Executive Power and the Judicial Service Commission as a Fourth Branch Institution: The Judgment of the Supreme Court of Kenya

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission [“the JSC”]. The JSC is composed of the Chief Justice, a judge of the Supreme Court (elected by the judges of the Supreme Court), a judge of the Court of Appeal (elected by the Court of Appeal), a High Court judge and a magistrate (one woman and one man, elected by the association of judges and magistrates), the Attorney-General, two advocates (one woman and one man, elected by the members of the regulatory body of advocates), a person nominated by the Public Service Commission, and two members of the public (one woman and one man, nominated by the President and confirmed by the National Assembly). As we can see the JSC’s composition includes a range of stakeholders: the judiciary, the bar, the executive (through the A-G), and the legislature (the confirmatory body for the public members).

Judicial appointments and ancillary issues are further regulated by the Judicial Service Act. Section 15(2) of the JSC Act states that where one of the nominating bodies under Article 171 has chosen its nominee, it shall submit the name to the President, and the President, within three days of the receipt of the name, shall appoint the nominee as a member of the JSC. Controversy arose in 2018, when a judge of the Court of Appeal was elected by his peers to be the CoA’s representative in the JSC. However, instead of “appointing” the judge in accordance with Section 15(2) of the JSC Act, the President forwarded his name to the National Assembly for consideration and vetting. The President invoked Article 250(2)(b) of the Constitution, which provides that members of constitutional commissions (of which the JSC is one) would – inter alia – have to be approved by the National Assembly.

The President’s actions were challenged before the High Court. The case was carried to the Court of Appeal, and ultimately to the Supreme Court, which delivered its judgment on 31 March 2023. Over a dissent by Justice Njoki Ndungu, a majority of the Supreme Court held, first, that in accordance with Article 171, the National Assembly had no role to play in the vetting of the elected nominees; and secondly, that insofar as Section 15(2) of the JSC Act granted authority to the President to “appoint” these elected nominees, it was ultra vires Article 171, and void. The majority based its reasoning on the following grounds: first, that while Article 250 made provisions in general for a group “Chapter Fifteen Commissions”, Article 248 made clear that these provisions applied to Commissions “except to the extent that this Constitution provides otherwise.” (paragraph 56) Article 171 – a self-executing provision for JSC appointments – was an instance where the “Constitution provides otherwise.” (paragraph 57) Secondly, that Article 171 itself envisaged different appointment procedures for different types of nominees. When it came to the public member nominees, for example, Article 171 explicitly envisaged a vetting role for the National Assembly. Consequently, where it did not do so – e.g., for the judicial nominees – it was clear that the Constitution did not intend for the National Assembly to play a role. (paragraph 65) And thirdly – and for largely the same reasons – that Article 171 clearly precluded interpolating the President into the process, even if his role was meant to be largely ceremonial (as the Respondents argued).

While the Majority’s reasoning and conclusion rested upon a close reading of the constitutional provisions and of the JSC Act, there are two deeper, unarticulated points that emerge from the judgment, and which are worth thinking about.

The first is the majority’s insistence that the Constitution could not be read to grant to the President (read: the Executive) any more powers than which were expressly set out in the constitutional text. Indeed, an argument that the President’s power flowed from Article 250 read with Article 132(4) of the Constitution – the latter of which authorises the President to “perform any other executive function provided for in this Constitution” – was explicitly rejected by the Majority (paragraph 52). Now, when you think about it, there are two ways in which a Constitution can be interpreted when it comes to the question of power enjoyed by the political executive. The first is to say that the executive power to do “X” exists and is valid unless expressly prohibited by the Constitution. The second is to say that there is no executive power to do X unless expressly authorised for by the Constitution. The question turns upon the normative baseline of the Constitution: as the old chestnut goes, is everything permitted unless prohibited, or is everything prohibited unless permitted (except that here it applies to the executive, and not to individuals).

