One cannot be read into the other nor can the text of Section 123(3) be widened on the basis of a purposive interpretation. To widen Section 123(3) would be to do violence to its provisions and to re-write the text.”

In the present judgment, the Court adopts an approach in favour of a purposive construction. Although it concedes that there is adequate clarity in the phraseology of Section 14 (see paragraph 15.1), it ends up looking at the intention of the Act and its provisions. In my opinion, even if we look at the intention of the Parliament we shall reach the same conclusion i.e., against suo motu powers.

First, the Court misinterprets the history and purpose behind NGT’s creation. It cites the 186th Law Commission Report (‘Law Commission Report’) and the Statement of Objects and Reason of the Act, to argue that the Parliament intended to vest suo motu powers in the NGT.  This conclusion is based primarily on the ground that NGT was supposed to be a forum that can competently deal with complex issues of environment and also reduce the burden of the Supreme Court and High Court and hence, should have similar powers.

In fact, at paragraph 17.1 the Court observes, “As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution.”

And at 22.4 it observes, “Many of these cases transferred to NGT, emanated in the superior courts and it would be appropriate thus to ‘assume’ similar powers to initiate suo moto proceedings should also be available with the NGT’”.

Both these conclusions are incorrect. The Statement of Objects and Reasons of the Law Commission Report clearly states that the reason behind creating the NGT was two-fold i.e., (a) to reduce the pressure and burden on the Constitutional Courts and (b) to create a Tribunal equipped with experts, which can better deal with complex environmental law issues (these are reflected in the Statement of Objects and Reasons of the Act as well). The Report envisaged this body to have the same powers as a Civil Court and not Constitutional Courts. In fact, the Report cautions against giving the Tribunal powers of judicial review exercised by Constitutional Courts and writes in favour of powers of a Civil Court (page 165). These observations clearly indicate that the NGT was not to have the same powers as Constitutional Courts on environmental matters.

The Court erroneously reads paragraph 4 of Statement of Objects and Reasons of the Act to argue for a broad  mandate for the NGT. The paragraph discusses the narrow mandate of the National Environment Tribunal (NGT’s predecessor) in the context of its limited relief as the NET could only provide relief against damages arising out of accidents occurring while handling hazardous substances. The NGT’s mandate was definitely broader than the National Environment Tribunal but that was only in context of the reliefs it could grant and subject matter of cases it could entertain.  

In fact, the Report is silent on suo motu powers and only mentions that the jurisdiction of the NGT should be akin to the PIL jurisdiction of the Constitutional Courts. While discussing the need for regional Benches for the NGT, the Report observes ‘The alternative suggestion for having a single appellate Court at Delhi over the statutory authorities has not appealed to us inasmuch as practically no person or groups of persons residing in any local area who are aggrieved by orders of these authorities will be able to come all the way to Delhi to raise their grievances.’

The stress on the need for accessibility of litigants who approach the Tribunal, shows that the Law Commission and Parliament never envisaged/intended the removal of standing altogether. In other words, they never envisaged suo motu powers for the Tribunal.

Concluding Remarks:

The Court cites various other provisions and tries reading them expansively to clothe NGT with suo motu powers. This is made evident on paragraph 16.4 wherein the Court observes, ‘By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities.’

The term ‘ends of justice’ finds a mention in several procedural and substantive statutes namely Code of Criminal Procedure and Code of Civil Procedure but that does not mean that Civil Courts and Criminal Courts are vested with suo motu powers akin to Constitutional Courts. In my humble opinion, this over expansive interpretation by the Court seems to be a case of the Court clothing the NGT with suo motu powers rather than the Parliament intending to do so.

Entrenching the Basics: The Supreme Court’s UAPA Judgment

Today, the Supreme Court handed down an important judgment reading down Sections 38 and 39 of the Unlawful Activities Prevention Act [“UAPA”]. Thwaha Faisal v Union of India was an appeal from the judgment of the Kerala High Court, delivered on 4th January 2021. In that judgment, the High Court had canceled the bail granted to Thwaha Faisal by the NIA Court, and directed him to return to jail. I had pointed out at the time that the High Court’s judgment was deeply flawed. On appeal, however, a two-judge bench of the Supreme Court, in a judgment authored by Oka J, set aside the High Court’s judgment, and restored Thwaha Faisal’s bail (and also dismissed the Prosecution’s appeal against the medical bail granted to his co-accused).

To recapitulate: the accused had been booked under the UAPA for alleged association with the banned CPI (Maoist). The evidence against them consisted of: (a) possession of certain books, (b) the making of “cloth banners”, and (c) attendance at various meetings. There was no allegation they had themselves committed any violent acts, or had provided material support to any terrorist organisation. However, the High Court had seized upon the allegations to hold that the accused were “protagonists” of the CPI (Maoist), had close links with people who, in turn, had close links with the CPI (Maoist), and that the literature in their possession had the “seeds of promoting secessionist ideology.” As had been pointed out at the time, this was in flagrant contradiction of well-established Supreme Court jurisprudence that limited membership of unlawful organisations under the UAPA to “active membership”, i.e., to actual incitement to violence.

The Court begins its analysis with a close textual reading of Sections 38 and 39 of the UAPA. The two-judge bench notes that the requirement of “association” – the gravamen of the offence – includes an intention to further the activities of the terrorist organisation in question. This is true for both Sections 38 (that defines the concept of membership in terms of association) and 39 (that provides examples of association, such as the organising of meetings). Thus, without material that demonstrates that the actions of the accused were committed with the intention of furthering the activities of the organisation, a prima facie case under the UAPA would not be made out. Significantly, the bench of Oka and Rastogi JJ hold:

Even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation. (paragraph 13)

Applying this to the facts of the case, the bench of Oka and Rastogi JJ note that on the basis of the evidence in the police chargesheet, taken at the highest, “it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation.” (paragraph 32). The chargesheet basically showed that the accused were in possession of various written materials related to the CPI (Maoists), were a part of protests or meetings allegedly organised in connivance with the CPI (Maoist), and had made various banners/posters. Assuming all this was true, the bench holds, it must nonetheless be shown that this “association” or “support” was given with the intention of furthering the activities of the organisation:

In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation. An allegation is made that they were found in the company of the accused no.3 on 30th November, 2019. That itself may not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention on their part which is an ingredient of Sections 38 and 39 of the 1967 Act. (paragraph 35)

These observations are extremely important. Oka J here notes that in order for Sections 38 and 39 to be attracted even prima facie, the chargesheet must demonstrate some overt act from which it is reasonable to infer that the accused intended to further terrorist acts or activities of the proscribed organisation. In other words, vague allegations of conspiracy, based on the general behaviour of the accused, or of the materials that might have been recovered from them, is not enough: it is for the chargesheet to establish the prima facie existence of the requisite intention, from specific overt acts. If that is not done, then merely showing that the accused were “associated” in some way with the organisation in question is not sufficient: that association must be active (readers will not here the striking similarity with the distinction between active/passive membership that was developed by the Supreme Court in Arup Bhuyan, but which is unfortunately honoured more in the breach).

