Guest Post: Navigating Gubernatorial Discretion: The Riddle of a Hung Assembly

(This is a guest post by Riddhi Joshi).

Over the past 68 years, there have been many controversies regarding the role of the Governor and the discretion accorded to her ‘by or under this Constitution’. The most recent example of this was the controversy in Karnataka, which began with Mr. Yeddyurappa of the BJP being sworn in as Chief Minister, and ended instead with the Congress-JD(S) alliance winning the floor test. While it appears that the worst of the political crisis has passed, a petition in the case of G. Parameshwara v. Union of India on the question of exercise of the Governor’s discretion in the appointment of a Chief Minister is pending before the Supreme Court.

On the face of it, it appears that there are two main questions which the Supreme Court must address- a) Whether, despite Articles 163(2) and 361, the Court can hear a challenge to a Governor’s decision inviting a party or combination of parties to form the government, taken in the exercise of her constitutional discretion; and b) Whether the Court has the authority to circumscribe such discretion, specifically in the appointment of a Chief Minister under Article 164(1) in the case of a hung assembly.

Through this post, I aim to analyse past judicial pronouncements and the bearing they will have on the outcome of G. Parameshwara v. Union of India.

Understanding the Scope of Gubernatorial Discretion

Unlike the President, the Governor has been accorded some discretion in the exercise of her duties by way of Article 163-

  1. Council of Ministers to aid and advise Governor

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion;

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion;

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

While the President is bound to act in accordance with the aid and advice of the Council of Ministers, the Governor exercises three kinds of powers

  1. executive power taken in the name of the Governor;
  2. power exercised by her on the aid and advice of the Council of Ministers, headed by the Chief Minister; and
  3. power exercised by her in her sole discretion.

In the case of Samsher Singh v. State of Punjab (para. 153), the Supreme Court recognised some situations in which the Governor acts in her own discretion. Through a merely indicative and not an exhaustive list, the appointment of a Chief Minister where the paramount consideration is that she should command a majority in the House, the dismissal of a government which has lost majority but refuses to quit office, and the dissolution of a House, were seen as part of the Governor’s discretionary power. That, however, leaves one question unanswered: are there any circumstances in which the Courts can review the Governor’s exercise of her discretionary powers?

On Judicial Review

Judicial review is the power of the judiciary to examine the actions of the co-ordinate branches, ie., the executive and legislature, under the Constitution or statutes. Judicial review, especially in instances of formation of government, presents a distinct dilemma in India. Considering that India is a nation with a quasi-federal structure as well as the Westminster system of parliamentary democracy, there have been recurring conflicts between Parliamentary Sovereignty and Judicial Supremacy.

A.V. Dicey defined Parliamentary Sovereignty as the right of the Parliament to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. This is a feature prevalent in the unitarian system followed in the United Kingdom. However, as far back as in 1861, J.S. Mill observed that there can be no true federal spirit without the power of judicial review. Amongst the various organs and levels of the government, there must be an independent umpire to settle disputes. The supremacy of the Constitution, and the authority of the Court to interpret it, can never be questioned.

Applying this in the Indian scenario, it means that the conduct of Parliament is not immune to questioning by the Court. In fact, in In Re., Keshav Singh (para. 38), the Supreme Court clearly observed that the dominant feature of the British Constitution, ie., parliamentary sovereignty, has no place in a federal constitution as in India.

In view of this, it can be inferred that the Court can also look into questions pertaining to formation of government. Yet, if one were to go by the bare text of the Constitution, there is no scope to challenge a decision taken by the Governor in her discretion, one of the many such decisions being the appointment of a Chief Minister. In fact, there is an explicit bar against this, expressed in Articles 163(2) and 361, stipulating that the Governor shall not be answerable in any court of law for the exercise and performance of her powers and duties.

There already exists jurisprudence on the issue of judicial review of the Governor’s sole discretion. Beginning with the landmark case of B.R. Kapur v. State of Madras (para. 51), the Court struck down the appointment under Article 164(4) of Ms. Jayalalitha as Chief Minister while she was still a non-legislator, on the ground that she suffered from disqualifications under Article 191. While placing some constitutional limitations on the powers of the Governor (a point discussed later in this post), the Court also took cognisance of Article 361. Here, the Court judicially reviewed the Governor’s discretionary action on the ground that the immunity under Article 361 does not extend to the appointee. Therefore, while the Governor herself cannot be held responsible, the Court can still go into the question by making the appointee prove the constitutionality of her own appointment.

Notwithstanding that Rameshwar Prasad (VI) v. Union of India (para. 173) is a case pertaining to the declaration of Emergency under Article 356, the Court still had to navigate the immunity granted by way of Article 361. In this case, the Governor had acted in his sole discretion by claiming a breakdown of constitutional machinery in the state of Bihar, as no single party had been able to secure a majority in the Legislative Assembly, and thereby, the Governor had been unable to appoint a Chief Minister. In this case, the Court’s approach was that the personal immunity from answerability provided in Article 361 did not bar the challenge that may be made to the actions of the Governor. In such a situation, it becomes incumbent on the respondent state government to defend the exercise of gubernatorial discretion.

The momentous decision in S.R. Bommai v. Union of India (para. 118) expanded the scope of judicial review and held it to be a basic feature of the Constitution, which could not be done away with even in exercise of constituent powers. In this case, when the support to the ruling party in Karnataka was declining, the Governor recommended a proclamation of Emergency to the President. The Court held that in cases where the Governor’s decision smacked of mala fides, arbitrariness, or irrelevant considerations, the Court had the power to strike it down.

Lastly, the position regarding justiciability of a Governor’s discretion was cemented in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (para. 148). Here, the Court applied the doctrine of harmonious construction by analysing the provisions surrounding Article 163 to conclude that if the decision of a Governor in her discretion were to be final, she would be converted into an all-pervading super-constitutional authority. To avoid this, the Court would have to be conferred the power of judicial review.

Hence, in light of the above considerations, it is likely that the Court will permit judicial review of the Governor’s sole discretion in G. Parameshwara v. Union of India.

 On Gubernatorial Discretion: Three Possibilities

There could be three possible outcomes of this petition. The Court could (a) uphold full discretion to the Governor in the aspect of appointment of a Chief Minister, or (b) circumscribe the discretion with judicially enforceable guidelines, or (c) completely restrict the Governor’s power to exercise his discretion in this regard.

