The 16th September Order and the Supreme Court of Convenience (or why separation of powers is like love)

Tags

,

Until the 16th of September, 2019, we believed that there were some fundamental principles that underlay our constitutional system. These principles were as fundamental as breath, and as natural. We took them for granted. For example:

  1. Fundamental rights cannot be infringed in the absence of a law (Kharak Singh v State of UP).
  2. If there exists a law, that law must be promulgated publicly, so that citizens may know what it says, and know the basis on which fundamental rights are being restricted. Secret laws are an anathema to the very concept of the rule of law (Harla v State of Rajasthan*).
  3. If that law is challenged in a court of law, then it is that court’s constitutional duty to decide whether (a) fundamental rights have been infringed, and (b) whether that infringement is justifiable under the Constitution (do I really need to give you a citation here?).
  4. After the petitioner has discharged her initial burden of showing a prima facie infringement of her rights, the burden shifts to the State to justify that infringement (see point 3).
  5. When assessing the infringement of rights under Articles 19 and 21, the court is not expected to vacate the field and enable executive supremacy, as the Emergency-era judgement in ADM Jabalpur v Shivakant Shukla has been buried “ten fathom deep with no chance of resurrection.” (Puttaswamy (I) v Union of India).
  6. Instead, when examining the infringement of rights under Article 19 (freedom of speech, association etc.) or 21 (life and personal liberty), the court will apply the proportionality standards. The proportionality standard requires a showing that the infringing measures were necessary (i.e., there were no reasonable available alternatives) (Puttaswamy (II) v Union of India).
  7. The right to freedom of expression under Article 19(1)(a) can be restricted only on the eight sub-grounds mentioned under Article 19(2). The Court cannot add additional grounds through judicial fiat (Sakal Papers v Union of India).
  8. The Court must give reasons for its judgement (see point 3).

In its order dated 16.9.2019, in Anuradha Bhasin’s Case, the three-judge bench of the Supreme Court, led by the Chief Justice, has taken each of these principles to the shredder. In doing so, it has fashioned new constitutional “law” that resembles a directive from the Home Ministry more than it does a reasoned judgement from a constitutional court. The petition involved a challenge to the communications lockdown that has been imposed in the State of Jammu and Kashmir since August 5 (the extent of the lockdown is disputed). According to the eight principles stated above, the task of the Court was simple: it had to (a) examine the order under which the lockdown was imposed (did it flow from Section 144 of the CrPC, for example, or from the Telecommunication Suspension Rules of 2018)?); (b) examine the grounds of the lockdown, and assess whether a state-wide suspension of communications infrastructure met the test of proportionality, and (c) provide a reasoned judgement.

In other words, the Court had to hear the case and decide it.

What did the Court do? After footballing the hearing from one date to another – thus enabling a continuing violation of fundamental rights without a decision on its legality – on the 16th of September, it passed a two-paragraph order. After stating that the matter will next be listed on September 30, the relevant portion of the order reads:

The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.

Let us examine this paragraph. The first thing to note is that the order authorising the communications shutdown has still not been made public, after more than forty days. It stands to reason that if the government (either the central government or the state government) has passed this order without publicly promulgating it, then the responsibility lies upon the government to produce it before the court, so that adjudication may take place. In exempting the government from this most basic principles of the rule of law and natural justice, the court’s order violates principles (1) and (2) mentioned above.

Next, the Court has returned no finding on the constitutional validity of the communications shutdown. It has therefore violated principle (3). It has not recorded any justification from the government in the order, or examined its validity. It has therefore violated principle (4). And by choosing to include an exhortation to the government to restore normalcy by making “all endeavours” keeping in mind the “national interest and internal security”, an exhortation without any binding force, and subject to what the government believes are the requirements of “national interest” and “internal security”, the Court has taken us straight back to 1976 and ADM Jabalpur, violating principle (5). Ten fathoms deep, apparently, is not deep enough, because nothing of ADM Jabalpur doth fade; it only suffers a sea change, into something rich and strange (ding dong bell!).

Further, the Court has engaged in no proportionality analysis. It has not examined whether a communications lockdown of an entire state is a proportionate response to what the External Affairs Minister referred to as the goal of stopping terrorists from communicating with each other. It has not even asked the State to show that other alternatives were contemplated and found wanting (if the Court was concerned about national security implications, it could even have asked for the evidence in its favourite manner, i.e., in a sealed cover). So perhaps the judgements that have actually been buried ten fathom deep – to resurrect whenever convenient – are Puttaswamy I and II.

“National interest” and “internal security” are not grounds under Article 19(2). By inventing new grounds to justify the restriction of the fundamental right to freedom of speech and expression, the Court has violated principle (6). Words matter, especially when they are being used to justify a clampdown on rights.

And lastly, no reasons have been provided in this order. This is why I observed, at the beginning of this post, that this “order” resembles more a directive from the Home Ministry, rather than a reasoned opinion from a constitutional court: not only does it provide no reasons, but it is so vague and so broadly worded, that is has practically no impact. What does “all endeavours” means? The government will decide. What does “national interest” require? The government will decide. To what extent does “internal security” require clampdown on rights? The government will decide. In the ADM Jabalpur, the Supreme Court had the minimum courtesy of telling citizens that during the Emergency, fundamental rights stood suspended – and it provided some reasons for that conclusion. Here, by framing an order for “restoring normalcy subject to whatever the government thinks is fit”, the Court has effectively done exactly the same thing, without extending that courtesy.

The order of 16.9.2019, therefore, is not recognisable under any theory of constitutional adjudication, and the bench delivering is not recognisable as what we commonly understand as a “constitutional court.” What it resembles more is a branch of the executive, enabling and facilitating the executive, instead of checking and balancing it, and reviewing its actions for compliance with fundamental rights.

And this has been a long time coming. Throughout the 1980s and the 1990s, in PIL litigation, the Court emphasised that it was not adversarial litigation, that normal standards of evidence and fact-finding were dispensable, and that it was effectively acting in partnership with the government to achieve national goals. It may have been possible to predict that if the court began to fashion itself as a partner of the government, its role as an oversight body would be severely compromised. But legal academics of the time did not mind; indeed, the foremost academic of these times, Professor Upendra Baxi, referred to concepts such as the separation of powers as “Anglo-Saxon” and outmoded, and indicated that they ought to be jettisoned as the Court became the “last refuge of the oppressed and the bewildered.”

But perhaps, all along, Anglo-Saxon or not, separation of powers has been like love: you only realise what you had when it is lost.

Beyond any chance of “resurrection.”


*I thank Malavika Prasad for bringing this case to my attention.

Notes from a Foreign Field: The South African High Court on Surveillance and Privacy

Tags

, ,

In a landmark judgement delivered yesterday (Amabhungane v Minister of Justice), the North Gauteng High Court in South Africa ruled large parts of the South African surveillance law unconstitutional. With this progressive ruling, South Africa joins the European Court of Human Rights in requiring surveillance regimes to conform to strict standards of proportionality and of procedural and substantive safeguards, designed to protect the right to privacy.

The RICA

At issue before the High Court was the Regulation of Interception of Communications Act [“RICA”]. The RICA set out the legal framework facilitating and regulating State surveillance in South Africa. It required surveillance requests to be authorised by a retired judge (“the designated judge”), and the judge, in turn, had to submit an annual report to Parliament; surveillance requests had to be highly detailed and specific, setting out the identity of the target, the grounds for surveillance (which were limited to serious offences and threats to national security), the gravity of the suspected offence, and disclosing (among other things) whether less intrusive methods had been tried and found not to be feasible, the proposed period of surveillance, and so on. These factors had to be taken into account by the designated judge, before deciding whether or not to grant a surveillance request. Surveillance requests could be real time, as well as requests for accessing past communications, stored by telecom companies.

It will be immediately noted that the RICA was already cognisant of privacy, to an extent greater than we ordinarily see in legislation (or even judicial opinions). For example, the requirement that surveillance requests must be approved by a judge is already two steps ahead of the Indian Supreme Court’s judgement in PUCL v Union of India, where an identical argument was rejected, and bureaucratic control of surveillance decisions was deemed to constitute an adequate safeguard of constitutional rights. Similarly, the highly specific justifications for surveillance went some way towards fulfilling the constitutional requirement of necessity and proportionality, and having that requirement adjudicated by a judicial mind. Therefore, the constitutional challenge in South Africa was already beginning from a (relatively) high baseline of privacy protection.