The Supreme Court’s interpretive approach to the UAPA is akin to the recent judgments of the Delhi and Bombay High Courts (analysed here and here). This approach can be summed up as follows: given the stringent provisions of the UAPA, and the near-impossibility of getting bail, if individual liberty is not to be entirely subsumed by the imperatives of anti-terror law, then Courts must follow two principles.

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction. This was what the Delhi High Court did with respect to the meaning of “terrorism” in Asif Iqbal Tanha, what the Bombay High Court did with respect to Section 20 of the UAPA in Iqbal Ahmed Kabir Ahmed, and what the Supreme Court has now done in Thwaha Faisal.

Principle 2: The allegations in the chargesheet 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. This, again, is exhibited excellently in the analysis in the Thwaha Faisal judgment.

While it may be early days yet, these three judgments – by three different Courts – might reveal a flicker of hope: that there might finally be glimpses of a light at the end of the abyss that the Supreme Court plunged us into with its Watali judgment, and that at long last, the UAPA pendulum might be beginning to swing the other way.

Guest Post: The Legality of Aadhaar Seeding for Social Security Purposes

[This is a guest post by Yajat Kumar.]


A Circular (“The June Circular”) issued by the Employees Provident Fund Organisation (“EPFO”) dated 1st June, 2021 mandated the seeding of Aadhaar with the Universal Account Number (“UAN”) which is generated under The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“The EPF Act”). Whenever contributions, under the EPF Act are made in respect of the employees an Electronic Challan-Cum-Receipt (“ECR”) is generated which serves as a proof of deposit of the Provident Fund in their accounts. If the said ECR is not generated, then the employers have to suffer the consequences of non-deposit of dues in the form of damages. So, the onus, directly or indirectly, is upon the employer to make sure their employees’ UAN is seeded with Aadhaar and to further file the ECR for the UAN. The June Circular was issued in pursuance to a notification by the EPFO dated 30th April, 2021 which put into force section 142 of the Code on Social Security,2020 (“The Code”). While the four Labour Codes are unlikely to be implemented before the next fiscal year, the reasons cited by the EPFO in implementing the section in an isolated manner were “to collect Aadhaar details for the database of beneficiaries under various social security schemes” and the “creation of social security fund for providing comprehensive social security to the unorganized sector.”

The June Circular, however, read along with section 142 of the Code, in using the term “mandatory” for seeding Aadhaar with UAN seems to go contra tothe judgement of K.S. Puttaswamy (Retd) & Anr. v. Union of India & Ors (“Aadhaar 5J”). To this end, I shall be probing the following two questions in this piece- 1) Whether Section 142 can be implemented independent of the Code, and can it inter alia form the basis of seeding of the UAN with Aadhaar? And, 2) Whether the June Circular issued by the EPFO (read along with section 142) is constitutionally valid with respect to the Aadhaar 5J judgement?.

Maintainability of Independent Application of Section 142 of CoSS, 2020

Section 142 of the Code reads as follows-

“142. (1) An employee or unorganised worker or any other person, as the case may be, for— (a) registration as member or beneficiary; or

(b) seeking benefit whether in kind, cash or medical sickness benefit or pension, gratuity or maternity benefit or any other benefit or for withdrawal of fund; or

(c) availing services of career centre; or

(d) receiving any payment or medical attendance as Insured Person himself or for his dependants,

 under this Code or rules, regulations or schemes made or framed thereunder, shall establish his identity or, as the case may be, the identity of his family members or dependants through Aadhaar number and for such purpose the expression “Aadhaar” shall have the meaning as defined in clause (a) of section 2 of the Aadhaar (The Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016:

Provided that any foreigner employee shall obtain and submit Aadhaar number for establishing his identity, as soon as possible, on becoming resident within the meaning of clause (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

(2) For the purposes of sub-section (1), the Aadhaar number issued to an individual shall be in accordance with the provisions of section 3 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.”

At the very outset, a plain reading of the proviso (d) of the subsection 1 of the section, “under this Code or rules, regulations or schemes made or framed thereunder” makes it clear that the section seeks to make Aadhaar imperative to establish the identity of the concerned member and the identity of his/her family members or dependents. This is only possible, under the proviso’s pursuance, once the Code is made applicable on the whole. Also, on applying the Literal Rule of Interpretation, it is pretty much self-explanatory that the term “Under this Code” envisages the provisions of the section to operate only when the Code has been implemented and not independent of it since the section’s very existence depends upon the applicability of the Code.

Secondly, a Gazette notification dated 3rd May, 2021 enumerates that the section has been made effective in pursuance to the provisions under sub-section 3 of section 1 of the Code read along with section 14 of The General Clauses Act, 1897 (“The GCA”). Section 1(3) of the Code provides for bringing into effect different provisions of the Code on different dates while being facilitated, with respect to Section 142, by section 14 of The GCA which, in turn, provides that if a power is conferred by a Central act or regulation, then that power can be exercised from time to time, unless there is a different intention on the part of the legislature. While this provision does seem to offer a plausible explanation for the above lacuna, but the Supreme Court (SC) in the case of Sri Nasiruddin vs State Transport Appellate Tribunal has held that section 14 of The GCA cannot have any application if a different intention, other than the one currently assumed, appears in any other part of the statute. Here, as discussed above, clause (d) of sub-section one envisages the seeding of Aadhaar to be done “under the code or rules, regulations or schemes made or framed thereunder” and not as an excluded provision which would, inextricably, have an application without other interlinked provisions such as section 113 of the Code (in this section, the term “Aadhaar” for the purpose of registration of unorganized, gig or platform workers is derived from section 142 only). This, clearly, does not appear to be the intention of the legislature.