The majority’s answer is the latter. In some ways, this tracks the Supreme Court’s holding (exactly on this day, one year ago!) in the BBI case, on the question of the President’s power to initiate a “popular initiative” to amend the Constitution. In that case, as well, the majority read a constitutional silence against the power of the President to do “X”, and reasoned that any exercise of executive power would have to be traced back to an enabling constitutional provision. And both in the BBI case as well as in today’s judgment, the underlying sub-text is the lessons of history relating to the imperial Presidency, lessons that tell us that concentration or accretion of power in the Executive – which judicial interpretation can either enable or hinder – often leads to the erosion of democracy.

In fact, this overarching theme leads us to the second point, which is the majority’s application of the principle to the specific case of the JSC. Here, the majority drew upon the lessons of constitutional history to argue that the JSC was always meant to be independent (paragraph 84 – 88), and especially, independent of executive interference (except where an executive role is, of course, expressly provided for). Making the President the “appointing authority” was just such an example of executive interference, especially given that Article 250 was explicit in contexts where the President was the appointing authority for Commissions (paragraph 89). Thus, the majority held that “we believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.” (paragraph 91)

Indeed, the majority went further and noted that while under the old Constitution, the President would issue a gazette notification to signify an appointment, in this case, even that power was not available: it was the role of the Independent Electoral and Boundaries Commission to do so (paragraph 98). Thus, the majority held that “to give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief Article 171 was intended to cure. (paragraph 100)

Now, the majority’s textual analysis, and its argument that there should be no “implied” executive power unless expressly provided, are beyond cavil. However, there is a slight slippage in the opinion insofar as the majority flags the importance of the independence of the JSC, and the need to protect it from “manipulation” by the executive, but does not elaborate upon how, if the President’s role is purely ceremonial, or gazette-esque, such manipulation is possible. Indeed, Section 15(2) – as it stood – already provided safeguards against the most common form of abuse by an appointing authority – the pocket veto – by stipulating a three-day time limit. Indeed, this point was seized upon by Justice Njoki Ndungu in her dissent, where she went into the question of JSC independence in some detail.

If one were to hazard a guess, one might say that even though Section 15(2) of the JSC Act purports to exclude pocket vetoes, the very interpolation of the President lowers the costs of executive manipulation. One may imagine situations where notwithstanding the three-day period, the President does not confirm an appointment, and makes an argument that while the three-day period envisages executive vetting by virtue of its very existence, there has not been enough time to do so. Protracted litigation would then ensue, and while the President may ultimately lose, the point is not so much about the outcome of the case, as it is that a provision such as section 15(2) enables the possibility of constitutional hardball by the executive, and in striking it down, the majority sought to anticipate and forestall any such hardball (indeed, on this point, it is interesting to note that Justice Njoki Ndungu would have struck down the three-day limit altogether, thus enabling indefinite pocket vetoes!). Indeed, in this context, Justice Njoji Ndungu’s dissent is interesting, because here one sees, clearly spelt out, the opposite interpretive philosophy: that is, executive power should be given full reign unless explicitly contained (see e.g. para 126). As in the BBI case, Justice Njoki Ndungu’s opinion is also based on constitutional history – but on a very different reading of constitutional history. It is perhaps for historians to tell us who gets it right!

A final point, by way of clarification. On the question of the independence of the JSC, the dissent criticised the majority for conflating the independence of the JSC with the independence of the judiciary, noting that, as a constitutional commission, the JSC’s status was not that of the judiciary. To an extent, this was enabled by the majority referring, in paragraph 84, to “the independence of the judiciary and by extension the JSC.” It is important to note, however, that technical criticism aside, the majority’s focus on independence was correct: the requirement of JSC independence flows from its position as a fourth branch, or guarantor institution, which provides the infrastructure that enables the effective realisation of rights (in this case, the rule of law, by securing the independence of the judiciary). The majority’s use of the phrase “by extension”, therefore, is best understood not in the narrow sense that Justice Njoki Ndungu understood it – as equivalent to the independence of the judiciary – but in a broader sense, where commissions such as the JSC create the framework within which rights are enabled.