Complete Discretion

The consequence of upholding full discretion of the Governor in the appointment of a Chief Minister is that the Court would not have the power to review any exercise of such sole discretion. There are a number of High Court decisions that have ruled so in the past. From S. Dharmalingam v. Governor of Tamil Nadu to Sapru Jayakar Motilal C.R. Das v. Union of India, the common reasoning appeared to be that the Governor acting under Article 164(1) exercised absolute, final discretion and that there was no possibility in the Constitution to read into Article 164(1) any restriction or condition.

This view, however, has been rejected by the Supreme Court when it overruled the cases of M.P. Sharma v. P.C. Ghose and Pratapsingh Raojirao Rane v. State of Goa in Nabam Rebia v. Speaker, Arunachal Pradesh Legislative Assembly (para. 155.6). Both M.P. Sharma and Pratapsingh upheld the view that the appointment of a Chief Minister fell within the ambit of exercise of the Governor’s discretion, and that the same could not be questioned in any Court.

Hence, it is highly improbable that the Supreme Court will decline to intervene in the matter, considering that the prevailing view seems to be that the exercise of pleasure under Article 164(1) does not lie solely in the domain of the Governor’s discretion.

Limited Discretion

If the Court were to adopt this approach, it would uphold the Governor’s discretionary power, yet temper it with enforceable guidelines, to be applied specifically in the situation of a hung assembly. Therefore, while the Governor would still act without the aid and advice of the Council of Ministers, she would be bound by these guidelines.

In B.R. Kapur v. State of Madras (para. 72), it was held that the Governor was not bound by the will of the people, but rather by the spirit of the Constitution. Consequently, a Governor cannot permit, nor be party to, any subversion of the law. ‘Government, or good governance, is a creature of the Constitution’. The Governor, being the topmost executive functionary in a state, bears the responsibility of preserving and maintaining the democratic framework.

In this regard, guidelines have already been stipulated by the Sarkaria Commission in 1988, the recommendations of which were echoed by the M.M. Punchhi Commission in 2010. In its report, it recognised that in choosing a Chief Minister, the Governor’s guiding consideration should be to call that party/alliance which commands the widest support in the Legislative Assembly to form the government. If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including ‘independents’.
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the Government from outside.

This appears to be the most likely outcome of the pending petition in question. While retaining a semblance of the constitutional discretion accorded to the Governor, the Court would still exercise ultimate authority over it, by laying down parameters similar to those prescribed in the Sarkaria Commission Report and permitting review of the discretion, should the Governor divert from these guidelines.

Negation 

The third option is that the Court could completely restrict the exercise of the Governor’s discretion in the appointment of the Chief Minister. Article 164(1) merely states that the Chief Minister and other ministers shall be appointed by the Governor. No where in the text of the Constitution is it mentioned that the Governor must invite the leader of a party/alliance who will then take oath as Chief Minister after which she, in the case of a hung assembly, would display her strength on the floor of the House.

Instead, the Court could rule to discard all the intermediary steps, and order a speedy floor test (in order to prevent horse trading) after every election verdict which produces a hung assembly. It is accepted (para. 119) that the proper test for the strength of the government is on the floor of the House, and not dependent on the subjective satisfactions of Governor. The floor test would automatically show which party/alliance enjoys the support of the majority of the House. In such a situation, the role of the Governor would simply be limited to just appointing the Chief Minister, thereby not requiring any exercise of her discretion. In fact, this possibility has already been recognised in the case of K. A. Mathialagan v. Governor of Tamil Nadu (para. 11).

This would be in accordance with principles of parliamentary democracy as envisaged in S. R. Chaudhuri v. Union of India (para. 21). Here, the Court observed that representation of people, responsible government, and accountability of the Council of Ministers to the Legislature form the pillars of a parliamentary democracy. There can be no better way to ensure this than by reducing Executive interference and omitting this aspect of the Governor’s discretion. ‘In a democracy governed by rule of law, the only acceptable repository of absolute discretion should be the courts.’

The concerns regarding the abuse of gubernatorial discretion were raised even in the Constituent Assembly. H.V. Kamath, Shibban Lal Saxena, and Rohini Kumar Chaudhuri, all expressed apprehensions that the discretion accorded to the Governor would be wrong in principle and contrary to the tenets of constitutional government. It was considered all the more serious as the Governor was to be nominated and not elected. The view was that the discretion under Article 143 (as it then was) was a colonial relic that should have been done away with. To this, B.R. Ambedkar’s only response was the Article should be retained as the constitutions of Australia and Canada had similar provisions and there had been no need to delete them even after nearly a century.

In today’s times, the concerns of abuse of discretion are valid. Yet, this radical approach of negating discretion completely appears to be an unlikely path for the Court to follow. It, however, poses an interesting academic question.

Conclusion

The judgment in G. Parameshwara v. Union of India is highly awaited as it will finally lay to rest issues pertaining to the Governor’s role in a hung assembly. This will have consequences on the health of the federal democracy and constitutional spirit in the country.

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Freedom of Speech: A Round-Up of Recent Judicial Pronouncements

(Editor’s Note: Over the last few months, I have been unable to write here as frequently as I would have liked to. Over the course of this month, I will try to post a series of round-up pieces summarising some broad developments since January ’18. The first of these posts is about the freedom of speech.)

The Supreme Court’s right to privacy judgment was meant to be about expanding the individual rights against State (and private) power. However, as the last few years have shown, our Courts are experts at turning shields that are meant to guard rights into swords to cut them down. An excellent example of this is the Madras High Court’s judgment in Thiru P. Varadarajan v Kanimozhi, which imposed a gag order upon a Tamil magazine with respect to articles about the “private life” of Kanimozhi. The High Court was hearing an application to vacate an injunction against a magazine that had been granted four years ago. In refusing to vacate the injunction, the Court relied upon the right to privacy judgment – citing copiously from it; the core of its reasoning was this:

“The concluding remarks of Hon’ble Mr. Justice Sanjay Kishan Kaul [in the privacy judgment] are as follows:

‘Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.’

Therefore, the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

This is a standard of legal “reasoning” that would get you a failing grade in Legal Methods 101. The High Court cites the closing line of the concurring opinion of one judge out of nine – a line that is self-evidently pure rhetoric, and uses that to invent a mythical “new order” in which privacy has been given “pre-eminence” (over the freedom of speech). The High Court seems to be unaware of the operative part of the privacy judgment, which affirms all the cases that have elaborated upon the scope of the right to privacy after Gobind, including cases where the balance between privacy and free speech was discussed (such as R. R. Rajagopal). The question of whether the balance is to be struck by granting (everlasting) injunctions has been a fraught one, and there is at least one detailed and well-reasoned High Court judgment (Khushwant Singh) that holds that the correct remedy is not to gag speech, but to provide for damages in case privacy is breached.

