A Question of Consent: The Delhi High Court’s Split Verdict on the Marital Rape Exception

Today, a division bench of the High Court handed down its judgment on the constitutional challenge to the marital rape exception [“the MRE”]. Put simply, the marital rape exception states that “sexual intercourse by a man with his own wife … is not rape.” Petitioners – supported by amici – argued that the marital rape exception – which, in effect, immunises married men from being prosecuted for rape – violated Articles 14, 15(1), 19(1)(a), and 21 of the Constitution. The two-judge bench delivered a split judgment: Justice Shakder struck down the MRE as unconstitutional on all of the above grounds, while Justice Hari Shankar upheld its constitutionality.

Previously, on this blog, I have analysed the constitutional issues around the MRE in some detail. In this post, I shall argue, first, that the fundamental point of difference between the two judges is on the question of consent. Justice Shakder believes that whether in a marriage or out of it, sexual consent is paramount and inviolable. Justice Hari Shankar – although he denies it from time to time – believes that within a marriage, a woman’s consent to sex carries less weight. Secondly, I shall note that under existing Indian constitutional law, Justice Shakder is correct, and Justice Hari Shankar is wrong. Consequently, when this split judgment goes for resolution before a Full Court (or to the Supreme Court), Justice Shakder’s views ought to be upheld, and the MRE struck down.

The Opinion of Shakder J

The core of Justice Shakder’s argument can be found in paragraph 135.2 of his opinion. Examining s. 375 of the Indian Penal Code in some detail, which sets out the seven circumstances under which a sexual act counts as rape, he observes that:

A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl-child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstance)- form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. [Emphasis supplied]

As Shakder J notes, therefore, the core of the offence of rape is non-consensual sexual intercourse. The MRE creates a “firewall” that protects one class of putative perpetrators – married men – from being prosecuted for this offence, even though the ingredients of the offence are exactly the same. The question then follows: is this distinction constitutional? Shakder J holds that is not, as in essence what it conveys is that “forced sex outside marriage is ‘real rape’ and the same act within marriage is anything else but rape.” (paragraph 137.1) Thus, the MRE “with one stroke deprives nearly one-half of the population of the equal protection of laws.” (paragraph 137.1) This is because:

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman. In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman. Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. (paragraph 141)

For these reasons, Shakder J holds that the MRE fails the reasonable classification test of Article 14. He then addresses two counter-arguments: the idea of a “conjugal expectation to sex” and the “preservation of the institution of marriage.” On both issues, his response is grounded in the right to individual autonomy and consent. On the first, he notes that whatever the expectation might be (i.e., “unreasonable” denial of sex counts as a ground for divorce under Indian family law), it does not extend to an “unfettered right to sex” without consent (paragraph 146); on the second, he notes that the marital bond is itself based on the idea of choice, and mutual respect for “physical and mental autonomy” (paragraph 148); once again, therefore, a legal provision predicated upon the denial of consent cannot be saved by appeals to the institution of marriage.

This focus on choice, autonomy, and equality also leads Shakder J to hold that the MRE violates Articles 21, 15(1), and 19(1)(a) of the Constitution. In paragraph 163, he holds that “modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship.” For this reason, denial to married women the right to trigger prosecution for the violation of sexual consent infringes Articles 21; it also infringes Article 15(1), as it is discrimination based solely on marital status; and it infringes Article 19(1)(a), as “the guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.” (paragraph 166)

The Opinion of Hari Shankar J

How does the opinion of Hari Shankar J respond to these contentions? This opinion is based on two prongs. First, Hari Shankar J identifies what he believes to be a fundamental flaw in the petitioners’ logic: i.e., that all non-consensual sex is, by default, rape, and that the MRE is an impermissible departure from this default; and secondly, that when it comes to sex, the marital relationship is distinct from all other relationships, in that it carries with it a “legitimate expectation of sex.” This – according to Hari Shankar J – provides the “intelligible differentia” under Article 14, that justifies the legislative decision of treating non-consensual sexual intercourse within marriage as “not rape.”

Let us examine both steps of the argument. On the first step, Hari Shankar J tries to drive his point home by drawing an analogy with the crime of murder. Just like not every instance of taking a life is not deemed under criminal law to be “murder”, therefore – it follows – that not every act of non-consensual sex is deemed “rape”; rather, it is the legislature that decides which kind of non-consensual act is to be deemed “rape”, just as it defines when the taking of life is deemed murder. (paragraph 103)

In this context, Hari Shankar J repeatedly – and rather intemperately – accuses petitioners’ counsel, and the amici, of making arguments devoid of logic, and attempting to substitute the legal definition of “rape” for “what they feel should be the definition of rape.” If there is anything that demonstrates a complete lack of logic, however, it is Hari Shankar J’s choice of analogy. The relationship between the MRE and the offence of rape is not equivalent to the legislature defining the circumstances under which the taking of a life amounts to murder. The correct analogy – as should be immediately evident – is that of the legislature defining the offence of murder in full detail, and then adding – for example – an “MP exception” that goes “the killing of a human being by a member of parliament is not murder.” This is because – and this is the point of Shakder J’s judgment that Hari Shankar J fails to deal with in any sense – s. 375 exhaustively defines the ingredients of the offence of rape (which – as Shakder J correctly notes – involve non-consensual sex in various forms), and then exempt a class of perpetrators from prosecution on no other ground than that they belong to that class.

It is this simple elision that thus allows Hari Shankar J to dodge the issue of consent entirely, and repeatedly insist throughout his judgment that he supports consent, and indeed – incredibly – that this case is not about consent at all. As is immediately obvious, however, this case is all about consent: the entire scheme of s. 375 is designed to define non-consensual sex as rape, and then shield married men from the consequences of that legislative design.

Hari Shankar J then notes that there are a range of provisions in the IPC where the relationship between the parties matters (in a somewhat disturbingly violent analogy, he argues that a father slapping his child is not an offence, but a stranger slapping the same child is (paragraph 134)). This brings us to the second prong of his argument, which is the intelligible differentia. Hari Shankar J argues that the intelligible differential is founded upon the “unique demographics” (paragraph 104). What are these unique demographics? This comes in paragraph 113:

Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.

This idea of a “legitimate expectation of sex” comes in repeatedly through the judgment, and is the basis of Hari Shankar J’s finding that the MRE is constitutional. In paragraph 116, he notes that marriage “is the most pristine institution of mankind”, and that the “sexual aspect is but one of the many aspects” upon which the marital bond rests; in paragraph 119, he says that “sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.” In paragraph 120, he says that “introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.” In paragraph 127, he says that unlike live-in relationships, “the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond”; in paragraph 130, he says that “any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” He then adds that “it cannot even be assumed, in my view, that the perceptions of the petitioners reflect the views of the majority of Indian women.”

It is important to extract these observations in some detail, because they are characteristic of the muddled legal thinking that runs through Hari Shankar J’s opinion as a whole. Even if you take all these observations and assertions to be true (and there are many who would contest them!), what they demonstrate – at their highest – is that sex within marriage is somehow qualitatively different from sex outside marriage, because it forms an integral part of a set of reciprocal rights and obligations that constitute the valuable social institution of marriage.

But even if true, this is entirely besides the point. The only evidence that Hari Shankar J can muster up as evidence in his support is that unreasonable denial of sex can serve as grounds for divorce. That is true, as Shakder J also recognises. But there is a chasm of difference between saying – on the one hand – that the reciprocal social rights and obligations in a marriage create a ground for dissolution of that marriage if they are not discharged by either party, and saying – on the other – that they justify immunising the violation of sexual consent from being prosecuted as it normally is, outside of marriage – i.e., as rape.

Indeed, when you strip away the verbiage, what Hari Shankar J is effectively saying is that marriage not only gives the husband a legitimate expectation of sex, but the further right to violently enforce that expectation without suffering the same consequences as other people suffer. This not only flouts the rule of law, but also flouts basic logic, which appears to be particularly dear to Hari Shankar J.

A quick note on paragraph 130, which I found particularly disturbing. First, there is the assertion that a married woman who is subjected to non-consensual sex (since Hari Shankar J objects to using the word “rape”) will not feel as “outraged” as woman who is raped by a non-married person (whether that person is a stranger, a friend, or an intimate partner). This assertion has no business being in a judicial opinion. Secondly, there is the assertion that “the majority of Indian women do not share the views of the petitioners.” Whether true or not, this is entirely irrelevant, and indeed, a return of the infamous “minuscule minority” view that appeared in Koushal v Naz, was seemingly buried in Navtej Johar, but appears to have infinite lives in the halls of the Court.

It is this extraordinary reasoning that allows Hari Shankar J, to hold in paragraph 165, that:

Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent.

Once again, we see the absence of logic. It is nobody’s case that the Exception itself “obligates” a wife to consent to sex at all times. The case is that the Exception devalues a wife’s consent purely by virtue of her marital status. Hari Shankar J sets up this straw-man to knock it down in the second sentence – and then, in the third sentence, he comes up with a non-sequitur, noting that not only does the MRE not force a wife into non-consensual sex, but that it has nothing to do with consent at all! It is almost trite at this stage to point out the absence of logic: when s. 375 says that non-consensual sex is rape, and the MRE says that “except where it is a married man”, what the section – read as a whole – says is that non-consensual sex between a married man and a wife is not rape. Repeatedly – and belligerently – stating that all this has nothing to do with consent does not make it true.

The intellectual dodge at the heart of the judgment is finally laid bare in paragraph 169, where Hari Shankar J notes, by way of conclusion, that:

…the legitimate conjugal expectations of the man, as the husband of the woman and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis-à-vis all other relationships between man and woman, and all other legitimate considerations to which I have already referred, and which justify extending, to sexual intercourse and sexual acts within marriage a treatment different from such acts committed outside the marital sphere.

For the reasons I have explained in some detail, the dodge is simple: it is not enough for Hari Shankar J to show that sex within a marriage is in some way “different” from sex outside of marriage. He has to show that it is different in such a way that justifies diluting a married woman’s consent to sex. He does not show this, because he – incorrectly – attempts to argue that the entire case is not about consent in the first place. And the only way he can show that is by ignoring the actual text of s. 375 altogether – the text that is the starting point of Shakder J’s judgment – and which makes clear that consent is baked into the very ingredients of the offence of rape.

Endnotes

Having deconstructed the fundamental flaws of law – and of logic – that constitute Hari Shankar J’s opinion, it should be obvious that the opinion is unsustainable. In 2022, Indian constitutional law does not support the dilution of sexual consent based on marital status. One does not need to look too far for this: the issue is considered squarely in the Puttaswamy judgment, where Chandrachud J’s plurality opinion is explicit on this point, while many the other judgments make it clear the decisional autonomy is a fundamental facet of the right to privacy, and is not lost or in any other way compromised through social institutions such as marriage. Decisional autonomy within the marriage was also the fundamental basis upon which adultery was decriminalised in Joseph Shine; and sexual autonomy was at the core of Navtej Johar. It is – thankfully – too late in the day to go back on this rather fundamental precept.