We can therefore see that two issues of constitutional philosophy underlie this judgment: first, that the role of the Constitution is to limit executive aggrandisement (and therefore, wherever possible, that the Constitution must be interpreted to advance that goal); and secondly, the independence of fourth branch institutions must be protected not only from visible and immediate threats, but from indirect erosion, or – perhaps more accurately – a legal environment that enables erosion. These two ideas constitute the heart of the majority opinion, and provide the underlying justifications for its reading of the constitutional text and structure.

Proportionality in Remand: Lessons from Kenya

The Constitution says that an arrested person must be produced before a judicial authority within a stipulated time period (say, 24 hours). The police adhered to this timeline, and before the twenty-four hours are up, they bring the arrested person to the judge, and seek permission for continued custody. They cite various reasons: that the investigation is continuing, that the individual’s custody is required so that he may be ‘confronted’ with other witnesses, that the individual might interfere with the evidence or intimidate witnesses if he is left free, and so on. Overhanging this is the unarticulated premise: that a judge should not interfere with the work of the police. If the price to be paid is the temporary deprivation of liberty (for a few days, a few weeks, or a few months), then that’s just how it is. The judge, therefore, should apply a light touch in remand proceedings, essentially acting as a slightly sentient rubber stamp, or a stenographer who sometimes asks a few clarificatory questions. Judicial scrutiny should be like breath on glass, as transient and as ineffectual.

That is a familiar story, one that has become so normalised that the grant of remand when the individual is first brought before a judicial authority by the police is taken as a matter of course. But sometimes, we are reminded that it is not the only way that Constitutionalism and criminal justice can work.

In Directorate of Criminal Investigations vs Calvince Okoth Otieno (order copy on file with the author), three individuals were arrested on the 24th and 25th of March, 2023. On 27th March, the police applied to the court for ten-day custody, so that the police could complete investigations with respect to offences of unlawful assembly, damage to property, robbery with violence, and so on. The police claimed that the arrested individuals belonged to an “informal group” called the “Bunge la Mwananchi”, which was funded to cause damage to property and the breach of peace in Nairobi, with a view to destabilising the country (one may even say, a “larger conspiracy”, with due apologies to certain police forces!). The police further claimed that they had received credible information that the Bunge was planning further disorderly conduct, that there was a forensic report on the way, that not all witness statements had been recorded so far, and that the arrested individuals might interfere with the investigation and intimidate witnesses if they were set at liberty.

Hon. M.A. Opondo – the Senior Principle Magistrate – refused the police’s request. She relied upon the judgment of the High Court of Kenya in Sudi Oscar Kipchumba vs Republic. In that case, Joel Ngugi J had held, in effect, that, at the first instance, the doctrine of proportionality must be applied to decide a police request for custody. Recall that the third prong of proportionality requires the State to demonstrate that a rights-infringing measure is the least restrictive alternative that is open to the State. Ngugi J had therefore laid down the following double test (paragraph 24):

a. First, the State must persuade the Court that it is acting in absolute good faith and that the continued detention of the individual without a charge being preferred whether provisional or otherwise is inevitable due to existing exceptional circumstances;

b. Second, the State must demonstrate that the continued detention of the individual without charge is the least restrictive action it can take in balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the needs to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. By virtue of Articles 21(1) and 259 of the Constitution, the Court must act to aggrandize not diminish the personal liberties of arrested individuals in line with the other three interests. Differently put, the State must demonstrate that there are compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by these quadruple interests and without reifying or essentializing any.

In essence, therefore, three things follow from the double-test. First, that the granting of custody is meant to be the exceptional case, and not the norm. Secondly, that the State bears the burden of showing that custody is the least restrictive option that is open to it; and thirdly, in the analysis, all other things being equal, the judiciary’s task is to expand liberty and not to diminish it.

Indeed, in the application of the standards to the case before him (which was a criminal revision application), Ngugi J went on to note that “the acontextual and simplistic pitting of “public order, peace and security” against the personal liberty interests and autonomy of the Applicant … is a dangerous anti-liberty ethos which was rejected by the Constitution of Kenya.” (paragraph 31) It was dangerous because, at the stage of remand, where nothing yet had been proven against an individual, this logic essentially exempted the State from its duty of maintaining law and order, and instead, placed it upon the shoulders of the accused individuals (by keeping them in further custody) (for a detailed analysis of the judgment, see this article by Joshua Malidzo Nyawa).

