Justice Kavanaugh and the Collegium: reflections on the increasing significance of judicial appointments

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Justice Bret Kavanaugh’s confirmation hearings have certainly given us food for thought. The issues raised by the hearings have received some expert commentary, including Jack Balkin’s insightful post on ‘constitutional rot’ (here) and the series of posts on the Law and Political Economy blog (here). While certain aspects of the confirmation hearings were unique to the American political and constitutional experience, India too has a well-documented struggle with judicial appointments and recently underwent its own moment of introspection on a key judicial figure with the retirement of former Chief Justice Dipak Misra.

In this post I ask the question, why are the stakes for a seat on the constitutional court so high? The way constitutional courts are designed certainly provides an immediate set of answers. There are only nine judges on the United States supreme court and they enjoy lifetime appointments, allowing a single judge to impact the outcome of cases for several decades. However, even in India where the supreme court consists of thirty-one judges having limited terms, the court and government have struggled to see eye-to-eye on judicial appointments. The court has repeatedly struck down attempts to reform the ‘collegium’ system, where judges themselves decide who should be appointed to the supreme court. In return, the government has refused to confirm the appointment of certain appointments made by the ‘collegium’ to the supreme court. Just this week, the Chief Justice took up the issue of the government ‘selectively’ confirming judicial appointments (here). In this post, I argue that it is the conduct and role of the court that has raised the stakes of judicial appointments to boiling point.

The conduct of the court, intended to curtail governmental overreach, has come to include detailed matters of public policy. Further, the court has become a centre of political power, advancing political views on deeply divisive issues. This piece does not seek to make an argument against judicial review, nor does it advocate, in the words of Mark Tushnet, taking the constitution away from the courts. However, in a month of historic outcomes for the Indian supreme court, it advocates some circumspect on the high stature of the court.

The role of judicial review

Part III (Fundamental Rights) of the Indian constitution explicitly recognises that individuals can approach the court, and the court can strike down government action that is incompatible with the fundamental rights. By allowing a law to be struck down on the grounds that it is incompatible with a fundamental right, the constitution recognises that an individual’s political interest cannot be subsumed by the general interest. A person’s fundamental rights must therefore be given appropriate weight when measured against the interests of the community. Famously, in the words of Dworkin, rights act as “trumps” in certain situations. The powers of the court are not strictly limited to invalidating government action, the court can, for example, direct the government to take certain actions to ensure fundamental rights are upheld (by a writ of mandamus). However, in practice, the actions of the court far exceed this.

Take the recent example of the court’s involvement in the Coordinator of National Registration (NRC) in Assam. Article 11 of the constitution states that parliament will have the power to create laws for the “acquisition and termination of citizenship and all other matters relating to citizenship.” However, the court not only ‘supervised’ the procedure by which thousands of individuals were added and omitted to the list of potential citizens, but it also determined which documents could be used to make a claim to citizenship. After the draft NRC was published, the court required re-verification of ten percent of the names would be required, so that the court could be satisfied that the list was accurate. By dictating what documents could be used by an individual to prove they were a citizen (the evidentiary standard for citizenship), the court effectively determined when an individual is a citizen.

Even more worrying was that the court acted to the exclusion of other branches of the government. For example, the court noted,

 Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court. […] The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.

As argued by the Attorney General, this exclusion of the governments hampers the task of the officers who must deal with the facts on the ground. The court also passed orders on when the draft had to be published, if the NRC officers were permitted to speak to the press, and whether they needed police protection. The Court’s excruciatingly detailed supervision was showcased when the state government argued that more time was required to complete the NRC because of local panchayat elections. The court noted,

we, however, permit the State Government to take the services of one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for the work connected with the Panchayat Elections.

The court’s conduct vis-à-vis the NRC is not a case of judicial review where an individual’s rights are aggrieved by state action. Determining how and when officers should be stationed is a distributive choice on how the nation’s resources are utilised. In close to a decade of hearing the case, the court has never once referred to either the fundamental rights at stake or even the government action that is the subject of judicial review. When the attorney general argued that certain aspects of the case were best left to the executive, the court cited executive inaction as a justification for court supervision. The NRC is not an isolated case, the court has laid down and monitored the India’s forest policy for over two decades in the (still ongoing) writ petition Godavarman v Union of India. While the pitfalls associated with the court assuming such a role are not the subject of this piece, it is evident that the conduct of the court is no longer limited to judicial review. It can compel even a government that is not seeking to undermine constitutional provisions to expend resources on certain goals that the court designates as important. The court is not merely a ‘check on governmental power’, but itself a powerful centre for policy on how the country should be run.

The court as a centre of politics  

The court has also used its power to advanced political ideas on deeply divisive issues. The most recent example of this is the court’s decision in the Sabarimala case, where the court struck down the restriction on menstruating women entering the Sabarimala temple. To understand the political significance of the judgement, it is necessary to appreciate the centrality of secularism to the Indian constitution, so a quick recap is called for.

Article 25(1) reads,

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 26 goes on to note that,

every religious denomination shall have the right […] to manage its own affairs in matters of religion 

This inherent tension in the constitution highlights both the disagreement that existed over the extent of State interference in religion and the requirement for continuity/ communal harmony, as well as the sharp contradictions that existed between the aspirational goals of the constitution and surrounding society. As Gary Jacobsohn notes, “So deep was religion’s penetration into Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard, grossly unjust, that […] State intervention in the spiritual domain could not be constitutionally foreclosed.” Yet it is precisely this deep penetration of religion that leads to an inherent tension between the aspirational social-reform goals of the constitution and the requirement for communal harmony. The drafters of the constitution, operating in the shadow of partition, were acutely aware of the essential role of religion in social life. Thus, while social reform through State action was necessary, the acknowledgement of religious autonomy and permitting “culturally inflected interests” to be represented were essential to the maintenance of democracy in India.  Thus, Indian secularism required a balance between socio-economic reform of religion and tolerance of the deeply engrained and pluralistic practices existing across the country.

This is precisely the tension that the Sabarimala judgement brought to the forefront, down to the opinions of the judges. When Justice Malhotra argues for the validity of the ban on women entering the temple, she does so on grounds of respect for religious pluralism, while Justice Chandrachud gives voice to the argument that State intervention in certain situations is warranted. Of course, the rub lies in when such intervention is warranted, and who can ask for such intervention.

The religious sphere is certainly open to interference by the constitutional promise of social reform, but as Jacobsohn notes, “the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity.” By taking up the case, the court reduced this political space to the respondent’s lawyers in the courtroom. By striking down the ban, the court has struck down the practice of a religious group on the grounds of social reform at the behest of individuals who are not members of that religious group. This certainly alters the subtle constitutional balance between the social-reform goals of the constitution and the promise of communal harmony. As we have seen, the place of religion in Indian society is deeply contested. Yet the court’s seemingly insulated position often obscures the fact that the court is a vigorous and powerful participant in this contestation.

Conclusion

Given everything set out above, it is clear why the political class might seek to entrench allies in the judiciary, and consequently why, the judicial appointment process becomes contentious. Unlike in the United States, where judges are appointed by the executive branch and confirmed by the legislature, in India we have the collegium system, whereby senior judges appoint junior members of the court. While perhaps less partisan that the American court, the Indian court is no less political. As Anuj Bhuwania notes, the court’s PIL jurisdiction grants “blanket powers to judges to act as per their ideological beliefs in order to help the poor and promote distributive justice.” One would be hard pressed to find a politician who argue that his role differed from this role of the courts, except for the politician, blanket powers remain a forlorn dream.

This post sought to highlight why a place on the court is important. It is important because the court has endowed itself with vast powers and these powers are used to implement the policy and to drive the politics of the court.

The role of the court in its present iteration raises the age-old problem of political legitimacy. The court is an unelected body. As Jeremy Waldron notes, it is far easier to explain to someone who holds a contrary political opinion that, “Everyone’s votes were counted, and your side got fewer votes” than it is to say, your principled argument lost 4-1 on the constitutional bench. Can one approach the thousands of protestors at Sabarimala with the majority opinion in hand and expect immediate acceptance? What we are truly concerned about is the court exercising its expansive powers without the legitimate authority to do so. The protests against Justice Kavanaugh no doubt in part stemmed from the fact that this one man would have the power to decide whether millions of women could abort unwanted pregnancies or not. To ask if such a system is desirable is to ask where the legitimate authority to govern us comes from. Is it the constitution, the democratic process, a learned judge, or some combination of them all? Until then, we should prepare ourselves for the next round of high stakes judge selection.

Guest Post: Constituting Constitution Benches: The Dipak Misra year(s)

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(This is a guest post by Shreya Munoth.)

Reams have been written about Chief Justice Dipak Misra’s legacy at the helm of the Indian Supreme Court, both on the judicial as well as the administrative side. His jurisprudential legacy is a mixed-bag, and his administrative legacy leaves even less to be desired. But in this post, I write about Chief Justice Misra’s tryst with constituting and heading constitution benches in the year 2018.

The last month of Chief Justice Misra’s tenure as the Chief Justice of India (as he then was) saw judgments being delivered in six cases, running to 2,753 pages cumulatively. These were heard by benches comprising of five judges (constitution benches) starting from January 2018. All the benches in these six cases were headed by Chief Justice Misra. These six cases heard by constitution benches were on diverse constitutional issues – the validity of Aadhaar; the validity of Section 377 of the Indian Penal Code which criminalized consensual adult homosexual acts; the validity of restricting women from entering the Ayyappa temple at Sabarimala; the validity of Section 497 of the IPC which permitted husbands to prosecute other men who had consensual sex with their wives (‘adultery’); whether legislators could be disqualified on the basis of charges framed against them in criminal cases (‘criminalization of politics’); and the correctness of the decision in the M. Nagaraj, which excluded the “creamy layer” from reservations for Scheduled Castes and Scheduled Tribes during promotion (‘reservations in promotions’).

Article 145(3) of the Constitution stipulates that all cases involving substation questions of law relating to the interpretation of the Constitution must be heard by a bench of the Supreme Court comprising of at least five judges, otherwise called constitution benches. The Supreme Court, in ordinary course, sits in benches comprising of two or three judges. In the Supreme Court’s recent past, there have been very few instances of numerous constitution benches being set up, particularly one right after the other. Nick Robinson et al’s analysis on constitution benches that have been set up between 1950 to 2009 brought to light that the number of constitution benches annually have dramatically declined from the 1960s when, on an average, more than hundred constitution benches were set up each year, to the 2000’s where that number dropped to less than seven benches per year.

Seen in this light, Chief Justice Misra was unusually proactive in constituting constitution benches and hearing the cases listed before such benches. In his tenure as CJI, for a little longer than thirteen months (August 2017 – October 2018), he constituted and headed at least thirteen constitution benches, six of which were constituted and delivered judgments in 2018. Aadhaar was heard from January 17 to May 10, 2018, the second-longest constitution bench hearing in the history of the Supreme Court. The other five constitution bench cases of 2018, in all of which judgments were pronounced in September, 2018, were heard one after the other from July 10, 2018 to August 30, 2018. This post is, largely, limited to the six constitution bench cases heard and decided in 2018.

The six constitution bench judgments delivered in September 2018 alone – as pointed out above – cumulatively run to 2,753 pages. Two thousand, seven hundred, and fifty-three pages that are to be read by judges, lawyers, Indians, and others interested in the working of the Indian judiciary. Of these six judgments, only two judgments (criminalization of politics and reservations in promotions) had a single majority opinion, i.e. where one judge wrote the judgment on behalf of all 5 judges. Two judgments (377 and Adultery), which reached unanimous conclusions, had four judges writing separate concurring opinions. Only two judgments had dissenting opinions (Aadhaar and Sabarimala). While Aadhaar had three judges deliver separate opinions, with Justice Chandrachud dissenting from the majority and Justice Bhushan going beyond what the majority held, Sabarimala had four judges deliver separate options, out of which only Justice Malhotra penned a dissenting opinion.