In this context, the applicants made further challenges to the statute, arguing that even in its present form, it was insufficiently protective of privacy (and other constitutional rights). Before examining the challenges, it is important to note, also, the analytical framework that the Court brought to this case. The Court began by noting that “prohibition of interception is the point of departure, reflecting the privacy norm embodied in Section 14 of the Constitution … [but sometimes] exceptions to the prohibition are created for law enforcement officers and security officials.” (paragraph 29) In its analysis of RICA, the Sutherland J. then went on to note that:

What does a qualitative assessment of RICA yield? The value of privacy is privileged and expression is given to the idea that where exceptions to respect for privacy are to be allowed, a high threshold of justification is stipulated. Self-evidently, to trespass into the private realm is permissible only to the extent that a superior claim to do so can be made out on grounds of necessity. This implies that other means to achieve the aims of the interception would have been ineffective, and the gravity of the circumstances outweighs the primary value of privacy. The safeguards model recognises the need for an independent authority to approve interceptions. This model, in which the person desiring the interception is distinct from the person authorising it, is designed to prevent, as far as possible, abuse of the system. Self-evidently, the approving authority’s efficacy in achieving this aim is dependent on the information made available to that authority, ie the designated judge. (paragraph 35)

This analytical framework is important, because it forms the backdrop of the analysis that would follow. The idea that privacy is the default and interception the exception is crucial, because it is this framing that puts the burden of justification upon the government. It is the government that has to show that other means would be ineffective (the requirement of necessity), that the interests are overriding (proportionality), and that the procedural safeguards (independent checking authority) are in place. And this framing also ensures that where there are interpretive gaps or ambiguities, those ambiguities (as we shall see) will be resolved in favour of the individual, and against the State. These may all sound very basic principles, but in an age where (as K.G. Kannabrian reminded us) the restrictions – instead of the rights – have become “fundamental”, their restatement is always important and valuable.

Notice

The Applicants’ first challenge was that the RICA did not provide for notice to the target of surveillance, even after the surveillance had ceased. The requirement of notice, the Applicants argued, was essential to securing access to justice and access to the courts (a guaranteed right under the South African Constitution). This was the only way to ensure accountability (because obviously, notice before surveillance would be literally self-defeating), check the abuse of surveillance, and provide targets with an adequate remedy in case it turned out that the surveillance was abusive.

Drawing from the legal position in the United States, Canada, Japan, and the ECHR, Sutherland J. agreed, holding that “the norm is that unless reasons exist not to give notice, notice shall be given (paragraph 47). Now, there might exist a small subset of cases (such as treason or espionage), where perpetual secrecy was necessary – but that could not be the norm. Consequently, Sutherland J. adopted a remedy that is commonly used in South Africa: he declared existing provisions unconstitutional, suspended the declaration of unconstitutionality by two years to give Parliament time to rectify the defects, and in the meantime, read in a provision into the Act, requiring that the target of surveillance be notified within ninety days after the cession of surveillance (paragraph 53). Sutherland J. also added that in exceptional cases, the designated judged could extend the period to 180 days at a time – but if it went beyond three years, a three-member judicial panel would be required to rule on any further extension.

Independence and Due Process

It should be obvious from the above that a lot would turn upon the designated judge, her character and her independence. Under the RICA as it stood, the designated judge was appointed by the government. The Applicants argued that this compromised independence, a position that – as Sutherland J. pointed out – was not “met with any serious rebuttal” (paragraph 63). The Applicants proposed that the designated judge be appointed by the Judicial Services Commission, that was also responsible for appointments to the higher judiciary. Sutherland J. held, however, that the specifics of the appointment process required greater deliberation; therefore, as an interim measure, he directed that the appointment would be at the nomination of the Chief Justice (paragraph 71).

Equally importantly, the Applicants pointed to the lack of an adversarial process during the grant of surveillance requests; in other words, when a surveillance request was made, the parties present would be the government, and the designated judge. This, it was argued, violated the fundamental rule of audi alterem partem, or the right to be heard. The Applicants therefore proposed a familiar remedy – that a “public advocate” be appointed, who would argue such requests on behalf of the surveillance target (because, naturally, the target themselves could not be informed – see, for example, the proposals in the draft Indian Privacy Code). The government raised a familiar objection – that the designated judge, applying her judicial mind, should be trusted to sift the material impartially and objectively. In response, Sutherland J. noted – drawing from the analytical framework discussed above – that fundamental values are “to be reluctantly trampled on with as light a tread as possible.” (paragraph 74). While he did not read in a specific requirement of a public advocate, noting that it was only one of many possible options to secure a fair hearing and an adversarial process, he nonetheless struck down the relevant provisions of the RICA because of its failure to deal with the problem ex parte orders, and – once again – suspended the declaration of invalidity to allow Parliament to deal with the problem, on the basis of the principles indicated in the judgement.

Archiving and Processing

The Applicants’ third objection was that the RICA provided no safeguards with respect to how the collected data was archived and processed – including with respect to the telecommunication companies, which were required by law to store the data for up to three years. While Sutherland J. declined to find that the period of storage was too long – noting that there could be no bright-line determination in this regard (paragraph 95) – he did hold that the procedural safeguards with respect to storage and access had to be set out transparently in the statute itself, and not by means of secondary legislation (rules and directions) (paragraph 101). Furthermore, he found that there were no provisions dealing with erasure or management of surplus data, or with respect to oversight with regard to the stored data (paragraph 106). He therefore issued a suspended declaration of invalidity with regard to the relevant provisions of the RICA.

Special Exemptions for Lawyers and Journalists

An interesting challenge made by the Applicants was that lawyers and journalists – by their vary nature – required heightened protection from surveillance; lawyers because of attorney-client privilege, and journalists because of the overriding imperatives of protecting anonymous sources. Sutherland J. agreed with the principle, noting in particular the importance of investigative journalism to any free society (the South African Constitution also guarantees specific protection to the press); exceptions were limited to serious cases such as espionage or violations of human rights (paragraph 133). Accordingly, he read into the Act a positive requirement that if the target of surveillance was a lawyer or a journalist, that fact would have to be revealed to the designated judge, who would take it into account while deciding whether or not to grant the surveillance request.

Sutherland J.’s analysis is particularly interesting when we juxtapose it with the Indian Supreme Court’s repeated insistence that the press is on par with every other citizen, and cannot claim any specific privileges under Article 19(1)(a). While the Indian Constitution does not provide explicit protection to the press (unlike the South African), the argument is a red herring: it is nobody’s case that journalists have a special status or additional rights; the argument is that the practice of journalism – an integral element of the freedom of speech and expression, in its avatar of protecting the free flow of information in a democratic society – requires a certain kind of protection if it is to be meaningful at all; and that protection flows from Article 19(1)(a). It is this analysis that shines through clearly in Sutherland J.’s judgement.

The Illegality of Bulk Surveillance

The Applicants’ final argument was that the RICA did not authorise bulk or mass surveillance (i.e., surveillance without probable cause, where dragnets are placed that capture, for instance, all communications using certain keywords, that are later mined for information). In response, the government relied upon another statute – the National Strategic Intelligence Act, which allowed for the gathering, correlating and analysing of intelligence. It was here, once again, that the analytical framework we discussed at the beginning of this post became relevant; because in the absence of specific authorisation of bulk surveillance, Sutherland J. found that it could not be implied into either the NSIA or the RICA (paragraphs 151 & 163). As he noted, “Our Law demands such clarity, especially when the claimed power is so demonstrably at odds with the Constitutional norm that guarantees privacy.” (paragraph 163) He did not, however, pronounce on the constitutional validity of bulk or mass surveillance per se.

Conclusion

The minutiae and details of Sutherland J.’s judgment are, of course, fascinating to privacy scholars and lawyers. There are, however, a few broader points to take home. The first is his clear insistence that privacy is the default and surveillance the exception, and then actually following through by applying that framework in adjudicating the constitutionality of specific surveillance provisions. And flowing from this is a particularly important point: Sutherland J. did not write an activist judgement, with free-wheeling claims about the unconstitutionality of surveillance in general, or prohibiting all forms of surveillance; in this, he was appropriately deferential to the law-making authorities. Deference, however, does not mean subservience, or writing a blank cheque to the government under the guise of national security or public safety. Rather, Sutherland J. required the government to explain and justify the need for each impugned provision of the RICA; and where the government was not able to provide a satisfactory explanation (and indeed, as evident above, many of those issues involved little more than pure common sense!), the provision was struck down or read down. Under the garb of deference, therefore, Sutherland J. did not hide from his duty to examine surveillance provisions under constitutional standards of necessity and proportionality, and to ensure that even the surveillance authorities were bound by the rule of law. This is particularly important for us, in a time where India’s surveillance infrastructure is opaque, its legislative foundations unclear, the constitutional status of bulk surveillance unclear, constitutional challenges pending, and a Court that increasingly uses “national security” as a mantra to flee the field of adjudication. Sutherland J.’s judgement is a timely reminder of how courts ought to work in holding the executive to account under a constitutional framework/

ICLP Round Table: The Equality Bill 2019 – A Response

Tags

, ,

(In this concluding post in the ICLP Round Table on CLPR’s Draft Equality Bill of 2019, Jayna Kothari responds to the previous posts. Read the discussion here, here, here, and here.)