There is, therefore, no warrant for the High Court’s free-floating conclusion that “the theory that there cannot be a prior restraint or a gag order upon the press or Media stands diluted… after Puttaswamy’s Case.” Puttaswamy has absolutely nothing to say about prior restraint or gag orders. Puttaswamy was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and did not change the law in this regard in any manner. Mercifully, the High Court does not, in the end, grant a blanket injunction, but a qualified one (albeit with entirely vague contours, banning any articles about the “private life” of Kanimozhi), along with a blanket right of reply.

Unfortunately, the Madras High Court’s order is not even the worst of the gag orders in recent times. That prize is jointly shared by two Delhi High Court orders: the incoherent, four-page stream-of-consciousness order gagging Cobrapost from reporting its sting on Dainik Bhaskar, and the order restoring the gag upon the publication and sale of Ramdev’s biography; as well as the Gujarat High Court order gagging The Wire from publishing about Jay Shah. Notably, the latter two examples are of High Courts stepping in to restore gag orders after trial courts hearing the cases have vacated them.

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

Unfortunately, the Supreme Court has tended to be as careless with words as the gagging High Courts. A recent example of this is Bimal Gurung v Union of IndiaThe case was about transferring FIRs to an independent investigation agency. While the FIRs were, in part, based on violent demonstrations, there was no need for the Court to go into the constitutional status of demonstrations in the first place. However, it chose to do so, and then came up with this:

“Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).”

The Constitution is a carefully-drafted document. The framers agonised over the fundamental rights chapter, and in particular, there were long and stormy debates about the restrictions that were being placed upon fundamental rights. Every word that finally made it into the Constitution was debated extensively, and there were many words that were proposed and dropped. This is why Article 19(2) has eight very specific sub-clauses that list out the restrictions on speech. They include “public order”, “the sovereignty and integrity of India”, and “incitement to an offence” (among others). They do not include “nuisance”, “disturbance”, or “private mischief.” Apart from the fact that these are very vague terms that a judge can apply in a boundlessly manipulable fashion to shut down speech that he doesn’t like (recall that similarly vague provisions were struck down as unconstitutional in Shreya Singhal), there is an excellent constitutional reason why “nuisance” and “disturbance” are not part of 19(2). That is because if only acceptable speech was legally permitted, you would never need to have a fundamental right guaranteeing it. It’s only speech that is, in some ways, a nuisance or a disturbance, which a government (or powerful private parties) would like to curtail. This is especially true for demonstrations: the whole point of a demonstration is to put your point across by causing a degree of nuisance and disturbance (short of violence or incitement to offences). What that degree is, is a matter of judicial determination, by applying a reasonable time-place-manner test.

It may be argued that we should not make much of these stray observations, made in a case that was about an entirely different issue (a transfer of FIRs). However, that misses the point: words matter, and they matter especially when the Supreme Court is the author. The normalisation of “disturbance” and “nuisance” as invented restrictions on free speech can have a creeping effect on the scope of 19(2), especially given how stray Supreme Court paragraphs are regularly cited before lower Courts, and regularly applied by judges. In that context, there is an even greater obligation upon the Supreme Court to be careful with words.

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Notes from a Foreign Field: The Constitutional Court of Lesotho Strikes Down Criminal Defamation

In a terse, 37-page judgment delivered last week, the Constitutional Court of Lesotho struck down criminal defamation as unconstitutional. The judgment repays some scrutiny, because many of the arguments raised – and addressed – by the Court are similar to the arguments that were made in the unsuccessful constitutional challenge to criminal defamation in India two years ago. Further, the Lesotho Constitutional Court’s application of the global proportionality standard to invalidate criminal defamation shows a potential path forward here, where proportionality has come to the fore after the judgment in Puttaswamy.

The constitutional challenge in Lesotho arose out of criminal proceedings against a satirical article that mocked the Commander of the Lesotho Defence Forces. The author of the article was accordingly prosecuted. Section 104 of the Lesotho Penal Code defined criminal defamation in terms somewhat similar to the IPC. The relevant defences – also akin to the IPC – included proving that the material was true and for public benefit, or establishing legal privilege.

Section 14 of the Constitution of Lesotho guaranteed the right to freedom of speech and expression. The section also authorised restrictions upon the freedom of speech, including, inter alia, “for the purpose of protecting the reputations, rights and freedoms of other persons (interestingly, the Section also provided for a right of reply).

The Court began its analysis by noting the intrinsic and instrumental benefits of the freedom of expression in a democracy (paragraph 8). These are well-worn by now, and do not need repetition. In particular, the Court focused on the importance of satire in a democracy, and the need for any guarantee of the freedom of speech to protect satire (paragraph 9) – especially where “public figures” such as the (former) Commander of the Lesotho Defence Force were concerned, who ought to “display a higher degree of tolerance” (compare this with the Indian Supreme Court’s invented doctrine of “historically respectable personalities). Within this framework, the Court then applied the three-step proportionality standard to decide whether criminal defamation was constitutional. This standard – in the form that the Court endorsed – requires, first, that a restriction upon rights be imposed only through a law, which has a rational connection with the goal; secondly, that the law impair rights only to the minimal extent necessary to achieve the State interest; and thirdly, that there be an overall balancing between the extent to which the right is infringed, and the importance of the goal (paragraph 16).

Criminal defamation cleared the first hurdle, which was a rational connection with the legitimate State interest of protecting reputation. However, it fell at the second hurdle, that of minimal impairment. The Court found, first, that the law was over-broad and vague, inter alia, because the defence of “public benefit” had not been defined, and that “anything could be characterised as not being for “public benefit” due to the elasticity of this concept” (paragraph 18). In particular, by using this concept as a filter, the Court noted that “the Legislature has granted an unfettered discretion to the Prosecutorial authorities”, which would inevitably cast a chilling effect upon freedom of speech and expression (paragraph 18). The Court also found that through its requirement of “truth”, the Section effectively criminalised satire which, by its nature, “exaggerates and distorts reality” (paragraph 18).

Next, the Court held that criminal defamation also failed on the third prong of proportionality – that of a balance between the goal of protecting reputation, and its curtailment of speech. This included the very real possibility of self-censorship, and the existence of civil remedies (paragraph 19), which helped to achieve the same goal without the stigma, direct targeting, and greater punishments that defined the criminal legal regime. The Court closed with noting that the international trend – from a recent judgment of the African Court on Human and Peoples’ Rights (paragraph 21) to international legal instruments (paragraphs 22 – 23) – was towards holding that criminal defamation was no longer consistent with the requirements of democratic societies. The Court therefore concluded:

“The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in Section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effect on the freedom of expression, and that, civil remedies for reputational encroachment are more suited towards redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.”” (paragraph 24)

Criminal defamation was, accordingly, struck down.