There are a few aspects that I would like to highlight regarding Justice Misra’s tryst with constituting constitution benches.

Procedural Lapses

First, the manner of constituting constitution benches, the notice given to the parties and their lawyers, and the composition of these benches left much to be desired. On January 8, 2018, a writ petition, for admission, was listed before a three judge bench headed by Justice Misra challenging the validity of Section 377. At the stage of issuing notice on the petition itself, Justice Misra proceeded to refer the case to a larger bench. This is to be contrasted with the usual practice, where after notice is issued on a case, the two or three judge bench it is assigned to, if it deems necessary, refers the issue to a larger bench. This may seem like a minor technical impropriety, but seen along with other procedures that have been ridden a roughshod over, the reason for referring the 377 petitions directly to a larger bench, and then prioritizing the 377 petitions over other constitution bench cases, deserves examination.

On January 12, 2018, the Supreme Court registry issued a notice listing 8 constitution bench cases starting from January 17. The first case listed was Aadhaar (Note: Aadhaar went on to be argued for 38 days, with the judgment being reserved on May 10. Aadhaar was given the privilege of being the second longest constitutional bench hearing in the history of the Court since Independence. Importantly, the constitution benches that Chief Justice Misra constituted in 2018 only sat for 3 working hours on a good day, as opposed to the usual practice of sitting for at least 4 and a half hours. This could have been a contributing factor in the time taken to hear Aadhaar). In this January notice the 377 petition (titled Navtej Singh Johar and Ors. v. Union of India) was listed fourth in the order of hearing.

Soon after the Supreme Court re-opened after the summer break, to the astonishment of many, the Supreme Court registry issued a fresh notice on July 5, 2018, listing four cases to be heard starting from July 10, 2018. The first case listed in the new notice was on the validity of 377. One can only conjecture the reason for this new re-ordering. The lawyers for the 377 case were given a precious five days’ advance notice to prepare for a case that dealt with the fundamental rights of millions of Indians. This was not the only time this happened: as late as August 1, 2018, a constitution bench was constituted for hearing the case relating to reservations for promotions (the infamous manner and composition of the constitution bench headed by Chief Justice Misra in the 2017 petition setting out the CJI as the omniscient master of the roster has (rightly) already been heavily critiqued on this blog).

Bench Composition and Intellectual Conformity

Coming to the composition of benches, Chief Justice Misra has been a part of all, but one, constitution benches that sat during his tenure as CJI. This is not anachronistic. Robinson et al noted that the chief justice has historically sat on about 77% of constitution benches, and wrote the majority opinion in 21% of them. The only constitution bench that Chief Justice Misra constituted that he was not a part of was the one hearing the petition pertaining to impeachment proceedings moved by some parliamentarians against him. This constitution bench did not end up passing an order or a judgment as, after some oral arguments, the petitioners withdrew their plea. The manner of the constitution bench formed to hear the impeachment petition is also very circumspect.

Robinson et al also noted that:

Strikingly, we could only locate 10 times the chief justice has been in dissent in the history of all constitution benches (he wrote a dissenting opinion in eight of these cases). This record may indicate that the chief justice is potentially picking benches that are more likely to decide in a way that he favours.

 

How does Chief Justice Misra fair in this regard? Chief Justice Misra has not dissented even once in a constitution bench that he headed as the CJI. To be fair, as Robinson has pointed out, this is not something unique to Chief Justice Misra, and most CJIs have never dissented in constitution bench cases. On the issue of “picking the benches”, however, four of the six 5-judge benches of 2018 cases had the same composition (J. Nariman, J. Khanwilkar, Chandrachud and Malhotra JJ). Aadhaar, which had a (only slightly different composition) had Justices Sikri and Bhushan in the places of Justices Nariman and Malhotra (who was inducted as a judge only in July 2018). However, Justices Sikri and Bhushan were a part of at least six other constitution benches constituted by Justice Misra, in 2017 and 2018. The case pertaining to reservations against promotions had a unique bench composition that consisted of Justices Kurian Joseph and Sanjay Kishan Kaul, in addition to Justices Misra, Khanwilkar, and Malhotra. This case was the only constitution bench judgment that had one of the 4 senior-most judges (Justice Joseph), apart from the CJI, as a part of the 5-judge bench. Not a single constitution bench set up by Justice Misra, apart from this one, had any of the next 4 senior-most judges. Recall, the infamous press conference held by the 4 senior judges where one of their grievances was the assignment of cases by the Justice Misra to “benches of his preference.”

Concurring Judgments and Inordinate Length

Second, Justice Misra’s frenzy of setting up numerous constitution benches, with six major judgments all delivered in his last month at Court also resulted in a number of these decisions having concurring opinions. In fact, the only two cases that have single majority opinions (criminalization of politics and reservations in promotions) are the ones that were heard in the end. My problem isn’t just with the practice of authoring concurring opinions, but the form and manner of doing so. In the 5 constitution bench cases heard in the second half of 2018, the judgments display a clear lack of one concurring opinion engaging with the other. This is purely in the realm of speculation, but my sense on reading the judgments were that all the opinions were authored as disparate opinions which did not have the advantage of referring to the others, not at least till the very end. For instance, in Sabarimala, the three concurring opinions by Chief Justice Misra and Justices Nariman, and Chandrachud, all list out the facts, the proceedings before the Kerala High Court, extensively quote the same precedents, and summarise the submissions made by counsels. They also take divergent routes to arrive at the same conclusions. It is arguable that if the other majority judges have not dissented from specific findings, all concurring judges are speaking for the majority and that is binding on all benches of co-equal or lesser strength and on all high courts. However, it definitely leaves the door open for more judicial hours and challenges being wasted on discussing which of the majority opinions holds the field and if indeed silence by other concurring judges amounts to acceptance. Clarity should be the cornerstone of decisions, particularly larger bench decisions of the Apex Court. Unfortunately, these six decisions, with their numerous concurrences which do not speak to or inform each other, are a far cry from the clarity and precision one would expect.

Third, on a slightly related note, these six decisions, with their numerous concurrences and a few dissents, apart from being convoluted, are incredibly lengthy. The Aadhaar judgment alone runs to 1,448 pages. I’d wager that out of the 1.3 billion Indians, a maximum of 200 have read the Aadhar judgment from cover to cover. Robinson et al note that “in the four-year period from 2006 to 2009, there were 12 constitution bench decisions, of which three (or 25%) were over 100 pages and two (or 17%) were over 200 pages, making determining the law an almost monumental reading feat.” I wonder what they would have to say about the colossal task of imbibing 2,753 pages all delivered in less than a month. The lengths of other judgments by constitution benches headed by Chief Justice Misra in 2017 range around the 500-page mark. The straight-forward question of whether Parliamentary Standing Committee reports could be relied on in proceedings before Courts took the Supremes 338 pages to decide. Ironically, the same Supreme Court in September, 2018 waxed eloquent about the need for “open justice” while permitting live streaming of its proceedings. Is “open justice” then limited only to the physical accessibility of court room proceedings? Does it not necessarily extend to its judgments? Who is the Supreme Court writing its judgments for and who are they applicable to? Surely, not only a handful of elite lawyers. Are judgments an exercise of displaying deep grasp on abstract philosophical principles? The Supreme Court is routinely deciding matters that directly affect the rights and obligations of the citizenry. Couched in flowery prose, running to a few hundred pages, makes these decisions which have a real impact on the very lives of the citizens far out of reach of these very citizens its diktats are addressed to. These verbose judgments also make it impossible for commentators to meaningfully distill them in easy and comprehensive summaries. Contrast this with the South African Constitutional Court, where the judgments are generally well under 200 pages, and the Court issues a two or three pages’ long media summary along with the judgment, making them very accessible. While this criticism of verbosity and inaccessibility does not extend only to judgments in the Justice Misra era, a CJI who fashioned himself as omniscient, could surely lead by example in being concise and precise.

I end with the hopeful note that future “masters” at the helm run a tighter ship, not only in transparent selection of cases to be heard by larger benches and their composition, but also in ensuring dialogue between the judges of larger benches and in making judgments shorter and possibly, more accessible. Judges, even those hailed as the most progressive, would do well to introspect about how best they could, sitting in their ivory tower, speak to us, the laypersons, about matters that affect our very existence.

Guest Post: Acquitted but not yet Free – the Constitutionality of Section 437-A Cr.P.C.

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(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog with permission.)

The Criminal Procedure Code 1973 [Cr.P.C.] was subjected to significant amendments in 2009. The law on arrest was drastically altered following Supreme Court admonition, and victims were given a real foothold in the criminal process for the first time. Amidst all this, a provision was added to the section on Bail in the Cr.P.C.: Section 437-A. What does it say?

Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months [Section 437-A(1)]

Through this post, I will try and convince the reader that Section 437-A Cr.P.C. is unconstitutional. The post first cursorily explains the concept of bail and engages with the problematic consequences flowing from the text of Section 437-A. It then discusses the origins of the provision, before moving on to argue that it is contrary to Articles 14, 19, and 21. The last section considers that there are two options, reading down Section 437-A or striking it down completely, and I support the latter course.

Understanding Bail and the Text of 437-A
One often comes across “bail” in context of criminal trials and investigations. What does this mean? In such scenarios (and others), where a person is in the crosshairs of the legal system, the law wants to ensure that legal proceedings are not frustrated by persons fleeing the jurisdiction. An obvious way to address this is to arrest everyone. But that is hardly proportionate to the needs of law enforcement and is far too heavy a strain on State resources.

Bail is the answer to this problem. The person is notionally still in the custody of the court and not at liberty, but is not actually in fetters. Note, that as the law would always need a guarantee of personal appearance, all defendants once in the crosshairs of the system are either on bail or in custody. How does it ensure appearance when required? By imposing certain conditions while releasing the person, chief among which is a requirement to appear in court or before the police. Non-compliance with the conditions is met by the threat of arrest, often along with a threat of imposing financial consequences such as forfeiture of property to the State. The financial threat often extends to other persons called “sureties”, who are thus incentivised to ensure the defendant does not flee.

Now, consider the text of Section 437-A Cr.P.C. It is very broad: the court shall require bail bonds, with sureties, before conclusion of trial and disposal of appeal. This throws up a bunch of questions. First, does it mean that the court will not proceed with the trial or appeal before getting such bail bonds? Second, if the court does proceed with the trial / appeal and finds the defendant innocent, would she then remain in custody if she cannot find sureties or comply with the other conditions imposed for bail?

Section 437-A Cr.P.C. allows for both of these eventualities. And it is for this reason that the High Courts of BombayAllahabad, and Himachal Pradesh have clarified that courts within their jurisdiction must not apply the provision in a way that causes either of these results to follow. There will be some states that I have missed, but I am certain that there are many others where no such clarification exists today. Nor has any guidance been issued by the Supreme Court, and so, it is very possible that both of these problematic outcomes are being seen across the country. From here on, this post will focus on the second of the two outcomes: the continued detention of persons acquitted of all charges for their failure to post adequate bail bonds.

The Genesis and Object of Section 437-A
I mentioned that the guidelines issued by certain High Courts curbed certain uses of Section 437-A Cr.P.C. but have not yet explained how they wanted the provision to be applied. The Courts suggested that the provision is a means to ensure that an acquitted person is available to contest any eventual appeal by the State, and so the bail bonds should only be required at the end of a trial before judgment. They also suggest that bail might be given without sureties if an acquitted person cannot find sureties.