Further, on a simple reading of Section 142, no responsibility is fixed upon the employer to seed the Aadhaar with UAN but rather upon the employees/ beneficiaries for taking benefits under the provisions of the Code, and not under the provisions of the EPF Act. Ergo, while issuing the June Circular, the EPFO has completely misread Section 142 of the Code.

If section 142 is allowed to be constructed vis-à-vis the convoluted language of the aforementioned circular, it would absolutely deflect the purpose of the code. This discrepancy not only makes this section obsolete, but also in contravention to the very objective of “extending social security to all employees and workers either in the organised or unorganised sector”.  Cues, in this case regard, can be taking from the writings of Maxwell who has talked in length about the consonance between the object and the law- “When a law is non-sequitur to its intent, it is liable to be struck down” (Maxwell on Interpretation of Statutes, 11th Edn, p. 221). One can also find a similar obiter in A. Ram Mohan vs State of Madras, “When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself”(para 22). Hence, if the section has to be implemented it can only come into force with the Code (much less the rules) and cannot exist in vacuum.

Checking the conduciveness of Mandatory Seeding against the tests laid down under the Aadhar 5J judgement

As argued above, the interim enforcement of section 142 sans the Code would not be maintainable in the court of law, but even if- for argument’s sake the above legal caisson is set aside, there still exists the bigger question of constitutionality of the section (read along with the June Circular) under the Aadhaar 5J judgement. Now, I will look into the validity of mandatory Aadhar seeding with respect to Employees Provident Fund and Pension Scheme. Even though the same UAN number would be used to access both of the aforementioned schemes, but it is necessary to look at both of them through a differential perspective in accordance with the tests laid down under The Aadhaar 5J Judgement.

First Point of Contention

The contours surrounding the applicability of linking of Aadhaar with EPF has seen a sea-change over the years. Initially, in K.S Puttaswamy & Anr. v. UOI & Ors, (2015), The SC had observed that “The Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other.” In pursuance of this, major modifications were made by the court in Aadhaar 5J. It observed-

“No doubt, the government cannot take umbrage under the aforesaid provision to enlarge the scope of subsidies, services and benefits. ‘Benefits’ should be such which are in the nature of welfare schemes for which resources are to be drawn from the Consolidated Fund of India

We also make it clear that a benefit which is earned by an individual (for example, pension by a government employee) cannot be covered under Section 7 of the Act, as it is the right of the individual to receive such benefit” (paras 321-322)

Now, Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“The Aadhaar Act”) provides that individuals should produce their Aadhaar card or Aadhaar enrollment number for the purpose of accessing social services, subsidies, benefits etc., the funds of which are drawn from the Consolidated Fund of India. Here, the court examined and clarified the ambit of the term ‘benefits’, along with ‘services’ under section 7 of the Aadhaar Act. It observed that the term ‘Service’ which, ordinarily includes provisions and facilities provided to an individual, should not be constructed in such a manner that a person is denied a benefit on non- production of the Aadhaar which he/she is otherwise entitled to (see para 322). So, ‘Benefits’ should include any, or all social welfare schemes whose funds are extracted from the Consolidated Fund of India (this being read ejusdem generis with ‘subsidies’).

Section 6 of The EPF Act says that the contributions payable by the employee is 12 per cent of basic wages (which is inclusive of dearness and retaining allowances). An equal contribution is remitted by the employer as well. It is essential to note that the expenditure paid thereof is not, in any way, taken from the Consolidated Fund of India or any other governmental purse and is a benefit which is rightfully earned by the employer himself. Likewise, the benefits provided under sub-clauses 1(b) and 1(c) of Section 142 such as pension, gratuity, maternity leave; and any payment or medical attendance for an insured individual or his dependents- are also not covered under the expenses withdrawn/retrieved under The Consolidated Fund.  Hence, the June Circular read with section 142 of the Code for these purposes has flouted the court’s guideline concerning the implementation of the Aadhar Scheme and is squarely violative of not only the principles of natural justice, but also of articles 14, 19(1)(g), 21 and 300A of the Indian Constitution.

It is also pertinent to note that under The Atmanirbhar Bharat Rojgar Yojana (“ABRY”), the Central Government will pay the PF share of employer and employees who lost their jobs due to Covid-19 and were called back to small scale jobs in the formal sector (registered under EPFO) till 2022. While this is a commendable step, it will again, seamlessly require mandatory Aadhaar-UAN linkage. Reference here can be taken under the case of Binoy Viswam vs Union of India and Ors, where the court had to deal with a similar issue of mandatory seeding of Aadhaar with PAN number under section 139AA of the Income Tax Act,1961 for filing income tax returns. While holding up the validity of the same, it observed that since all income tax assesses constitute one class only so they are to be treated alike. The ratio of this case, however, will not be applicable here because the fact remains that a separate nexus cannot be created by the government only for some individuals under a ‘temporary’ scheme while excluding others not eligible under the aforesaid. There cannot be any differential treatment solely on the basis of extending ‘benefits’ to a class of people who will be seeding Aadhaar with their UAN solely because they are a part of a scheme which is due to tentatively expire next year. Article 14 of Indian Constitution forbids class legislation, but does not prohibit reasonable classification for the purpose of legislation. Government cannot create ‘a class-within-a class’ under the garb of denying benefits to the deserving working class. Hence, the government cannot impose Aadhaar on the beneficiaries of ABRY under the ‘consolidated fund’ argument.

Second Point of Contention

The pension which an employee receives under The Employee’s Pension Scheme, 1995 is mostly made up of contributions by the employer and the employee, but some portion (1.16 percent) is also remitted by the central government. While the amount is surely derived from the Consolidated Fund of India and falls in consonance with this line of reasoning (as contained in the judgement), Aadhaar 5J also talks about a much bigger purpose of “plugging the leakages and ensure that fruits of welfare schemes reach the targeted population, for whom such schemes are actually meant” and also highlights that the “Government seems to be sincere in its efforts to ensure that no such exclusion takes place and in those cases where an individual who is rightfully entitled to benefits under the scheme is not denied such a benefit merely because of failure of authentication.”(see para 318)

This was opined because, after all, such laws are social security measures- made primarily for the benefit of workmen. With that said, a huge chunk of workers in our country do not even have an Aadhaar Card because of which many employers are being pressured to not employ them – and this does not even consider the number of migrant workers who are unable to arrange proper documents for the purpose of seeding, or the mismatch between the Aadhaar data and UAN data of the employees which leads to mechanical rejection by the  Unique Identification Authority of India’s(“UIDAI”) software (which does not even generate OTP most of the time!). This may deprive the employees from availing benefits under schemes such as ARBY and insurance linked-aid under Employees’ Deposit-Linked Insurance Scheme, 1976 (EDLI).