In light of the Lesotho Constitutional Court’s judgment, and before it, in recent times, the judgment of the High Court of Kenya and the African Human Rights Court (both holding criminal defamation to be unconstitutional, in different ways), the Indian Supreme Court’s rambling, near-incoherent, 268-page judgment in Subramanian Swamy v Union of India (2016), which invented new doctrines such as “constitutional fraternity” in order to uphold criminal defamation as constitutional, seems more and more anachronistic. That apart, however, the Lesotho judgment suggests a way forward: in Swamythe two-judge bench of the Supreme Court did not examine the constitutionality of criminal defamation on the three-step proportionality standard. Many of the arguments made before the Lesotho constitutional court – including overbreadth and vagueness, the chilling effect of terms such as “public good”, and the disproportionality of criminal remedies, were dismissed by the Court without a serious examination under the proportionality standard. In Puttaswamy, however, a nine-judge bench of the Supreme Court definitively incorporated the global proportionality standard into Indian constitutional law. In addition to Swamy’s failure to consider may relevant constitutional arguments (see here), this now makes the case for revisiting that judgment even stronger.

In Puttaswamy, the Court acknowledged – within the short span of five years – that its judgment in Koushal v Naz Foundation had been a mistake. This is to the Court’s credit. It would be equally to its credit to acknowledge that its judgment from two years ago, in Subramanian Swamy, was as grave a mistake – and to join the growing ranks of post-colonial countries that have consigned this anachronistic provision to the dustin of history.

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Guest Post: Summary Dismissal of Impeachment Motions: Neither Final nor Infallible

(This is a guest post by Tejas Popat.)

Impeachment proceedings are not a routine in India. Rather, they are a matter of necessity in ensuring the continued trust of the people in the judiciary. As a result, in the 68 years of our constitutional history, only a handful of impeachment proceedings have been initiated.

On April 20th, the first against the Chief Justice, Dipak Misra was set in motion. However, the Rajya Sabha Chairman refused to admit the motion (Order of the Chairman). Only once before has such a motion been summarily rejected. This was in the motion against J.C. Shah J. when GS Dhillon was the Speaker of Lok Sabha. Acting on the counsel of the then Chief Justice M. Hidayatullah he dismissed the motion as ‘frivolous’ as it concerned some remarks made by Shah J. during a hearing against a certain OP Gupta. Without analysing the merits of each, such summary dismissals have wide ramifications. They raise questions on the powers the Chairman can exercise at such a nascent stage of an impeachment proceeding.

In this blog, I seek to analyse the scope and extent of this power to refuse to admit a motion under the Judges Inquiry Act, 1968 (hereinafter ‘the Act’) read along with the constitutional scheme. But, before I dwell on that aspect, I shall for sake of context set out the procedure for impeachment. Drawing from the procedure and after analysing the scope of the power, I conclude that in the case of Misra CJ., if challenged, this order of dismissal will not withstand any reasonable judicial scrutiny.

To clarify, I have used the term Chairman for ease of reference but, the same shall equally apply to the Speaker if proceedings are brought in the Lok Sabha.

Procedure of Impeachment

As Seervai explains (Vol. 3, pg. 2914), a successful impeachment motion goes through five stages.

  • At the outset, requisite number of signatures are to be obtained on the notice of motion for presenting an address for the removal of the judge in either house of Parliament. S. 3(1) requires fifty members of the Rajya Sabha or one hundred members of the Lok Sabha to sign such a motion.
  • After such a motion is presented to the Chairman, the S. 3(1) confers discretion to either admit or refuse to admit the motion. This decision is based on consultations the Chairman has or after he has gone through the materials before him (Notice of Motion and the documents which may have been submitted by the parliamentarians).
  • If the motion is admitted, the Chairman under S. 3(2) is mandated to set up a committee ‘for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for.’ This involves the committee following the procedure set out in S. 3(3) to 3(9) of the Inquiry Act aided by the powers conferred on them under S. 5 (asking for discovery of documents, examination of witnesses etc.) to prepare its report. The hearing before the committee are of a judicial nature allowing the Judge to present his or her case.
  • This stage involves the committee forwarding the report to the Chairman where the committee would have found the judge guilty or not of the charges framed. If the committee finds the judge not guilty, the proceedings come to an end as per S. 6(1). Otherwise, the motion which was till now with the Chairman is now forwarded with the report of the committee to the houses of the Parliament for voting on the motion.
  • Voting on this motion has to be completed as provided in Art. 124(4). Upon such motion being passed in Parliament, S. 6(3) states that ‘the misbehaviour or incapacity of the Judge shall be deemed to have been proved’ and this motion and the result of voting is forwarded to the President for him to exercise his powers under Art. 124(4). The President concludes the process by passing an order for the removal of the Judge.

Thus, only after such a rigorous process comes to fruition, does a member of the higher judiciary lose his office. I shall now come to the proceedings initiated against the Chief Justice.

The motion against Misra CJ.

We now come to the order passed by the Chairman on April 23rd in refusing to admit the motion.

The scope of the Chairman’s power to admit such a motion is only found in S. 3(1) of the Act. Thus, any analysis of the sufficiency of the motion must also be circumscribed by the requirements of S. 3(1). It reads thus:

If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council,

then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.’

Now, the only explicit requirement provided in S. 3(1) is the numerical threshold of the signatures required. Thus, the Chairman must only assess whether this has been met. The instant case presents a great illustration. The motion submitted was signed by 71 members. However, in the meanwhile the 7 members had demitted office which led to the Chairman to find in the opening paragraph of the order that only 64 members could validly sign on the notice of motion. As reported, the members pointed this out to the Chairman but in any case, it presents a good example of how the powers which the Chairman may be limited to examining a procedural invalidity. In ¶ 4 he acknowledged that the requisite number of members had attested their signature and thus the requirement of S. 3(1) have been met. Therefore, ordinarily, the motion should have been admitted and he should have proceeded to put into motion the mandate of S. 3(2) viz. the constitution of the inquiry committee. But, that may not be the end of the debate.

It can be argued that some additional discretion may be vested in the Chairman vide S. 3(1) apart from merely considering the procedural validity of the motion. This lends itself not only from the words of S. 3(1) but also the fact that this power is made redundant if the job of the Chairman is merely to tally the numbers against the text of the Constitution. It is this discretion which would allow for consideration of the weight of evidence and the seriousness of allegations presented to him. Thus, what has to be determined the extent of this judicial power vested in the Chairman.