The Equality Bill 2019 is in its early stages of the draft and this conversation with Gautam Bhatia, Sandra Fredman and Malavika Prasad is extremely useful and constructive. These comments raise several important concerns and would be helpful in the improvement of the Bill.

Before responding to the some of the comments to the Bill, I would like to give an overview the background of the Bill. The Bill was conceptualized to take forward the equality guarantees that recent Supreme Court decisions protected, such as the right to recognition of sexual orientation and gender identity. It was also conceptualized because the non-discrimination legislations that we currently have in India are not adequate and do not provide enough remedial measures to address discrimination.

Equality bills have been drafted in the past, especially the effort done by Tarunabh Khaitan in drafting the Anti-Discrimination and Equality Bill 2017. The Equality Bill has also examined in great detail the UK Equality Act 2010 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and has tried to learn and improve on these legislations.

Two of the most difficult tasks were to draft the sections on protected characteristics and how to define ‘discrimination’. In addition to these tasks there have been substantive responses to concerns on contract and informal workers being left out of the sections on discrimination in employment. I will try and address these concerns below:

Protected characteristics: One of the most challenging concerns has been to decide which protected characteristics to include in the Bill and which to not include. The inclusion of ‘socio-economic status’ was a particularly complex characteristic to include and Danieli Evans Peterman’s article on the need for protection on the basis of socio-economic status in discrimination statutes is particularly instructive. Socio-economic status has been defined in the Bill as a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications. Therefore, the definition would imply that it would be only those who are disadvantaged by socio-economic status, and would not be available as a ground for those of a higher socio-economic status to raise the claim of discrimination. However, Sandra Fredman’s suggestion of using the term “socio-economic disadvantage” instead might work better and would make it clear that it is only meant for these who are disadvantaged by socio-economic status. Such a similar concern had been raised in the consultations that CLPR has had on the Bill with stakeholders and this has been raised not only in the context of the protected characteristic of ‘socio-economic status’ but also interestingly in the case of caste and the concern that only persons disadvantaged by a lower caste should be able to use caste as a ground for discrimination. The protected characteristic should not be available to persons of a higher caste to claim discrimination. Hence these concerns would need to be kept in mind while defining all protected characteristics to some extent.

Definition of discrimination:  “Discrimination” has been defined in the Bill to mean any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage, denies reasonable accommodation, promotes negative stereotypes, withholds benefits, opportunities and advantages from any person on one or more protected characteristics. Further, in Chapter II on prohibited conduct, discrimination has been expanded to include not only direct and indirect discrimination, which has been included in previous equality law drafts, but also to include structural discrimination, hate speech, segregation and boycott, harassment and victimization and lynching. Our attempt was to build on Sandra Fredman’s definition of substantive or transformative equality and its four dimensional framework, to include many more facets. Disability jurisprudence shows us how denial of reasonable accommodation amounts to discrimination. Caste related experiences of discrimination manifest in segregation, exclusion, boycott and lynching and gender based forms of discrimination often manifest in harassment and victimization and all of these forms often results in structural discrimination at a larger level. The Bill has attempted to include all these experiences to strengthen the understanding and definition of discrimination. The inclusion of hate speech as a form of discrimination is particularly challenging and we are still grappling with an appropriate definition which does not curtail the freedom of speech and expression.

Employment and Workplace Discrimination: The comments from both Sandra Fredman and Malavika on the inclusion of informal workers are extremely useful and the Bill needs to address this concern.  The definition of “employer” in the Bill was meant to be wide enough to include not only employers in the formal sector but also those in charge of informal employment or unorganized work sector such as domestic work. The suggestion to specifically include contract workers and employers who engage contract or temporary workers could be made more clear and specific. It is also true the definitions in the Bill might not include self-employed workers such as Uber drivers or other such persons engaged in app based employment and who are discriminated against by clients or customers. The Bill needs to provide for such inclusion within its employment related guarantees. The challenge of including people engaged in other forms of livelihood such as hawkers, vendors, artisans etc. can also be addressed perhaps by expanding the definitions of places of public accommodation and to include discrimination faced by vendors from customers or the State authorities.

The comments received on the Equality Bill have been extremely important and we hope that these conversations continue. We welcome inputs and feedback on the Equality Bill draft and invite more readers to engage with the text. All of this will help in not only improving the draft but also in pushing for the Bill to become law soon.


(The writer is a senior advocate.)

ICLP Round Table – The Equality Bill 2019: On the Equality Courts

Tags

, , ,

(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)


This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.  

The Idea of Equality Courts and the Need to Establish Them

The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.

For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.    

Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.

One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.

The Desired Functioning of the Equality Courts

The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.

Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.

There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’  

For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.

Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.

The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’

Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.

Concluding Remarks

The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.  

Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.

ICLP Round Table: The Equality Bill 2019 – Comparative Perspectives

Tags

,

(This is a guest essay, authored by Professor Sandra Fredman, who is Rhodes Professor of Law at the University of Oxford. It is the third essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first two essays are available here and here).


India is unusual in that the provisions guaranteeing equality in the Constitution have not yet been supplemented by comprehensive anti-discrimination legislation comparable to that in other jurisdictions, such as the US, South Africa or the UK. Anti-discrimination legislation plays an important role in giving specific content to constitutional guarantees. It can also bind individuals and corporations, thus extending the reach of the right to equality beyond the State into key sites of discrimination, such as employment, housing, education, healthcare and goods and services available to the public.  The proposed Equality Bill drafted by Jayna Kothari and her colleagues at the Centre for Law and Policy Research is thus very much to be welcomed and she and her team deserve to be congratulated on the quality and reach of the proposal. This post takes a comparative perspective on the Bill, while of course being sensitive to the very different context in which the new legislation will function.

There are many aspects of the Bill that demonstrate positive advances on relevant comparators, such as the UK Equality Act 2010 (EA) and EU legislation. This is particularly so for the definition of direct discrimination. Direct discrimination has traditionally been defined as occurring when a person is treated less favourably than another due to a protected characteristic. The need for a similarly situated comparator, however, has raised complex issues both in principle, because it requires conformity with a dominant norm as a gateway to equal treatment, and in practice, where the choice of comparator can be contested. This has most saliently occurred in relation to pregnancy, with the sad spectacle of tribunals and courts in earlier decades refusing to accord pregnant women the same treatment as men because there is no appropriate male comparator. The EA addressed this problem by replacing the requirement for a comparator with the simple need for detrimental treatment. But this only applies in relation to pregnancy (and disability in limited circumstances), The Indian Bill takes a step further and gives both possibilities in the alternative, available for all protected characteristics, not just pregnancy.

The Bill is also important in that it aims to address structural discrimination in various forms. While the EA addresses such discrimination solely through indirect discrimination, which focuses on the effects of apparently neutral practices, provisions or criteria, the Bill also includes a provision expressly defining ‘systemic or structural discrimination,’ defined as hidden or overt patterns of institutional behaviour, cultural traditions and social norms that discrimination against individuals with protected characteristics. The Bill’s definition of indirect discrimination, is however, interesting in that it does not include the usual justification defence for respondents, permitting the latter to demonstrate that the provision is proportionate to a legitimate aim (such as a requirement for a relevant qualification which might be necessary for a job even though it excludes a disproportionate number of people with a protected characteristic). 

The Bill is impressive too in the wide range of characteristics which it classifies as protected against discrimination. Although many of the listed characteristic can be found in international or regional sources, the Bill contains several important additions, including linguistic identity, migration, refugee status, occupation and food preference. The Bill also transcends the straight-jacket of the Constitutional equality provisions, which only list a set number of protected characteristics. Instead, its list is non-exhaustive, including a provision by which analogous grounds can be included if they fit the principles in the Bill. In addition, the Bill makes express provision for addressing intersectional discrimination. Notably, the Bill includes socio-economic status as a protected characteristic. While this is a welcome move, this formulation runs the risk of protecting the stronger as well as the weaker sections of society. This might open the way to claims by advantaged persons that provisions such as higher taxes for wealthier persons might be challenged as discriminatory on grounds of socio-economic status. The drafters might instead want to use an expressly asymmetric term such as socio-economic disadvantage.