The history of Section 437-A supports this reading. Before it was added to the Cr.P.C. in 2009, the only other provision dealing with a need to detain persons pending an appeal against acquittal was Section 390 Cr.P.C. This empowers the appellate court to detain persons pending an appeal against acquittal, if it is convinced that of the threat of them evading the legal process. But in this scheme there still exists a period between the acquittal and appeal when a scheming defendant could still flee and frustrate the State’s appeal. Taking note of this (and abortive attempts by the Gujarat High Court to fill the gap) the Law Commission in Report No. 154 of 1996 recommended insertion of a Section 437-A Cr.P.C. Why? It said that the Cr.P.C. was “silent on the point of securing attendance” during an appeal, and there had been instances where appeals against acquittals were delayed or dismissed due to this failure in securing attendance.

Two problems are immediately apparent here. First, the Law Commission said that the Cr.P.C. was “silent” on securing attendance for appeals but did not even look at Section 390 Cr.P.C. which did cater to this need, albeit differently. Second, the bogey of appeals against acquittals being dismissed was raised without any empirical data about how many such dismissals happened and why. For instance, if the prosecution filed an appeal years after acquittal (as it often does) and then failed to find the original defendant, then it is rather unreasonable to claim that a person fled or frustrated the appeal and piggyback on the dismissal of the appeal to create a perceived need for Section 437-A

Importantly, the Law Commission acknowledged that this measure might be challenged under Article 21 of the Constitution. Its basis for concluding that the proposal was constitutional was simple: the Cr.P.C. allowed appeals against acquittals, and so seeking bail bonds till the limitation period for filing an appeal subsisted was not a “restraint” on personal freedom. Further, proposed Section 437-A was eminently reasonable where it involved no “restriction of liberty or his freedom of movement”.

When Section 437-A Cr.P.C. was ultimately passed by Parliament, there were two big changes from the suggested draft in Report No. 154. The final version of Section 437-A said that a court shall require bonds while the draft version did not make it a mandatory requirement. At the same time, the final version only needed the bail bonds for six months, down from the one year period that the Law Commission had suggested.

Unconstitutional Fetters on Personal Liberty
Practically, Section 437-A Cr.P.C. does not make much of a difference to defendants already out on bail during trial. In such situations, it is easy to extend the period of that bail bond for six months after acquittal by changing the form of the bail bond. But Section 437-A works very differently for those defendants who are in actual custody, unable to post bail by finding sureties or complying with any financial conditions that a court might impose. It is only for these persons that the two scenarios highlighted earlier – delayed trial and delayed effect of acquittal – are possibly realised.

On the face of it, Section 437-A Cr.P.C. though seemingly neutral, is very selective in its impact and discriminates against one class of persons. The classification that it effects is purely built on levers of wealth, influence, and privilege, rather than pursuit of the object behind Section 437-A (perhaps they indirectly affect that object, at best). The effect of this discrimination is to deprive such persons of their right to life under Article 21 of the Constitution, by not only possibly denying a trial itself, but more importantly, by not allowing them to enjoy the liberty that is the natural concomitant of an acquittal. Thus, Section 437-A in its present form offends the equality guarantee of Article 14.

Actual confinement of a citizen after acquittal obviously curtails the freedom of movement that she is guaranteed under Article 19(1)(d). But both the legal and actual fetters on personal liberty curtail the fundamental right that Article 21 protects. Which means we must consider whether Section 437-A Cr.P.C. is protected by the tests governing restrictions of these fundamental rights.

Section 437-A Cr.P.C. contains no sense of proportionality. It does not require the State to satisfy a court that an acquitted persons might possibly flee to avoid the appeal. Nor does it require the State to show that a person, if immediately released, will pose a threat to public safety. Instead, the provision demands every acquitted person to remain in custody of the court despite till the State can make up its mind about pursuing an appeal. Thus, the rights under Articles 19(1)(d) and 21 are rendered subservient to administrative convenience, pure and simple. And this after a person is declared “not guilty”, after a full-length trial or appeal.

Reading Down vs. Striking Down
No wonder those High Courts which have recommended that personal bonds be taken are effectively reading down the text of the provision (supported in this paper too, which discusses other issues with the provision). The constitutional problems in giving Section 437-A Cr.P.C. its fullest expression are obvious, and even the Law Commission in 2017 also suggested a relook is now necessary. But here, I argue that reading down cannot save the provision and it must be struck down altogether.

First, a question of means. Saving Section 437-A Cr.P.C. does not involve merely filling in gaps or creatively interpreting the text. It involves actively re-writing it, and that is something courts cannot do. The requirement that a court “shall” take bonds with sureties will be re-written as something it “may” do. Further, the scope of discretion is altered not to allow a court to forego the demand for bail bonds altogether, but to insert the words “personal bond” in Section 437-A to change the kind of bail bonds that are required.

But far more important is the question of principles. Section 437-A Cr.P.C. must be struck down for it automatically breaks the link between a judgment of acquittal and its legal effects, in the absence of any appeal preferred by the State. This is perhaps the most problematic part of the provision At one level, it creates a conflict within the Cr.P.C. Today, Section 354(1)(d) Cr.P.C. still states that a judgment of acquittal requires that a court direct the person be set at liberty. Without amending what it means to be acquitted directly, the legislature has indirectly rendered all acquittals subject to a condition of complying with Section 437-A. Can the legislature indirectly alter the very meaning of an acquittal at all stages within our criminal justice system in this indirect fashion? No, it cannot. Because this link between a judgment of acquittal and being set at liberty is protected through Article 21 itself. It cannot be severed, and certainly not to cater to administrative convenience.

Conclusions
Perhaps I am “fetishising” what an acquittal means – after all, it is not final till confirmed in appeal. But that finality is in respect of an acquittal being legally unassailable. It does not make the effects of an acquittal automatically contingent upon the possibility of appeal proceedings. Rather, not treating an acquittal as final allows an appellate court to delay giving it effect. This delay can only occur after giving a full hearing to both sides. Any other position would deprive the verdict of a lower court of all sanctity lest it be confirmed in appeal. Moreover, it would mean that persons are condemned from the date of arrest till their case is resolved by the highestappellate court, and continue to suffer all the collateral consequences of criminal convictions for this unconscionably long period of time as well.

This is why the remedy provided by Section 390 Cr.P.C. makes sense. The state can seek detention of the acquitted person pending appeal if it can show that it is necessary, but the default is still that a person remains at liberty. Moreover, an appeal having been filed gave the court proper jurisdiction to hold someone in custody. What if, after some empirical study, it is found that something like Section 437-A is necessary to prevent persons from fleeing and frustrating appeals? Then, a hearing similar to that under Section 390 is the answer, not a position that changes the default position. If the trial court / appellate court is satisfied of a need to detain after having heard both sides it could pass appropriate orders, with the denial of liberty narrowly tailored to account for how long the State might take to file an appeal rather than simply hold persons in custody for fixed periods.

Under no situation is Section 437-A Cr.P.C. the answer. Parliament cannot pass statutes that deem an entire population to be a suspect class for administrative convenience, even after a court of proper jurisdiction has pronounced them innocent. If this is so, then the guarantee under Article 21 might soon be no better than a fig leaf.

“I send my soul through time and space/ To greet you. You will understand…”: On Sabarimala and the Civil Rights Cases

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From 1861 to 1865, a long and bitter civil war was fought in the United States of America. One of the major causes of the war was a dispute over the institution of slavery. After the pro-slavery Southern States were defeated, the institution was abolished throughout the U.S., Black people were formally emancipated, and three important amendments to the American Constitution were passed. The first of these, the thirteenth amendment, stated that “neither slavery nor involuntary servitude, except as a punishment for crime … shall exist within the United States.” The federal legislature (i.e., “Congress”) was given the power to enforce the article through “appropriate legislation.” The fourteenth amendment granted to all the “equal protection of laws” (among other things), and the fifteenth amendment prohibited the denial of the right to vote on account of race.

The Civil Rights Act of 1875 

Through the late 1860s and 1870s – a time known as the “Reconstruction Era” – the Federal legislature passed laws to implement the promise of these constitutional amendments, and to initiate positive action aimed at eradicating the continuing effects of slavery. One of these laws was the Civil Rights Act of 1875. Titled “An act to protect all citizens in their civil and legal rights“, the law stipulated that:

… all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.

And:

… any person who shall violate the foregoing section by denying to any citizen … the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby … and shall also …upon conviction shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year.

The Civil Rights Act of 1875 created what we now call “horizontal rights”: that is, rights enforceable against private parties. The law proceeded on the understanding that racism was more than just a function of State action, and was also deeply embedded within the social fabric. The subordination of black people, therefore, was not merely attributable to their formal status as slaves (now abolished). It was equally due to institutionally established conduct that systematically excluded them from mainstream economic and social life. And the only way this could be remedied was by putting constraints upon seemingly “private” expressions of racism, when they involved access to “public” spaces such as inns, modes of transport, places of entertainment, etc. We are familiar with a similar provision in the Indian Constitution: Article 15(2).

The Civil Rights Cases: The Judgment of the Majority 

The Civil Rights Act was challenged before the American Supreme Court. It was argued that the Federal Congress had no power to regulate the relationships between private individuals. The Fourteenth Amendment only protected individuals from abusive State power. In the absence of a State law or State action, therefore, the Fourteenth Amendment did not authorise Congress to pass a law such as the Civil Rights Act, which only dealt with private conduct. On the other hand, the Government argued that the Fourteenth Amendment was wide in scope, and permitted Congress to enforce its provisions through appropriate legislation. The Government also argued that the denial of civil rights was an inseparable element of slavery and involuntary servitude; consequently, the law was justified under the Thirteenth Amendment as well.

By an 8 – 1 Majority, the Supreme Court struck down the Civil Rights Act as unconstitutional. The Court held that the federal Congress had no authority to regulate private conduct or impose horizontal obligations (as that was the domain of the states, under the federal scheme), and that the law was not saved either by the Thirteenth or the Fourteenth Amendment. On the Thirteenth Amendment, the Majority opinion – authored by Justice Bradley – had this to say:

The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery constituting its substance and visible form, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property as is enjoyed by white citizens… [however] Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community, but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. (p. 23)

For the Majority, therefore, the word “slavery” was a very specific term with a specific content (born out of historical experience), and its scope could not be stretched beyond that historically-determined content, to include adjusting the “social rights of men and races.” Only the “incidents” of slavery – its “substance” and “visible form” – were made subject to legal prohibition. Denial of civil rights by private parties did not constitute an “incident” of slavery.

The Civil Rights Cases: The Dissenting Opinion

Harlan J. disagreed. In a landmark dissent that has gone down in constitutional history, he observed that:

The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom? (p. 35)

Noting the lack of logic behind such a constrained interpretation, Harlan J. then went on to observe:

I hold that, since slavery, as the court has repeatedly declared … was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State … What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination in respect of legal rights belonging to freemen where such discrimination is based upon race. (p. 38)

And consequently:

They [i.e., the burdens sought to be removed by the Civil Rights Act] are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained except upon the assumption that there is, in this land of universal liberty, a class which may still be discriminated against, even in respect of rights of a character so necessary and supreme that, deprived of their enjoyment in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most essential means of existence, and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line so far as all rights fundamental in a state of freedom are concerned. (pp. 40 – 41)

Between the Majority and the Dissent, therefore, there was a fundamental interpretive disagreement. The Majority believed that words such as “slavery” and “involuntary servitude” had clear and sharply-defined boundaries, determined a priori. These boundaries were fixed by the manner in which the words were been generally used, and by the range of elements that they had been historically believed to have referred to – on one specific and constrained reading of history. Slavery, therefore, was “slavery” – the institution under which one set of human beings was treated as the property of another, and was denied legal freedom. Once that institution was abolished, there was no further role for the Thirteenth Amendment to play.