Here, it is relevant to consider the decisions in Mrs. Sarojini Ramaswami v. Union of India and M. Krishna Swami v. Union of India. The similarities between the two decisions are that Verma J. authored the majority opinion in both and they were also pronounced on the same date. But, on this specific point he contradicts himself. In the former he states that the Chairman forms the committee under S. 3(2) after forming a prima facie opinion (¶99). In the latter, he states that ‘the Chairman need not weigh the pros and cons to determine if there is a prima facie case. He merely has to act with a sense of responsibility which is guided by considerations of larger interest of the public administration of justice’ (¶44). Therefore, there is a need to determine a specific standard vis-à-vis the extent of the power and the scope of review by courts. A look at analogous situations where constitutional functionaries exercise adjudicative powers may help.

The Chairman has also been given a judicial power in the proviso to Art. 101(3). This is para materia to the proviso to Art. 190(3). Under this, the Chairman shall not accept the resignation of an M.P, ‘if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine.’ Commenting on Art. 190(3), the Chhattisgarh High Court noted, ‘Clause (b) of Article 190(3) gives an absolute right to the member of the House of the Legislature of the State to resign his seat. The only impediment in accepting the resignation is the enquiry which the Speaker/Chairman is bound to conduct. If no enquiry is conducted by the Speaker or the Chairman and the resignation is accepted, then the member of the House may challenge the act of the acceptance on the ground that the act of resigning was neither voluntary nor the resignation was genuine.’ The High Court thus seems to indicate that the scope of review by Courts is extremely limited. It is only when there is no enquiry which was conducted. By necessary implication, the Court will not interfere with the subjective satisfaction of the Chairman’s decision as long as the decision is based on some inquiry.

The standard the Chhattisgarh High Court seems to espouse the standard in the Bommai decision pertaining to the standard of satisfaction vis-à-vis the President under Art. 356. Before turning to the standard, we see if the same standard can be applied here. Though the Bommai standard was formulated in a different context but the standard is not specific to that context. The Bommai decision itself developed the standard from general administrative law principles (¶57) and therefore it cannot be restricted to Art. 356. Moreover, it has been applied to determinations made under Art. 123 or 213 as well in Krishna Kumar Singh (Sikri J. and Chandrachud J. agreed on this point thus forming the majority view) and Art. 72 in Epuru Sudhakar. Resultantly, the test in Bommai is not specific to the Emergency provisions but a general guidance on the manner in which discretion exercised by constitutional functionaries may be judicially tested. Now, coming to the test laid down in Bommai.

The Bommai ruling on this point can be dissected as follows. The President’s satisfaction is measured against four factors, first, the presence of material, second, whether the material is relevant, third, whether the material is sufficient, and fourth, whether inference drawn was legitimate. Now, the whole it may not be appropriate in the current context. As Chandrachud J. notes in his dissent in Krishna Kumar Singh by relying on Indra Swahney the level of scrutiny must depend on the subject matter and the nature of right affected (¶40). Thus, it would do well to recollect that the Bommai test is applied to a final determination and not a preliminary one like that of the Chairman given the five-stage impeachment process.

Keeping this in mind, the standard for reviewing a Chairman’s decision must, in my opinion, only involve a two-fold analysis. First, whether there was some material placed before the Chairman and second, the relevance of such material to the facts set out in the notice of motion. Thus, the Chairman would be justified in admitting a petition if these two grounds have been satisfied. Conversely, the burden on the Chairman is higher when he refuses to admit the motion. The standard to be met then is that there either exists no material or the material that exists is so spurious that the motion must be summarily rejected. The rationale for excluding the remaining two factors of the Bommai standard is that the proceedings before the inquiry committee are of a judicial nature. The charges against the Judge must be proved beyond reasonable doubt after examining the sufficiency and reliability of the evidence. Therefore, questions relating to burden and standard of proof are matters to be left for the members of the inquiry committee to decide.

The above formulation allows the Chairman some leeway in determining the admissibility of the motion on its substance as well. Evidently, this discretion is extremely limited, but, in the motion against Misra J. the Chairman started off on the wrong foot itself while scrutinizing the substantive allegations. In conducting his analysis, the Chairman as I shall elaborate now incorrectly sourced his power from Art. 124(4) and not S. 3(1). Not only that, the analysis based on the interpretation accorded to Art. 124(4) in this context was equally incorrect. Therefore, coming back to the order the Chairman.

Immediately after essentially conceding that the motion is admissible per S. 3(1), he begins ¶ 5 by stating, ‘I have carefully considered the question whether I should admit the motion submitted by the Hon’ble Members of Parliament or not, under Article 124(4) …. At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4).’

In the following few paragraphs he elaborates on the lengthy discussions he undertook before deciding this motion which are not of any immediate concern. After that, in ¶ 10, carrying forward what he stated in ¶ 5, he begins an analysis whether this motion can be admitted under Art. 124(4). This is erroneous on multiple counts.

First, Art. 124(4) does not even govern the role of the Chairman with regard to such a notice of motion. It confers an exclusive power on the President to remove the Judge from office by passing an order to that effect. This power is exercised after the procedure under Art. 124(4) has been complied with viz. misbehaviour or incapacity has been proved and the requisite address in each house of the Parliament has been passed to request the President to pass an order for removal of the Judge (See, Rule 16 of Judges (Inquiry) Rules, 1969 elaborating the detailed procedure for the adoption and passing of such an address and subsequently Rule 17 mandating that such an address to be presented to the President). Thus, the Chairman could not have even relied on Art. 124(4) to determine the issue of admissibility.

Second, assuming the Chairman can proceed to determine the motion in terms of Art. 124(4) he provides rather modest reasoning to support this. He states that, ‘the prefix ‘proved’ places an obligation of actually proving the misbehaviour before the Parliamentary Procedure for removal of a Judge can come into play.’ In support of this conclusion, he cited the decision of the Supreme Court in In Re. Mehar Singh Saini.

At the outset, the case did not deal with Art. 124(4) but Art. 317. Thus, the statement is a passing observation without the binding effect given to Supreme Court decisions under Art. 141. Second, this statement was made in order to distinguish the nature of the provision under Art. 124(4) and Art. 317 when the latter employs the word ‘misbehaviour’ and the former requires proved misbehaviour (¶ 74, (2010) 13 SCC 627). Thus, the decision is hardly of help.