Three final points. First, I have not in this post analysed all parts of the two opinions. For example, the two judges differ on whether striking down the MRE would lead to the creation of a new offence. I have analysed this issue in some detail in my previous post, and interested readers may refer to that.

Secondly, as this post shows, I believe that Shakder J’s judgment is opinion, and ought to be upheld on appeal. However, I also believe that the appellate forum needs to do more than that. I believe – and I say this with due consideration – that parts of Hari Shankar J’s opinion have no place in a jurisprudence that is formally committed to the basic idea of individual autonomy, dignity, privacy, and equal concern and respect. These include, for example, the frankly repulsive statement – that occurs on more than one occasion – that a married woman who is raped will “feel” less outraged than an unmarried woman who is raped. Examples can be multiplied; and when this judgment goes on appeal, the least that can be done is a formal expunging of these observations from the record.

And finally, this judgment shows – if anything does – the often Janus-faced character of the courts. We have two opinions – delivered in the same case – that, like ships in the night, sail past each other without even the chance of a conversation, because their premises are so very different. One opinion sees the task of constitutionalism to be interrogating power differences and breaking down social hierarchies, in order to achieve genuine substantive equality and freedom. The other opinion takes upon itself the task of defending and entrenching those hierarchies. I think we don’t see the first face of the courts often enough; but when we do – as in Shakder J’s opinion – it’s a powerful reminder of what constitutionalism, at its best, can be – and do.


[Disclaimer: The present writer was involved in the initial drafting and hearing of the petitions challenging the MRE. He has not been involved in the case since 2019.]

Guest Post: The Illegality of the Khargone Demolitions

[This is a guest post by M. Jannani.]


Recently, it was reported that homes and shops were allegedly demolished in Khargone, Madhya Pradesh following the Ram Navami violence, with neither a reasonable notice nor hearing by the district administration. Soon after, the district collector admitted that the demolitions were carried out within 5 kilometers from where the alleged Ram Navami violence took place “in order to teacher rioters a lesson”. Some news reports that reported on this demolitions have alleged that it has disparately affected Muslims in the particular region.  However, the SDO (Revenue) through an RTI reply mentioned that such action was taken against illegal encroachments under the MP Bhu-Rajasva Sanhita 1959 and section 248 of the amended act, 2018.

In Puttaswamy v. Union of India, the opinion authored by Justice Chandrachud laid down the test of proportionality to be followed in the case a state action invades the right to life or personal liberty. The following is the relevant extract of the judgment:

“An invasion of life or personal liberty must meet the threefold requirement of legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.“ (emphasis supplied)

In this piece, I aim to argue that the Khargone demolitions violate the above mentioned test of proportionality. In the first part of the essay, I justify the use of the proportionality test in the present case. I will then proceed to explain how, in my limited opinion, the different prongs of the proportionality test are violated by the Khargone demolitions.

An infringement of the right to life

In the previous post on this blog, Rishika Sahgal had explained in detail about the procedural safeguards and requirements of adequate notice, reasonable opportunity to be heard and access to rehabilitation facilities that have been interpreted into article 21 by various High Courts and the Supreme Court. The post explained how the judgment in Olga Tellis specifically affirmed that the right to life under article 21 of the Constitution encompassed the right to housing and livelihood, which included the right to hearing and the provision of a notice in the case of evictions. It is also made a very pertinent observation about how the procedural requirements pertaining to demolitions that were laid down in Sudama Singh – notice, hearing, meaningful engagement and rehabilitation – have been crytallized by the Supreme Court through subsequent decisions. Such requirements, the essay argued, have to be met by authorities across the country if they seek to initiate demolitions.

In the case of Khargone, it was alleged by certain persons affected by the demolition that they were neither provided a proper notice nor a reasonable opportunity of being heard before their property was demolished. Thereby, it flies in the face of the precedents discussed above as the demolitions infringe the right to life guaranteed under article 21 of the Constitution of India by violating procedural safeguards. Hence, it justifies the use of the test laid down in Puttaswamy.

Demolitions and section 248 of the Madhya Pradesh Land Revenue Code, 1956

As mentioned earlier, the authorities have justified the demolitions on the ground that the structures violate section 248 of the MP Land Revenue Code. Even though the provision empowers the tahsildar to “summarily eject” in the case of encroachment, it was held in various decisions that such powers contained in the provision are necessarily subject to a reasonable opportunity of being heard offered to the persons against whom the adverse action will be taken against. In Arun Bharti v. Madhya Pradesh, the Madhya Pradesh High Court looked into unauthorized occupations and section 248 of the Code. The court held that section 248 of the Code is a penal provision which inherently contained the “necessity of compliance of the principle of natural justice of audi alteram partem by affording reasonable opportunity of hearing”.

In Turabali v. State of Madhya Pradesh, the Madhya Pradesh HC looked into writ petitions challenging notices issued under section 248 of the Code. In this case, a time period of 3 days was given by the authorities for the removal of an encroachment. The High Court while stating that the time period provided for removal was “absolutely insufficient” also held that:

“Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.” (Emphasis mine)

It can therefore be observed that section 248 of code inherently allows for a reasonable opportunity of hearing and notice to be provided to persons against whom the coercive action is taken. However, such an opportunity was alleged to have not been provided to the persons against whom the coercive action was taken in the present case. Thereby, the Khargone demolitions are not backed by legality.

Collective punishment

Various ministers of the state cabinet and the district collector justified the demolitions on the ground that it was done in response to the violence that endured during the Ram Navami procession on 10th of April. But later, the action was justified on the ground that the demolitions were done against illegal encroachment and hence the state proceeded under section 248 of the code. However, it is to be noted (as had been discussed above) that the demolitions were alleged to have been done without adherence to natural justice principles. The state action in this case also suffers from over-inclusion since certain properties that did not fall within the category of illegal encroachments were also demolished and persons who owned such property were not afforded an opportunity to present their case just because such the properties were located in a particular area.  

In the case of Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi , the Delhi High Court observed that all shopkeepers and allottees of chabutras could not be characterized as trespassers or encroachers. It also observed that when the state undertakes coercive action which have an effect of causing adverse consequences to persons, there exists a duty for the state to apply its mind with respect to the facts of the particular case. On the aspect of mass action against a class of persons the court held that:

“It is not enough to take precipitate action against a class of persons, with the allegation that all of them are guilty, and tainted. Even if mass action is required, principles of fairness demand that the authority apply its mind to the materials regarding individual cases.” (emphasis supplied)

Thereby, when demolitions are initiated against the properties of a class of persons, it can be observed that by merely asserting the allegation that they are guilty or tainted will not justify the “need” for such an action to be taken by the state.

Means employed is in excess of object that is sought to be achieved

In the context of mass action against a class of persons in violation of the principles of fairness, it is important to note that the Delhi High Court in Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi  referred to the Supreme Court decision in UOI v. Rajesh. The Apex Court in Rajesh held that an adverse action which has an effect of unfairly punishing innocent persons and overlooks contextual considerations, would amount to “throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation”. The Supreme Court further mentioned that such action which is excessive and not in keeping with the gravity of the offence could have the consequence of “virtually rendering such a decision to be irrational”.

Thereby, the means employed in the case of the Khargone demolitions i.e., mass action against persons with disregard to procedural safeguards and factual considerations is in excess of the object the authorities sought to achieve.

For the above mentioned reasons, in my opinion, the Khargone demolitions violate the test of proportionality.

Guest Post: Judicial Review of Preventive Detention Orders – The Supreme Court’s Progressive Judgment in Mallada v State of Telangana

[This is a guest post by Varun Ahuja.]


“…But, Sir, what the Government is after is not the power to take preventive action; what it is after is immunity from the responsibility to prove guilt or intent before a court of law. What they want is to substitute suspicion for evidence, substitute the pleasure of the executive for conviction by the judiciary. The Bill, therefore, is not only an attack on the citizen’s rights, but is also an attack on the judiciary, the power of the judiciary to protect the citizen.”

– Shri Ravinder Varma, Lok Sabha Debates, 15 December, 1980, Debate on the National Security Bill, 1980

Introduction

On 4th April 2022, a two-judge bench of the Supreme Court delivered a judgment titled Mallada K Sri Ram v. State of Telangana (“Mallada”) quashing a preventive detention order under Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986 (“TDA” or “the 1986 Act”). The detenu had filed an appeal against the Telangana High Court judgment which had upheld the order of detention. The order was quashed because it was passed on ‘stale grounds’ and that there was non-application of mind by the detaining authority; specifically, by the time the order of detention was passed, the detenu was already on bail and no incident had happened even after the bail conditions imposed had lapsed.

In India, the Executive enjoys a lot of powers when it comes to preventively detaining individuals to ‘prevent’ a commission of an offence. There are four central laws (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, National Security Act, 1980, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988) under which authorities can preventively detain individuals, and the States have their own power to enact laws authorizing preventive detention. The Parliament, under Entry 9 of List I, is authorized to make laws providing for preventive detention on subject of ‘defence’, ‘foreign affairs’ or the ‘security of India’. Simultaneously, the States can make laws under Entry 3 of List III for reasons connected with ‘security of a state’, ‘maintenance of public order’, or the ‘maintenance of supplies and services essential to the community’. The constitutionality of these terms – vague and over-broad in their own right – was upheld by the Supreme Court in A.K. Roy v. Union of India. The Court admitted that the terms might be vague and incapable of a precise definition; but refused to strike down the law (National Security Act, 1980) on the ground of vagueness and uncertainty and ‘hoped’ that they will be applied and interpreted narrowly. Furthermore, judicial review of detention orders is largely limited to only procedural grounds barring few exceptions in certain cases in order to ensure some fairness and uniformity.

Three important aspects set Mallada apart in the Supreme Court’s preventive detention jurisprudence. First, the Chandrachud J rightfully holds that mere apprehension of breach of law and order will not be sufficient to meet the threshold of ‘maintenance of public order’ to justify invoking preventive detention (Para 15). Second, on the judicial reviewability of subjective satisfaction by the detaining authority, the judgment falls into the exception where the court reviews if an order of detention could have been passed on the material placed before the detaining authority. Third, the Court highlights the misuse of the 1986 Act and deviates from the normal procedure by not allowing the State to file a counter affidavit.

In this article, I examine the Court’s jurisprudence on judicial reviewability of the detaining authority’s subjective satisfaction comparing Mallada to an earlier decision of the Court in Union of India v. Dimple Happy Dhakad (“Dhakad”). I also comment upon the procedure adopted by the Court in not allowing the State to file a counter affidavit and how it can benefit the Court in more efficiently deciding habeas corpus petitions against preventive detention.

Judicial Review of Subjective Satisfaction

For a preventive detention order to be passed, the detaining authority has to review the material placed before it by the police or any other agency asking for the detention, apply their mind, and then take a decision whether to authorize it. There are many judgments which state that this subjective satisfaction of the detaining authority (whether a detention order should be passed on the material placed before it) is not to be interfered with. [See Senthamilselvi v. State of Tamil Nadu, (2006) 5 SCC 676].