Consequently, when the EPF contributions of such members are deposited late, the employer will be penalized for late payment of contribution, and interest and damages will be levied.  Since EPF contribution is not paid in time for such members, employer cannot get necessary tax benefit because of late payment. Imposing arbitrary deadlines and the stringency on part of the EPFO to not create any other means of depositing the dues except the UIDAI portal is, only for the sake of contributing a minute token-sized percentage (1.16%) of contribution in the pension fund, is unwarranted (especially when there not fault on part of both- the employer and the employee). It is therefore, in pursuance to the spirit of Aadhaar 5J, it is imperative on the part of the EPFO to create alternate arrangements for vitiating the hardships faced by the vulnerable workforce during these trying times.

Conclusion

The Delhi High Court(HC) in the case of Association of Industries and Institutions v Union of India has granted extension with regard to the employees whose seeding exercise is yet to begin till 30th November, 2021 and has directed that no coercive action is to be taken against the employees with respect to employment and benefits under ABRY and against the employers with respect to sections 14B(damages) and 7Q(interest) under The EPF Act. The Delhi HC is yet to decide the validity of the June circular against the Aadhar 5J judgement. Whatever be the final judgement of the court, it is surely set to alter the contours of UIDAI verification and social security jurisprudence of India.

Imprisonment by Quotation: On the Sharjeel Imam Bail Order

The law on speech, violence, and the link between the two is well settled in India. In Shreya Singhal v Union of India, the Supreme Court made it clear that, consistent with Article 19(1)(a) of the Constitution, the correct standard for criminalising speech was that of incitement to violence. Not advocacy; not violent thoughts; but incitement. The judgment in the Shreya Singhal case articulated an evolving latent standard in Indian free speech law, that had been expressed in various forms since the Ram Manohar Lohia judgment in 1960: the requirement of close proximity between a speech and an unlawful act, summed up through phrases such as a “spark in a powder keg” (Rangarajan).

While it may appear tedious to recount uncontroversial Supreme Court jurisprudence – and indeed, it is tedious for the person doing the recounting – the exercise is made necessary by the fact that from time to time, courts seem either unaware of precedent, or seem to believe that following precedent is an optional exercise. A good example of this is today’s astonishing order of the Additional Sessions Judge at Saket, denying bail to Sharjeel Imam in the Delhi riots case. In brief: Sharjeel Imam gave various speeches on 13th December, 2019 and 15th December 2019. On the afternoon of 15th December, it is alleged that there was mob violence and stone pelting in an attempt to march to the Parliament. The prosecution’s case was that Imam had instigated the mob with his speech.

In the disclosure statement – extracted in paragraph 3 of the judgment – Imam’s speech can be roughly translated and summarised as follows: first, that he opposed the CAA and the NRC; secondly, that he called upon his community to oppose these laws and make the government bow; thirdly, that he called for “chakka jam” (blockades); and fourthly, he warned that if the CAA-NRC were not opposed, they would all land up in detention camps and have their citizenship stripped. In paragraph 5, the Court sums up the Prosecution’s case as follows:

As per prosecution, applicant/accused Sharjeel Imam had delivered provocative speeches on 13.12.2019, 15.12.2019 and 16.01.2020, which resulted into riots at several places. The speech dated 13.12.2019 is the subject matter of present FIR i.e.
242/19, PS New Friends Colony. It is alleged that in the said speech, applicant/accused was seen instigating a particular religious community against the government by creating unfounded fears in their minds regarding CAB and NRC. As per prosecution, speeches delivered by the applicant/accused were seditious, communal/divisive in nature and were aimed at promoting enmity between different religions.

It is important to note that on the Prosecution’s own case, neither a prima facie case under Section 124A (sedition), nor 153A is made out: “instigating … against the government” is not equivalent to “inciting … to violence”, and arguing that a particular law targets a particular community is not a S. 153A offence: as has been held multiple times, for 153A to be apply, the specific communities have to be singled out in express terms, between whom enmity is being generated. Thus, this is not – evidently – a case of hate speech (and indeed, as we shall see, the Court does not make any further mention of S. 153A).

Now in that context, in paragraph 10, the Court notes:

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioteers got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc), is scanty and sketchy. Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/coaccused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019. Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz whatsapp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC. The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case.

One would think that at this point, an order granting bail would follow immediately: not only are the multiple cited sections of the IPC not made out, but the failure to establish even a prima facie causal link between Imam’s speech and the riots – let alone a causal link strong enough to meet Shreya Singhal‘s incitement standard – makes the sedition case a non-starter. However, in paragraph 15, the Court then says:

Thus in view of settled position of law, the issue whether the said speech would fall within ambit of section 124A IPC or not, requires a deeper analysis at an appropriate stage. However, suffice it would be to observe that a cursory and plain reading of the speech dated 13.12.2019 reveals that same is clearly on communal/divisive lines. In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society.

In other words, the Court entirely ignores the legal test for the application of Section 124A – the incitement test – and replaces it with an entirely subjective assessment of the speech – that is on “communal/divisive lines” and would “tend to have a debilitating effect upon public tranquility.” But these are a whole lot of words that can mean just about anything: what is on “communal lines” or “tends to” have a “debilitating effect” on public tranquility is not a judicial standard that can be assessed on any reasonably measurable scale: it is, to use a phrase in vogue these days, “just vibes”. But imprisoning people for years on end (at the time of writing, Imam has already been in jail for a year and a half) on the basis of just vibes seems to have become a feature of the Indian judicial system of late.

It is telling that the Court sees fit to begin its order by quoting certain lines from Swami Vivekananda: “We are what our thoughts have made us; so take care about what you think; Words are secondary; Thoughts live; they travel far.” This is an excellent – if unwitting – insight into the mind of the Court: the problem is not that Imam incited a riot (he very evidently didn’t) or broke the law, it’s just that – put very simply – the Court doesn’t like the kind of stuff he seems to be thinking. And on that basis – and in complete disregard of existing bail jurisprudence – the Court decides that he must stay in jail for the foreseeable future.