Regardless of the above reservations, if we assume the authority to be of some assistance, such a conclusion contradicts the test that must be applied. Further, it not only contradicts the entire constitutional and statutory scheme but also jeopardises the purpose of having an inquiry committee to determine the guilt of the judge (See, S. 3(2)). While the latter is self-explanatory, I will now elaborate on the former.

The first instance in which the words ‘misbehaviour or incapacity’ are preceded by the word ‘proved’ is Art. 124(4). As I stated earlier, this is the provision which vests the authority in the President to issue an order which culminates the impeachment process viz. the fifth stage in the proceeding as Seervai explains it. None of the statutory or constitutional provisions dealing with any of the four preceding stages even mention the word ‘proved’ in the context of misbehaviour or incapacity (See as illustrations S. 3(1), 3(5), 3(6), 3(7) 6(1), 6(2) of the Act and the Inquiry Rules). The reason for this can be ascertained if we refer to S. 6(2) and 6(3) of the Act.

S. 6(2) states, ‘If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion … referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.’

Thereafter, S. 6(3) states, ‘if the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124 … then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved.’

Thus, only upon a finding of guilt by the inquiry committee and the parliamentary approval does any misbehaviour or incapacity stand ‘proved’ for the power under Art. 124(4) be exercisable. This is enabled by the deeming provision in S. 6(3). Thus, Only at such time when the charges have been proved, does the President get the authority to remove the Judge from office. At any stage before this, there are merely charges of misbehaviour or incapacity which have to be proved. This is evident from the fact that the elaborate judicial process is conducted by the inquiry committee. It frames the charges, allows for examination of witnesses and allows for the judge to be represented by a counsel (See, S. 4 and 5 of the Act). Furthermore, S. 3(2) makes this explicit when it states, ‘If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for …’ Thus, the burden of investigation and proving of charges is solely vested in the inquiry committee.

As Seervai notes:

‘In the context of s. 3(3) and s. 3(4) of the Inquiry Act the word “proved” can only mean that in presenting the notice of motion to the Speaker or to the Chairman that not less than 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha believe that when oral and/or documentary evidence is led before the Committee constituted under s. 3(3) of the Inquiry Act, the allegation made in the notice of motion the Judge would be proved…. When after a full judicial inquiry prescribed by s. 3(3) and (4) the Committee finds the Judge concerned guilty of one or more or all the charges framed against him, the word “proved” is used in its ordinary sense, for the truth of the guilt of the Judge has been established by oral and/or documentary evidence and the Report to be sent to the Speaker would say so.’ (Vol. 3, pg. 2920)

 

Thus, it would be unreasonable to prove the charges as a precondition to merely admit the motion. It was on such an erroneous assumption that the Chairman proceeded to analyse the allegations terming them as a ‘mere suspicion, a conjecture or an assumption’. He concludes in ¶ 15 as follows: ‘I have applied my mind to each of the five charges as made out in the Motion. I have examined all the documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with the context of the annexed documents, do not make out a case under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”

Not only did the Chairman proceed on an erroneous basis, his analysis seems to have far exceed the level of scrutiny which may be made at this stage of the proceeding. Thus, if challenged, this order of the Chairman may find it difficult to be legally sustainable.

The author would like to thank Mr. Agnidipto Tarafder for his timely encouragement. He would also like to thank the Editor of the Blog, Ms. Aishwarya Gupta and Mr. Rishabh Mohnot for their comments and suggestions on the earlier drafts of this blog. The author can be reached at tejaspopat97@gmail.com.

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The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.

 

 

 

 

 

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Filed under Access to Justice, Article 21 and the Right to Life, Public Interest Litigation, separation of powers

ICLP Book Discusion – Ornit Shani’s “How India Became Democratic”: Round-Up

Here is a Round-Up of the essays that form part of our book discussion on Ornit Shani’s How India Became Democratic:

  1. Laying the Foundations, by Suhrith Parthasarathy
  2. Constituting the People, by Professor Anupama Roy
  3. The Transformative Constitution, by Gautam Bhatia
  4. The Author Responds, by Ornit Shani

With gratitude to everyone who participated.

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ICLP Book Discussion – Ornit Shani’s “How India Became Democratic” – IV: The Author’s Responses

(In this concluding part of our Blog Round-Table on Ornit Shani’s How India Became Democratic, the author responds to the preceding three essays.)

I am grateful to Gautam Bhatia for initiating this round table discussion on How India Became Democratic. I am honoured that The Indian Constitutional Law and Philosophy Blog, which forms a valuable source for understanding developments in Indian constitutional and legal affairs is hosting this discussion. I am thankful to Suhrith Parthasarathy, Professor Anupama Roy and Gautam Bhatia for their thorough engagement with the book, and so soon after it was published.

Response to Suhrith Parthasarathy

Parthasarathy presents superbly the main themes and arguments of the book about how the preparation of electoral rolls on the basis of universal franchise, ahead of the constitution, engendered struggles for citizenship, driven from below by Indians of modest means; about the tremendous administrative efforts the making of the universal franchise for the largest electorate in democratic history entailed, and the rewriting of the bureaucratic imagination it necessitated; and how the preparation of rolls on the ground informed the process of constitution making. Parthasarathy rightly stresses the commitment to equality and to the right to vote that drove the making of universal adult franchise, not just as a constitutional vision, but also in practice, even before the constitution was finalised and came into force.

Parthasarathy focuses on a case where the government of Travancore refused to register on the electoral roll Tamilians who resided in the state but were not Travancore naturalised subjects of the state. In redressing the grievance of these Tamilians against the government of Travancore, the Joint Secretary of the Constituent Assembly, determined that the state had to register them as voters on the grounds that the state could not legislate or set qualifications that were inconsistent with the provisions of Part III [Fundamental Rights] of the draft constitution. It was inconsistent, in this instance, with the prohibition of discrimination on the basis of a place of birth. So, in this case, a fundamental right provision was inextricably interlinked with and protected by the draft (prospective) constitutional provision (289 B, and finally article 326), which entitled every citizen of India to be registered as a voter at elections to the legislator of the State.

Parthasarathy discusses this case to reflect critically on the Supreme Court’s decisions and reasoning on the status of the right to vote in recent law cases (In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), Rajbala v. State of Haryana, (2015), and in Javed & Others v. State of Haryana & Others). Strikingly, the legal status of the right to vote has been a subject of debate for some time.[1] The court has debated whether the right to vote is a fundamental right, constitutional right, or whether it is a right created by statute. Parthasarathy argues, on the basis of his analysis of the case of the Tamilians from Travancore, and the commitment to equality at large, which drove the making of the universal franchise, that it was ‘clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III’, and that ‘the fundamental rights enshrined in Part III cannot be isolated from the electoral process.’ I would like to make a few observations and some proposals to further strengthen Parthasarathy’s arguments. I will do so from both the perspective of the constitution makers’ intentions and their actions. I am not trained in the law, and therefore the proposals I offer below should be seen as based on my historical investigation and understanding of the actual making of the right to vote under universal franchise.