Of course, it is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases. It is for this reason that the Hon. M.A. Opondo’s order becomes significant. Applying Ngugi J.’s doctrine to the letter, she observed that:

1. The State had only asserted – and provided no evidence – to substantiate its claim that the Bunge was being funded to spread disorder through Nairobi. Who were these funders? What were the Bunge’s activities? In other words, the moment that the State was asked for specifics – and not generalised, bare assertions – it failed to provide any.
2. The State had claimed that it had “credible information” about the Bunge’s future activities, but had failed to provide the source of the same. While the Evidence Act immunised a police officer from revealing whence information came, it provided no such immunity when it came to the source.
3. As far as the arguments on the forensic report and witness examination went, the State had failed to show why it had not already completed this in the 48 hours that it held the individuals in custody so far.
4. And as far as intimidation of witnesses went, once again, the State had failed to provide specific claims to justify its fears or apprehensions.
5. It was doubtful whether, under the Constitution, it was the Police that had the power to judge an assembly unlawful.

For these reasons, the Hon. M.A. Opondo held that the State was essentially trying to turn the criminal process “on its head”, and that there was no warrant for the “extreme measure” of a further ten-day detention (to those of us in jurisdictions where ten-day remands are granted for the asking, this probably sounds like manna from heaven!).

As we have discussed before on this blog, when applied rigorously, the doctrine of proportionality achieves two things. First, it ensures that if less restrictive measures are available, the State is bound to use them first; and secondly, the form of analysis is such that it requires the State to justify its stand, in specific terms. Through this remand judgment, we can see the power of the doctrine, in the context of core personal liberty: not only was the State unable to demonstrate that continued detention was the “least restrictive alternative”, the moment it was asked to substantiate its justifications for custody with a degree of specificity, the claims fell apart.

The doctrine of Ngugi J, and the approach of Hon. M.A. Opondo – when one thinks about it – should be the norm. The production of an accused individual before a judicial authority is the first occasion that a court has to adjudicate the claims of the State and the citizen; and what is at stake is the most basic of all rights – that of personal liberty. In such a situation, it makes eminent sense for the Court to apply the doctrine of proportionality, and require the State to justify the need for continued custody; it is, after all, only such an approach that gives any meaning to the phrase “one day of the deprivation of personal liberty is one day too many.” No doubt, the text of Article 49 of the Kenyan Constitution – which requires release on bail unless there are “compelling reasons” otherwise – makes such an approach easier to ground within the constitutional text; but ultimately, this is not so much about constitutional text as it is about judicial philosophy, and the approach of judges towards confronting State power and truly protecting the rights of individuals. The order of the Senior Principal Magistrate is an example par excellent of how courts can do just that.

Guest Post: The Arup Bhuyan Review

[This is a guest post by Abhinav Sekhri. It first appeared on the Proof of Guilt blog.]

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Twelve years. That’s about how long the judgments in Raneef [(2011) 1 SCC 784], Arup Bhuyan [(2011) 3 SCC 377] and Indra Das [(2011) 3 SCC 380]—all decided by the same bench—remained good currency. For eleven of those, they remained under a cloud on account of review petitions filed in 2011 by the Union of India and the State of Assam, in which the Supreme Court found some merit in 2014 and decided for the matters to kept before a larger bench. That larger bench has now rendered its judgment, partly overruling the decisions [Arup Bhuyan (Review) – decided on 24.03.2023 (lead opinion by Shah, J. and a concurrence by Karol, J.]. 