The Court’s order here is eerily reminiscent of “imprisonment by metaphor: that is, of the Patiala House District and Sessions Judge order from last year, which denied bail to Safoora Zargar. There again, a perusal of the Prosecution’s material had revealed no definable offence, and no link between speech, protest, and violence. To keep Zargar in jail, the Court was forced to resort to metaphor, talking about how if you “play with embers” you can’t blame the wind for “spreading the fire”. And this is the whole issue: if, as a Court, you are going to take the extremely weighty step of keeping people in jail for years pending trial, the least you can do is to provide specific reasons showing what the particular, identifiable, unlawful act is: not metaphor, not quotes from Swami Vivekananda about bad thoughts.

The problem seems to be, however, that Courts do not regard keeping people in jail for years as a weighty issue – or indeed, an issue of any concern whatsoever. Individual liberty is degraded currency at the Court, and for that reason all we get are orders sanctioning imprisonment by metaphor or imprisonment by Swami Vivekananda quotes.

The Retrospective Application of Constitutional Statutes: Notes from the High Court of Kenya

Previously on this blog, we have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the State is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the State’s positive obligation to do so.”

What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.

Today’s judgment of the High Court of Kenya – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the program subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:

The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued roll-out of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the State argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.

The High Court’s analysis begins at pg 28. Engaging in impeccable constitutional statute analysis, Ngaah J noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” (pg 31) Article 31 of the 2010 Constitution of Kenya guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Ngaah J then rightly observed that:

“… the need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.” (pg 33)

It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the State was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme; or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the State could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:

… there was always the duty on the part of the State to ensure that the Bill of Rights … is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents … have hitherto had to bear. (pg 34)

On this basis, Ngaah J therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the roll-out itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*

The judgment in Katiba Institute does not, of course, answer the number of questions that were still left to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the Court in this instance; on the other hand, the Court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.

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* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.

Guest Post: A Critique of the Uttar Pradesh Population Control Bill

[This is a guest post by Samira Mathias and Shivani Vij.]


In an effort to control population growth, the Indian state of Uttar Pradesh has introduced the draft Population (Control, Stabilization & Welfare) Bill 2021, in an undoubtedly rushed manner. The poorly drafted bill, marred by numerous provisions which are violative of fundamental rights, is eerily reminiscent of the 1976 sterilization programme initiated by the then Congress government. Though the Bill does not mandate sterilizations, it incentivizes them with monetary benefits, and further corrodes reproductive autonomy by disincentivizing departures from the prescribed two-child norm through automatic ineligibility for government benefits. Pertinently, the Bill targets and has a disproportionate impact on the poor (to be discussed below).

By hastily resorting to harsher and unscientific methods of population control, the state is pre-determining a course of action for all people, instead of treating them as rational agents capable of making their own choices. Such a policy also amounts to an abdication of the state’s positive duties in facilitating the full enjoyment of human rights.

(i)  Violation of Reproductive Choice & Consent

The Bill purportedly aims to address population explosion by incentivizing compliance with the two-child norm, and disincentivizing departures. These disincentives include inter alia, denial of access to government welfare schemes and subsidies (Sec 12), limiting ration cards to up to four (units) (Sec 8(j)), ineligibility to contest elections (Sec 9), and bars on applying for government jobs (Sec 10) or promotions in government services (Sec 11). It further provides rewards for undergoing voluntary sterilization after two children, in the form of monetary assistance towards construction of houses, rebate for utilities, additional maternity and paternity benefits etc. (Sec 6) Moreover, specifically for individuals living Below the Poverty Line (BPL), having one child and undergoing voluntary sterilization draws promises of monetary benefits (Sec 7). 

The introduction of this system of incentives and disincentives obfuscates true choice, by exploiting the economic vulnerabilities and career aspirations of people. A more holistic assessment of consent needs to be conducted in light of the theory of adaptive preferences (Martha Nussbaum). The theory posits that in environments of deprivation or limited choices, individuals unconsciously change their preferences to reflect what they think is feasible. Thus, these individuals are not rendering free consent, but are merely expressing internalized inequalities of access to resources. The Bill exploits these inequalities in socio-economic status, disproportionately targeting families engaged in governmental service or living below the poverty line (BPL). The series of disincentives prescribed for violations of the norm, especially the ineligibility to avail of rations, and the disqualifications from appointments and promotions in government posts may prompt women to undergo abortions in order to avoid what are in effect penalties for having a third child. Fears of inadvertently violating the norm could motivate both men and women to undergo sterilizing or contraceptive procedures that are incompatible with their health or beliefs. The Bill also promises Rs 80,000 to a BPL family if they have a single male child and then undergo sterilization, or 1,00,000 for doing the same after the birth of a girl. These figures are more than twice the annual income fixed for a BPL family in Uttar Pradesh to receive rations.   Thus, under the guise of ‘voluntary’ sterilizations, the Bill through its economic penalties, in effect leaves no choice to families struggling to make ends meet or dependent on government supports to survive. This is a dangerous and insidious erosion of bodily autonomy, raising a serious constitutional challenge to Article 21 rights.

Sexual and reproductive autonomy are recognized as quintessential facets of privacy and thus the fundamental right to life guaranteed under Article 21 of the Constitution (KS Puttaswamy v. Union of India). Not only does the Bill restrict reproductive autonomy, but it does so in the most invasive way possible. While the State is empowered to impose limitations on privacy, it must do so in compliance with the four-part test laid down by the Supreme Court. Thus, the policy should pursue a legitimate aim, there should be a rational nexus between the restriction and the aim, it should be the least restrictive measure and, should strike a balance between the competing interests.

No evidence has been provided by the State for the need for the more restrictive measures of sterilization and a two-child norm, or even proof of their effectiveness in comparison to less restrictive measures such as providing for family planning methods, in order to achieve the aim of ‘population control’. Indeed, the Bill concedes to the existence of such less restrictive measures in Chapter V through an affirmation of the state’s duties to educate, encourage and support families with family planning.   The state should be focusing entirely on its positive role in promoting reproductive choices in line with the autonomy of persons, instead of eroding this autonomy by dictating choices for people.