However, over the years the Courts have consistently pushed the boundaries of this limitation to ensure that there is some kind of fairness to the decision-making power. Therefore, decisions can be classified broadly into two types; one where the Court follows the general rule that it will not place itself in the shoes of the detaining authority to see if, in fact, detentions order could have been passed. And second, where the Court allows review of this subjective satisfaction to prevent arbitrariness and ensure that the procedure remains reasonable. For example, in a situation where a material fact (most commonly, if the detenu was already in judicial custody) is not placed before the magistrate, an order made on such a material will be quashed by the Court [See, Farooq Ahmad Bhat v. UT, J&K, 2021 SCC OnLine J&K 369]. I highlight that the judgement in Mallada, which falls in the second category of decisions, starkly differs from the Court’s approach in Dhakad.

To review or not to review

The decision in Dhakad has been criticized on many counts. Most importantly, that being a two-judge bench, it holds contrary to a three judge bench decision in Rekha v. State of Tamil Nadu [(2011) 5 SCC 244]. For our discussion, its only relevant to state that Dhakad holds: firstly, it is not illegal to pass a detention order against a person who is already in custody and about to be released on bail, and secondly, imminent possibility of release is an issue that depends upon the ‘subjective satisfaction’ of the detaining authority and as such, is beyond the scope of judicial review (Para 46). It has been argued that this pronouncement dilutes the ‘trend of heightened review’ set in cases where the detenu is already being processed under regular criminal law; and furthermore, that the requirement to specifically record satisfaction that states ‘there is an imminent possibility of release’ and ‘a grave likelihood of the person returning to the prejudicial activities’ does not interfere with the subjective satisfaction of the authority but only makes it clear that the authority had considered the issue. It is important to keep in mind that the issue that Dhakad was dealing with was that preventive detention orders were passed against a person who was already in custody and therefore, posed no threat to public order per se. The argument that an order in such case is to prevent a person being released on bail only goes to indicate the normalization of the extraordinary powers of the executive.

The judgment in Mallada does not stop by simply saying judicial review of subjective satisfaction is not possible if the authority records satisfaction to the effect that there is possibility of bail and the detenu might repeat the offence. It adds that the order stated that the detenu ‘may violate the bail conditions’ and that ‘there is an imminent possibility of him committing similar offences’. Therefore, the detaining authority, in its wisdom, had reached the conclusion that there is an apprehension of the detenu violating bail conditions and repeating similar offences. However, the Court analyzed both the grounds and stated that the conditions of bail had concluded as of April 2021 and the order was only passed in May 2021. Moreover, there had been no further incident after the bail conditions expired. It concludes by stating that the case is of clear non-application of mind and competent to be dealt under ordinary criminal law. Interestingly, the State had neither moved to apply for cancellation of bail nor appealed the order granting bail; instead, it used its extraordinary powers to preventively detain the individual for an incident in which a Court had already granted bail.

Reports have shown that the the 1986 Telangana Act is used quite often as a tool to supplant ordinary criminal procedure and deny bail to individual, even in cases where no bail application is pending before the court but there might be a possibility that the detenu might file one. A recent amendment to the Act has  further broadened its scope and the procedure made more efficient in subverting ordinary judicial process. In 2018, to get away from justifying the invocation of the Act by showing that an activity was an actual threat to public order (the only ground on which the Act could be invoked – Section 3), the Title of the Act was amended to explicitly include more categories of offences which could normally be dealt by the ordinary criminal procedure. It now includes – ‘Spurious Seed Offenders’, ‘Insecticide Offenders’, ‘Fertiliser Offenders’, ‘Food Adulteration Offenders’, ‘Fake Document Offenders’, ‘Scheduled Commodities Offenders’, ‘Forest Offenders’, ‘Gaming Offenders’, ‘Sexual Offenders’, ‘Explosive Substances Offenders’, ‘Arms Offenders’, ‘Cyber Crime Offenders’ and ‘White Collar’ and ‘Financial Offenders’. The Court in Mallada has rightly called out the abuse of law by stating the number of orders quashed by it and directed the Government to look at the challenges pending before various courts and the advisory board to ensure ‘fairness’ (Para 17).

‘Live and Proximate Link’

As stated in the beginning, there is another line of decisions where the Court looks at the material on which the detaining authority passes the detention order; for example not considering a material fact that the detenu was in custody. Similarly, the Court in Mallada makes an important point while analyzing the material placed before the detaining authority. Chandrachud J notes that the order was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR and was interestingly executed after one month (Para 11). The Court relies upon its decision in Sama Aruna v. State of Telangana (2018), to iterate that if there is absence of a ‘live and proximate’ link between the incident which is part of the material and the detention order, it will be equivalent to ‘punishment without trial’.

This requirement of a live and proximate link is not a recent safeguard created by the Supreme Court. The first case which acknowledged there has to be a ‘live and proximate link’ between the grounds of detention alleged and the purpose of detention was in Bhawarlal Ganeshmalji v. State of T.N., (1978). Although, the order was not quashed in that case, it stated that this link will be assumed to be ‘snapped’ if ‘there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu.’ Thereafter, relying on Bhawarlal Ganeshmalji, the Supreme Court in Shafiq Ahmad v. D.M. (1989) and P.U. Iqbal v. Union of India (1991) quashed the detention order in the absence of ‘live and proximate link, where the delay was of two and half months and one year respectively. Furthermore, relying on P.U Iqbal, the Court in Sama Aruna had authoritatively stated that a detention without the link is punitive in nature.

The underlying principle for having preventive detention law is not to punish the detenu but ‘prevent’ them from doing a crime. A judicial review, quashing an order, for ‘stale’ grounds, gives an insight behind why the executive chose to exercise the power; not to prevent a crime, but punish the detenu using an extraordinary criminal procedure. The executive is allowed to do this with impunity and an implicit sanction from the Court since it takes too much time in deciding the legality of the detention order; long enough for the Government to achieve its purpose.

A Welcome Deviation

It is important to understand preventive detention as it operates in today’s framework from a punitive aspect, because of the amount of time a person has to spend in custody while the legality the detention order is being decided. Prolonged incarceration aids the State in achieving the objective of keeping a detenu – oftentimes a political dissident – out from interacting in public life. One of the easiest ways to delay the proceeding is to take adjournments to file counter affidavits. Although the problem is not recognized, there is a judgment delivered by Madras High Court, where the Court deprecated the practice of taking multiple adjournments to file a counter affidavit by the detaining authority.

Shrutanjaya Bhardwaj, in a study, analyzed the time taken by the Supreme Court in deciding habeas corpus cases against preventive detention between the years 2000 to 2019. The study concluded that the writ was reduced to a meaningless remedy because of the amount of time taken by the Court was more than the maximum time allowed for detention in various preventive detention acts. At the end of the study, a possible remedy was mooted that the Court should decide a habeas corpus petition without a counter-affidavit from the State and solely on the basis of the documents produced before it; only in cases where the State needs to explain a delay, should a counter affidavit be allowed.

In Mallad the Court did exactly this. It lamented that even though the notice was served no counter affidavit was filed. It proceeded taking into consideration the affidavit filed with the High Court. As a result, the case was decided in a span of 45 days (Supreme Court website shows filling date as 16-02-2022); compare this to the findings of the habeas corpus study with regard to the successful petitions i.e. where the Supreme Court was the first court to grant relief (as was the case in Mallad). The Court on an average took 159 days; the shortest was 34 days and in two cases it took longer than one year to decide the petition (448 and 377 days). Therefore, in cases where the Court can decide matters solely looking at the documents, it should not insist on a counter affidavit and give repeated adjournments for the same.

Admittedly, Courts have often delivered judgments without taking a counter affidavit from the detaining authority, but only after providing multiple opportunities to them (For example, see, here and here). The present case is different because there was only one date of hearing before the judgement was pronounced and thus, only one opportunity of three weeks was given to the detaining authority. Hearteningly, the Court has deployed fierce rhetoric to make its point (‘The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state’). Of course, it remains to be seen if the Court continues with this practice.

Guest Post: The NEET Controversy in Tamil Nadu: an Opportunity to Redefine Gubernatorial Powers

[This is a guest post by Dheeraj Murthy.]


The recent impasse between the Governor of Tamil Nadu and the DMK led Government regarding the NEET came to a presumable end as the Governor forwarded the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 (“the anti-NEET bill”) to the President for his approval. The development took place in the background of the escalating tensions between the Government of Tamil Nadu and its Governor when the Chief Minister dubbed the Governor as a “postman” to assert that the role of the Governor was to only forward the anti-NEET bill to the President for his approval. In line with the sentiment shared by most political parties in Tamil Nadu, the Chief Minister emphasized the Governors’ lack of authority to grant (or withhold) approval to the anti-NEET bill.  

The controversy began when the Governor returned the anti-NEET bill and deemed it to be “against the interests of underprivileged students after considering it for over 5 months. In an expected turn of events, the Legislative Assembly of Tamil Nadu was left to readopt the anti-NEET bill and send it to the Governor. The inaction of the Governor after the anti-NEET bill was readopted and sent to him prompted the Chief Minister publicly rebuke him with the “postman” analogy.

Relations between elected State Governments and nominated (often used as a pejorative) Governors have often been fraught with differences, which have since become a staple of Indian politics. However, the ongoing tension between the Government of Tamil Nadu and the Governor serves as a stark reminder regarding the shortcomings of our constitutional scheme concerning the process of law-making.

The ongoing controversy regarding the anti-NEET bill is rooted in the debate regarding the role of the Governor in the process of legislating under the Constitution. Notwithstanding the doubts raised regarding the anti-NEET bill passing the muster of constitutional validity, the developments in Tamil Nadu have thrown light on questions regarding the gubernatorial powers and the propriety expected to be observed by the Governor in the absence of explicit provisions in the Constitution in the process of law making.

Dual Nature of Gubernatorial Functions

Despite gaining Independence from colonial rule, the founders of the Republic of India consciously chose to retain the position of Governor – a decidedly colonial position. The position was redefined to suit the sensibilities of a constitutional democracy and had only limited powers to exercise. Under Article 154, the executive power of a State is vested in the office of the Governor. Significantly, Article 168 prescribes that the Governor along with the Legislative Assembly (and Legislative Council in some states) shall comprise the “Legislature” in every State.

However, unlike the representative character of the Legislative Assembly, the Governor is not elected. The Governor is an appointee of the President to serve at his pleasure (and intended to act as a conduit of communication between the Union and the States) and is incapable of impeachment. Hence, the Governor is a functioning constitutional duality – he is a constituent of the “Legislature” of a State while also wielding executive (albeit nominal) powers.