Harlan J., however, thought otherwise. As he began his dissent by noting, “it is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.” This may sound hyperbolic and manipulable, but as Harlan J.’s analysis showed, it is anything but. As Granville Austin would note many years later about the Indian Constitution, Harlan J. believed that “fundamental rights were framed in the backdrop of fundamental wrongs.” To understand the scope of fundamental rights, therefore, you had to first ask yourself: what were the fundamental wrongs that a Constitution intended to redress and to transform? This required a broad interpretive horizon, and a deeper historical vision. So where the Majority saw only the legal institution of slavery, Harlan J. saw the conceptions of racial superiority and inferiority that constituted the foundations of that institution. Therefore, while the Thirteenth Amendment used the word “slavery” in order to highlight the primacy of that institution to the Constitution’s transformative vision, and its unmatched moral horror, it also included – by implication – the acts, practices, and institutions of racial superiority and inferiority that formed the warp and the woof of the fabric into which slavery was sewn.

And one such practice – integral to the institution of racism – was the denial and exclusion of people, on the basis of race, by those who owned and controlled those public spaces.

Sabarimala and the Clash over Article 17 of the Constitution

The Supreme Court’s Sabarimala judgment has been heavily debated. Here, I don’t want to re-litigate the multiple contentious points in the judgment, but focus only on one issue: the constitutional disagreement between Chandrachud J. (concurring) and Malhotra J. (dissenting) on the interpretation of Article 17 of the Constitution. This issue was argued in some detail before the Court, but the majority opinions of the Chief Justice and Nariman J. did not consider it. Both Chandrachud J. and Malhotra J. did consider it, however, and as I shall argue, their disagreement bears a striking parallel with the constitutional debate at the foundation of the Civil Rights Cases.

Article 17 of the Constitution prohibits “untouchability” and its practice “in any form.” The question in Sabarimala was whether the exclusion of women between the ages of ten and fifty from the Sabarimala Temple fell within the scope of Article 17. For the purpose of this essay, I am going to bracket the factual debate over whether the prohibition flowed from the fact that the ten-to-fifty age-group was a proxy for menstruating women, or whether it was to do with the brahmachari character of Lord Ayappa. Whatever the origins, the fact is that menstruation was argued as one of the two reasons in Court (as well as set out in an affidavit), and the Court was therefore obliged to examine it. Consequently, putting aside for the moment the specific facts of Sabarimala, let us consider how the two judges analysed the relationship between menstruation-based exclusion and Article 17.

For Malhotra J., the issue was straightforward. Article 17 was intended to prohibit caste-based untouchability. It was an expression of the framers’ revulsion at the most horrific social practice in India, an acknowledgment of the immense suffering that it had caused for centuries, and a promise to make amends. “Untouchability” was a concrete word, with concrete, historically determined content. It could not be extended to include any other form of social exclusion.

Chandrachud J. did not disagree with the centrality of caste-based untouchability to Article 17, or with this sense of what Article 17, at its core, was about. As he noted:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

Chandrachud J. also believed, however, that this was not only what Article 17 was about: there was something more to it:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

In other words, like slavery was the most horrific and most tangible manifestation of racial hierarchy, untouchability was the most horrific and most tangible manifestation of  an exclusionary social order that was grounded in ideas of purity and pollution. There were, however, other manifestations of that order as well. In the case of slavery, it involved exclusion from public spaces, even to the formally “free”. In the case of menstruation, it involved exclusion from public spaces on the ground of the impurity of a biological characteristic predominantly associated with women.

It should be noted that the consequences of menstruation-based taboos are grave and severe. At various places and at various times, they have involved actual prohibitions upon touching women on their period, and/or keeping them in forced seclusion. As this article notes, for example:

According to a 2016 analysis conducted by the Tata Institute of Social Sciences (TISS), only one in eight girls surveyed faced no restrictions at all during their periods. Published in the British Medical Journal, the analysis used data collected from 138 studies and more than 97,000 adolescent Indian girls between 2000 and 2015. Further, 8 in 10 girls surveyed said they aren’t allowed to enter religious shrines when they are menstruating; 5 in 10 girls said they were not allowed to touch people or food in the kitchen; and 2 in 10 said they were asked to sleep in a separate room.

This is not to suggest for one moment that menstrual taboos are equivalent to caste-based untouchabiliy, or that Article 17 of the Constitution accords equivalent concern to the two. The point, however, is this: just like untouchability is at the centre of – and the most savage and vicious embodiment of – a structure of hierarchy, subordination, and violence, menstrual taboos are embodiments of patriarchal institutions that have been historically responsible for the subordination of women; and at the heart of both – caste and patriarchy – are concepts of purity and pollution.

It was this insight that was grasped by Chandrachud J. when he held that social exclusion based on menstrual taboos falls within the scope of Article 17 (a conclusion that he buttressed by extensive references to the Constituent Assembly Debates, where a number of framers believed that by adding the words “in any form” to Article 17, they were striking at the root of all forms of social exclusion based in structures of hierarchy and subordination, without taking away from the centrality of caste-based untouchability). And the similarity with Harlan J.’ s dissent should now be clear: Like Harlan J., Chandrachud J.’s enquiry began with the question of what kinds of injustices the Constitution intended to transform. The meaning and scope of the words of Part III would flow from the answer to that question.

And the answer?

Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

Conclusion 

The title of this essay is borrowed from James Elroy Flecker’s famous poem, “To A Poet A Thousand Years Hence.” Written by one poet to another (unknown) poet in a future time, the poem ends with the lines: “Since I can never see your face,/ And never shake you by the hand,/ I send my soul through time and space/ To greet you. You will understand.” 

Like poets, judges too are in silent conversation with each other, across the gulfs of time and space. Slavery was the so-called “original sin” of the American State’s founding, and it was the one social institution that the framers of the Reconstruction Amendments decided to abolish directly by Constitutional fiat, rather than leave it to legislation. Perhaps unsurprisingly, it was the interpretation of that word that caused one of the most memorable debates in American constitutional history, and one of the most famous dissents of the American Supreme Court. Similarly, it was untouchability that our framers decided was fundamental enough to be prohibited directly by our constitutional order; and in 2018, it is a debate over the interpretation of that word that has brought to the fore two different visions about how to read the Constitution, and more fundamentally, what the Constitution is for. If Harlan J. did send his soul through time and space, he would – perhaps – be content by the manner in which the conversation has now been carried forward by the Indian Supreme Court in 2018.

Guest Post: Noisy Judges, Moderate Judgments: A Critique of UCO Bank v Dipak Debbarma

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(This is a guest post by Anmol Jain.)

Ranjan Gogoi, J. has been appointed the 46th Chief Justice of India. It is believed that he favours judicial restraint, and that the judiciary should maintain the separation of powers. This might be of high bearing, because it indicates the approach of the Supreme Court towards the upcoming constitutional matters. It is a possibility that we may witness a fewer number of judgments with the likes of Sabarimala [Indian Young Lawyers Association v. The State of Kerala], where the Court is actively involved in doing social justice. I shall support this assertion through a critique of a significant judgment delivered by Gogoi, J, in UCO Bank v. Dipak Debbarma, which has not received enough discussion. However, the impact of this judgment is serious.

This case concerns a question of repugnancy between the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [“SARFAESI Act”], which is a central law, and Tripura Land Revenue and Land Reforms Act, 1960 [“Tripura Act”], which is a state law. The SARFAESI Act is covered under entry 45 of List I of the Seventh Schedule to the Constitution, covers ‘banking’ as a subject matter of the Union, whilst the Tripura Act is covered under entries 18 [Land and incidental matters thereof and covers agricultural loans] and 45 [Land Revenue and incidental matters thereof] of the State List. The primary issue before the court was regarding the conflict between Section 13 of the SARFAESI Act and Section 187 of the Tripura Act. They read as follow:

SARFAESI: “13. (1) Enforcement of Security Interest – … any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act. …

… (4) In the case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset…”

Tripura: “187. Special provision regarding Scheduled Tribes – … Provided that the land transferred to a co-operative society or to a bank by way of mortgage in pursuance of clause (c) shall not be transferred by such society or bank to a person who is not a member of the Scheduled Tribes without the permission of the collector in writing.”

Put simply, Section 13 of the SARFAESI Act permits the secured creditors to enforce the security interest without the intervention of any judicial authority, whilst Section 187 of the Tripura Act prohibits the banks from selling mortgaged land of a person belonging to a Schedule Tribe [“ST”] to any person not belonging to an ST unless permitted by the Collector. The Court found an irreconcilable conflict between the two provisions on account of overstepping by the Tripura Act into an area of banking covered by the SARFAESI Act [¶15]. To determine which law shall prevail, the Court adopted the test of ‘dominant legislation’. According to this test, in the event where the ‘incidental encroachment’ by a legislation conflicts with another legislation actually enacted by the ‘dominant power’, the latter shall prevail [ITC Limited v. Agricultural Produce Market Committee, (2002) 9 SCC 232, ¶94]. Here, ‘incidental encroachment’ signifies a situation where a State law legislates on the subjects provided under the Union list and vice versa; and ‘dominant power’ signifies that entity which is authorised to make the law. For instance, for an item under the Union list, the Parliament is the dominant power and for an item under the State List, the State Legislature is the dominant power. Applying this test, the Court held SARFAESI Act is the dominant legislation for matters concerning banks and thus, the SARFAESI Act prevails.

I respectfully disagree with the decision of the Court for multiple reasons that, interestingly enough, originate from the precedents cited by the Court in the judgment itself. This approach shall examine the limited vision adopted by the Court while delivering this verdict.

First, I contend that there is a minimal encroachment by the Tripura Act on the Union list, which cannot be termed as an irreconcilable conflict. Section 187 of the Tripura Act is not primarily intended to legislate on the ‘banking’ matters but to provide for land reforms and an arrangement for a situation of default in repaying the agricultural loans. This claim is supported by the Statements of Objects and Reasons [See Rangamayee Chowdhury v. State of Tripura, 2010 SCC OnLine Gau 656] attached to the Second Amendment Act of 1974 and the Sixth Amendment Act, 1994 that had substantially modified Section 187 of the Tripura Act. They state that the Amendment Acts seek to introduce land reforms which are essential to remove the impediments in the matter of agricultural production, eliminate elements of exploitation and social injustice in the agrarian system, and provide certain extensive amendments to give relief to the members of the Scheduled Tribes in the State.

Therefore, the incidence on the ‘banking’ matters is minimal and is limited only to those cases involving an ST member. The banks are still permitted to sell the mortgaged securities. Section 187 merely qualifies the power of the banks by keeping the larger interest of the society in mind. The prime reason for having such a provision in the law-books is to secure the interests of the deprived community. Historically, the feudal lords and then the landlords, never let the tenants own the lands they were tilling upon. Now, if the already deprived section of the society is further deprived of their land holdings due to failure to pay loans, there shall be no improvement in their living standard.

At the same time, I understand that the interests of the banks are required to be secured. Therefore, the State Legislatures have devised such an arrangement wherein the banks are allowed to sell the lands of the defaulting mortgagee but they can sell it only to another ST member. This ensures that the ST community as a whole does not lose any part of land due to their economic vulnerability. Perhaps such an arrangement may not be viable in a long-term, but this determination is the prerogative of the Legislatures.