One aspect of the  Bill which might also need further attention concerns the scope of the protection for workers. Given that over 80% of employed persons in India earn their living in the informal sector in India,  dwarfing the formal sector in magnitude, a key initial question is the extent to which non-standard workers are protected. This is a highly challenging issue, and there are few modern positive precedents for its resolution. In particular, most labour law systems confine eligibility for employment protection to workers working under a contract of employment, excluding self-employed, non-standard workers. Discrimination law in the UK extends to some self-employed workers, provided they work under a contract to provide a personal service; but this too has opened up a large number of loopholes for those attempting to sidestep their obligations.

The Bill certainly takes important steps towards inclusion of non-standard workers, such as including employment agencies in the prohibition on discrimination, and mentioning domestic workers in the definition of employer. However, the way in which ‘employee’ is defined might still exclude some of the most vulnerable workers outside of the formal sector. ‘Employee’ is defined as any person ‘employed on wages in any establishment, factory, company or shop.’ An Uber driver who is discriminated against because he is Muslim, a woman agricultural worker  who is sexually harassed, or an own-account worker who is paid less because of race, caste or migration status, might find it difficult to bring themselves within this definition. One way forward is to provide separate protection for self-employed workers who are discriminated against by clients or customers, similar to the protection for consumers or users of public accommodations. Another is to replace the use of ‘wages’ with earnings, and give less emphasis to the workplace as the site of work.  Also of importance is to bring the provisions for equal pay for work of equal value in the Equal Remuneration Act into closer alliance with the Bill.

The Bill is also noteworthy in its inclusion of proactive duties, closely resembling the  ‘fourth generation’ equality duties found in the EA. Such duties are important in their recognition that individual complaints of discrimination will never be sufficient to address the structural causes of discrimination. Proactive duties on the part of the State are crucial in discerning and changing such systemic patterns, as well as taking the burden off individual complainants. The Public Sector Equality Duty in the Bill tracks closely onto its UK equivalent by requiring all appropriate authorities to ‘have due regard to the need to’ eliminate prohibited conduct under the Act, remove or minimize disadvantage, and encourage participation. It goes somewhat further than the EA in that due regard should also be had to taking steps to meet the need of persons with protected characteristics. However, given the extent to which the ‘due regard’ standard under the EA has become little more than a ‘tick-box’ procedure, the drafters might consider strengthening the requirement. For example, rather than requiring authorities to ‘have due regard’ to the need to eliminate prohibited conduct, the drafters might consider requiring authorities actually to eliminate such conduct, which is prohibited in any event. Similarly, rather than imposing a duty to have due regard to the need to take steps, they  might think of imposing a duty to actually take the steps.  Nor would this be pushing the boundaries too far, given that the previous clause requires the State to take measures to promote equality.

Even more welcome would be the inclusion of a duty to have regard to the need to reduce economic inequalities. A similar duty was inserted into section of the EA, which required public authorities, when exercising strategic functions, to have regard to the desirability of reducing socio-economic inequalities. Despite being a very mild obligation, this provision has never been brought into effect, despite remaining on the statute book, so that there is no experience of its workings. For the Indian Bill, it would not be too large a step to include such a duty, given the emphasis in the preamble on eradication of socio-economic inequalities, and the inclusion of socio-economic status in the list of protected grounds. Consideration might even be given to strengthening the obligation.

All in all, this is a very welcome intervention, and it is to be hoped that it will soon find its way onto the statute books.

ICLP Round Table: The Equality Bill, 2019 – On Recognition, Redistribution, and Self-Respect

Tags

,

(This is a guest essay, authored by Malavika Prasad. It is the second essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first essay is available here.)


The Draft Equality Bill creates two categories of protections. First, it stipulates that discrimination of various kinds shall be forbidden, in chapter III, and in sections 3, 16(a), 16(b) and 19 as will the acts of hate speech, harassment, segregation, boycott, lynching and victimization, in sections 5-9. These prohibitions envision equality as a floor, below which any treatment shall be prevented, prohibited and protected against. Second, it stipulates that equality shall be promoted by way of diversification, equality plans, codes of practice, reasonable accommodations, measures for the advancement of persons disadvantaged by any of the protected characteristics, etc. in sections 15, 18, 20, 21, 22, 4 read with 17, and so on. These protections envision equality as equal access or equal opportunity above the floor of non-discriminatory treatment. These measures are intended at leveling the playing field between persons disadvantaged by a protected characteristic and those privileged by them. 

The two categories of protections are broadly of the nature of ensuring “recognition” consonant with the aims of the Bill which are not only to prohibit, prevent, and protect against discrimination, but also aimed at promoting equality. Towards this end, the protected characteristics cover a range of historical and contemporary, structural axes of inequality from “caste, race, ethnicity, descent, sex, sexual orientation, gender identity, gender expression, tribe, nationality, disability, marital status, pregnancy, health (including HIV / AIDS status), political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, food preference”. The central underlying character of these “protected characteristics” is captured in section 2(jj)(ii) (which defines the kinds of protected characteristics that can be notified by an Equality Commission in future) as: “…where discrimination based on such characteristic or identity causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights.” 


In this list of protected characteristics also figures “socio-economic status”, ostensibly aimed at the “eradication of socio-economic inequalities”. “Socio-economic status” is defined in the Bill as “a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications.” In this post, I will try to understand this concern of the Bill.­ I argue that the protected characteristic of “socio-economic status” is fundamentally different from other protected characteristics in the Bill. If the Bill seeks to promote distributive equality, then it needs to do more than prohibit discrimination and promote equality in the ways described.

Distributive equality

The two categories of protections for “recognition” in the Bill – prohibiting discriminatory treatment below a floor, and mandating measures for equalizing opportunity above the floor – are best suited to secure and realise basic equal opportunities to persons facing caste, gender, disability or and similar structural inequality. However, we find that a person who is protected against discrimination and empowered with the equal access to opportunities to access schooling, work and housing, could still end up at a vastly unequal position compared with the socio-economically best off, despite comparable levels of effort and talent. How should an equality law account for this inequality of outcome?

Theories of distributive justice such as that of John Rawls are only comfortable with inequalities of outcome that result from varying given talents of different people who otherwise enjoyed equal liberties and opportunities. The pre-conditions for political and economic institutions are equal basic liberties (1) and fair equality of opportunity (2a). Under such conditions, since that the given talents of people vary, any resulting socio-economic inequality is justifiable by the “difference principle” (2b): the advantages of the best off must work to the benefit of the worst off.

However, in Indian society (and indeed in any real society) given the structural axes of inequality such as caste (/race/ethnicity), gender, disability, both of Rawls’ preconditions are seldom if ever met. When equal basic liberties and equality of opportunity are a mirage, an equality law must set about first guaranteeing basic equal liberties (1) and equality of opportunity (2a) on structural axes of inequality, before actualizing the difference principle (2b) for distributive inequality. So long as we have not perfected the conditions of equal liberties and equal opportunities, the difference principle cannot justify inequality of outcomes, as it results from unequal access to opportunities and unequal basic liberties.  

If this is the kind of outcome-inequality the Bill intends to eradicate through the protected characteristic of “socioeconomic status” due to “low income”, “homelessness”, “poverty”, then two conclusions follow. First, inequality on solely economic grounds such as “low income” cannot be protected against. If the setback faced by a person is solely economic in nature, then the two categories of protection based in “recognition” are not capable of eradicating the economic disadvantage. “Recognition” based protections are more suited to eradicate inequalities in which the “social” component compounds the economic. In similar vein, even poverty and homelessness cannot be read as merely “economic” setbacks. If inequality due to solely economic conditions such as low income are sought to be remedied by this Bill, further clarity is needed on how it will tackle class-barriers to equal access and opportunity, as Gautam Bhatia points out in his post here.

Second, for eradicating socioeconomic inequality, the two categories of protections in the Bill are not enough. In addition to protections in the realm of “recognition”, the Bill must also stipulate protections of “redistribution”, these protections being interdependent on each other for successfully realizing equality (Nancy Fraser). Such redistribution cannot be a mere “floor of protection against the worst outcomes” with the aim of realizing a basic “sufficient” minimum, but ought also to envision a ceiling on the kind of material inequality that can possibly exist. (Samuel Moyn, Not Enough (2018)). B R Ambedkar’s Draft Articles on States and Minorities, 1945 are instructive on what such reinforcing protections of recognition and redistribution might look like, while also envisioning a ceiling on inequality.