Significance of the Governor as a Constituent of the “Legislature”

The legislative powers between the Parliament and State Legislatures have been distributed as per the Seventh Schedule of the Constitution in the form of the Union List; State List and Concurrent List. These lists contain the subject matters to be legislated upon in the form of their entries. Under Article 246 of the Constitution, Parliament and State Legislature have exclusive powers to frame laws with respect to entries under the Union and State Lists respectively. However, the Parliament and State Legislature are both empowered to make powers with respect to entries under the Concurrent List.

Crucially, Article 254 provides that in the event of any conflict between laws passed by the Parliament and State Legislatures, the former shall prevail to extent of the conflict. However, Article 254(2) states that for legislation framed by the State Legislature to prevail, it must receive the assent of the President (this remains without prejudice to the power of Parliament to enact a law amending or repealing the state law after receiving the assent of the President).

Logically, this is predicated on the law being passed by the “Legislature” of each state i.e., the Legislative House (typically the Legislative Assembly only) and the Governor. Thus, when a law concerning an entry in the Concurrent List has been drafted and passed by the Legislative House, it is presented to the Governor as per Article 200.  As a constituent of the “Legislature”, the Governor is obliged to declare his intention when a bill is presented for his consideration.

Accordingly, in the case of the anti-NEET bill, the Governor had three modes of exercising his discretion under Article 200 after the anti-NEET bill was passed by the Legislative Assembly. First, to have assented to the anti-NEET bill after which it would be sent to the President for his assent (as required under Article 254(2)). Second, to reserve the anti-NEET bill for the consideration of the President (without expressing his opinion) as the anti-NEET bill pertained to an entry under the Concurrent List (as was done by the Governor ultimately after the anti-NEET bill was readopted). Third, to withhold assent to the anti-NEET bill.

It is significant to mention that under the Constitution, the last option is not in the nature of a veto as the Governor is bound to accord his assent if the bill is re-presented to him regardless of his views. This is because the powers of the Governor are only nominal wherein his sole responsibility is to record his intent as stipulated under Article 200. This responsibility is devoid of any law-making power. The power to frame legislation remains firmly vested in the Legislative Assembly – it being the repository of legitimate democratic will.

Thus, as the subject matter of “medical education” fell under the Concurrent List, the anti-NEET bill was required to receive the assent of the President, without any constitutional obligation incumbent on the Governor to record his views – much less to return it – lest it be void as the NEET is a product of the National Medical Council Act, 2019 viz Parliament enacted law.

Absence of Written Instructions: Taking a leaf out of the colonial legacy

In returning the anti-NEET bill for reconsideration by the Legislative Assembly, the Governor of Tamil Nadu opined that the bill was “unsound” and cited judicial precedent in support of the NEET. Notwithstanding the actions of the Governor to act as a “super-legislature”, there are doubts regarding the basis on which the bill was returned.

Ordinarily, the assent of the Governor is the final step in clearing legislation concerning entries under the State List. However, when laws are framed by the Legislative Assemblies  concerning entries under the Concurrent List, they must necessarily receive the assent of the President (and not the Governor) to become law. This is clearly borne out by a combined reading of Article 200 and Article 254. Hence, it is the President alone who has the competence to assent to any legislation concerning the Concurrent List in order for it to become binding law. 

In these circumstances, the role of the Governor is restricted to merely facilitate (either by assenting or reserving such legislation for the President) communication of such legislation to the President. Moreover, the withholding of assent by the Governor is immaterial as he is bound to accept the bill if it is represented to him for his assent. The present controversy in Tamil Nadu has shed light on the relevance of codifying conventions as there is nothing explicitly stating that the Governor is bound to reserve a bill pertaining to the Concurrent List for the assent of the President. In matters of administration, interpretation of laws should hardly act as a substitute for clear obligations defined in the Constitution.

During colonial rule and specifically under the Government of Indian Act, 1935, the conduct of the Governors of Provinces was informed by an Instrument of Instructions (as prescribed under Section 53 and 54) which laid down the mechanism of gubernatorial functions. The aid of an Instrument of Instructions for Governors was left out of the Constitution as it was felt to be unnecessary in Independent India. The makers of the Constitution dispensed with a written set of instructions and left the conduct of Governors in certain circumstances entirely to convention”. The debates in the Constituent Assembly also made clear the nominal nature of the functions of the Governor wherein it was ultimately accepted that the Governor was hardly to have any discretion at all”. It is this background which supplies the restrictive nature of Article 200 and the basis for arguing that the Governor of Tamil Nadu ought to have assented to the anti-NEET bill.

Reigning in Imagined Legislative Powers

Despite being a constituent of the “Legislature”, the role of the Governor is executive and does not become legislative when a legislation is sent for his consideration. As stated earlier, the limited function exercisable by the Governor under Article 200 is limited to three options without any scope to apply his “legislative mind”. In Amar Singhji vs. State of Rajasthan, the Supreme Court affirmed this position and ruled out the possibility to interpret the Governors’ function in declaring his intent as “legislative” when presented with a bill.

Legislating requires cogitating by representatives without any “super legislature” to guide it or supplant its views as the power of legislating remains firmly vested in the Legislature and not with the Governor. In these circumstances, it is evident that any legislation (pertaining to an entry under the Concurrent List) must be sent to the President. However, the controversy in Tamil Nadu has shown that there is a perceptible gap regarding the conduct required from a Governor when presented with a bill pertaining to a concurrent list entry for consideration under Article 200.

 While the makers of the Constitution deliberately chose convention and propriety to be the guiding the conduct of the Governor, there is sufficient scope for ambiguity. The experience in Tamil Nadu has shown that it may be prudent to develop an alternative in codifying gubernatorial conduct. This is as opposed to allowing the discretion of a Governor to assume disproportionate and unintended significance in the process of legislating. Not doing so would dilute the efficacy of legislating and create an unintended conflict between the Governor and the Legislative Assembly.

Guest Post: Article 142 and Taxation by Judiciary

[This is a guest post by Suhrith Parthasarathy.]


Article 265 of the Constitution states that no tax shall be levied or collected except by authority of law. One would think this serves as a peremptory norm, that the government of India can impose a tax only with express legislative sanction. But in a judgment delivered on 4 May, the Supreme Court (through a bench comprising Justices M.R. Shah and B.V. Nagarathna) in Union of India v. Ashish Agarwal, rendered this norm nugatory and resuscitated notices of reassessment that had been issued by the Income Tax Department without any sanction of law. The bench achieved this by reversing not only the judgment of the Allahabad High Court that had been carried on appeal to it, but also the judgments of at least seven other High Courts, which were, in the first place, not before the court for adjudication. The only reasoning offered, for both resuscitating the notices and for reversing judgments that were not on appeal before the court, was that “complete justice” had to be achieved, that Article 142 of the Constitution granted the Supreme Court the power to revive the dead, and the power to give life to actions that were, even by the court’s own admission, evidently unconstitutional.

Consider the facts leading up to the case. The Income Tax Act, 1961, as it existed prior to 1 April 2021, allowed the Revenue the power to reopen completed assessments under certain exceptional circumstances. The contours of this power were broadly delineated in Sections 147 to 153 of the Act. Simply put, the Revenue could reopen assessments if it had a “reason to believe” that income had escaped assessment. A notice for reopening for a particular assessment year (that is the year immediately succeeding a financial year) had to be issued no later than six years after the end of such an assessment year. A proviso written into the law also stipulated that in cases where four such years had lapsed, and where the revenue had previously subjected the case to a “scrutiny”, the tax officers had to additionally establish that the assessee had failed to disclose fully and truly all material facts—that is, it wasn’t enough if the Revenue had some material or the other in its hand, but its effort at reassessment must emanate out of the assessee’s willful omissions.

In March 2020, when the country was reeling from the effects of the Covid-19 pandemic, the department was unable to issue reopening notices (with, as we can see, quite legitimate reasons) within the timeframe prescribed under the Act. This inability was obviously not limited to cases of reopening, but also extended to a number of other notices and actions that both the department and the assessee were obliged to perform. To resolve this difficulty, the Union government enacted in September of that year the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (let’s call it the “TOLA”).

Section 3(1) of the TOLA effectively stipulated that where a time limit had been specified under the Income Tax Act for the completion or compliance of any action, and where that time limit fell between 20.03.2020 and 31.12.2020 (or such other date after 31.12.2020 as may be notified by the Central Government), and such completion/compliance has not been made, the time limit would stand extended to 31.03.2021 or any other date that the Central Government might, by notification, specify.

In furtherance of this power granted to it by TOLA, the central government issued a series of notifications extending timelines for performing various different actions. These included schedules for the issuance of reopening notices under Section 148 of the Act. Thus, notices for reopening that had to be issued by 31 March 2020 could now be issued on or before 30 June 2021. It was in apparent exercise of this power that the government issued a series of notices to various different assesses under Section 148 of the Income Tax Act between the months of April and June 2021 (the Supreme Court says that there were some 90,000 such notices that had been issued for this period). But what these notices ignored were that the section under which they were issued simply didn’t exist anymore in the same form that it did before 31 March 2020. This is because Parliament had amended the extant scheme of reassessment through the Finance Act, 2021, with effect from 1 April 2021.

Up until 1 April 2021, the Revenue could reopen an assessment only if it had reason to believe that income had escaped assessment. It’s safe to say that the use of the phrase, “reason to believe” together with the various elisions in the existing legislation, has led to endless litigation. At one point, the Supreme Court carved out its own addition to the stipulations in Sections 147 and 148 (G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer & Ors., 259 ITR 19 (SC)). Since the department wasn’t supplying the assessee a copy of the reasons on which assessments were being reopened, the court directed the department to supply those reasons on a request being made by an assessee. It also allowed the assessee the right to object to those reasons, when supplied, through a written explanation. The department was then obligated to dispose of those objections by way of a separate, speaking order. [Let’s call this the “GKN procedure”]. That speaking order would inevitably be challenged in writ proceedings. There’s little doubt that the law’s architecture reaped confusion and chaos—many persons were subjected to harassment on what were long-completed assessments.

In introducing the changes to the reassessment procedure through the Finance Act, 2021, the government claimed to be addressing this chaos. The apparent objective was to streamline the process, by allowing for reopening of assessments only in a very limited set of cases, and thus weed out unnecessary litigation. To achieve this, the law introduced a number of changes. Among other things, it now codified the GKN procedure and inserted it into the legislation. Henceforth, the assessing officer would have to conduct a prior enquiry before issuing a notice for reopening and would have to provide the assessee the information on the basis of which the reopening was sought, and then ask the assessee to show cause why a reopening ought not to be made. What is more, the new law also modified the existing timelines for reopening. A reopening notice could now be issued only up to a period of three years from the end of an assessment year. The Revenue could, however, in certain exceptional cases—where the income that had apparently escaped assessment was represented in the “form of an asset”—reopen an assessment up to a period of ten years from the end of an assessment year. By the government’s own account this procedure for reopening was transformative. If nothing else, it altogether upended the existing law on the subject.