  1. The Constituent Assembly Secretariat undertook the preparation of the draft electoral rolls on the basis of universal franchise, thus implementing the right to vote, from November 1947, to ensure the holding of ‘fresh general elections as early as possible after the new Constitution comes into force’. (p. 91). They did so on the basis of the Constituent Assembly’s decision, while discussing the Interim Report of the Advisory committee on the Subject of Fundamental Rights, to adopt the principle that every adult citizen shall have the right to vote.
  2. Realising the idea of one women/man one vote – institutionalising equality for the purpose of voting – was fundamental to the building of a democratic edifice for India. The seriousness of purpose that was demonstrated in implementing this idea during the registration of India’s prospective voters, based on a deep commitment to procedural equality and on a comprehensive inclusive drive – attending, for example, even to the voting rights of vagrants living in huts erected illegally was fully aligned with the fundamental constitutional vision of creating a democracy for India. It is reasonable to argue that implementing the right to vote through the preparation of rolls was the first constitutional promise to be fulfilled by the new republic.
  3. During the preparation of the rolls, people grew to conceive of their voting right as a basic guarantee of the constitution. As I show in the book, a number of citizens’ organisations were established in order ‘“To safeguard the right of franchise as guaranteed by the new constitution”’ (p.64). Numerous others fought for a place on the roll to ensure their citizenship and voting rights.
  4. Most importantly, perhaps, as a result of the implementation of the right to vote through the preparation of rolls, especially the experience of distinct forms of attempted disenfranchisement on the ground at the state level, constitution makers agreed towards the end of the constitutional debates on a ‘radical change’ (p. 185) in the election provisions. It aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicit expression to the notion of universal franchise on the basis of a single joint electoral roll. The new article stipulated that the election machinery for all elections to parliament and to the legislatures of every state would be vested in a single independent central Election Commission at the centre. The implementation of the right to vote, a perennial and iterative process in a democracy, was removed from of the purview of the states, as it was originally set to be.

In conclusion, constitution makers agreed in April 1947 to the suggestion of the Advisory Committee that the provisions on the right to vote ‘should find a place in some other part of the Constitution’, rather than in the part on Fundamental Rights, as was suggested by both the Fundamental Rights Sub-Committee and the Minorities Sub-Committee. I agree with Parthasarathy that this was a ‘judgment founded on form’. The Advisory Committee unanimously supported the principle of adult franchise, free and fair elections and the management of these elections by a body that is independent of the government of the day. It is true that some of its members doubted whether franchise would ordinarily be part of fundamental rights, and whether dealing with franchise broadly was within the Committee’s jurisdiction. But in June 1949, on the basis of the actual implementation of the right to vote, constitution makers erected a constitutional fortress safeguarding the right to vote within the constitution. The Election Commission is the guarantor, in practice, of the right to vote. As some scholars have argued, the Indian constitution moved beyond the classic separation of powers in its creation of an independent Election Commission.[2] As an autonomous edifice within the structure of the separation of power, should it not be considered part of the constitution’s basic structure? Nehru’s insistence, when some doubts were raised about the universal franchise, that ‘It is one of the basic laws, according to me’[3], is a footnote to these observations, which I hope strengthen Parthasarathy’s arguments.

Response to Anupama Roy

Prof. Roy addresses two broad themes of the book: the making of democratic citizenship and the fashioning of a democratic political imaginary, which I suggest were driven by the preparation of electoral rolls and the contestations for citizenship that emerged in this process. Roy presents my broad arguments about these themes, and raises some important questions about each of them, and about the relations between the two.

Roy asks ‘how the big connection between a bureaucratic process [the preparation of electoral rolls] and democratic imagination could be made’, and asks me to think about the idea that Indians became voters before they were citizens, and about the preparation of rolls as a state building process.

The question of the connection between the bureaucratic process and the democratic imagination is very important. Three main interlinked processes, which together constituted the actual process of implementing electoral democracy, and which produced engagement with shared democratic experiences among civil servants and between people and administrators, played a role in connecting the two. These were the rewriting of the colonial bureaucratic imaginations and habits on franchise and voting rights; the way the universal franchise became a meaningful political order in which Indians would believe and to which they would become committed; and the ongoing numerous interactions between people and administrators about the preparation of the electoral rolls.

The task of the administrators was to operationalise the notion of procedural equality for the purpose of electoral voting. They had to imagine a joint list of all adults in the land – women and men of all castes and classes – each carrying the same weight as equal voters. Designing instructions for the preparation of electoral rolls on that basis required a rewriting of the pre-existing bureaucratic colonial imagination on franchise and voting rights. This process began over four months of consultations between and among administrators at all levels throughout the country, during which they were asked to envision how the lists should be best prepared, the difficulties they might encounter and how these could be overcome. This all-India administrative exercise in guided democratic political imagination imbibed the notion of universal franchise and of procedural equality for the purpose of voting within the administrative machinery. This process deepened in the context of the intense struggles for citizenship and for a place on the roll that arose once the registration of voters began. The commitment to procedural equality that was cultivated in the process of the preparation of the electoral rolls, and that went beyond a notion of efficiency in election management, was strikingly demonstrated when the collector of Bombay, for example, took in November 1948 proactive steps to ensure the voting rights of vagrants, servants and footpath dwellers.

I suggest in the book, that it would not have sufficed for a democratic vision based on adult franchise to become merely embedded in the institution of electoral democracy. The abstract principle of universal franchise also had to be embedded in the imagination of people. They had to find meaning in it, to own it, and to find a place for themselves in it. They had to make it personal. I argue that the storytelling about the preparation of rolls connected people to a popular democratic political imagination. Stories about the preparation of rolls were published in governments’ press notes and in the press. There was not a single ‘pervasive popular narrative’. Numerous different stories, which represented varying concerns, and fragmented reporting from across the country appeared in the press, press notes and in the correspondences between people and administrators. These disparate stories appeared in relatively regular installments. They represented different concerns related to the core plot of the preparation of the electoral rolls. This contributed to the dynamic of a serialisation of the story of making universal franchise. It was a story of a monumental historical significance, grand in scope, and therefore like an epic tale of India becoming a democracy.