Such measures might fall within the duty of the State to promote equality under Section 15(1), the duty to have “due regard to the need to take steps to meet the needs of persons with protected characteristics” under Section 16(b), or the duty to make reasonable accommodation under Section 22. However, these provisions do not capture the distinct nature of redistributive measures necessary for ensuring redistribution alongside recognition, in the absence of which courts – lacking ‘the power of sword and purse’ – will be ill-equipped to order such remedies.

Self-respect

Even remedying distributive inequality and structural inequality as mutually reinforcing forces is not enough, as Gopal Guru writes in Liberal Democracy in India and the Dalit Critique in assessing equality protections from the perspective of Dalits. In his words, “a more comprehensive assessment…. [needs] discussion of the language of self-esteem and self-respect.” Self-esteem is understood in terms of individual achievement and social ranking in institutions, while self-respect is understood as affirmative attitude one holds of oneself. Guru argues that the measures aimed at promoting equality in the Indian democratic framework enable gaining self-esteem but at the cost of one’s self-respect.

Drawing from Guru’s analysis, I worry that the categories of “recognition” based protections do not create opportunities for persons who are socio-economically disadvantaged to realise and enhance self-respect. Consider the diversification mandate in section 18 of the Bill. While it creates and sustains the background conditions for achieving self-esteem, such achievement comes at the cost of self-respect, as entry into and existence in such institutions under the diversification mandate, will be on the terms of the patrons – likely from dominant groups – who run the organization or institution in question. Guru argues that the need of Dalits to be considered on the terms of patrons is a constraint that permits a struggle only for relative worth, and not of equal worth. Moreover, it appears that section 18’s requirement would stand fulfilled by merely populating institutions with diverse identities, even if the institution is ‘ethically impoverished’ by erasure of the inclusive and egalitarian ideals behind diversification. In Guru’s words “… the idea of democracy or social justice or dignity, which forms the basis of modern public institutions, is reduced to Dalit identity…Thus ideas are compressed into identity.” Such institutions that are seen as embodying merely identities but not the egalitarian and inclusive ideas of diversity cease to hold public respect, Guru cautions. A similar outcome could result from diversification efforts even for persons from other protected groups. This results in further loss of self-respect.

The preambl­e of the Bill mentions the need to affirm human dignity in ensuring equality. While prohibitions on insulation and stereotyping of workers based on protected characteristics have been made in Section 10(1)(b) and (c) (which affirm human dignity), the Bill does not create affirmative duties towards enhancing dignity and self-respect of persons disadvantaged by a protected characteristic. Towards bridging this gap, granular duties tailor-made to each specific site of inequality, to undertake diversification or measures for the advancement of persons disadvantaged by protected characteristics in a self-respect enhancing manner ought to be made. Further, the Bill ought to stipulate the procedure by which these obligations will be discharged, which itself ought to be affirming of the dignity and self-respect of persons in question.  For instance, duties and procedure must be laid down to honor the right of all persons disadvantaged by a protected characteristic, to meaningfully participate and be consulted on their evolving needs and requirements, accounting for their likely disparate bargaining power, in the undertaking of reasonable accommodation measures, with a possible guarantee of a minimum core support.

While awaiting a distributively just utopia…

While we await the realization of a utopian distributive equality, it is imperative to reckon with the sites of work that individuals (particularly those disadvantaged by socio-economic status) are likely to be reliant on, that are not protected by the Bill. The Bill protects individuals in the site of “employment”, in which “employer” is defined in section 2(o), across a spectrum covering (i) the head of an “department, organization, undertaking, establishment, 
enterprise, institution, office, branch or unit of the appropriate Government”, or (ii) in workplaces not covered in (i) the entity exercising any degree of supervision or control, or (iii) in workplaces not covered in (i) and (ii), the person discharging contractual obligations with respect to his or her employees; and (iv) the person or household benefiting from the work of a domestic worker. While this definition includes some kinds of atypical workers such those hired on contract terms, outsourced employees, and workers in the unorganized sector, it is unclear how this definition will apply to workers in the gig economy, as well as workers hired on casual, wage labour. Furthermore, atypical sites of livelihood such as those of self-employed hawkers, vendors, artisans stand excluded from the “work” based protections of the Bill, although they stand to face discrimination at the hands of the “everyday state” (a term borrowed from Anindita Mukherjee, Legal Right to Housing (2019) Cambridge University Press) such as a zoning or municipal authority. The avenues to realize socioeconomic wellbeing are increasingly outside of the typical sites of work and must also be included within the Bill as sites of discrimination, where equality must be promoted.

ICLP Round Table: The Equality Bill, 2019

Tags

In July 2019, the Centre for Law and Policy Research [“CLPR”] published The Equality Bill, 2019 [“Equality Bill”]. The Equality Bill is the latest in a series of recent efforts by scholars, members of civil society, and MPs to frame civil rights legislation for India. It also comes at an important time: the Supreme Court’s judgments in September 2018, decriminalising same-sex relations, decriminalising adultery, and striking down the ban upon women’s entry into the Sabarimala temple, saw notable advances in Indian equality and anti-discrimination jurisprudence after a long and stagnant period. It is therefore important to take stock and assess the possibilities for the future of equality and non-discrimination law in India. To this end, the Indian Constitutional Law and Philosophy Blog will host a round-table on some of the salient features of CLPR’s Equality Bill.

In this opening post, I will summarise some of the key features of the Bill, and provide a few brief comments. The scope of the Bill can be best understood by asking the following questions: (1) what actions does it cover (how does it operate)? (2) what spaces, institutions or relationships does it cover (or, in other words, where does it operate)? (3) whom does it cover (or protect)? (4) how does it seek to actualise that protection.

On the first issue, the Equality Bill prohibits discrimination, boycott, harassment, victimisation, hate speech, and lynching. Within “discrimination”, the Bill defines – and prohibits – both direct and indirect discrimination, intersectional discrimination, and structural discrimination (inter alia). On this, three brief comments. First, despite recent advances, intersectional and structural discrimination are concepts that are still largely unexplored within Indian constitutional jurisprudence. In implementing the provisions of the Bill, therefore, State authorities as well as Courts will have almost no jurisprudential guidance to draw upon. For this reason, the Bill itself will probably need to contain substantive interpretive guidance, in the form of multiple illustrations and examples (for example, an illustration of structural discrimination might be skewed caste representation in newsrooms, to take a topic recently under debate). Secondly, it is very interesting to note that the prohibition of hate speech finds a place in this chapter. The understanding of hate speech as an equality issue – i.e., as undermining principles of equal concern and respect for all members of society – as opposed to an issue about sentiments, is crucial. It follows the South African approach under its Equality Act, the jurisprudence of the Canadian Supreme Court, and also, the Indian Supreme Court’s observations in Pravasi Bhalai Sangathan, which have not yet been followed up. And thirdly, the anti-boycott provision is of crucial importance, as it recognises one of our most pernicious social realities. Anti-boycott provisions have a long history going back (at least) to 1922 (and were most recently enacted into law in Maharashtra’s Social Boycotts Act. This is also a place where interpretive guidance will be crucial (drawing from, perhaps, the detailed anti-boycott provisions referred to above), as the social boycott can take many different forms, some of which are not immediately visible as boycotts.

On the second issue, certain provisions of the Bill are made applicable to employment, education, public buildings and public places, healthcare, and housing and land. One question that arises on reading this section is how the housing guarantees will be reconciled with the judgment of the Supreme Court in Zoroastrian Co-Operative, which – effectively – upheld the rights of cooperative societies to enforce restrictive covenants (it is an open question whether the Equality Bill legislatively overturns Zoroastrian Co-Operative, by removing its foundations). A second question arises from the fact that one of the “protected characteristics” under the Bill is that of “socio-economic status.” Now, the Bill also stipulates that educational institutions may not discriminate on questions of admission, based on protected characteristics (there is an analogous provision with respect to healthcare). Can a student who is unable to take admission in a school because of high fees claim discrimination on the basis of “socio-economic status”? Questions of compatibility with the Right to Education Act aside, it is unlikely that Courts will read the Equality Bill as having such a far-reaching effect upon economic structure. Some clarity may therefore be needed on the question of whether, how, and to what extent the Equality Bill aims to address disparities in access to important goods that are determined by class barriers. Lastly, it is particularly important to note that via the definition clause, the employment relationship includes domestic workers working in a household. By bringing households and domestic workers into the ambit of the Bill, the traditional public/private divide and the exclusion of constitutional norms from the space of the household is challenged; and there is, correspondingly, the recognition of domestic labour qua labour, and domestic workers as rights-bearers.