The Rajasthan High Court, in State of Rajasthan v. Uka [2010 (2) RLW(RJ) 705], had confronted a similar provision wherein the banks were prohibited from selling the mortgaged securities belonging to the SC/ST members to a person who is not a member of these communities. The Court upheld the validity of the provision, though with a reservation, which was expressed by Dr Vineet Kothari, J. in the obiter dictum. The Court stated that:

Such a restriction…may give rise to a vicious circle of poverty…The purpose was obviously to protect the interest of the weaker section of the society like the persons belonging to SC/ST category. If after the land of such poor agriculturists belonging to SC/ST being acquired by Bank is again to be sold to a person of same weaker section, it is almost certain and very likely that it would not fetch the full and proper market value, which could be fetched if such agricultural land is sold in the open market and so-called affluent and richer people are also allowed to buy such land.

I do not wish to further discuss the debate about whose interests should take precedence, the interests of the members of ST community or of the banks. I believe the former shall win because our constitutional setup warrants that social justice is to be done in such a manner that an unequal can be brought at a par with the so-called equals. Even the recent case of Jarnail Singh v. Lachhmi Narain Gupta (¶19) acknowledges the fact that backwardness of the members of these communities is presumed and therefore, the government need not collect the data to prove backwardness before making provisions for reservation in promotion for SCs and STs.

Thence, I conclude that the primary object of Section 187 of the Tripura Act is to further the object of land reforms and not to legislate on banking matters. The incidental encroachment is minimal in nature. Now, the question is that whether such minimal encroachment enjoys a constitutional safeguard or not.

The Court cites In re, Special Reference No. 1 of 2001 [(2004) 4 SCC 489, ¶13] and S. R. Bommai v. Union of India [(1994) 3 SCC 1. ¶276]. In these couple of cases, the Supreme Court had held that:

An entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the court to iron out the crease and avoid conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same.”

The courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.

I find that the Court has done the opposite here. Instead of interpreting the two provisions harmoniously, the Court seems to focus on the conflict and ultimately finds Section 187 of the Tripura Act to be repugnant. Such an interpretation has indeed left Entry 18, List II of the Seventh Schedule to the Constitution as nugatory because now the State cannot make arrangements regarding the settlement of agricultural loans. However, if one reads it otherwise, i.e. if we rule that States can make arrangements regarding disposal of mortgaged security belonging to members of a particular community, it does not obliterate entry 45 of List I. ‘Banking’ matters are very vast in nature and the Central Government can still provide provisions regarding disposal of mortgaged security belonging members of all community but, the ST.

Further, the Court states that it is the ‘duty’ of the constitutional court to see if the conflict can be resolved by acknowledging the mutual existence of the two legislations (¶11). Also, it cites State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal [(2010) 3 SCC 571, ¶27] which provided that the principle of federal supremacy cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State lists. If we read Section 187 of the Tripura Act and Section 13 of the SARFAESI Act together, we find that both the provisions allow the bank to sell the mortgaged securities of the defaulting mortgagees. Therefore, I do not find any ‘irreconcilable direct conflict’ between the two provisions. Section 187 of the Tripura Act, which is a special provision, has merely narrowed the application of the general provision under SARFAESI, Act for larger public interest.

Furthermore, in In re, Special Reference No. 1 of 2001 [(2004) 4 SCC 489, ¶14, 15], the Supreme Court had held that:

An endeavour must be made to solve it, … by having recourse to the context and scheme of the Act, and a reconciliation attempted between the two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary modifying the language of the one by that of the other. … The doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation.

 

Though the Court has cited this precedent, but in vain. The doctrine of pith and substance would provide that Section 187 of the Tripura Act is a provision legislating on the matters concerning lands and agricultural loans but not banking. Therefore, we find that the conflict here is not irreconcilable; it just requires a broad vision warranted by the constitutional scheme to find that both the provision can mutually exist. The judgment has an effect of whittling down the powers reserved to the States to legislate of matters concerning lands, specifically agricultural lands.

Second, the court has employed the rule of dominant legislation to resolve the conflict. As per Rajan Gogoi, J.’s words, at ¶11, the said principle shall be applicable only if a pre-condition exits, namely, the parliamentary legislation is the dominant legislation and the state legislation, though within its own field, has the effect of encroaching on a vital sphere of the subject to which the dominant legislation is referable. As argued above, I believe that Section 187 of the Tripura Act does not encroach on a ‘vital sphere’ of the subject of ‘banking’. The only encroachment is regarding one of the banking functions, i.e. selling of the mortgaged security and concerns only one community.

Third, the Court also cites Vishal N. Kalsaria v. Bank of India [(2016) 3 SCC 762] but fails to adequately appreciate this case. In this case, the Court distinguished the objects of the SARFAESI Act and Maharashtra Rent Control Act, 1999[1] and held that a tenant cannot be arbitrarily evicted by using provisions of SARFAESI Act because once tenancy is created, the tenant can be evicted only after following the due process of law as prescribed by the Rent Control Act. The instant case presents an apt condition for the application of this precedent. The objects of the Tripura Act are different from the objects of the SARFAESI Act. Therefore, banks cannot be allowed to sell the mortgaged security of the defaulting mortgagees belonging to ST community using Section 13 of the SARFAESI Act while ignoring the rights of the STs granted under the Tripura Act.

One might disagree with my arguments. However, I believe that the Constitution demands contextual interpretation guided by the realities of the society. It would be wrong to treat the Constitution as a mere legal document. It is more than that. It is a political document. If we literally interpret a provision, we shall fail to uphold the underlined principles of our Constitution. Additionally, I do wish to clarify here that I believe judicial restraint. At the same time, I feel that the Courts should never abandon dynamism, at least when the matter is of constitutional significance.

[1] Object of the SARFAESI Act: to provide smooth and efficient recovery procedure to enable banks to recover non-performing assets. Object of the Rent Control Act: to control and regulate the rate of rent and to provide protection to tenants against their arbitrary evictions.

(The author is a third-year student at the National Law University, Jodhpur.)

On the Ethics of Representation in an Adverserial System: A Response – II (Guest Post)

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(This is the second essay in Goutham Shivashankar’s two-part guest post series.)

This is my second post in response to Gautam Bhatia’s post on the “Ethics of Representation in an Adversarial Legal System”. The question we are considering is essentially this: ought a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” be subject to moral scrutiny? Bhatia argues that it should. I argue that it shouldn’t. In my previous post, I had provided a systemic justification for my position, which I will not restate here. However, I do wish to point out that the systemic justification I offered, makes no reference whatsoever, to the “cab rank rule”. Indeed, the cab rank rule is irrelevant to my analysis. This is significant, since Bhatia asserts in his post that: “Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices.” Hopefully, I have offered something to fill in that void.

I suspect there may be other justifications for such ethical insulation that have no relation to the cab rank rule. For instance, an advocate is obliged, under law in many legal systems, to “fearlessly uphold the interests of his client by all fair and honourable means”. Would advocates be truly fearless in their representation of a case, if they are constantly second-guessing their decision to take up the case (for fear of public censure) in the first place? I doubt it.

In this post, however, I engage directly with Bhatia’s critique of the moral insulation extended to lawyers about their representational choices.

The Cab Rank Rule is not meant to be moral escape-hatch

A large part of Bhatia’s post is devoted to interrogating the cab rank rule. He begins with the premise that all persons ought to be held ethically and morally responsible for the actions they choose to take (or not take). People in other fields are not morally and ethically insulated from their actions merely because they are “just doing their jobs”. Why should lawyers be any different? If this rule were to be displaced for lawyers, he argues, then there must be something special about them to warrant the exemption. This “something special about the legal profession”, which Bhatia states to be usually proffered by those in favour of the moral insulation of lawyers’ representational choices, is the “cab rank rule”. He states, correctly, that the cab rank rule entails that “a lawyer blinds herself to the character of her client.” Then he adds, rather strangely and stating no authority, that: “[T]he logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do.

It appears that to Bhatia, the dominant purpose of the cab rank rule is to give lawyers an escape hatch from moral scrutiny. It’s a bit unclear why he thinks this to be the case. Everything suggests to the contrary. The rule is, in fact, designed with interest of the litigant / client in mind (especially the “unpleasant, unreasonable, disreputable” sort of litigant), and not the interest of the lawyer. As Lord Pearce put it in Rondel v. Worsley [1967] 3 All E.R. 993:

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”

The cab rank rule, then, is designed to tie down barristers to unpleasant clients, with a view to giving even such clients a fair trial by ensuring they have good legal representation. The rule isn’t aimed at all at providing a moral escape-hatch to lawyers. That simply isn’t “the logic” of the rule, as Bhatia puts it.

 The Cab Rank Rule is not amoral

 The cab rank rule cannot be regarded as devoid of moral content, merely because it precludes a lawyer from refusing a brief based on the moral worth of a client or a case. On the contrary, the rule is to be regarded eminently moral for precisely this reason. By forcing a lawyer to accept even morally unworthy clients / briefs, the cab rank rule serves an underlying public good, i.e., the assurance of (good) legal representation for every litigant in society. The responsibility of delivering that public good, as it were, necessarily and logically falls on the shoulders of the legal profession. It is a collective responsibility that the profession owes to the public. For the profession to shirk that responsibility would be immoral. The cab rank rule is the means that the profession has devised to address that collective responsibility. But the cab rank rule has additional moral content. It also precludes individual lawyers from shirking their concomitant obligation towards other members of the legal profession to contribute to the discharge of the legal profession’s collective responsibility to society. In other words, the rule prevents individual lawyers from committing the morally reprehensible act of “free-riding”, as I will explain below.

To state my point differently, the “something special about the legal profession” that warrants a certain kind of ethical insulation for lawyers for the representational choices they make isn’t the “cab rank rule” itself, as Bhatia suggests. The rule is just the messenger, so to speak. The “something special” is what underlies and motivates the cab rank rule, i.e., (i) the need to ensure legal representation for all litigants; and (ii) to ensure that there is no free-riding with respect to discharging that collective responsibility of the profession. In a seminal and widely cited paper written for the Legal Standards Board in the UK on the cab rank rule, Prof John Flood and Morten Hviid state as follows:

Recall that as regards the merit of the cab rank rule the issue is whether a defendant or the public might struggle to find representation. Broadly speaking this market failure could arise for two reasons, either the fee is viewed as inadequate or the case is so unsavoury that no amount of compensation would bring forth a champion. The latter type one might expect to be high profile with considerable media attention where the defendant stands accused of doing something truly horrific.

Before moving swiftly on to focus on the financially motivated barrister, consider the obvious alternative that barristers are acting out of a concern for justice and the rule of law. In this scenario, the cab rank rule may be a way to avoid free riding. Even if all barristers hold the view that everyone should be represented, they might rather prefer it if someone else dealt with the unsavoury cases. One might wonder, to what extent, it would become obvious to the profession if someone chose to avoid what was seen as a collective responsibility. In that case, the consequent loss of reputation might be just as effective as the cab rank rule.”

At this point, it would be worth quoting from Bhatia’s post, just to contrast the difference in approach. Towards the end of his post, Bhatia asks:

Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani. But it doesn’t have to be you, does it?

Yes. It does have to be me, if the case / client lands at my table (as opposed to me seeking them out, which I am barred from doing since lawyers are not allowed to solicit work in India). Why? Because I ought not be a free-rider. To be a free-rider is a morally deplorable act. Someone has to do the dirty work of dealing with morally unworthy cases / clients. It is not Bhatia’s case that these persons do not deserve legal representation. If I draw the short straw and a morally unworthy client / case lands up on my table, the morally correct thing for me to do, is to take up the case, and not pass the buck to another lawyer. What makes me so special that I can free-ride and not be that “someone” who does the dirty work? If there is a collective responsibility in the profession to ensure all litigants are represented, what makes me special to avoid contributing my fair share to the discharge of that collective responsibility?