These alterations had entered the legislation by the time the executive issued notifications under the TOLA, extending timelines for issuances of notices under Section 148 of the Act wherever limitation had expired on 31 March 2020. We know, through what is well settled law, that a substitution brought about by legislation has a twin effect: it leads to the deleting and effective repealing of the earlier provision of law and the insertion, in its place, of the new provision. [Ramkanali Colliery of BCCL v. Workmen, (2001) 4 SCC 236]. We also know, through various judgments of the Court, that any repeal of a provision of law, whether express or implied, has the effect of completely obliterating the repealed provision from the statute books.

Here, from 1 April 2021, the erstwhile Sections 148 to 153 had been obliterated from the Income Tax Act, 1961, and had been replaced by a set of new provisions. But the notification issued under TOLA, without legislative amendment, sought to go round these changes. It attempted this through a bizarre device: in an explanation to the notification it “clarified”, apparently to remove any doubts, that “for the purposes of issuance of notice under section 148 as per time-limit specified in section 149 or sanction under section 151 of the Income-tax Act, under this sub-clause, the provisions of section 148, section 149 and section 151 of the Income-tax Act, as the case may be, as they stood as on the 31st day of March 2021, before the commencement of the Finance Act, 2021, shall apply.”

Consider this for a moment: the executive was telling its income tax officers that they could go ahead and issue notices under a provision of law that Parliament had repealed. Remember, under TOLA, the executive could by notification extend timeframes fixed under the Income Tax Act. This, on any reasonable reading of the law, would mean the Income Tax Act as it stands on the date of a notification. After all, it with this in mind that Parliament had even introduced the changes to the scheme for reopening through the Finance Act, 2021. If Parliament at the time had wanted to save the power of the executive to issue notices under the erstwhile law it could have done so through a simple savings clause. But it expressly chose not to do so.

Yet, emboldened by the notifications, tax officers issued notices even after 1 April 2021 under the erstwhile provision of law. Naturally, this led to a series of challenges across the country—assesses, faced with these notices, argued that the notifications were ultra vires both the TOLA and the Constitution, and that the notices by themselves were without authority of law. They had been issued under a provision that had been obliterated from the statute and the Constitution, they argued, does not permit taxation without authority of law. Many High Courts granted interim protection to the assesses and at least eight of them—Bombay, Allahabad, Madras, Delhi and Rajasthan among them—quashed the notices (the Chhattisgarh High Court was the sole court to take a different view).

The Central Board of Direct Taxes filed affidavits before the High Court defending the notices. In these depositions, notably, the department did not plead ignorance. It claimed that the notices were issued validly and that despite the amendments brought to the Income Tax Act, the time available for issuing notices under the old provisions stood “frozen” by the operation of the TOLA. However, if this argument were to be accepted, the High Courts would have wound up allowing a virtual carte blanche to the executive, to resuscitate into life repealed enactments through a mere executive notification. Conscious of the anomalous situation that this might lead to, the High Courts held that the notices had been issued without authority of law, that from 1 April 2021 onwards any action for reassessment had to be predicated on the new scheme. The department, no doubt, still had the power (wherever the limitation prescribed under the new law hadn’t expired) to issue fresh notices under the amended law. But the old notices simply lacked any authority of law and for that reason had to necessarily be quashed.

***

It was only the judgment of the Allahabad High Court that had been taken on appeal to the Supreme Court. The Revenue told the Court that it was in the process of filing appeals against the other judgments. Given the gravity of the issue, and given the number of individuals (and other entities) affected by the issue, you would have thought the court would await the filing of those appeals before it rendered a final verdict, or at the least that the Court would grant reasonable time for interested parties to intervene in these proceedings. Instead, the Court  proceeded to grant leave and reserve judgment immediately after the assessees in the cases on appeal were before it. Having done this, the Court proceeded to reverse the High Court’s judgment, on grounds that were simply not pleaded by the Revenue before the court of first instance.

The only explanation for this conclusion is found in paragraph 8. The High Courts, the judgment holds, were quite correct in concluding that notices issued after 1 April 2021 could have only been issued under the new law. However:

“…At the same time, the judgments of the several High Courts would result in no reassessment proceedings at all, even if the same are permissible under the Finance Act, 2021 and as per substituted sections 147 to 151 of the IT Act. The Revenue cannot be made remediless and the object and purpose of reassessment proceedings cannot be frustrated. It is true that due to a bonafide mistake and in view of subsequent extension of time vide various notifications, the Revenue issued the impugned notices under section 148 after the amendment was enforced w.e.f. 01.04.2021, under the unamended section 148. In our view the same ought not to have been issued under the unamended Act and ought to have been issued under the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021. There appears to be genuine non­application of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced. Therefore, we are of the opinion that some leeway must be shown in that regard which the High Courts could have done so. Therefore, instead of quashing and setting aside the reassessment notices issued under the unamended provision of IT Act, the High Courts ought to have passed an order construing the notices issued under unamended Act/unamended provision of the IT Act as those deemed to have been issued under section 148A of the IT Act as per the new provision section 148A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law.”

Except this wasn’t the argument of the Revenue. The Revenue did not claim—certainly not in the affidavits filed by it in the High Courts—that it had made a bona fide mistake in invoking a dead law. The Revenue’s case was that the substituted provisions were still partly alive, that TOLA had allowed it the power to issue notices under the amended clauses. Indeed, the Court’s assertion that these notices had been issued as a result of some innocent misunderstanding of the law is belied by its own recording in paragraph 4 of the judgment, where it notes that “despite the substituted sections 147 to 151 of the Income Tax Act, 1961 by the Finance Act, 2021 coming into force on 1st April, 2021, according to learned ASG, the Revenue issued approximately 90,000 reassessment notices to the respective assessees under the erstwhile sections 148 to 151 thereof by relying on explanations in the Notifications dated 31st March, 2021 and 27th April, 2021.” But having noted this, the Court doesn’t so much as consider the purport of these explanations—these weren’t cases of assessing officers acting on their own accord; these were cases where the Union executive believed that it could bypass Parliamentary law through pure fiat.

The Supreme Court’s ruling that the notices quashed by the Allahabad High Court ought to be treated as notices issued under the new law comes with a further direction: judgments that were never on appeal before the Supreme Court would also now stand mechanically reversed. This is because the Court apparently cannot be burdened by over 9,000 appeals that the Revenue might have to prefer. That the assessees in those cases might have had something of value to tell the Court wasn’t so much as considered. Or, for that matter, that those assessees who had succeeded before the High Court possess rights of their own: among other things, a right to be heard before a decision touching upon their interests is taken. The Supreme Court is as much bound by principles of natural justice as any other state functionary. Yet, in one fell swoop, judgments of eight different High Courts were reversed without so much as issuing notices to the assessees in those cases. How could this be done? How could judgments not on appeal be reversed? The Supreme Court has one answer: Article 142 of the Constitution of India.

Article 142(1) reads as follows:

The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

As is clear from the bare text the Court is allowed to do complete justice in a cause or matter “pending before it.” Here, however, it was only the judgment of the Allahabad High Court that had been carried on appeal before the Supreme Court. Yet, the Court seemingly treats judgments from various other High Courts as matters “pending before it”. And it does so without telling us how it’s entitled to do so under Article 142(1).  

Article 142 has been a source of much misuse. Many have critiqued its use, including in these pages. The Court itself has also, on occasion, pointed out the limitations in the provision. For example, in Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad, (1963) a Constitution Bench held as follows:

“In this connection, it may be pertinent to point out that the wide powers which are given to this court for doing complete justice between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time. It is plain that in exercise these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.”

Similarly, in Supreme Court Bar Association v. Union of India (1998), another Constitution Bench held as follows:

“…the substantive statutory provisions dealing with the subject matter of a given case, cannot be altogether ignored by this court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.”

At least two limitations inherent in Article 142 are evident from a reading of these judgments. One, that the clause needs to be restricted to doing complete justice to parties before the court and nothing more. Two, that the provision cannot be deployed to make orders that are in conflict with statutory law. But the judgment in Ashish Agarwal ignores these mandates. It fails to consider the fact that it was reversing judgments rendered by at least seven High Courts despite the fact that the assesses in those cases were not before it. It also seems to scarcely mind that it was resuscitating notices issued under what was effectively a dead law, that its direction is plainly contrary to the terms of the Income Tax Act as they stood on the date on which the notices had been issued.

According to the bench, the upshot of the High Courts’ rulings was to leave the Revenue “remediless.” But what the High Courts were doing was to simply apply the law as it stood on the day. If the executive happened to find itself handicapped by any error of law committed by it, it could look, at best, to Parliament for help. Such a solution would have entailed a retrospective enactment, something which the government—especially on the back of its troubles with Vodafone and Cairn Energy—has claimed it doesn’t believe in. And no doubt, any such law would have also been subject to separate constitutional scrutiny. But in a system built on the principle of separation of powers, worries of this kind ought to play no role in the Court’s effort to deliver justice.


[The author was involved with some of the writ petitions before the High Court of Madras.]

The Upcoming Sedition Case before the Supreme Court: Key Issues

On the 5th of May, a three-judge bench of the Supreme Court will begin hearing a challenge to the constitutional validity of Section 124A of the Indian Penal Code (the offence of “sedition”). A series of administrative moves over the past one week – such as restricting arguments to one counsel, resisting the addition of further petitions to the case, and setting aside two specific days for arguments – suggests that the bench, which is led by the Chief Justice, intends to substantively hear the case, and issue a judgment (probably after the summer break). In this blog post, I will examine some of the constitutional issues in this case.

Preliminary Issue: Referral

This is not the first time that the Supreme Court is hearing a challenge to the constitutional validity of sedition. In 1962, in the Kedar Nath Singh judgment, a five-judge bench of the Supreme Court considered the question, and upheld the constitutionality of Section 124A. Under our constitutional jurisprudence, judgments of the Court can be reversed at a later date (the most striking recent example was the reversal of the judgment in Koushal by the judgment in Navtej Johar, on the decriminalisation of same-sex relations); however, ordinarily, this can only be done by a larger bench. Because Kedar Nath Singh was decided by a bench of five judges, it would need a bench of seven judges – or more – to reverse it. Benches of five or less are bound by Kedar Nath Singh. Note that this is not pedantry or hair-splitting: in a Supreme Court that has thirty or more judges at any given time, and which hears cases in panels of two, judicial discipline when it comes to precedent is particularly important. If departure from this rule was to become commonplace, the Supreme Court’s jurisprudence would lose its anchor, with any decision (including “good judgments” from the past) potentially subject to radical revision at any moment. This is also of particular importance at a time when ambush PILs – often seeking outrageous reliefs – are regularly filed before the Courts, and sometimes even entertained.

In the ordinary course of things, therefore, if the three-judge bench feels that the time has come for the Supreme Court to reconsider the issue, the correct course of action is to refer the case to a bench of five, which will – in turn – refer it to a bench of seven. There has been some argument that this is not necessary, as the judgment in Kedar Nath Singh has been “eroded” by time. That may well be correct, but that is not a call for a smaller bench to make. Even if it is true the foundations of Kedar Nath Singh can no longer stand because of subsequent developments in the law, on the specific point that it has decided – i.e., the constitutional validity of sedition – Kedar Nath Singh continues to bind smaller benches.