On the third issue, a significant part of the work is done by the term “protected characteristics”, defined under Section 2(jj) of the Bill. The list of characteristics is comprehensive, but some further thought might need to be paid about how these definitions will interact with other parts of the Bill. For example, Section 2(jj) correctly states that “political opinion and belief” is a protected characteristic. However, political boycott (as opposed to social or cultural boycott) has long been an integral part of civil rights movements, including in India. Naturally, the Bill would not intend to prohibit the kind of boycott movements that India spearheaded against apartheid South Africa, for example.

Lastly, on the question of implementation, the Bill envisages an Equality Commission and Equality Courts, working in tandem. This is, by now, a familiar legislative remedy, whose positives and negatives are well-known.

In conclusion, a final, overall comment: the extension of equality and non-discrimination norms into the traditional “private sphere” brings with it a host of complicated issues, including issues around balancing rights. Section 3 of the Bill, for examples, bars discrimination by “any person” on the basis of protected characteristics; this, of course, raises the issue of the clash between freedom of belief, expression and association (of the discriminator) versus the rights of individuals not to be discriminated against. Obviously, the prohibition of non-discrimination cannot apply to every individual act (and the Bill itself recognises this by placing limits upon the application of non-discrimination norms in specific contexts such as that of the workplace) – that would both be a violation of personal autonomy, as well as practically unimplementable. It is an open question whether the Bill itself should provide guidance to the Courts on the principles that should be applied to reconcile competing rights; or, in other words, should the Bill itself express an overall philosophy about the limits of “private autonomy” and the private sphere when it comes to equality and non-discrimination? Indeed, the Bill’s focus on “systemic or structural discrimination” gives us one indication: structural discrimination occurs when seemingly private acts have lost their “private” character by virtue of becoming constituent parts of a “pattern of institutional behaviour” (for example, caste discrimination). If, therefore, we read the Equality Bill through this “institutional lens”, it may provide us with a valuable framework within which to reconcile the issues that will inevitably arise once we get to the stage of implementation.

Guest Post: Article 370 – Dealing with Sampat Prakash and Maqbool Damnoo

Tags

, ,

(This is a guest post by Amlan Mishra.)


Two stances have been taken by those who believe in the unconstitutionality of the Presidential Order amending Article 370. First, that Article 370 can be abrogated, but only through a constitutional amendment or the people’s consent. The presidential order is problematic because it does indirectly cannot be done directly; therefore is a colourable exercise of power. The Second stance is one which relies on the work of AG Noorani and the Constitutional Assembly debates to take a strictly textual view that the Constituent Assembly being dissolved, no authority executive can exercise the power conferred on the Constituent Assembly to decide on Article 370.

The commonality in both these approaches is that the Kashmir issue should not be decided by the executive unilaterally, and by a colourable exercise of power. However, two cases of the Supreme Court pose a direct challenge to these ways of thinking. In this post I will deal with these two cases and show how they are inapplicable to the present issue, or deserve to be overruled or distinguished.  In so doing, I will rely on implied constitutional limitations and build a case for the unconstitutionality of the Presidential Order.

Sampat Prakash v. State of J and K (1968): a check on the President’s power

In Sampat Prakash, the petitioner had challenged the non-application of Part III of the Constitution to Kashmir’s Preventive Detention laws. The modified Constitution of India as applicable to Kashmir had, vide Article 35C, excluded such application to Preventive Detention laws. The petitioner submitted that the delegation of power to the President to amend and modify the Constitution as applied to Kashmir could not be construed so broadly as to take away fundamental rights. The court however disagreed, giving wide power to the President.

“We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation.”

Sampat Prakash was reiterating the position of law already set out in Puran Lal Lakhanpal v. State of J and K, which had held that indirect election(as opposed to a direct election in rest of India) to the Lok Sabha from the state of Jammu and Kashmir could be effected through Article 370(1). Notice that the ratio of both these cases, read broadly, proposes that the power to modify the Constitution of India as applicable to Kashmir, has no boundaries/guidelines. Is this power to legislate given to the executive to be completely unhindered? As pointed out in this blog the text of Article 370 itself provides that it cannot be used to amend itself. However, I will argue that there is a more crucial implied limitation on this exercise of the President’s power.  

Consider, for example, Samatha v. State of AP, where the Supreme Court held that a legislative power to the constitutional executive (Governor in that case) to ‘modify, amend and regulate’ laws had some implied limitations. The question was whether 5(2) (a) of the Fifth Schedule, which provided that the governor could ‘regulate’ allotment of land to STs in Scheduled  Areas, could be used to give away tribal land to non-tribals. The fifth schedule allows the governor to modify laws as applicable to the Scheduled Areas of the state and regulate the allotment of land in these Scheduled Areas.  The court held that a perusal of the rest of the schedule made it clear that the intention of the framers behind the Fifth Schedule was to prohibit devolution of land to non-tribals. Marshalling Constitutional history of special protection to tribal community and Constituent Assembly debates, the court read into the fifth schedule an implied limitation thus:

“In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State’s power of allotment of its land to non-tribals in the Scheduled Areas.”

Notice that Article 370 of the Constitution similarly gives the President to alter and modify the Constitution as applicable to the State of J and K. The text of Article 370 shows that the President is to merely legislate on what this special status would look like. Each clause gives the sense that the final word shall be of the people of J and K.  Article 370(2) actually envisions laying all decisions before the Constituent Assembly of Kashmir  A perusal of Article 370 should make it clear that it seeks to preserve the ‘consent’ of the people of Kashmir. The Constitution Assembly debates of N Gopal Ayyangar show as much. This puts an implied check on the President’s amending power by making it contingent on the consent of the people of Kashmir. Even though the Constituent Assembly of Kashmir has been dissolved, the centrality of consent in the provision should be an implied limitation. Thus it is best to confine the ratio of Sampat Prakash that ‘radical transformation’ is possible to the facts of that case.

What the present order does it two things. Firstly, it overrules all prior Presidential orders made under Article 370(1), thereby effectively ending the special status of Kashmir. Secondly, it does this without any sliver of people consent. Thus it violates the implied limitation of consent inherent in Article 370.

Mohammad Maqbool Damnoo v. State of J and K (1972): the backdoor of Article 367

In 1965, the office of the indirectly elected Sadr-e-Riyasat was replaced with the office of the Governor, who was to be unelected, vide an amendment in the J and K Constitution. The amendment was made by the Sadr-e-Riyasat, who had the power to amend the Constitution of J and K. The Presidential order giving effect to this added a ‘legal fiction’ clause in Article 367 that ‘Sadr-e-Riyasat’ was to be read as ‘Governor’. Notice that similar to the present presidential order, it sought to indirectly amend Article 370. The 1965 amendment has been dismissed as ‘clarificatory’ i.e. merely giving effect to a legal fact. The court also held similarly:

“But, as we have already said, the explanation had become otiose and references to the Sadr-i-Riyasat in other parts of the Constitution had also become otiose. There were two alternatives; first, either to leave the courts to interpret the words Government of the State” and give it its legal meaning, or secondly, to give the legal meaning in the definition clause. What has been done is that by adding cls. (aa) and (b) a definition is supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of art. 370(1) by the back-door.

However, dismissing this amendment as clarificatory does not engage with a crucial idea. The post of the Sadr-e-Riyasat was an indirectly elected post, which was done away by an amendment made by the Sadr-e-Riyasat himself. Can an elected post which carried with it the power to amend the J and K constitution be replaced with an appointed one, that too through a presidential order? Thus the amendment was more not just clarificatory and changed the elective nature of the office as provided for in both the original Indian and the J and K Constitution.

The distinction between the power to amend the constitution i.e. ‘constituent’ power and ‘legislative power’ must have been known to the court when Damnoo was decided. Both Shankari Prasad(1951) and Sajjan Singh(1965) had sufficiently delineated the difference, but had held that Parliament’s constituent power to amend the constitution had no implied limitation. But this concept had been thrown into disarray after the Golak Nath case, which held that amendments were ‘law’ under Article 13, and that the Indian Constitution did not envision any separate ‘constituent power’. J. Hidayatullah went to the extent of saying: ‘What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all.’ Given this doctrinal muddle and the subsequent 24th Amendment, the court in Damnoo must have trod safely in not relying on any of those cases, or even entering such a discussion.