For convenience, I’ve extracted the holding from the lead opinion below:

18. In view of the above and for the reasons stated above we hold that the view taken by this Court in the cases of [Raneef, Arup Bhuyan, and Indra Das] taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incited people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organisation there must be an overt act and / or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by notification issued under Section 3, which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967. [Emphasis in original]

This post deals with Arup Bhuyan (Review) at three levels. The first level is engagement with the opinions to discern what exactly has been held outside of the concluding paragraph, and how. The second level is a look at judgments which were being reviewed—Raneef, Arup Bhuyan,and Indra Das—to understand the foundational missteps committed in Arup Bhuyan (Review). Finally, the third level zooms out from this particular case to look at the broader landscape of personal liberty and the law. 

What has the Court done in Arup Bhuyan (Review)

The ultimate conclusion in Arup Bhuyan (Review) has been extracted above. Simply put, it means that for purposes of the relevant clauses — Section 3(5) of TADA and Section 10(a)(i) of the UAPA — there is no need for the state to show an accused was an ‘active’ member of an unlawful organisation (the UAPA language) for purposes of the offence. Note that the UAPA today deals with ‘terrorist acts’ differently and far more seriously than it does ‘unlawful acts’ and in question here was the scheme pertaining to the latter. The Court has held that it is sufficient if, after an organisation is declared as unlawful under the statute, that a person continued with her membership of the same. I will come back to just ‘how’ the Court arrived at this outcome. Before that, we need to flag some of the other conclusions arrived at in the opinions. 

First, the leading opinion endorses the Union of India’s submission that a statutory provision cannot be ‘read down’ without giving an opportunity of hearing to the Union as it’s interests stand to be prejudiced by such a verdict. The judgments under review were all ordinary appeals / bail hearings, not constitutional challenges to the provisions, and an exercise of ‘reading down’ of clauses could not have taken place in such proceedings.  

Second, both opinions endorse the view that comparative law can only be used with great care on account of the perceived uniqueness of India’s constitutional regime. It has been held that one of the main problems in Raneef, Arup Bhuyan, and Indra Das was their overzealous reliance upon U.S. cases without adequately appreciating the difference between the two jurisdictions; specifically, the limits crafted upon Article 19(1) by Article 19(2) and 19(4), which seemingly were absent within the U.S. framework. 

This second point about the uniqueness of Article 19 was at the heart of why Arup Bhuyan (Review) read the legal provisions in question differently from the earlier judgments. According to both opinions, and the Union of India, these earlier judgments had completely ignored the import of Article 19(4) which had been amended in 1963 to allow restrictions on the freedom to form associations where it may prejudice interests of the sovereignty or integrity of India. A declaration that an organisation is ‘unlawful’ under the UAPA means that these interests are at stake, making it a reasonable restriction. This perspective was not appreciated in the earlier 2011 judgments.

The process by which a declaration of an organisation as ‘unlawful’ under the UAPA takes place was given great emphasis by the Union, and the Court. It was not an overnight proclamation, but the result of an ‘adversarial’ process  overseen by a sitting High Court judge, where members had the right to appear and object, and in which the ultimate declaration was widely publicised. The offence only punished persons who had been, and continued to be, members.Surely, there could be no imagined prejudice for ‘passive’ members who continued with membership after all these steps were taken under law.

The Many Missteps of Arup Bhuyan (Review) 

Understanding the correctness of the conclusions arrived at in Arup Bhuyan (Review) is impossible unless we go back to the source of the problem — the judgments under review. Proceedings chronologically (not from date of filing but date of judgment) we start with Raneef which was a bail case, where no offence of Section 10 UAPA was involved as per details available in the High Court verdict which was challenged in the Supreme Court in Raneef. 

Why did the argument of membership come up at all? Because the state made it an issue, even as it did not specifically invoke the membership offence instead choosing to go for conspiracy ones under UAPA. An incriminating circumstances raised was that all accused were either members or office bearers of PFI or SDPI which could be confirmed with recoveries made during investigation. Neither PFI nor SDPI were organisations that had been banned at the time, but to set the record completely straight on the issue, both the High Court and Supreme Court observed that merely being a member of some organisation could not lead to the conclusion that the accused was part of a conspiracy to murder hatched by specific people also alleged to be members of the same organisation. 