There is, however, one exception to this rule, and that is the doctrine of per incuriam. A judgment is per incuriam if it is passed in ignorance of either a binding statute, or a binding court judgment. Notice that the threshold is a high one: it is not sufficient to say that judgment A misinterpreted the law, or misunderstood judgment B. One has to show that there was a law or a judgment that was binding, and was ignored by the Court. However, once this high threshold is met – i.e., a judgment is per incuriam – then it is deemed to have no existence in law, and subsequent benches – including smaller ones – can proceed as if it did not exist.

It is my submission, therefore, that the three-judge bench can only decide the constitutional validity of sedition, without reference to a larger bench, if it first finds that the judgment of Kedar Nath Singh is per incuriam.

Is Kedar Nath Singh per incuriam?

In my opinion, there are good reasons for arguing that the judgment in Kedar Nath Singh is per incuriam. In Kedar Nath Singh, the finding that Section 124A was constitutional was based upon the argument that the words “disaffection”, “hatred”, or “contempt” against the government established by law – the gravamen of the offence – entailed within them a requirement that the seditious words must carry a “tendency” towards public disorder. The Supreme Court borrowed the word “tendency” from prior judgments of the pre-Independence Federal Court, which had considered how to interpret S. 124A. The Supreme Court held that this “tendency” to public disorder test was consistent with Article 19(2) of the Constitution, which requires that any restriction upon the freedom of speech and expression be “reasonable.”

In doing so, however, the Supreme Court failed to notice the existence of a judgment by a bench of equal strength, that was binding upon it. Two years before, in Superintendent v Ram Manohar Lohia, the Supreme Court had held that the legal test under Article 19(2) requires there to be a proximate connection between the speech and the (feared or actual) public disorder. For example, inciting a mob to go and burn down a building meets the test of “proximity.” However, giving a public speech asking people to disobey a tax law – which was the issue in Lohia – does not meet the test of “proximity”, as there is a wide gap between a call for civil disobedience, and the threat of a violent revolution (for details, see Ch. 3 of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, by the present author).

The judgment in Kedar Nath Singh ignored the binding judgment in Lohia, and the legal test of proximity. Instead, its “tendency” test – which was the basis upon which S. 124A was upheld – does not carry with it the proximity requirement. This is evident: the word “tendency”, by its very nature, is boundless and boundlessly manipulable. As G.D. Khosla wrote, for instance:

Anything may have a tendency for almost anything. A lamp post may be taken as a phallic symbol, a convenient object for canine relief, a source of light, evidence of civilization, something to lean against when waiting for a bus or something to demolish in order to demonstrate a sense of rebellion or discontent. So what is the tendency of a lamppost? (G.D. Khosla, Pornography and Censorship in India).

Kedar Nath Singh, therefore, meets the strict threshold fo a judgment to be per incuriam. It ignored binding precedent, and in consequence of that, applied the wrong constitutional test in order to uphold the constitutionality of sedition.

The Unconstitutionality of Sedition

With Kedar Nath Singh out of the way, it is therefore possible for the three-judge bench to hear and decide the constitutionality of sedition.* And it is at this point that I believe that the argument becomes simple and straightforward. Over the last sixty years, the Supreme Court has steadily refined the proximity requirement under Article 19(2) of the Constitution. In Ram Manohar Lohia, it required the link between speech and disorder to be “proximate.” In S. Rangarajan v P. Jagjivan Ram, it required that the link be like a “spark in a powder keg.” In Arup Bhuyan, it adopted the Brandenburg standard of “incitement to imminent violence.” This was then affirmed in Shreya Singhal, where the Supreme Court categorically distinguished between “advocacy” (of disorder and violence) and “incitement”, and noted that only the latter could be lawfully prohibited in a manner that was consistent with the right to free speech.

There are strong reasons why this is the correct approach: these have to do with the point of free speech in a democracy, the need to respect the autonomy of both speakers and the audience, and to ensure that the responsibility for an illegal act lies on the person who actually does it, and constraining the State from having too much power to decide what speech is acceptable and what isn’t. However, we do not need to go into those arguments in too much detail for this post, as our purpose here is to set out the law as it is. In this context, given that the correct test is that of “incitement to violence”, it is evident that there is no interpretation of s. 124A that can square the words of the section with the legal test. s. 124A punishes anyone who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India].” No amount of interpretive pyrotechnics can bridge the gap between “bringing into hatred, contempt … or disaffection” with “incitement to violence.” I can try to persuade you to hate a thing, to have contempt for it, and to be disaffected by it, without any attempt to incite you to violence against it. The states of mind are entirely separate.

S. 124A, therefore, is “over-broad”: it criminalises speech that can be lawfully punished (incitement to violence) as well as speech that is entirely within the bounds of law (non-violent but critical speech). That – without anything more – is sufficient for the Court to declare it to be unconstitutional. The argument may sound simplistic, but that really is all that there is to it: over the years, courts at all levels have tied themselves into knots trying to reconcile the wide and vague language of s. 124A with the actual legal test. They have had to do so because Kedar Nath Singh gave them no other choice; but the opportunity is now here to cut the knot once and for all.

Consequences

A final question may be raised: is there any real point to this hearing? We have seen over many years that sedition is not the only – and indeed, not even the most virulent – legal provision that can be used to incarcerate inconvenient people. That dubious honour belongs to a range of preventive detention statutes – but also, specifically, to Section 43(D)(5) of the UAPA, which prohibits the grant of bail as long as there is a “prima facie” case against an accused. The removal of “sedition” from the statute books, therefore, might be little more than symbolic: all it will do is remove one string from a bow that already has far too many of them.

This is not an inaccurate critique. When a Trial Court or a High Court refuse to grant bail, they cite the UAPA judgment in Watali, not the sedition judgment in Kedar Nath Singh. A reconsideration or reappraisal of Watali – and indeed, the broader bail jurisprudence in the country (see e.g. the work of Abhinav Sekhri on this) – would do more for civil liberties than the striking down of sedition. That said, however, there is good reason why – if the Court does strike down sedition – the judgment will be more than just symbolic. This is because – as I have indicated above – striking down sedition will require a reiteration of the incitement standard. This reiteration is important, Article 19(2) applies to both sedition and the UAPA. Indeed, a significant number of bail denials in recent times stem from a mis-construal of the incitement standard. A recent example – although not a denial of bail (yet) – was the Delhi High Court questioning parts of Umar Khalid’s speech (for which he is incarcerated under the UAPA): for instance, his use of words such as “krantikari” and “inquilabi”, and his criticism of the Prime Minister. Under a proper appreciation of the incitement standard, these questions are not even remotely relevant: the incitement standard requires a clear and cogent showing of how a person is instigating a set of people to imminent violence. This is not to be implied from inferences or speculation about the speaker’s motives, but has to be staring at you in the face (hence the colourful image of the “spark in a powder keg”).

Thus, a strongly reasoned Supreme Court judgment on the constitutionality of sedition – one that reiterates the incitement standard – would indeed go beyond mere symbolism. It would add to the body of pro-civil liberties legal doctrine in India, and would be of some assistance in attempts to check State impunity and abuse of power under other laws such as the UAPA. Of course, how much of a help it would be depends upon the Court’s eventual reasoning, and how strongly and in what way – in the immediate future – it becomes embedded in our jurisprudence.


* I still believe that referring to bench of five would be more proper, and would also make for more enduring jurisprudence, but perhaps that ship has sailed.

Comforting the Comfortable and Afflicting the Afflicted: The Supreme Court’s FCRA Judgment

In 2020, Parliament amended the Foreign Control (Regulation) Act of 2020 [“the FCRA Amendments“]. The FCRA is India’s umbrella law for regulating foreign donations to non-governmental organisations [“NGOs”]. The FCRA amendments did four consequential things:

  1. Section 7 of the FCRA was amended to prohibit “sub-transfers” – i.e., the transfer of funds from an FCRA-registered NGO to any other body or person (notably, this included transfers to other FCRA-registered bodies as well).
  2. Section 8 of the FCRA was amended to prohibit more than 20% of donated funds being used for administrative activities (the earlier cap was 50%).
  3. Sections 12 and 17A of the FCRA were amended to stipulate that FCRA funds could only be received in one branch of the State Bank of India at New Delhi.
  4. Section 12 was also amended to stipulate that those applying for an FCRA registration or renewal may be required to produce their Aadhaar number as proof of identification.

It can therefore be seen that the effect of the amendments was to make the legal regime under the 2010 Act stricter in various respects (with the corollary of making it harder for NGOs to function). These four amendments were challenged in various proceedings before a few High Courts. In the Noel Harper case, there was – initially – a more limited challenge to one of the amendments. However – in an increasingly common practice – the Supreme Court in its wisdom decided to stay most of the ongoing High Court challenges, and issue a comprehensive judgment (Noel Harper v Union of India) on the amendments instead. For anyone who has been following the recent career of the Supreme Court in cases involving the government – and especially the many cases decided by benches led by Khanwilkar J, who presided over this case as well – the judgment will come as no surprise: the amendments were upheld almost in their entirety.

An analysis of the judgment reveals that it is characterised by many of the regrettable features that have come to characterise Indian civil rights jurisprudence today. The Court begins by framing the issue in a way that is most favourable for the State, and least favourable for the citizen. Having framed the question thus, it then goes on to accept the State’s factual claims at face value, but does not extend the same courtesy to the citizen. Having done that, it then applies those parts of existing legal doctrine that favour the State, and ignores – or misrepresents – those parts that protect the rights of citizens. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review.

How does this happen in the Noel Harper case? Let’s start with the framing. In paragraph 21, the Court states that “there is no fundamental right vested in anyone to receive foreign contribution (donation) or foreign exchange; and that the purport of the Principal Act and the impugned amendments are only to provide a regulatory framework and not one of complete prohibition.” (emphasis supplied) At the outset, this then allows the Court to significantly devalue the rights claims at issue. The framing is also false: it is nobody’s case that the Constitution guarantees a “fundamental right to receive foreign contribution” (sic). What the Constitution does guarantee is a fundamental right to the freedom of association. The freedom of association is meaningless unless individuals who wish to form associations are able to access funds to carry out the activities for which they associate. When the State, therefore, passes a law that places significant burdens upon the ability of associations to access funding, the effect of such a law is to impinge upon the constitutionally guaranteed freedom of association.