Moreover, the Bill creates a peculiar impact on personal laws which permit polygamous marriages. Section 19 of the Bill provides for each woman in a polygamous marriage to have two children but allows the man in the marriage to have only two children in total across all his spousal relationships (Sec 19). If the husband violates his two-child quota, he will be subjected to the disbenefits prescribed for violators, but his wives and children will not be so penalized if each of them are compliant with the norm (Sec 18). Yet this simultaneously exists as a potential source of marital discord and indirectly restricts the reproductive rights of women in polygamous marriages Furthermore, there is potential for great confusion in the application of these sections. For instance, section 5 of the Bill promises benefits to single children on the basis of the status of the couple’s compliance with the norms (Sec 5). Yet, the provisions on polygamous marriages ascribe different statuses to both persons in the couple.

(ii) Attack on the right to livelihood & other constitutional rights

Another disproportionate impact is found on the rights to health and food of the poor, who depend on daily rations to survive. By providing for only four units of ration cards to seek compliance with its two-child norm (Sec 8(j)), the State violates these socio-economic rights which the Apex Court of India in Bandhua Mukti Morcha v. Union of India and PUCL v. Union of India settled as falling under the Directive Principles of State Policy and Art 21 rights of individuals. The National Food Security Act 2013, the statute enabling the provision of ration cards to the poor, was legislated with this very focus on ensuring a life with dignity by securing the right to food and basic necessities. Denying access to rations thus breaches Constitutional guarantees. By causing a disparate impact on the well-being of an economically struggling section of the population, the Bill denies the equal protection guarantee under Article 14 of the Constitution.

Worryingly, children’s rights to equality under Article 14 are also implicated. Single children are promised free education, healthcare, and insurance, as well as scholarships and preferences in admissions to higher educational institutions and jobs (Sec 5). This irrationally penalizes children for having siblings and represents an abdication of the state’s responsibility to look after the rights and well-being of all children.

Section 8(k) of the Bill further confers on the government the following power to enforce “Other disincentives as may be prescribed”. This is overly broad language, vesting the government with sweeping powers to revoke or disqualify persons from welfare schemes if they breach the two-child norm. There are no safeguards for how these disincentives can be determined and prescribed, and no provisions mandating that there be a rational nexus between the disincentive and procreation beyond the norm.

Indeed, a rational nexus is already absent within the prescribed disincentives. Persons who have more than two children after the Act comes into effect are barred from contesting government jobs and local body elections (Secs 9 & 10). The number of children a person has is in no way a reflection of their capacity and competence to fulfil these roles. Penalizing them for having more than two children automatically denigrates their family choices.

The Bill further mandates that existing local body electives and government employees undertake to have no more children (Sec 9(2) & 10(2)). There is no reason why the continuance of a government job should be contingent on the size of a family. The proposed law is effectively economically coercing couples into sterilizations and abortions.

(iii) Attacks on the integrity and dignity of persons: a means to an end

Individual dignity has been recognized as attainable only where liberty is seen as inhering in each individual, and equality as subsisting between all persons (para 189, Dr. D.Y. Chandrachud J., Indian Young Lawyers Association and Ors. v State of Kerala and Ors.). The state’s attempts to instrumentalize women’s reproductive capacities by fixing a cap on the number of children they can have, simultaneously reduces their human right to a state tool, while degrading women and children to ‘means’ to policy ends.

Further, instead of seeking to change regressive attitudes towards children on the basis of gender, the Bill monetizes them – offering couples living below the poverty line one lakh rupees if they have single child who is a girl, and eighty thousand rupees if the child is a boy (Sec 7).

The Bill also encourages a commodifying attitude towards children, through its approach to disabilities. Disabled children are not counted for the purposes of determining whether couples have breached the two-child norm (Sec 15). The Bill also enjoins the government to provide for reversing sterilizations, in cases where a child subsequently becomes permanently disabled (Sec 23(m)). These provisions place the worth of all children on their abilities and treat disabled children like inferior persons that do not discharge a quota. These are deeply disturbing attitudes that should not receive such implicit encouragement from the state.

Finally, the Bill’s choice of language where a ‘two child norm’ is defined as the ‘ideal size’ of a family implicitly belittles the choices of couples departing from such a norm. The Bill in effect promotes a homogenization of family structures, attacking the right of couples to make deeply personal choices about their family life.

(iv) Social context

The Bill has a disproportionate impact on the constitutional rights and dignity of women by ignoring the social context of childbirth in India and the fact that women may not have any real choice in family planning. Notable academician Professor Sandra Fredman (in her book Comparative Human Rights) has argued that any legislation affecting the reproductive autonomy of women must take into account the social and cultural dimensions around it. This is so because decisions regarding child-bearing and child-rearing are influenced by numerous social factors besides the choice of an individual, such as childcare leave, adequacy of personal resources etc. One such factor in India, is the pressure exerted on a woman to continue to have children until a male child is born. The desire for a male child has been and continues to be one of the primary causes of female infanticide and/ or feticide in many states of the country. In addition to this, marital rape, which is still not a punishable offence in India, also severely constrains choices of women and is one of the reasons for unplanned pregnancies. Amidst these peculiar social and cultural factors that surround childbirth, imposing a two-child norm and prescribing disincentives would mean that a man who forces his wife to have more children penalizes himself as well as his wife under the new law. Thus, the Bill, once implemented, would restrict the fundamental rights of women because they had more than the prescribed number of children – a decision which was never entirely within their control. The restrictions on their bodily autonomy, reproductive choice and life under Article 21 would thus be curtailed disproportionately to the legitimate aim of population control. The proposed law must therefore be viewed through the special lens of impacts on the constitutional rights of women in particular.

To steer clear of constitutional issues, the State must endeavour to restrict the right to reproductive autonomy with the least restrictive means. This can be done by empowering citizens to make responsible choices about family sizes by providing resources for better education and access to family planning for all households. This would enable informed choices about childbirth and promote attitudes where children are valued in and of themselves. The State should also align the initiatives on prevention of female infanticide and feticide with its policy on population control and address childbirth in the context of marital rape, which is not an offence under the Indian Penal Code. It is only when the focus shifts from coerced sterilizations and compliance with a strict two-child norm to the exercise of informed choice, that the State will be able to implement a sustainable policy of matching population numbers with resources within the ambit of permissible restrictions to fundamental rights.