It was only in that in 1973, that Kesavananda Bharati developed fully and clarified the difference between constituent power and constituted power. The parliament exercised constituent power under Art. 368 subject to some implied limitation that it cannot ‘destroy basic features of the original constitution. A better way of distinguishing Damnoo, then, is not to say that it was ‘clarificatory’, but to say that it needs to be overruled in light of the sufficient clarity we now have about this crucial idea of sovereignty. The constituent power of the people of Kashmir and the people of India cannot be said to have been overruled, by a presidential order or an amendment in the J and K constitution. As the court has held in Kihoto Holohan and Kuldip Nayar, the democratic nature of offices is a basic feature which cannot be taken away not even by amendment, let alone executive dictats. To that end, Damnoo deserves not just to be distinguished, but to be overruled. In fact the High Court of J and K has observed that the 1965 amendment violates the basic features of democratic election and the constituent power of the people of Kashmir (in Para 24). But it shied away from declaring it unconstitutional, as that was not the issue before it.

That leads us to this Presidential order. Here similarly, the constituent power of the people of Kashmir in granting themselves autonomy has been frustrated by a Presidential order. The only tokenistic concurrence provided here is by the Governor of the state, who himself operates ‘during the pleasure of the President’. The distinction between representative, constituted and constituent power as given in Kesavananda Bharati should guard us against changing Article 370 through a presidential order.

Conclusion

I have shown how the two cases which are cited in favour of Article 370 need to be overruled or distinguished in light of subsequent jurisprudential clarity about implied limitations in the constitution.

Guest Post: Article 370 – A Counter-Point

Tags

,

(This is a guest post by Pranay Lekhi.)


Clause 1(d) of Article 370 has been used to pass over 45 Presidential Orders to modify and progressively expand the powers of the Central Government with respect to Jammu and Kashmir since 1950. It is true that in State Bank of India v. Santosh Gupta, the Supreme Court noted that the marginal note stipulating that Article 370 is “temporary” has lost its meaning due to the dictum in Sampat Prakash v. State of Jammu and Kashmir. However, the implications of these judgments are not as consequential as they have been made out to be. As stated by Nariman J. in Santosh Gupta,the implication is simply that despite Article 370(3) reading “Constituent Assembly of the State”, the article will not cease to operate upon the dissolution of the Constituent Assembly, which happened in 1957. Therefore, the logical deduction is that despite the dissolution of the Constituent Assembly of Jammu and Kashmir, the procedure under Article 370 can still be used to issue Presidential Orders. Consequently, the Order of 2019 is an exercise of constitutionally valid powers to pass an order of a similar nature to those before it, as it “supersedes” the previous orders and makes applicable to Jammu and Kashmir all parts of the Constitution that were previously inapplicable, without exception.

In the same vein, it has been argued that the procedure under clause 3 has not been followed, which requires the recommendation of the “Constituent Assembly of the State” prior to such promulgation. Undoubtedly, since 1957 the State Assembly, which has been given autonomy in certain matters, is the Constituent Assembly. This is evident from a bare reading of Section 147(1) of the Constitution of Jammu and Kashmir, which vests the legislative assembly with the constituent power of amendments. The Supreme Court in Santosh Gupta (para 10) followed this logic while declaring that after the dissolution of the Constituent Assembly, an order under Article 370(3) can be made with the concurrence of the “State Government”. This must be seen in consonance with the Presidential Order of 1954 extending Emergency Provisions under Articles 356 and 357 of the Constitution of India to Jammu and Kashmir.

Furthermore, unlike other States, President’s Rule under Article 356 runs concurrently with Governor’s Rule under Section 92 of the Constitution of Jammu and Kashmir. This is important as Section 92 allows for far more expansive powers to the Governor: under Section 92(1)(a), the Governor may assume to himself all or any of the functions of the Government of the State. This action is not only legally justifiable but also has precedent: in 1986, then Governor of Jammu and Kashmir, Jagmohan, approved an order extending Article 249 of the Constitution of India to the State. This suggests that scheme of Governor’s Rule is unique and incomparable to other provisions of the Constitution, such as those concerning promulgation of ordinances. In sum, while the Assembly is in suspended animation, the Governor alone is embodied with the powers of the Constituent Assembly of Jammu and Kashmir. Hence, as the 2019 Order correctly notes, it is made “with the concurrence of the Government of Jammu and Kashmir.”

Insofar as the argument concerning the exercise of a constituent power under Section 147 of the Constitution of Jammu and Kashmir is concerned, the same is inapplicable to the present situation. It is indeed true that as per the proviso of Section 147, certain parts of the Constitution of Jammu and Kashmir cannot be amended by the Legislative Assembly. However, the assent to the Presidential Order is not an exercise of the power to amend the Jammu and Kashmir Constitution at all. On the contrary, it is specifically an exercise of powers provided under Article 370 of the Constitution of India. Therefore, since all powers of the State Government vest with the Governor under Section 92 of the Constitution of Jammu and Kashmir, his assent to the Presidential Order, despite being an exercise of constituent powers, will remain unaffected by Section 147.

Additionally, Article 370 has not been used to either abrogate or amend itself. The provision provides for the President to modify any part of the Constitution for the purpose of an order issued under it, and in furtherance of such power, the 2019 Order amends Article 367. The effect of this change is indeed that the language of Article 370(3) is altered. However, it is incorrect to suggest that Article 370 cannot be used to amend itself. Clause 1(c) talks of the applicability of Articles 1 and 370 to Jammu and Kashmir irrespective of any Presidential Order and Clause 1(d) makes such” other parts of the Constitution of India applicable only after the promulgation of such Orders. The addition of the word “such” in Clause 1(d) makes it clear that it includes within its ambit Articles 1 and 370 mentioned in Clause 1(c).

In any case, these two forms of application of constitutional provisions in no way imply Article 370 cannot be used to modify itself. As noted by the judgment in Santosh Gupta, the powers “modify” under Article 370(1) have to be given “the widest possible amplitude” and not a restrictive meaning (¶ 14). This would imply that the President by order would also have the power to amend Article 370 itself. This is also evident from the scheme of Article 370. Sub-Clause (3) of Article 370, which applies “notwithstanding” anything in the foregoing provisions expressly notes that this Article (i.e. Article 370), shall cease to be operative or be operative with “exceptions and modifications” by an order of the President. This makes it apparent that Article 370 can be amended by a Presidential Order.

As for the delimitation and central administration, the sequitur follows. Once the whole Constitution is validly and equally made applicable to Jammu and Kashmir, Articles 2 and 3, without any privileges are also applicable. This implies that an Act of Parliament can modify the boundaries and separate an existing State. There does exist a provision for the expression of opinions by the concerned State’s government but there is nothing to suggest that the same was not done in the present case for the reason stated above.

Strangely, there has been some intensely revived citation of the Instrument of Accession signed by Hari Singh to suggest that there has been a violation of trust. This is incorrect as the Instrument, for this purpose, itself gave way to the Constitution of Jammu and Kashmir, which declared it an integral part of the Union of India unconditionally and progressively allowed for an expansion of the role of the Union in the region. This instrument is not very different from those signed by Junagarh, Hyderabad and the other Princely States. This is important because similar arguments on “violation of trust” were given by those vested interests who benefitted by measures such as privy purses amongst other patently undemocratic and discriminatory privileges. These have since been emphatically rejected.

In sum, the Presidential Order of 2019 is a valid exercise of the procedure established by Article 370. This is also in line of the purpose of the Article as well, which has been used since 1950 to progressively integrate the State of Jammu and Kashmir with the Union. While it can be argued that the President’s Rule should be restricted to impermanent decisions for the State, the unique scheme of Article 370, which provides expansive powers of modification to the President, coupled with the assumption of the State Government’s role by the Governor under Section 92 has given rise to these distinctive circumstances that have made the Order constitutionally legitimate.

Guest Post: Article 370: The Constitutional challenge

Tags

,

(This is a guest post by Nivedhitha K.)


The legal trajectory that lead to the abolition of J&K’s special status has already been explained by Bhatia here. This post deals with a constitutional argument to challenge the course of events.

The Presidential Order C.O. 272 notified by the president on 5th August, 2019 through Art 370(1) (d) is the genesis of the subsequent events. The order amended Art 367 in its application to J&K, wherein the phrase ‘constituent assembly of the state’ in Art 370(3) was construed to mean ‘legislative assembly of the state’. In my essay I argue that the Presidential Order C.O. 272 is unconstitutional to begin with, and hence the series of steps that followed the notification have no force of law.