None of this is particularly novel to Indian jurisprudence: to take just one example, in Sakal Papers v Union of India, the government’s Newspaper Act – which authorised the government to “regulate” the prices of newspapers according to the number of pages that they had – was struck down for violating Article 19(1)(a) of the Constitution. Going by the logic of the Supreme Court in Noel Harper, the question in Sakal Papers would have been thus: “is there a fundamental right to publish a newspaper of X length and price it at Y rupees?” Did the Supreme Court in Sakal Papers frame the question thus? No, because it chose to apply common sense instead: the effect of a price/page regulation is to impinge upon the freedom of speech and expression, and therefore requires to be tested on 19(2) grounds. Similarly, the effect of “regulating” (i.e., restricting) funding for associations is to impinge upon the freedom of association, and therefore requires to be strictly tested on grounds of proportionality.

Having thus framed the question to the disadvantage of the citizen, the blithe acceptance of the State’s factual assertions comes in at paragraph 23. In paragraph 23, the Court notes:

In due course of time, however, it was realised that the dispensation enunciated in the 2010 Act was also not yielding the desired result. This impelled the Parliament to amend the 2010 Act (vide 2020 Act) to make it more stringent and effective to subserve the cause and intent of the Principal Act — not only in regard to the modality of acceptance of foreign contribution in the prescribed manner but also making it imperative for the recipient of foreign contribution to utilise the same “itself” for the designated or specified purposes for which it was so permitted. 

This passage refers to the issue of sub-granting, which is now prohibited under amended Section 7. Put simply, the issue of sub-granting is this: small and grassroots NGOs do not often have the wherewithal to liaise directly with foreign donors (that are often big institutions), and receive funds. For this reason, these small NGOs often tie up with larger, more established national NGOs: the national NGO negotiates with the foreign grantor, and then passes on the grant to the smaller NGO. It is crucial to note that under the old FCRA regime, it was already a requirement that both the grantor and the grantee NGO would have to be registered under the FCRA, and therefore, both entities already existed within the regulatory regime. It is therefore entirely unclear – including from the Statement of Objects and Reasons that the Court extracts a few paras before – which part of the old regime “was not yielding the desired result”, thus necessitating a prohibition on sub-granting. Indeed, this entire paragraph is a complete non-sequitur: the Court goes from “subserving the cause and intent of the Principal Act” to “making it imperative for the recipient of foreign contribution to utilise the same “itself”” (prohibition of sub-granting) without any elaboration of the logical link between the two. I’d suggest that the reason for that is that there is no logical link between the two. Putting the word “itself” in “scare quotes” does not establish that logical link.

An attempt at establishing a logical link is then made in paragraph 26, where the Court reproduces the Statements of Objects and Reasons of the Act. In sum, it is the State’s case – according to the Court – that NGOs have been found to be “routing” money that has been sent to them to other sources, creating “several issues” bordering on “malpractices”, the creation of a “layered trail of money” where it is “difficult to trace the flow.” Notice that this entire paragraph is fact-free: there are a series of assertions without specifications or evidence, which the Court does scrutinise. Furthermore, specifically on the issue of sub-transfers, quite apart from evidence, the argument defies logic: if both the grantor and the grantee are already FCRA registered – that is, already subject to the regulatory regime under the Act – where is the question of “routing”, “layered trail(s) of money”, and “difficulties in tracing the flow”? Once again, no answer is forthcoming – because no answer exists. The non-answer is provided by the Court in paragraph 50, where it notes:

Accepting this argument would be completely glossing over the legislative intent for which the amendment has been effected. The legislative intent is to introduce strict dispensation qua the recipient of foreign contribution to utilise the same “itself” for the purposes for which it has been permitted as per the certificate of registration or permission granted under the Act by the Central Government. 

Once again, we have the same question-begging argument that the Court tries to gloss over by putting the word “itself” in scare-quotes. However, even if we were to accept this – that there was a legitimate purpose to requiring that only the donor NGO “itself” can use the funding it gets – there is a further constitutional threshold to meet: the test of proportionality. Under the test of proportionality, the State would be required to show – for example – that this kind of a prohibition is the least restrictive method for achieving the desired goal (i.e., adequate regulatory oversight of foreign funds), and that the extent of restriction is proportionate to the goal. Notably, the Court does not engage in a proportionality analysis at all, because it has already held – via its self-serving framing – that there is “no vested right to receive foreign funds.” (paras 55 – 68) The Court also ignores the argument from discrimination, on the basis that this ban on sub-grants specifically hits smaller and grassroots NGOs who cannot directly liaise with big donors, by stating that the law is “facially neutral.” Needless to say, this ignores entirely the law on indirect discrimination, which asks not whether the law is neutral “on its face”, but whether it has a discriminatory impact. Thus, we come to the third stage of this particular form of judicial-executive reasoning that has come to characterise the Court’s judgments of late: constitutional doctrine that is inconvenient to the State is simply ignored.

In the Court’s judgment upholding the vires of Section 7, therefore, we see each of the three steps mentioned in the beginning of this blog post: a founding (incorrect) assumption that benefits the State, acceptance of the State’s factual claims without scrutiny (even when those claims are facially illogical), and selective use of constitutional doctrine to the benefit of the State. The same issues are present – in a far more cursory fashion – in its analysis of the other impugned provisions. With respect to the mandate that all organisations must open their FCRA accounts in a specific branch of the SBI in Delhi, the Court notes that this is necessary because it provides “a complete and transparent check on the inflow and utilisation of foreign contribution towards a single point source on real-time basis.” The Court provides absolutely no reasoning with respect to how this specific restriction will solve the purported issue of “abuse” of the old regime (an initial requirement of reasoning), much less whether it is a proportionate restriction: it only repeats – multiple times – that the old regime was being abused, and that there is need for “strict” regulation “in the interests of the sovereignty of the country”. This form of reasoning might be suitable for WhatsApp forwards that we have all received about how foreign NGOs are ruining the country, but it is rather inappropriate for the highest Court in the country. The Court then notes:

A priori, opening of main FCRA account in the designated bank as per the law made by the Parliament in that regard, cannot be brushed aside on the specious argument of some inconvenience being caused to the registered associations. (paragraph 73)

There are, of course, echoes of the notorious “minuscule minority” line from Koushal v Naz here. Once again, though, the lack of knowledge of – or attention to – existing Indian constitutional jurisprudence is startling. When the effect of a law is to place a heavy burden upon the exercise of a constitutional right, then – under judicial review – the Court is required to subject it to proportionality scrutiny. The Court simply evades that obligation by framing it as an “inconvenience”, and therefore constitutionally irrelevant.

There is also a particular irony here, given that the State’s entire argument for requiring every FCRA-registered NGO to open its FCRA account in a designated branch of SBI Delhi is – in effect – its administrative convenience. It is reminiscent of the Peruvian President Óscar R. Benavides, who once notoriously said, “for my friends, anything; for my enemies, the law!” In this judgment, the Supreme Court likewise says, “for the State, any convenience; for the citizen, every burden.” In law school, we are taught that one of the functions of a Constitution is to put limits upon the power of the State, to secure the freedom of the individual. Increasingly, the Supreme Court is reversing that relationship: the purpose of the Constitution – according to the Court – is to constrain the individual, so that the there can be no check upon the power of the State.

For these reasons, this judgment is somewhat difficult to analyse: the “reasoning” part of it essentially consists of the Court repeating the State’s contentions, repeating how “national security” and “sovereignty and integrity” are important, repeating how there must be “strict regulation” of foreign funding, and concluding on the basis of the above that the amendments are valid. Analysing this judgment, therefore, is more a task of reconstruction than anything else: reconstructing the framing that the Court chooses to ignore, the facts that it chooses to gloss over, and the doctrine that it chooses not to apply. Indeed, it is not so much about analysing legal reasoning, but analysing the absence of it; in Noel Harper, it is the silences that speak the loudest.

But perhaps, a clue to decoding this judgment – to its multiple lapses of logic and evasions – can be found in paragraphs 53 and 54, where the Court notes:

Indubitably, foreign contribution is qualitatively different from foreign investment. Receiving foreign donation cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems. The question to be asked is: “in normal times”, why developing or developed countries would need foreign contribution to cater to their own needs and aspirations? Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens to achieve the goal by sheer dint of their hard work and industry. Indeed, charitable activity is a business. Receiving contribution within India to do charitable activity can be and is being regulated differently. It is not possible to have a similar approach relating to foreign contribution from foreign source. In short, no one can be heard to claim a vested right to accept foreign donation, much less an absolute right. 

We say so because the theory of possibility of national polity being influenced by foreign contribution is globally recognised. For, foreign contribution can have material impact in the matter of socio-economic structure and polity of the country. The foreign aid can create presence of a foreign contributor and influence the policies of the country. It may tend to influence or impose political ideology. Such being the expanse of the effect of foreign contribution coupled with the tenet of constitutional morality of the nation, the presence/inflow of foreign contribution in the country ought to be at the minimum level, if not completely eschewed. The influence may manifest in different ways, including in destabilising the social order within the country. The charitable associations may instead focus on donors within the country, to obviate influence of foreign country owing to foreign contribution. There is no dearth of donors within our country. 

This is what we call the proverbial slipping of the mask. The Court really really really dislikes foreign donors (as opposed to foreign investors, who – it is of course a well-known fact – never try to influence a sovereign nation’s laws and policies). It hates their guts. It thinks it is a sign of national weakness that individual citizens rely upon foreign donations for funding. Citizens must work hard, because ultimately work will set you free.

In their private lives, judges are of course free to have their prejudices, and hold whatever anti-NGO and anti-foreign funding views they want to. The problem is when these prejudices leak into judgments – as has clearly happened in this case. The relentless beating of the “national security” and “sovereignty and integrity” drums, the unseemly patting on the back of the State for making foreign funding more difficult to receive, and the open contempt for NGOs who do apply for FCRA registrations (“specious argument”) all make for very disturbing reading: it is the crystallisation of State prejudice into judicial prejudice, where – far from checking State abuse – the judiciary sees its primary role as the State’s cheerleader, enthusiastically applauding as it cuts down the rights of those ungrateful and undeserving citizens who don’t want to work hard enough and want to take foreign donations instead. In this brave new world, we don’t get constitutional rights unless we deserve them, and the Court will determine if we are worthy (sneak preview: most of us will not be).

The Kenyan Supreme Court’s BBI Judgment – III: On Referendum Questions, Other Implications and Untidy Endnotes

This is the third and concluding blog post about the Kenyan Supreme Court’s BBI judgment. Parts One and Part Two can be accessed here. In this post, I will end by examining some of the possible implications of the judgment of the Court, going forward.

Distinct and Separate Referendum Questions

Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.

A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.

In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.

The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.

But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!

It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open; and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments: as Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it. One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the President could or could not initiate a PI. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the PI. The same considerations apply to the issue of distinct and separate referendum questions.

Constitutional Gaps

On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.

The first issue had also been discussed by the judges in the superior courts below: in the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments; thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.

The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative: eighteen out of nineteen judges who heard this case agreed that the President cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the President’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future President might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies. At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future; and the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to Parliament, Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of State actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.

Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial Presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial Presidency is not so easy to contain: its “taming” will need more than one set of judgments, but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.