Conclusion

In sum, the UP Draft Population Bill is profoundly problematic. It is constitutionally objectionable in the ways that it erodes privacy and reproductive autonomy, treats socio-economic rights like policy tools, and confers overly broad powers on the government. It is also incompatible with other existing laws, and disproportionately impacts already vulnerable sections of society, while constructing a system of incentives and disincentives devoid of rational links to policy goals.

 The Bill is invasive and denigrating of the choices of people, treating people as means to ends, and perpetuating regressive and damaging attitudes to women, children and the disabled. The state should be focusing on its positive duties, looking on the citizenry as partners in constructing a sustainable future. Sustainability, after all, depends on long-sighted, rational and cohesive solutions. A fragmented approach such as this fails to zero in on long term solutions – educating the people, equipping them to make responsible choices, promoting better attitudes towards the family and the human person, empowering the vulnerable, and advocating for comprehensive solutions to resource utilization that involve scientifically backed, environmentally sustainable choices as to use of resources. It is the need of the hour to take this ‘leap of reason’ from (forced) compliance with a restrictive policy to informed choice that will not only respect constitutional and moral rights, but be more sustainable for the future.

The Information Technology Rules and the Bombay High Court’s Stay Order

The Bombay High Court’s order of 14th August 2021, which stayed the application of Rule 9 of the Information Technology Rules 2021, repays careful study. The Leaflet legal news portal and the journalist Nikhil Wagle had filed challenges to the Rules as a whole, and by way of interim relief, had pleaded for a stay on Rules 7, 9, 14, and 16. While the Court declined to grant a stay on Rules 7, 12, and 14, it did agree to stay Rule 9, which requires online publishers to mandatorily comply with a “Code of Ethics” (as set out), or face prosecution. The “Code of Ethics”, in turn, is contained in an appendix to the Rules, and includes compliance with the Press Council of India norms as well as the Programme Code under the Cable Television Networks (Regulation) Act.

As a perusal of the Gazette Notification reveals, the 2021 Rules are purported to be passed under the authority of Sections 87(2)(z) and (zg) of the IT Act 2000. Section 87 of that Act delegates rule-making power to the government, and 87(2)(z) specifically authorises the making of rules for the blocking of online content, while 87(2)(zg) does so for regulating intermediary liability. The Division Bench of Datta CJ and Kulkarni J held that Rule 9 was prima facie ultra vires Sections 87(2)(z) and (zg) of the IT Act, as, first, it envisaged penalties and consequences under entirely different statutory regimes (the Press Council Act and the Cable Television Networks Regulation Act) (paragraph 25); secondly, that the Information Technology Act – as a whole – did not intend to censor online content (except with respect to blocking under S. 69A) (paragraph 26); thirdly, Press Council norms under the PCI Act were themselves clearly stated to be limited to moral imperatives, and not legal ones. Under Rule 14(5) of the IT Rules, however, breach of the Code of Ethics (which included the PCI Norms, as pointed out above) could result in serious sanction, such as removal or deletion of content (paragraph 27); that if the Programme Code from the Cable Television Network Regulation Act was applied to publishers and curators of online content, it would lead to unconstitutional results, such as precluding them from criticising public figures (paragraph 28); and that consequently, the operation of Rule 9 would lead to a chilling effect upon online publishers, with the risk of being hauled up for punishment “should the inter-departmental committee be not in favour of criticism of any public figure.” (paragraph 29) Thus:

As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now. People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well-recognized Constitutional ethos and principles. (paragraph 30)

Thus, on the combined basis of ultra vires and a violation of Article 19(1)(a), the High Court held that the case for a stay had been made out (paragraph 32).

There are two brief comments that I want to make on this well-reasoned stay order. The first is that whether or not the learned Justices so intended, the reasoning in the stay order applies directly to the Cable Television Network Regulation Act and its Programme Code as well. It would be illogical to hold that the provisions of the Programme Code have a chilling effect on the freedom of speech when applied to publishers or online content, but do not when applied to television channels. This is especially true as the original – albeit flawed – distinction in the K.A. Abbas judgment between written content and audio-visual content, with the latter being held to a stricter threshold, obviously does not hold when you are comparing audio-visual content with online content. Datta CJ and Kulkarni J were entirely right to note that the provisions of the Programme Code, as applied in the context of the IT Rules, are prima facie unconstitutional, and for exactly the same reasons, it is submitted that they are unconstitutional per se (note that violations of the Programme Code are also – like in the case of the IT Rules – adjudicated in the first instance by a government committee). Thus, perhaps the time for a court to squarely examine them is at hand!

The second point is that the Court declined to grant a stay on Rule 16 of the IT Rules, which provide for blocking. Inter alia the Court observed that this provision was in line with S. 69A(1) of the IT Act, which authorised the blocking of online content where it was “necessary or expedient” to do so in the interests of any of the eight sub-clauses set out under Article 19(2) of the Constitution. Admittedly, the constitutionality of S. 69A had been upheld in the Shreya Singhal judgment, and consequently, there was not much the High Court could have done here even if had been so inclined. This only reveals – yet again – however, how unsatisfactory the Shreya Singhal judgment is on S. 69A. To start with, recall that the word “expediency” too broad and vague as a justification, while also falling outside of the proportionality standard, for the restriction of fundamental rights. Indeed, there is something ironic about a statute that allows for constitutional rights to be restricted when “expedient”; one might wonder what is left of the content of a right when it can be curtailed whenever the government feels it expedient. Furthermore, and bracketing this for the moment, it is submitted that Shreya Singhal erred in upholding a copy-paste job from Article 19(2) of the Constitution to the S. 69A. The point of Article 19(2) is to provide a set of standards that allow courts to judicially review speech-restricting laws. The point of Article 19(2) is not to provide a template for legislation that essentially takes the form: “the government may restrict rights when it is constitutionally correct to do so.” Under any standard, this would amount to impermissibly excessive delegation on part of Parliament to the Executive – because it is Parliament’s task to prescribe, with specificity, the circumstances under which the Executive is authorised to restrict rights, and to what extent.

As pointed out above, this is not intended to be a criticism of the Bombay High Court order, as the Court was, of course, bound by Shreya Singhal. It is interesting to note, however, that the stay order reveals that the challenge to the IT Rules 2021 is yielding both a new set of issues around online free speech for courts to consider, as well as demonstrating old pathologies anew. It will thus be important to track the further progress of this case through the judicial hierarchy.