The “illusory” Cab Rank Rule

 Bhatia then asserts that the cab rank rule is anyway, an illusion. This, he says, is because the rule only requires lawyers to take up cases where the clients can pay “her usual rates”. Since lawyers routinely reject cases on the client’s inability to pay fees, he states that “affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?”. From this, he concludes, that “[T]he cab rank rule, therefore, cannot insulate lawyers from moral and ethical judgment.” What he seems to be getting at is this: if lawyers can selectively wriggle out of their obligations under the cab rank rule to represent inconvenient clients on the pretext of their regular fees not being offered, then lawyers ought not be allowed to take cover under that very rule for to justify their claim ethical insulation from their representational choices.

 A few points are worth noting here. Firstly, Bhatia’s formulation of the cab rank rule does not apply in India. In India, the Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. The rule equivalent to the cab rank rule (Rule 11 under Section II titled “Duty to the Client’) states as follows:

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

 

 Thus, In India, the rule, at least on paper, is that fees should be: (i) at par with the fees collected by fellow at par with the fees of his standing at the Bar; and (ii) the nature of the case. It is not the lawyer’s “usual rates” which determines whether he can wriggle out of taking up a case. This is material, since Bhatia’s objection seems to be that design of the cab rank rule allows lawyers to wriggle out of cases selectively on the ground that the client cannot afford the fees. The rule as formulated in India, as I understand it, will not allow this, since the fee limb of the rule is also pegged to the “nature of the case” and the fees of other similarly placed lawyers. It is also worth noting here that the fee exception to the cab rank rule isn’t designed to allow “wriggling out” of the primary obligation imposed by the rule. Rather, it is merely the effectuation of a different sort of relevant moral principle – that professionals ought to be commensurately remunerated for their experience and knowledge. Intuitively, there is nothing immoral about the fee exception. I do not see how it makes the cab rank rule any less moral as well.

Secondly, even in the UK, as per the latest Bar Standards Handbook, a barrister is entitled to reject a brief under the cab rank-rule if he is not offered a “proper fee” and the propriety of such fee is to be determined with regard to: (i) the complexity, length and difficulty of the case; (ii) the barrister’s ability, experience and seniority; and (iii) the expenses which the barrister will incur. This appears to have been the position even in the now-repealed 2013 Bar Standards Handbook.

Thus, at least on paper, both in India and the UK, the cab rank rule appears to place clear restraints on the ability of lawyers to reject cases on the ground of their fees not being paid. In India, this rule is admittedly observed only in the breach, but that ought not take away from the soundness of the rule itself.

Thirdly, this entire analysis of the cab rank rule being illusory arises only if the cab rank rule is intended to be or invoked as a moral escape hatch for lawyers. As I have argued, that was never the intent of the rule. Bhatia seems to be attacking a straw man.

But what indeed, of Ajmal Kasab and MJ Akbar?

 Bhatia concludes by dealing with the argument that if the lawyers representing the Ajmal Kasabs of the world deserve ethical insulation from representational choices, then so too do the lawyers who represent MJ Akbar. Or more generally, if lawyers who represent alleged terrorists deserve ethical insulation from their representational choice, then so do lawyers representing ministers accused of sexual harassment. To Bhatia, this argument posits a false equivalence by ignoring an important distinguishing factor between the two cases. By his account, good lawyers must be allowed to represent alleged terrorists without suffering the cognitive burden of moral judgment over representational choice because terrorists are up against the powerful state’s criminal justice machinery. It is the David versus Goliath nature of the case, and the accused’s fight against entrenched power structures that justifies the moral insulation accorded to an alleged terrorist’s lawyer in his representational choice. According to Bhatia, the same does not hold true for MJ Akbar’s lawyer in the “Me too” saga because Akbar is top-dog in the relevant power structures, both by his position both as a privileged male in a patriarchal society and by his official position as a cabinet minister. In other words, Bhatia asserts that a lawyer deciding to represent Akbar is making a representational choice to take up a “morally unworthy case” that perpetuates prevailing power structures, whereas Kasab’s lawyer isn’t.

I have already addressed this issue in my first post. To state my case briefly, there is a systemic danger in linking the morality of a lawyer’s representational choice to take up a case with the moral worth of the case. This would have the systemic effect of funnelling morally unworthy cases to immoral lawyers, who would likely employ immoral tactics to win their cases. This is a bad outcome for society at large.

Conclusion

In conclusion, to my mind, it would be folly to subject castigate a law firm like Karanjawala and Co. on ethical grounds for their decision to represent MJ Akbar in his defamation case. For similar reasons, I believe Ms. Indira Jaising, for whom I have utmost respect and have looked up to in awe ever since I moved to the Supreme Court, has committed an immoral act by refusing to continue representing Tahlib Hussain. I do believe that on this occasion, she has been a moral “free-rider” by shirking her responsibility to the profession (and to society at large) to represent someone who in her eyes has become a morally unworthy client on account of the “Me Too” allegations against him. I realize these are very bold statements for a young lawyer to make in the prevailing times. I am very open to being shown as to why I am wrong.

On the Ethics of Representation in an Adverserial Legal System: A Response – I (Guest Post)

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(This is Part One of a two-part guest post series by Goutham Shivashankar.)

If you haven’t yet read Gautam Bhatia’s stunning post on the “Ethics of Representation in an Adversarial Legal System”, I suggest that you do so immediately. It is important, timely, excellently articulated, and truly fascinating. In my view, it is also gravely incorrect. Bhatia makes a limited argument. He admits that in an adversarial legal system, every litigant has a right to legal representation. He further admits that every advocate has a right to represent a litigant. He argues, however, that the decision of an advocate to represent certain types of litigants, or in fact any litigant, ought not to be exempt from ethical / moral scrutiny by the society at large. He seems to have in mind cases where the law is used as a tool to perpetuate existing power structures, and asserts that in such cases, the decision of a lawyer to take on such a case ought not be exempt from moral scrutiny.

Bhatia ends his post with a personal anecdote that hints at the root of his moral instincts on the issue. He refers to an incident at a theatre performance of Henry VI, where the audience spontaneously burst into applause at the play’s immortal lines “The first thing we do, let’s kill all the lawyers.” Bhatia admits that this made him feel “small and alone” (no doubt, because he is a lawyer). This is an important point to note at the outset. Even public censure of the profession of lawyering or advocacy (which is a step removed from public censure of a specific lawyer) seems to have a tangible psychological impact on lawyers. This, for reasons I will explain below, is probably a bad thing, at least when such censure is targeted at the decision of a lawyer to represent a specific litigant or take on a specific case.

I will not end with a personal anecdote. Instead, I will begin by stating my personal credo as an advocate. I practise as an advocate mainly at the Supreme Court. I intend, unabashedly, to represent any litigant who approaches me, no matter how grave his alleged crime or misdemeanour or the nature of the case, to the best of my abilities. This, I find to be wholly in accord with my personal value system, and I don’t expect to lose sleep over it (unless of course, someone convinces me that the arguments I make here are without merit). But I will go a step further. I will argue that society ought not to be allowed to subject my decision to represent any litigant, to moral censure. In fact, society, by subjecting any lawyer to such censure, would be committing an immoral act (or at the very least, an act detrimental to public interest). The best defence, as the saying goes, is a good offence.

I propose to do this in two posts. In the first post, I state my own proposition and try to justify it in my own way. In my second post, I try to counter Bhatia’s arguments against the traditional justifications for the exemption of the lawyer’s decision to take on a client or a case from ethical scrutiny. This is just to keep the posts short and, hopefully, also interesting. It is also important to note that my reasons for justifying my proposition (i.e. my first post) are largely different from the arguments that are attacked by Bhatia. I am also aware that my reasons are not what people traditionally cite to justify the moral exemption extended to lawyers regarding their decision to take on a case. But I reckon there is no harm done in thinking this through afresh, just like Bhatia has attempted.

Stating the Proposition Clearly

Let me begin by clarifying my proposition. I am not stating that all decisions of lawyers ought to be exempt from moral scrutiny / public censure. For instance, a lawyer certainly ought to be regarded as immoral if he knowingly states falsehoods in order to advance his client’s case. Similarly, a lawyer ought to be censured for taking undue advantage of a vulnerable client. A whole host of lawyers’ decisions ought to be, and are in fact, subjected to moral and ethical scrutiny. This is essential to ensure that the profession remains a morally sound one.

It is not even my case that the decision of a lawyer to take on a specific case / client should be completely excluded from moral scrutiny. Indeed, some such decisions ought to be censured on moral or ethical grounds. For instance, a lawyer’s decision to represent a client or take on a case despite a conflict of interest ought to be regarded as immoral and unethical.

My proposition is limited to just this: the moral scrutiny of any decision made by a lawyer ought to be an exercise that is completely divorced from the morality of his client’s alleged actions (let’s call these situations as “morally unworthy clients”). It ought not also be linked with some underlying systemic immorality with “the law / legal systems” – for instance, where the law perpetuates power structures – the situation that Bhatia specifically considers (let’s call these situations “morally unworthy cases”). In other words, the morality of the host of decisions that lawyers make in the course of representing their clients ought not to be contingent on the moral worth of either the client or the law/legal system, i.e. it should not be linked to whether the client is a “morally unworthy client” or whether the case is a “morally unworthy case”. If that proposition is true, it would be a sequitur, that a lawyer’s preliminary decision to represent a client or to take on a case ought not to be regarded as immoral only for the reason of either the client’s immorality or the legal system’s underlying immorality that may be play in the case at hand. It is important to note here that a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” may be morally suspect for other reasons that are independent of the moral worth of the client or the case. For instance, a lawyer may choose to represent an alleged rapist because the rapist happens to be a close aide of a judge, and the lawyer believes that representing that litigant may help him curry favour with the judge. Here, the lawyer’s decision to represent a client becomes morally unworthy for reasons that are not tied to the moral worth of the client, i.e., because the lawyer is trying to curry favour with a judge. Similarly, a lawyer firm’s decision to represent a home minister accused of sexual harassment may be morally unworthy if it is shown that the law firm in question did so in the hope of being appointed to a panel of government lawyers as quid pro quo for taking on the case.

Justifying the Proposition on Systemic Grounds

There is a systemic justification for my proposition. Let us assume a system where my proposition is disregarded, i.e., a system where the moral worth of lawyers’ decisions in taking on a client can be tied to the moral worth of their clients themselves. Or a system where such the moral worth of the lawyer’s decision to take on a case can be tied to the moral worth of the law/legal system itself in relation to that case. This is really a system akin to what Bhatia is suggesting. Let us assume also that most lawyers care about being moral persons (i.e., that they would not like to be regarded as immoral or do immoral acts), but some lawyers don’t. This assumption is not an unreasonable one to make. Clearly, much of humanity is made of people who care about being morally good, and some part of humanity is not similarly concerned. Most people do not want to feel “small and alone” like Bhatia did, when their professions and their professional conduct are deemed morally unworthy. There is no reason, at least intuitively, to believe why this would not be true for the sub-set of humanity consisting of lawyers. However, clearly, some persons (including lawyers), do not feel “small and alone” despite their acts being deemed morally unworthy. They simply don’t care about being perceived as immoral. If things weren’t this way, we would have a perfect world, which we clearly don’t.