Conclusion: Shadow and Light

It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three blog posts reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions: I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (State power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.

Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.

The Kenyan Supreme Court’s BBI Judgment – II: Public Participation, Direct Democracy, and the Popular Initiative

In the previous post, we discussed the Kenyan Supreme Court’s BBI judgment, on the issue of basic structure and limitations upon the constitutional amending power. That discussion provides an ideal segue into the second major issue before the Court: the interpretation of Article 257 of the Kenyan Constitution, which provides for constitutional change through the “popular initiative.” Recall that other than the substantive challenge to the contents of the BBI Bill, another ground of challenge was that on a perusal of the record, His Excellency the President was the driving force behind the Bill (the High Court called him the “initiator”), going back to the time that he engaged in a “handshake” with his primary political rival at the time, the Hon. Raila Odinga. It was argued that Article 257’s “popular initiative route” was not meant for State actors to use – and definitely not for the head of the executive to use. It was meant to be used by ordinary people, as a method for bringing them into the conversation about constitutional reform and change. The High Court (5-0) and the Court of Appeal (7-0) (see here) agreed with this argument; the Supreme Court (6-1) did so as well, although it split (5-2) on the question of whether the President had, actually, been impermissibly involved with the popular initiative in this case.

The Long Shadow of the Imperial Presidency

At the outset, it is important to note that Article 257 does not explicitly bar the President from being a promoter (the technical term) or an “initiator” of a popular initiative (Ibrahim J, paragraph 784). Any restriction upon the President, in this regard, would therefore have to flow from an interpretation of the constitutional silences in Article 257.

How does the Supreme Court fill the silence? As with its analysis of the basic structure, the Court turns to history. Where the point of Chapter XVI was to provide internal safeguards against hyper-amendments, more specifically, Article 257 – as gleaned from the founding documents – came about as a response to the “Imperial Presidency”: i.e., the period of time under Kenya’s Independence Constitution, where power was increasingly concentrated in the hands of the President, and where the President was in the habit of simply amending the Constitution in order to remove impediments to the manner in which he wished to rule (Koome CJ, paragraph 243; Mwilu DCJ, paragraphs 463, 472; Wanjala J, paragraph 1046; Ouko J, paragraph 1917-1918).

This being the case, the Supreme Court holds, it would defeat the purpose of the popular initiative to let the President back in. The purpose of Article 257, according to the Court, is to provide an avenue for constitutional change to the People, as distinct from State organs (Mwilu DCJ, paragraph 491; Ibrahim J, paragraph 789; Lenaola J, paragraph 1537). In other words, the scheme of Chapter XVI – with its twin parliamentary (Article 256) and popular initiative (Article 257) routes – is to balance representative and direct democracy when it comes to constitutional change (Koome CJ, paragraphs 237 – 242; Mwilu DCJ, paragraph 480; Wanjala J, paragraph 1042; Lenaola J, paragraph 1535; Ouko J, paragraph 1900). That balance would be wrecked if Article 257 was to be converted from a bottoms-up procedure for constitutional change to a top-down procedure, driven by the President.

This is a particularly important finding, whose implications extend beyond the immediate case. Recall that the contest over the interpretation of Article 257 was – as so much else in this case – a contest over legal and constitutional history. While the challengers to the BBI Bill told the story of the imperial Presidency, its defenders told a different story entirely: for them, Article 257 was not about constraining the President, but about enabling them. The situation that Article 257 envisaged was one where a recalcitrant Parliament was stymying the President’s reform agenda; in such a situation, Article 257 allowed the President to bypass Parliament, and take their proposals directly to the People.

The contest, thus, was fundamentally about the relationship between power, Presidentialism, and the 2010 Constitution. Was the 2010 Constitution about constraining the imperial Presidency – or was it about further entrenching the power of the President vis-a-vis other representative organs? And thus, in answering the question the way it did, the Supreme Court not only settled the fact that the President could not initiate a popular initiative, but also laid out an interpretive roadmap for the future: constitutional silences and ambiguities would therefore be required to be interpreted against the President – and in favour of checks or constraints upon their power – rather than enabling their power. This is summed up in paragraph 243 of Koome CJ’s opinion, which demonstrates the reach of the reasoning beyond its immediate context:

In its architecture and design, the Constitution strives to provide explicit powers to the institution of the presidency and at the same time limit the exercise of that power. This approach of explicit and limited powers can be understood in light of the legacy of domination of the constitutional system by imperial Presidents in the pre-2010 dispensation. As a result, Chapter Nine of the Constitution lays out in great detail the powers and authority of the President and how such power is to be exercised. In light of the concerns over the concentration of powers in an imperial President that animate the Constitution, I find that implying and extending the reach of the powers of the President where they are not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes. (Emphasis supplied)

Furthermore, in this context, Koome CJ’s endorsement of Tuiyott J’s opinion in the Court of Appeal (Koome CJ, paragraph 256) becomes particularly important. As Tuiyott J had noted, simply stating that the President is not allowed to initiate a popular initiative will not solve the issue; there are many ways to do an end-run around such proscriptions – for example, by putting up proxies (as arguably did happen in this case). What is thus required is close judicial scrutiny, and the need for a factual analysis that goes behind a proposed PI, in order to ensure that it is genuinely citizen-driven, and not a front for State actors (especially the President) (see also Mwilu J, paragraph 509, for some of the indicators, which she suggests ought to be addressed legislatively). Indeed, a somewhat more formal reading of the process (with respect) led to Lenaola J dissenting on this point, and finding that the President was not involved, as it was not he who had gone around gathering the one million signatures for the popular initiative). Thus, how well the judiciary can police the bounds of Article 257 is something only time will tell; in the judgments of the High Court, Court of Appeal, and now the Supreme Court, the legal standards – at least – are in place.

Public Participation

The Supreme Court unanimously found that the Second Schedule to the BBI Bill – which sought to re-apportion constituencies – was unconstitutional. Their reasons for doing so differed: a majority holds that there was no public participation; Mwilu J also holds that the amendment was not in harmony with the rest of the Constitution (paragraph 533) and Wanjala J says that it amounted to constitutional “subversion” (paragraph 1063), on the basis that it amounted to a direct takeover of the functioning of the Independent Electoral and Boundaries Commission – raising some of the basic structure issues discussed in the previous post. On public participation with respect to the rest of the BBI Bill, the Court split 4 – 3, with a wafer-thin majority holding that – on facts – there had been adequate public participation in the process thus far. In this context, it is important to note that CJ Koome – one of the majority of four – notes elsewhere that the most intense public participation – that is, voter education etc – occurs at the time of the referendum (which had not yet happened in the present case).

A couple of other points arise for consideration on the point of public participation. The first is that in a dispute about whether or not there was adequate public participation, who bears the burden of proof? On my reading, a majority of the Court holds that it is the State organs who bear the burden of demonstrating that there was adequate public participation (Koome CJ, paragraph 270, 311; Mwilu J, paragraphs 599, 604; Ibrahim J, paragraph 849; Wanjala J, paragraphs 1096 – 1097). The rationale for this is set out by Ibrahim J at paragraph 849:

With profound respect, as stated by Musinga, (P), the amendment of a country’s constitution, more so our Constitution, should be a sacrosanct public undertaking and its processes must be undertaken very transparently and in strict compliance with the country’s law.

This chimes in with the Court’s finding that the tiered amendment process under Articles 255 – 257 is an internal safeguard against abusive amendment; needless to say, if that interpretation is indeed correct, then within the scheme of Articles 255 – 257, constitutional silences should be interpreted in a manner that protects the citizenry from abusive amendments; one of the most important safeguards is public participation, and it there stands to reason that the burden of establishing it – especially where State organs are concerned within the scheme of Article 257 – should be on the State. In this context, it is interesting that other than repeatedly emphasising that Article 257 was an onerous, multi-step procedure whose very onerousness was designed to protect the basic features of the Constitution, Koome CJ is the only judge to both hold that the burden lay upon State organs, and to hold that the burden was discharged in this case.

The second point about public participation is the Court’s finding that it flows throughout the scheme of Article 257, with its specific character depending upon what stage the amendment process was at: at the promoters’ stage, at the stage of the county assemblies, at the stage of the legislature, and at the stage of the referendum. A majority holds – and I think correctly – that at the initial stage – the promoters’ stage – the burden is somewhat, especially given that this is the only stage where State institutions are not involved, and the burden falls upon the promoters, who are meant to be ordinary citizens. Given the contested facts in this case – which are discussed at some length in the separate opinions – it will be interesting to see how future judgments deal with the issue of public participation under Article 257, especially given the Court’s finding that it is this tiered amendment process that is meant to protect against abusive amendments.

The Quorum of the IEBC

Recall that a key question before the High Court and the Court of Appeal was whether the IEBC, working with three commissioners, had adequate quorum, notwithstanding the fact that the Schedule to the IEBC Act fixed the quorum at five. The High Court and the Court of Appeal held that it did not have quorum; the Supreme Court overturned this finding.

The reasoning of the judges on this point overlaps, and can be summed up as follows: Article 250(1) of the 2010 Constitution states that “each commission shall consist of at least three, but not more than nine, members.” This means that, constitutionally, a commission is properly constituted with three members. Any legislation to the contrary, therefore, must be interpreted to be “constitution-conforming” (in Koome CJ’s words), and read down accordingly (Koome CJ, paragraph 325 – 326, 336 – 337; Mwilu J, paragraph 661; Wanjala J, paragraph 1113; Ouko J, paragraphs 2060, 2070).

With the greatest of respect, textually, this is not entirely convincing. If I say to you that “you may have at least three but not more than nine mangoes”, I am leaving the decision of how many mangoes you want to have up to you; I am only setting a lower and an upper bound, but the space for decision within that bound is entirely yours. Similarly, what Article 250(1) does is set a lower and upper bound for Commissions and quorum, with the decision of where to operate in that space being left up to legislation (see Ibrahim J, paragraph 892). This point is buttressed by the fact that under the Transitional Provisions of the Constitution, it is stated that “Until the legislation anticipated in Article 250 is in force the persons appointed as members or as chairperson of the Salaries and Remuneration Commission shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.” I would suggest that this indicates that the appropriate body for implementing Article 250 is the legislature, and consequently, questions about quorum and strength ought to be left to the legislature (subject to general principles of constitutional statutes and non-retrogression, discussed here).

Conclusion

There were, of course, other issues in the judgment that I have not dealt with here: the question of Presidential immunity, for example. In this post, however, we have seen that the overarching finding of the Court – that the tiered amendment procedure under Articles 255 – 257 is meant to provide an internal safeguard against abusive constitutional amendments and hyper-amendments – necessarily informed its interpretation of Article 257 itself; in particular, in holding that the President cannot initiate a popular initiative, that the burden of demonstrating public participation lies upon the State, and that public participation is continuing process flowing through the several steps of Article 257. In the final – and concluding – blog post, we shall examine some of the other implications of this logic, in particular upon issues such as distinct and separate referendum questions.