An amendment to the Indian Constitution can be effected through Parliaments’ constituent power under Art 368. However, the Constitution can be amended for its application to the state of J&K through Art 370(1) (d), wherein the concurrence of the government of J&K will have to be obtained before the President notifies such modification. Pursuant to this, various constitutional orders have been notified by the President earlier, and this is how the notorious Art 35A came to be introduced in the Indian constitution.

Now, could Art 370(1) (d) be used to amend Art 370? The answer is in the negative. Art 370(1) (d) could only be used to ‘modify’ provisions other than Art 1 and Art 370 of the Constitution only. This is what distinguishes the present order from the one introducing Article 35A: Presidential Order C.O. 48 (the genesis of 35A) extended certain protections to permanent residents of J&K against the violation of fundamental rights.  The inclusion of Art 35A did not effect a ‘modification’ of Art 370 but merely modified another provision of the constitution (other than Art 1 and Art 370) by issuing an order under Art 370(1) d). On the other hand, Art 370(3) provides for a special procedure through which Art 370 could be modified or abrogated, where the recommendation of the constituent assembly of J&K is a mandatory requirement.

‘Modification’ under Art 370(3)

The central question of law is whether Presidential Order C.O. 272, in which the constituent assembly of the state and the legislative assembly of the state are used interchangeably, is a ‘modification’ under Art 370(3). In order to understand this situation, a reference is made to a similar circumstance in the past. Unamended Article 370, in its explanation clause, had stated that the government of J&K shall mean the Maharaja of J&K. In 1952, through a resolution under Art 370(3), the constituent assembly of J&K ‘modified’ Art 370 by substituting Sadar-I-Riyasat in the place of Maharaja. Subsequently, in 1954 Presidential Order C.O. 48, notified through Art 370(1)(d) which amended Art 367 in its application to J&K, stated that reference to Sadar-I-Riyasat in Art 370 shall be construed to mean the governor. In the case of Mohammad Maqbool Damnoo v. State of J&K, Presidential Order C.O. 48 was questioned. The question that arose was whether using Art 370(1) (d) to “interpret” phrases in Art 370 amounted to ‘modification’ under Art 370(3). The court had observed that the Presidential Order C.O. 48 merely elucidated the Constitutional position that existed in the state, wherein Sadar-I-Riyasat had been functionally substituted by the governor and hence it did not amount to ‘modification’ under Art 370(3). Therefore, the question in the instant case is whether the legislative assembly is a “constitutional substitute” for the constituent assembly. If the answer is in the affirmative, the Presidential Order C.O. 272 would not have ‘modified’ Art 370; otherwise, it would have. If it has modified Article 370, then the order is unconstitutional, since a modification could only be effected by following the procedure under Art 370(3).

Constituent Power and Legislative Power

I will now prove that the legislative assembly of J&K is not a constitutional substitute of the constituent assembly of the state. The premise of my argument is based on the difference between the legislative power (power to enact laws) and the constituent power (power to modify the Constitution) of the legislature. In rigid constitutions, the procedure to amend the Constitution (special majority) is different from the procedure to legislate (simple majority).  The constitutional equivalent of the constituent assembly is the constituent power of the legislative assembly. Therefore, if the legislative assembly of J&K possesses the constituent power to recommend modification to Art 370, then the presidential Order would not have effected a modification.

Crucially, however, the legislative assembly of J&K does not possess the constituent power to recommend a modification. Consider section 147 of the J&K Constitution. Proviso 2 of section 147 declares certain provisions of the constitution unamendable: these are sections 3, 5, 147 of the J&K constitution, and provisions in the Indian constitution that are related to the special status of J&K (i.e, Art 370). Therefore, the legislative assembly does not have the constituent power to amend Art 370 or provisions related to the special status (s. 3 and 5 of the J&K Constitution).

Recommendation under Art 370- through exercise of Legislative or Constituent power?

This argument could be met with a counter-argument that the recommendation under Art 370(3) only requires exercise of legislative power, which shall be effected by passing a resolution through a simple majority. This counter argument will be negated through four arguments which are based on the structure of section 147, Art 370 and the J&K Constitution. Firstly, a slight modification of Art 370, (let’s say to increase the legislative and executive autonomy of J&K) is also permitted only by introducing a recommendation by the constituent assembly. Even if the recommendation only requires a simple resolution under Art 370, section 5 (extent of legislative and executive power of J&K and its interrelationship with India) will have to be amended by the legislative assembly of J&K for it to be in tune with the modified Art 370, for which the legislative assembly of J&K does not have the power. Secondly, when a special majority is required under section 147 for any constitutional amendment, it is ridiculous that an explosive decision such as determining J&K’s relationship with India could be made through a simple majority. Thirdly, the J&K constitution was enacted after the Indian Constitution came into force; consequently, the Constituent assembly members were aware that a recommendation was required under Art 370(3), but expressly prohibited the legislative assembly from modifying status. Fourthly, section 147 states that an amendment to the constitution can be effected only through the introduction of a bill, but proviso 2 of section 147 reads ‘no bill or amendment seeking to make any change..’. The inclusion of the phrase ‘amendment’ seeking to make any change is intended to cover the recommendation under Art 370(3). Hence, the legislative assembly of J&K does not possess the constituent power to modify the special status and hence it is solely within the realm of the constituent assembly.

Effect of section 147 of the J&K Constitution

 The question that follows is: what is the effect of unamendability of provisions related to special status of J&K? Should another constituent assembly be formed for this purpose? The express prohibition placed on the J&K legislature regarding the amendment of Art 370 could mean two things: either that Art 370 is a permanent feature of the Constitution and that the state of J&K shall indefinitely enjoy its special status, or that citizens of J&K did not confer on the legislative assembly the power to make modulations to the special status that they enjoy with regard to India. 

The unamendability effect is countered by two arguments which elucidates that the special status of J&K is an amendable provision of the Indian Constitution. Firstly, the Instrument of Accession, which is the basis of relationship between J&K and India, reserved the discretion of the Maharaja of J&K to enter into arrangements with India in the future (clause 7).  Secondly, neither Art 368 nor Art 370 of the Indian constitution expressly prohibits the modification of Art 370. This would mean that Art 370 is amendable. Therefore, the second effect stands tall, i.e., the people of J&K while entering into a social contract through the constitution with the state of J&K, reserved the right to modify the relationship that they hold with the Union of India. This means that only a plebiscite could modify Art 370.

The theory of dualist democracy proposed by Bruce Ackerman in his book, We the People, differentiates between lower law making and higher law making. He argues that higher law making is when the people directly participate in decision making during ‘constitutional moments’, and lower law making is when the people delegate their law making power to the legislature. The modification of the special status enjoyed by the state of J&K has been expressly regarded as a “constitutional moment” by the Constitution itself. This is reflected by the express prohibition upon amendment by any body other than the Constituent Assembly.

Transfer of Constituent power under Art 356(2)

Even if the argument on ‘modification’ fails in the Supreme Court on the ground that section 147 only prevents unilateral amendment by J&K to Art 370, and even if it is regarded by the judiciary that the legislative assembly of J&K holds the constituent power, my second argument lays certain legal impediments on the way of the parliaments’ exercise of power under Art 356(2). My argument is that transfer of power of the legislature of the state to the parliament under Art 356(2) on declaration of national emergency only permits the transfer of legislative power and not constituent power. The objective of transference of legislative power during a national emergency is only to prevent a state of temporary lawlessness. Therefore, the recommendation of the parliament is without force of law, since it is for the legislative assembly of the state to recommend on exercise of its constituent power (assuming, that is, that my first argument has failed).

In order to strengthen the above argument, the structure of Art 370 is taken into consideration. In contrast to the phrases ‘consultation’ and ‘concurrence’, which are used in Art 370 for decisions regarding the applicability of provisions of the Indian Constitution to J&K, Art 370(3) uses the phrase ‘recommendation’. The usage of the phrase ‘recommendation’ elucidates that the proposal shall come only from the state, excluding the interference of the centre on any degree. 

Conclusion

Through my arguments above, I have explained that the constitutional equivalent of the constituent assembly of J&K, is the constituent power of the legislative assembly. Since the legislative assembly does not hold the constituent power to modify the special status, the Presidential Order C.O. 272 has in effect ‘modified’ Art 370 through colourable exercise of power. If the judiciary fails to declare the order unconstitutional, my argument on transfer of legislative power under Art 356(2) regards the parliament’s recommendation as one with no force of law. Therefore, the Presidential Order C.O. 272 and all the subsequent activities that have its genesis in the presidential order are unconstitutional.