Now, if the lawyer’s initial decision to represent a client is deemed morally unsound for the reason of the client’s immorality or because of the immorality of the legal system itself, then lawyers who care about being moral, will likely refuse to represent a morally unworthy client or take on a morally unworthy case. The systemic effect of this would be catastrophic, because it would likely funnel morally unworthy clients and morally unworthy cases to the lawyers who do not care about being perceived as moral. In other words, the morally unworthy clients / cases would gravitate as a class, to the class of immoral lawyers. Immoral lawyers, are likely to be immoral in the entire series of decisions they make in advancing their morally unworthy client’s case (not just in the initial decision to take on the client). That class of lawyer would not think twice about lying to the judge if they are sure that they would not be caught out. They may even be okay with bribing judges to win their client’s case. The systemic effect would be that morally unworthy clients or morally unworthy cases would likely get a competitive advantage in advancing their case, because the system would funnel them towards lawyers who do not mind adopting morally unworthy tactics to win their case.

Let us take the alternate scenario. Assume my kind of system, where lawyers are exempt from moral scrutiny for their decision to represent morally unworthy clients or take on morally unworthy cases. In such a system, the likelihood of morally unworthy clients / cases gravitating to the class of immoral lawyers drastically reduces. In such a system, the class of lawyers who care about being perceived as moral have no disincentive to take on such cases. Once such lawyers have taken on these cases, the whole of host subsequent decisions that they make in handling the case, are more likely to be moral (since these lawyers care about being moral). Thus, we end up with a situation where morally unworthy clients / cases are distributed between the classes of both moral and immoral lawyers. That is a systemically good outcome, since it reduces the chances that immoral tactics would be adopted by the lawyers in such morally suspect cases.

Thus, there appears to be a systemic justification in the moral exemption granted to lawyers qua their decision to take on morally suspect cases / clients. In my next post, I will deal with Bhatia’s specific arguments to the traditional justifications to such moral exemption advanced to lawyers.

On the Ethics of Representation in an Adverserial Legal System

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Recently, in the wake of the news that the prominent law firm Karanjawala and Co. was representing M.J. Akbar in his criminal defamation case against Priya Ramani, I tweeted that “it has repeatedly struck me how lawyering is the one profession where “I am doing my job” is offered up as a complete moral and ethical defence to the consequences that flow from “doing one’s job” (in this case, upholding deeply unequal power relations).” Perhaps unsurprisingly, there were a number of responses expressing disagreement with this sentiment. I know that it is at odds with the received wisdom within the legal community. In this post, however, I want to challenge that received wisdom.

A Right to Represent v The Ethics of Representation

I should start by clarifying the nature of the claim. It is not my argument that M.J. Akbar doesn’t have a right to be represented, or that Karanjawala and Co. don’t have a right to represent him. As long as we remain committed to the adverserial legal system, the right to represent and to be represented will remain foundational. However, there are a lot of things that we have the right to do, but really shouldn’t be doing (such as, for example, hurting our loved ones). And if we do them, we shall – rightly – be subjected to ethical and moral criticism for our actions.

The argument, then, is more modest: it is that the choice to represent M.J. Akbar in his criminal defamation case cannot be insulated from moral and ethical assessment. Indeed, every decision to represent – or indeed, not to represent (as Indira Jaising recently did with Talib Hussain) – must be subjected to such an assessment, like we subject all other significant human choices.

The Illusion of the Cab Rank Rule 

Why is this so controversial? At first blush, it appears to chime with a very basic intuition: that as human beings, we are ethically and morally responsible for the actions that we choose to take (or choose not to take). If I drive my car recklessly, I am morally responsible for causing an accident and injuring people. If I abandon my parents in their old age, I am guilty of a serious ethical lapse. And this is true for all acts, including acts of great significance: whether it is a decision to go to war or to “demonetise” the currency, the actors making those choices are deemed responsible for the consequences, and held to a moral account for it.

This intuition should apply with even greater force to lawyers, because of the direct impact that the legal system has on the world. Peoples’ property, their liberty, and sometimes their very lives, depend upon what goes on in the courtroom. For example, if I successfully represent a landlord in eviction proceedings, then as a direct consequence of my actions, a person may have lost their shelter. Now, that may well be justified, all things considered; but there seems to be no reason why I should be excused of my responsibility in having brought about that outcome.

Therefore, if the normal intuition that we are all to be judged for the consequences of our actions is not to apply to lawyers, there must be something special about the legal profession that displaces that presumption. Lawyers often locate it in something called the “cab rank rule“, which is treated as a necessary corollary of the adverserial system. The basis of the “cab rank rule” is that the adverserial system can work only if a lawyer blinds herself to the character of her client. Like the first cab in the row of vehicles outside an airport is supposed to take the first passenger to her destination, regardless of what the destination is or who the passenger is, the “cab rank rule” requires lawyers to represent the client who comes to them seeking representation, regardless of their personal views about the client or the case.

The logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do. The debate then shifts from the morality of representation to the moral or ethical desirability of the “cab rank rule” itself.

The “cab rank rule”, however, is an illusion. Lawyers choose their clients all the time. As the “cab rank rule” itself qualifies, the obligation to represent is subject to the nature of the case being within the expertise of the lawyer, at a court at which she normally practices, and subject to her usual rates. I want to stress this last bit: lawyers reject clients who cannot afford to pay their fees all the time (and this includes lawyers who split their practice between paying and pro bono – as they themselves would be the first to admit, the pro bono component is normally between 10 to 20% of the practice). Indeed, in our system, there need not be an explicit rejection – the system works by self-selection. You just won’t go to a lawyer that you can’t afford; and the first thing a drafting counsel asks at a senior counsel’s office is how much the senior charges for a hearing, before taking a call on whether that senior is affordable for her client.

You may argue that rejecting a client based on affordability is different from rejecting a client based on – say – the nature of the case. I don’t see any real morally salient difference, however. It certainly makes no difference to the client, who finds herself without good legal representation because it is too expensive. Besides, the link between the wealth of the client and the nature of the case is not as detached as we’d like to believe. Poor and vulnerable clients are not exactly going to be looking for lawyers to handle their corporate restructuring, or fight for their Ambi Valley property. The clients who do need representation, but are shut out because they can’t pay counsel fees, will invariably be women at the receiving end of domestic violence, retrenched workmen without the protection of a labour union, the socio-economic class that is always in the cross-hairs of the police, and so on. In other words, affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?

The “cab rank rule” may work in a legal system where – like the UK’s National Health Service – you had a “National Legal Service” that actually functioned effectively, was free at the point of need, and using which made no discernible difference to the quality of the service received. Our legal system (despite the existence of NALSA), at present, is a few light-years away from that. And in the system that we have right now – as I said above – the simple act of setting a standard fees amounts to choosing one type of client and turning away another. The “cab rank rule”, therefore, cannot insulate lawyers from moral and ethical judgment.

But What About Ajmal Kasab? 

Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices. The “I am just doing my job” defence cannot, in and of itself, carry the water: that defence was most famously rejected at Nuremberg (apologies for proving Godwin’s Law!), but even if you ignore that analogy as mistaken, it’s not a blanket defence we normally extend to other “jobs” (with the exception of doctors).

But the objection then takes another form: “What about those who defended Ajmal Kasab?” Or, in other words, the argument (which is really a variation of the “cab rank rule”) goes thus: if you’re going to judge lawyers by the cases that they take, then there can be no justification for those who defend rapists, murderers, and terrorists. This is, of course, an unacceptable outcome; consequently, if you’re going to support the representation of Ajmal Kasab, you have to also support the representation of M.J. Akbar.

The Ajmal Kasab argument is an important one, but in the way that it is deployed here, it gets things badly wrong. The legal defence of Ajmal Kasab is not grounded in insulating a lawyer from the ethics of representation, or in a “the lawyer is just doing her job” fudge. Rather, Ajmal Kasab should be represented precisely because there are good moral and ethical reasons for representing him in court. In other words, you don’t avoid the moral question – you tackle it head on.

What are these moral and ethical arguments? Criminal defence lawyers have made them repeatedly over the years (see, for example, Kevin Jon Heller’s article justifying his choice to represent Radovan Karadzic at the ICTY), and there’s no dearth of material on the subject. But here is what’s of most significance to me: a criminal trial involves the State (in its capacity as the interrogator) against the individual (standing as an accused). It is perhaps the greatest imbalance of power that we can imagine in our system. Good legal representation in that context is needed purely to even out that fundamental imbalance. A lawyer I know once described it as achieving an “equality of arms”, and I think that that captures the core of the issue: the moral and ethical justification of legally defending the accused rapist, the accused murderer, and – yes – Ajmal Kasab – is the importance of the equality of arms as a fundamental value.

There is another point: criminal trials invariably involve a tug-of-war between Prosecution and Defence over the scope and limitations of the procedural rights that are afforded to accused criminals. The higher the profile of the case, the more gruesome the crime, and the more unjustifiable the conduct of the accused – the greater the temptation (from both the Prosecution and the Court) to give a go-bye to procedural safeguards in order to ensure a conviction. Criminal defence, therefore, serves the crucial function of safeguarding procedural rights, the dilution of which will ultimately hit those who need it the most – the innocent, the vulnerable, and the marginalised. Once again, therefore, it is about preserving a balance of power between the individual and the State, and preventing the effacement of the individual who stands in the dock as an accused.

Law and Power Relations

The above discussion should make it clear that the “smoking gun” hypotheticals – defending indefensible clients, being the “attorney for the damned” – are best answered not by running away from the ethical questions, but by embracing them. And in the process of answering those hypotheticals, we can work out a rough model of what the ethical critique should look like.

Let us, for example, compare the M.J. Akbar situation with our discussion above. The defamation complaint has arisen out of the #MeToo movement, which has involved a large number of women coming forward and articulating experiences of sexual harassment, at the hands of powerful and well-established men. The movement has taken the form that it has – anarchic, decentralised, and public – because the traditional structures of accountability – the courts, legal due process, internal complaint mechanisms – were correctly perceived as utterly broken, and serving to shield the powerful and to perpetuate hierarchies, rather than bring them down. #MeToo is (as I understand it) fundamentally about finding a new vocabulary to articulate a range of experiences that were actively suppressed (including by the absence of legal and other forms of language in which to describe them), and to replace a culture of authority with a culture of accountability. In every sense of the word, therefore, it is an anti-hierarchy movement.

What is criminal defamation? A colonial provision that the British introduced to stifle political dissent, which authoritarian politicians have weaponised against the press, and which by its very structure (no jurisdictional constraints, low-threshold definitional provision that allows for charges to be framed and trial to commence before the defences can be brought in, and high-threshold defences) is designed to harass, intimidate, and silence. It is not about finding an appropriate “balance” between speech and reputation, but about invoking reputation to silence speech.

What is criminal defamation applied to #MeToo? It is the leveraging of this draconian criminal law provision to shut down the movement: it is, in short, the use of law to perpetuate status quo and entrench power, against a movement that challenges both.

You may disagree with me on the characterisation of this situation, and we can have a debate about that. But my point here is this: if you do agree with me about the characterisation of #MeToo and of the criminal defamation provision, then the ethical and moral critique of the choice to represent M.J. Akbar in this particular manner and in this way is self-evident. There is no hiding behind “the lawyers are just doing their job” and “M.J. Akbar has the right to a legal defence.”

For me, the issue ultimately boils down to this: as the critical legal theorists realised long ago, law is not some neutral set of principles applied by neutral umpires to resolve technical disputes. Rather, law is inextricably linked with systems, relations, and hierarchies of power. The law can be used to interrogate power, to challenge it, to liberate and to equalise. But law can also be used to sustain power, to defend it, to entrench it, to enslave and to subordinate. As lawyers, we have the privilege of choosing the use to which we can put the law. Of course, we have the right to use it in any we we choose to; but it seems to me that the choice comes with ethical and moral consequences, and we can claim no immunity from those.

Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani.

But it doesn’t have to be you, does it?

Conclusion

Once, long ago, I was watching a theatre performance of Henry VI. This is the play that has those famous lines: “The first thing we do, let’s kill all the lawyers.” When those lines were spoken, the theatre burst into spontaneous applause, cheering, and hooting. Needless to say, I did not join in. I also felt rather small and alone.

I have often thought back to that moment, and wondered about the intense – almost visceral – dislike that people seem to hold lawyers in. I wonder if one of the reasons is simply this: that as lawyers, we wield so much power, but with the arrogance of gods, exempt ourselves from any accountability for how that power is wielded. And I wonder if a simple acknowledgment – that the things we do as lawyers have consequences, and that we are not immunised from a reckoning for having brought about those consequences – is both necessary, and long overdue.

(PS. I understand that this post is not about the interpretation of a constitutional provision – but I decided to take liberties with the phrase “constitutional philosophy”, and discuss an issue about the nature of the adverserial legal system that does – I believe – go to the question of how we think of justice under our Constitution.) 

 

The Aadhaar Judgment: A Round-Up

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Here is a round-up of the ICLP blog’s coverage of the Aadhaar judgment. The arrangement of the posts tracks our suggested order of reading them. After that, some other critiques of the judgment have been provided as well. Filter, as always, for bias.

This page is meant to serve as a resource going forward. The Aadhaar judgment is not the end, but merely the first round in an increasingly crucial debate on the intersection between technology and the Constitution. Our aim is to work towards a legal and constitutional provision where technology is harnessed to expand human freedom, and not constrain it in service of the State (or of private corporations). As a great man once said, “it always seems impossible – until it is done.”

Overview

  1. “Take me as I am – subject to Aadhaar-Based Biometric Authentication”: An Overview of the Aadhaar Judgment.
  2. The Aadhaar Judgment: A Dissent for the Ages.

Factual analysis (A four-part series by Anand Venkat)

  1. The Aadhaar Judgment and Reality – I: On Uniqueness.
  2. The Aadhaar Judgment and Reality – II: On Fallibility.
  3. The Aadhaar Judgment and Reality – III: On Surveillance.
  4. The Aadhaar Judgment and Reality – IV: On Data.

Legal Analysis

  1. The Aadhaar Judgment and the Constitution – I: Doctrinal Inconsistencies and a Constitutionalism of Convenience.
  2. The Aadhaar Judgment and the Constitution – II: On Proportionality (by Mariyam Kamil).
  3. The Aadhaar Judgment and the Constitution – III: On the Money Bill (by Suhrith Parthasarathy).

Impact

  1. The Aadhaar Judgment: Telecom Operators and the Legal Standing of Chandrachud J.’s “Dissenting” Opinion (by Prasanna S.).

In addition, here are links to pieces elsewhere, on related topics.

Overview

  1. Methods of Interpretation. (Apar Gupta)
  2. Aadhaar Verdict No Reason to Celebrate for the Government (Prasanna S.)
  3. Aadhaar valid, but restricted, and still a problem (Vrinda Bhandari).
  4. Aadhaar verdict: SC Majority Judgments Lacks Consistency in Logic and Reasoning, and Turns Constitutional Analysis on its Head (Malavika Prasad).
  5. Aadhaar verdict: Dissenting Judge D.Y. Chandrachud Feels Money Bill Tag may be Misused to Escape Rajya Sabha Scrutiny. (Malavika Prasad).

Money Bill

  1. The Perils of Taking the Money Bill Route (Prasanna S.)

Section 57 (use by private parties)

  1. Section 57: Why Aadhaar can’t be used as authentication by private companies (Prasanna S.)
  2. In Striking Down Section 57, SC has Curtailed the Function Creep and Financial Future of Aadhaar (Vrinda Bhandari and Rahul Narayan).

Impact

  1. Aadhaar Judgment Sets a Legislative Agenda (Apar Gupta).

 

The Aadhaar Judgment and Reality – IV: On Data (Guest Post)

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(This is the fourth and concluding part of Anand Venkat’s guest post series interrogating the factual foundations of the Aadhaar judgment. It is also the concluding essay in this blog’s coverage of the Aadhaar judgment (for now). We will be putting up a round-up shortly).

In this final part on the analysis of the Aadhaar judgement, we touch upon how the Majority judgement handled the arguments on data security in relation to the Aadhaar data, and contrast it with the minority opinion of Chandrachud J.

Data leaks

Are data leaks harmful for the people involved? The SC did not want to consider this question at all, and punted it to the currently pending case in Delhi HC (Page 250, footnote):

A challenge to the Aadhaar project for violation of IT Act and Rules has been filed in the Delhi High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore, we are not dealing with this aspect, nor does it arise for consideration in these proceedings.

Data minimization

It was argued extensively before the court that the data collected during Aadhaar enrolment includes not just demographic data and biometrics, but also additional information, such as religion and caste, which was explicitly forbidden by the Aadhaar Act; and furthermore, this additional information was sent to the various State Resident Data Hubs (SRDHs). 

However the Majority did not engage with the evidence, and instead merely cited the Aadhaar Act. It neither declared the collection of additional information in variance with the Aadhaar Act as illegal, nor did it want to deal with the information stored in SRDHs, obtained during enrollment (Page 274, Para 193).

Section 2(k) specifically provides that Regulations cannot include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. Thus, sensitive information specifically stand [sic] excluded.

It also concluded that as per the powerpoint presentation by the UIDAI CEO, which is not part of the affidavit, that location information was not collected (page 541):

We have recorded in detail the powerpoint presentation that was given by Dr. Ajay Bhushan Pandey, CEO of the Authority, which brings out the following salient features: (i) During the enrolment process, minimal biometric data in the form of iris and fingerprints is collected. The Authority does not collect purpose, location or details of transaction.

By doing so, it chose to ignore the affidavits filed by Manindra Agarwal on UIDAI’s behalf, that breach of verification logs will result in the leakage of location data. The minority opinion however, explicitly refers to the affidavit and declares that: (page 886).

The report indicates that it is possible through the Aadhaar database to track the location of an individual. The Aadhaar database is different from other databases such as PAN Card or driving license. The Aadhaar database is universal and contains the biometrics of an individual. The threshold to scrutinize the effects of this database is therefore much higher as compared to that of other databases.

And once all the contradictions were resolved by selectively ignoring the factual claims made by the petitioners (and also supported by affidavits filed in support of UIDAI), the Majority then proceeded to declare that (page 274, para 194):

We find that Section 32 (3) of the Aadhaar Act specifically prohibits the authority from collecting, storing or maintaining, either directly or indirectly any information about the purpose of authentication. The proviso to Regulation 26 of Authentication Regulations is also to the same effect. Thus, the principle of data minimization is largely followed.

Data classification

An important question in cyberspace is how to classify personal data as sensitive or non-sensitive. It must be noted a priori that this classification depends upon the context. For instance, my true name might reveal my religion, which could be used to harm me in a conflict zone, but would be entirely harmless elsewhere. Similarly, fingerprint and facial scans, freely obtainable through photography, could be harmless if shared without associated identity information, but could be deadly for public anonymity in authoritarian regimes.

Once again, the Majority is oblivious to this basic distinction, when it proclaims that (page 273, para 193):

Demographic information, both mandatory and optional, and photographs does [sic] not raise a reasonable expectation of privacy.

On the other hand, Chandrachud J.’s minority judgement correctly notes that (page 778, para 148):

Section 29(1) of the Aadhaar Act expressly states that ‘core biometric information can never be shared with anyone for any reason whatsoever or be used for any purpose other than generation of Aadhaar numbers and authentication under this Act’. However, this provision which seemingly protects an individual’s core biometric information from being shared is contradicted by Section 29(4)253 of the Act, the proviso to which grants UIDAI the power to publish, display or post core biometric information of an individual for purposes specified by the regulations. The language of this section is overbroad and which could lead to transgressions and abuse of power. Moreover, sub-sections 29(1) and (2), in effect, create distinction between two classes of information (core biometric information and identity information), which are integral to individual identity. Identity information requires equal protection as provided to core biometric information.

Encryption

While the UIDAI made the claim that all biometric data is encrypted, the Majority went further and made the astonishing claim that the encrypted data was also sent to the CIDR immediately. The offline enrolment client, however, does not do that, in order  to facilitate enrollments done in places where internet connectivity is non-existent. 

Furthermore, the UIDAI also claimed that the entire Aadhaar enrolment eco-system is foolproof, because within few seconds of the biometrics having been collected by the enrolling agency, the said information would transmitted the Authorities/CIDR (in an encrypted form), and go beyond of the reach of the enrolling agency.

Chandrachud J.’s minority judgement, however notes correctly that encryption was not even mandated in the initial stages (page 772)

In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”), it was stated that “UIDAI has defined security guidelines for the storage of biometric data”. While it is indicated in the handbook that guidelines for storage were defined by UIDAI, it is evident that this took place only after 2010 before which the registrars were functioning without guidelines mandating how the biometric data was to be kept secure.

Hacking and Hope

During the course of the hearing, the counsel for the petitioners, Mr. Divan, pointed out various attacks on the CIDR. And one of them was the UP Aadhaar hack case, which was not only part of the oral record, but related FIRs around these attacks were part of the written submissions by Mr. Grover as well. This is how the Court responded: 

It may, however, be mentioned that of late certain reports have appeared in newspapers to the effect that some people could hack the website of CIDR, though it is emphatically denied by the UIDAI. Since there are only newspapers reports to this effect which appeared after the conclusion of hearing in these cases and, therefore, parties could not be heard on this aspect, we leave this aspect of the matter at that with a hope that CIDR would find out the ways and means to curb any such tendency.

 

It is possible to argue that the above paragraph refers not to the petitioners’ submissions, but to a later HuffPost article on data breaches. However it does not change the reality that the Majority did not engage with materials provided by the petitioners through affidavits, written submissions and also police first investigation reports filed by the police themselves.

Conclusion

How do you analyze the impact of a technological regime on the Constitution? That was the heart of the question in the Aadhaar challenge. There are always unknown positives and unknown negatives when a new technology is rolled out. The court was asked to make a comparative analysis between the two, and come up with a decision.

The typical process used is a cost-benefit analysis (which, under constitutional review, is further refined and made more rigorous by taking into account rights violations, as part of the proportionality standard). However until today, the State has not even engaged in such a exercise, for it would instantly show that the costs far outweigh the benefits, on all – economic, technological and data security – angles. Instead, the State denied the very existence of costs, and stated and the benefits were immense, without a shred of evidence.

The Majority opinion, however has done something even more astonishing. It has refused to engage with factual claims on these aspects made by the Petitioners, and then went to declare that Aadhaar is unhackable and foolproof, based on the submissions of the State. By doing so, it also set the template for future litigations.  All the state has to do, henceforth, when it rolls out technological regimes that are untested and have huge implications to the population, is to ensure that it

  • Rolls them out at scale.
  • Uses any means necessary to ensure the roll out.
  • Ignores any previous court orders barring it from the roll out.
  • Denies all harmful effects of the technology on the ground.
  • Makes up evidence about the benefits.
  • And also makes a powerpoint presentation to the court, when challenged on these aspects.

The Majority opinion on Aadhaar showed that this strategy might well succeed. However, the dissenting opinion by Chandrachud J indicates that there might yet be hope for a future Court to have an intelligent factual debate about the intersection of technology, freedom and state.

In the interim, people can continue to die, crucified on “the unproven plea of exclusion of some”, submitted as evidence or in affidavits. After all, the dead don’t speak, and even if they do, the court won’t listen.