These stories stimulated peoples’ engagement with the making of the universal franchise. People began thinking about the universal franchise and to imagine their place on the roll from their personal perspective. Their correspondence with administrators about the preparation of rolls evidenced that. That people also began recognising their power in ensuring the success of the operation was illustrated when a labour union from Madras port, for example, wrote to the government that ‘It will be a waste to the Government both financially and politically if we do not actively extend our co-operation in their attempt for reparation of electoral rolls based on Adult Franchise on which depends the fate of toiling millions…’ (p. 119) This was in the context of their employer’s notification that they would not observe the days declared as public holiday by the government for the purpose of conducting the enumeration. Indeed, the success of the bureaucratic efforts were heavily contingent on the participation of people and their sense of commitment to and identification with the normative vision the universal franchise entailed. To borrow from Parthasarathy’s discussion, the democratic principle this vision entailed had to rest in peoples’ hearts, and be embedded in their minds, before any law or constitution could save it. All this informed peoples’ struggles in pursuit of their citizenship and voting rights on the ground in the preparation of the electoral rolls.

In the context of the contestations for a place on the roll, people essentially already acted as engaged, even passionate citizens, while the constitutional citizenship provisions were still undecided and debated. Since a prospective voter had to be a citizen, the preparation of the electoral rolls at the time was the most concrete and inclusive means by which people could be Indians and feel a belonging to the new state. The first draft electoral roll on the basis of universal franchise was ready just before the commencement of the constitution. It was prepared on the basis of tremendous efforts to include all the adult population. As I state in the conclusion to my book, the all-encompassing national identity of Indians on the eve of the commencement of the constitution was that of being equal voters. ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5). It is in this sense that Indians were voters before they became citizens. And their identity as such has become, and remained, very meaningful to them. It was not about the legal affirmation of being voters before citizens. In fact, formally-legally that would happen later on when the rolls would be finalised after the enactment of the election law. I therefore agree with Roy that this was not a matter of sequential development. And as Roy shows in her important book Mapping Citizenship in India (Oxford University Press, 2010), the life of legal citizenship in India has remained a contentious matter, and in some respects a thorny issue from the perspective of democracy.

The preparation of the electoral rolls on the basis of universal franchise was indeed a large-scale democratic state building project. In contrast to other state building processes at the time, it was not based on state distinctions between, for example, good or bad refugees; displaced or intended evacuees. There was no distinction between good or bad voters. The principles that underlay the logic of this state building process were equality and universal inclusion. The production of a register of more than 173 million people that were bound together as equal citizens for the purpose of authorising their government rendered existent the idea of ‘the people’, even before they became ‘We the People of India’ with the enactment of the constitution. It concretised, and made real the fiction that is called the people.

I thank Roy for the interesting questions that she raised, and I hope that they have been successfully addressed.

Response to Gautam Bhatia

In his essay Bhatia discusses the implications of the arguments in How India Became Democratic for contemporary constitutional interpretation. In doing so, he expands Parthasarathy’s analysis of the impact of the book’s themes on Indian constitutionalism. Bhatia addresses the question of ‘how to accurately characterise the moment of constitutional creation’. This question lies at the heart of various issues that came before the Supreme Court over the years, including decisions pertaining to fundamental rights. The Court has debated whether the constitution represents a moment of continuity with past colonial constitutional frameworks and therefore a stage in a constitutional evolution, or whether it was a transformative moment. The former view has prevailed in India’s constitutional jurisprudence. This, Bhatia argues, ‘has a direct impact upon modern-day constitutional interpretation’, and clearly an adverse one, in his view.

Bhatia shows how the view of the transfer of power as incremental and evolutionary enabled the court on various occasions to uphold colonial law, endorse colonial practices and to maintain a restrictive interpretation on fundamental rights. Paradoxically, on the basis of a rather teleological understanding of the moment of the creation of India’s democracy as a stage in a process of evolution, the court sometimes reinstated autocratic forms of colonial rule.

Bhatia argues that the moment of constitution creation was transformative. And that the transformation in the constitutional structure ‘will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.’ It is not, then, simply the letter of the law, but the meaning with which it is imbued in the particular context of that transformation. This is a fascinating argument.

Bhatia suggests three ways in which ‘universal franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society’: the leap in the size of the new electorate; its nature – unlike under all the colonial constitutional frameworks the individual was prior to the group; and its character as universal. To add a footnote to Bhatia’s point about the scale of the transformation in the character of the electorate, the franchise provisions in the Government of India Act, 1935 (Sixth Schedule), contained so many qualifications for being a voter for a divided and restricted electorate that this was sub-divided into 12 parts spread over 51 pages. Underlying his analysis, Bhatia picks up what to me is perhaps among the most, if not the most, revolutionary aspects of the moment of rupture from colonial rule and constitutional frameworks that the making of the universal franchise wrought (and which I already mentioned in my response to Roy): ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5).

I would like to attempt a small contribution to Bhatia’s arguments about the ways the making of the universal franchise marked a transformative constitutional moment. I will do so by thinking about the ‘constitution creation moment’ as a process. I will dwell here further on some of the points I made in more detail in my response to Parthasarathy.

The transformative nature of the making of the universal franchise also lay in the bold effort of undertaking it in anticipation of the drawing up of the constitution. The preparatory work started from November 1947. This was an extraordinary display of confidence in the fundamental principle of equality for the purpose of voting, and in the universality of the franchise, which marked the biggest rupture from colonial rule and its system of representation without democracy. Taking this leap resulted in a far more fundamental constitutional transformation. As I suggested in discussing the status of the right to vote, the experience of preparation of the electoral rolls on the basis of universal franchise, particularly the realisation of attempted disenfranchisement on the ground must be overcome, drove a radical change in the constitutional provisions for elections and their management. The new provisions, which set up an independent central election commission, was meant to supersede states rights over the universality of the franchise, and to create an institution that would protect citizens’ right to vote.

This roundtable and the questions raised by Bhatia suggest that a closer history of other constitutional provisions might throw more light on the question of ‘how to accurately characterise the moment of constitutional creation’?

[1] Also see Aditya Sondhi, ‘Elections’, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of The Indian Constitution, Oxford: Oxford University Press, 2016, pp. 196-200.

[2] See Bruce Ackerman, ‘The New Separation of Powers’, Harvard Law Review 113, no. 3, 2000, pp. 715– 16; Madhav Khosla, The Indian Constitution, New Delhi: Oxford University Press, 2012, pp. 38– 43.

[3] H. V. Iengar, Oral History Transcript, p. 146, Nehru Memorial Museum Library.

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