Staying with the Basics: The Bombay High Court on Bail under the UAPA

On 13th August 2021, a two-judge bench of the Bombay High Court (speaking through Shinde and Jamadar JJ) granted bail to one Iqbal Ahmed Kabir Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act (UAPA), and several other laws. What is significant about this judgment is that it is one of the relatively rare instances of an appellate Court granting bail on merits to an accused in a UAPA case, notwithstanding Section 43(D)(5) of that legislation, and what has been said by the Supreme Court in its infamous Watali judgment. I would suggest that – much like the judgment of the Delhi High Court in Asif Iqbal Tanha – delivered a month before – the judgment of Shinde and Jamadar JJ shows how it remains possible for courts to continue developing a jurisprudence of liberty even within the interstices of S. 43(D)(5) and Watali, should they choose to do so.

As the Court records, there were two main allegations against the accused: that he was part of a criminal conspiracy involving members of the (banned) ISIS terrorist group, and that he had procured material in order to build an explosives device. The Prosecution marshalled evidence to support these claims, including the recovery of an “oath form” pledging allegiance to Abu Bakr al-Bagdadi, an electric switchboard to which the IED device was allegedly soldered, and statements by witnesses about how the accused had taken part in discussions about various atrocities being inflicted upon Islam, and the need to take vengeance for said atrocities. The Prosecution argued that this – taken prima facie, as required by S. 43(D)(5) – was sufficient to establish the commission of offences under the UAPA, as well as membership of a terrorist organisation. The Sessions Judge agreed with these arguments, and rejected bail.

The High Court examined the standard that it would need to apply under S. 43(D)(5) of the UAPA. Relying upon the previous Division Bench judgment in Dhan Singh v Union of India, the prima facie does not relegate the Court to the role of a passive observer, but does require it to “cross-check” the truthfulness of the allegations on the record, and ask whether they are “improbable” or “unbelievable” (paragraph 23). Furthermore, as the three-judge bench of the Supreme Court in Ranjeetsing Brahmajeetsing Sharma v State of Maharashatra (which preceded Watali) had observed, statutory bars to bail, as found under special laws, “should not be pushed too far.” (paragraph 26) Indeed, in that case, the Court put its finger on the issue by noting that if, indeed, the statutory bar under special laws would apply only if a Court was convinced that an accused had not committed an offence, then an order granting bail was tantamount to a judgment of acquittal – something that was definitely not intended by the legislature. Thus, what needed to be seen was whether, on a conspectus of the material on record, the Court was of the view that “in all probability … [the accused] may not be convicted” upon trial. And indeed, as the High Court noted, the standard under the NDPS and MCOCA (which was what was applied in Ranjeetsing Brahmajeetsing Sharma) was actually more stringent than that under the UAPA.

Having set out the legal standard, the Court then applied it to the facts at hand. First, on the witness reports, the Court noted that, taken at their highest, they revealed discussion between the accused and his friends about atrocities upon Islam and taking revenge for said atrocities. Even if the material was admitted to be true, the accused was found to have expressed support for ISIS, which – although repugnant in its own right – did not amount to conspiracy to commit an offence or incite violence. As Mr. Mihir Desai, counsel for the accused pointed out, the Supreme Court had already held in its famous Shreya Singhal judgment that there was a conceptual distinction between discussion, advocacy, and incitement, with only the last being subjected to criminal sanctions consistent with the Constitution. The Court agreed with this argument, noting that “there is considerable substance in the submission of Mr. Desai that the material qua the accused, at the highest, is in the realm of discussions.” (paragraph 32)

Secondly, on the recovery of the oath, the Court found that evidence had not been adduced to show that the accused had signed it. Consequently, taken at the highest, the evidence showed that the accused had been in possession of an oath form. And “mere possession of such oath form,” the Court held, “without subscribing thereto, prima facie, does not appear to be an incriminating circumstance.” (paragraph 33) And thirdly – and most straightforwardly – while the switchboard had been recovered from the accused, there was no recovery that demonstrated – even prima facie – that this switchboard was being deployed to manufacture an explosive device.

The Court then went on to note that at the time of hearing, the accused had been custody for five years, with charges being framed only after four and a half years. Following the judgment in K.A. Najeeb, the Court correctly noted that this was a straightforward violation of fair trial rights, and consequently – in any event – the case for bail was made out (paragraphs 36 – 41)

The merits analysis of the Court repays close study. I would respectfully suggest that – as I had pointed out before in the analysis of the Delhi High Court’s judgment in Asif Iqbal Tanha’s case – there are a set of core principles that, if applied, constitute an appropriate balance between the stringency of S. 43(D)(5) (as it stands), and the constitutional obligation of courts to protect the fundamental rights of all citizens. While the analysis in Tanha’s case was multi-faceted, in this case, there are two primary principles: the first is that given the stringency of the UAPA, and the harshness with which it operates, its definitional clauses ought to be given a strict and narrow meaning. In the present case, Shinde and Jamadar JJ deployed the Shreya Singhal judgment to (correctly) hold that mere discussions would not fall within the substantive clauses of the UAPA – whether the membership clause, or any other. And the second principle is that to make out a prima facie case, 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.” This is evident in the present case from the Court’s refusal to infer a larger conspiracy simply from the recovery of an unsigned oath form or a switchboard, without further, tangible material on record.

Both these principles, I would suggest, are classic principles of criminal jurisprudence. In the context of the UAPA, they are to be deployed at the stage of determining whether the Prosecution material makes out a prima facie case or not, in the first place. It is only after this standard has been met that the bar under 43(D(5) kicks in. And nor are these principles in conflict with anything set out in Watali.

It is therefore submitted that the judgment of the Delhi High Court in Asif Iqbal Tanha (notwithstanding the Supreme Court’s direction that it “not be treated as precedent”) and of the Bombay High Court in Iqbal Ahmed Kabir Ahmed, are important in crafting a jurisprudence that ensures that individual rights are not entirely submerged under the UAPA. They are part of a longer tradition of judgments, going back to the Bombay High Court’s 2013 bail orders in the Kabir Kala Manch cases, that remind us that even under repressive laws, courts still have a vital – and indispensable – role to play as the sentinels on the qui vive – should they choose to do so.