Next, we have Arup Bhuyan and Indra Das, both being TADA cases with similar facts. The accused was alleged to be the member of a banned terrorist organisation, on the strength of a confessional statement and no other material, and thus convicted under the TADA membership offences [Section 3(5)]. Notably, the TADA offence was not phrased like the UAPA one, and punished any person who was a member of a terrorist organisation — clauses that have been retained for terrorist, not unlawful, organisations under the UAPA as well. 

The Supreme Court in both judgments first concluded that proceeding only on a confession was not good enough to convict a person. But then it turned its attention to the unfairness of the provision in question which seemed to punish mere membership. In Arup Bhuyan the Court observed that even if the state had proven that a person was a member, it had not established that he was an ‘active’ member of the terrorist organisation, and nothing less would satisfy a conviction. It applied this conclusion to the facts in Indra Das as well. It was in this regard that it cited various U.S. decisions and Indian decisions in both Arup Bhuyan and Indra Das, to finally hold in only the latter case that its conclusions would apply to other similar offences which punished mere membership of organisations such as Section 10 of the UAPA.

Having read these three judgments, the fault-lines running through Arup Bhuyan (Review) become starkly apparent. At the outset, it is clear that the offences under Section 3(5), TADA and 10(a) of the UAPA were not identically worded, so a big chunk of the Court’s reasoning regarding the fairness of Section 10 of the UAPA as being a reason to review the 2011 judgments would not apply to Section 3(5), TADA.  

Next, it is plain as day that the judgments did not blindly follow American precedent as they were now being accused of doing, but considered them in light of the Indian landscape. Also, to suggest that the U.S. landscape has no limits to free speech is worse than disingenuous, yet this is the broad generalisation that Arup Bhuyan (Review) subscribes to. 

To show the distance between the U.S. and India, the Court invokes Babulal Parate on the urging of the Union, and conclude that public order could justify pre-emptive strikes against speech. However, looking at a case allowing for preemptive restrictions on certain rights on account of public order such as Babulal Parate in a context of punishing persons for being members without showing anything more, is like using a chainsaw to fix your fridge. 

The reason behind invoking Babulal Parate, and raising a furore around the three judgments not having considered Article 19(4), was because the Court completely misunderstood the question at times in Arup Bhuyan (Review). Nobody claimed, or held, that the legislature is out of bounds creating laws that punish membership of banned organisations on grounds of a perceived danger to the sovereignty and integrity of India. That battle was lost in 1963 and then in 1967. The issues here were of a different order — could I be punished for merely having been a member of an organisation that was banned because it had been found as posing such a threat? Would all members go to jail, because the organisation was banned? 

Key here is another feature which the Court pays surprisingly little attention to — membership is not a defined concept within the UAPA or TADA. We are not dealing with neat lists of shareholders, but a hazy group of people where membership would depend upon perceptions and beliefs. The facts in Raneef, Arup Bhuyan and Indra Das had shown us that proving membership did not need much more than a confession and recoveries of inconvenient literature (even the Communist Manifesto might do). The entire burden of proof at trial would, in effect, stand reversed upon the accused if mere membership became the crime as the state would claim that the fact of continued membership was only within the knowledge of an accused (Section 106, Indian Evidence Act). Which would bring us to a situation where nothing short of a loud denouement of one’s beliefs and memberships would be sufficient to erase any doubts about the matter. Or, as it used to be called during the inquisition, oaths of loyalty.  

By concluding that the offence needed something more than merely being a member, the 2011 judgments had inserted a measure of fairness in line with what the Supreme Court had done in a variety of contexts in the past; none of those judgments being constitutional litigations with the Union of India in attendance, but regular criminal appeals where the liberty of persons was at stake. Foremost among these being the offences punishing possession of contraband, where courts simply read the clause to require that conscious possession must be proven. Even the judgments regarding exclusion of showing any intent or knowledge, such as in Mayer Hans George, required the court to determine whether this was the only justified way to read the statute, on its own terms and its consequences. No effort was made to undertake this exercise in Arup Bhuyan (Review) and the Court simply accepted this contention at face value. 

Is the Glass Still Half Full?

Arup Bhuyan (Review) is sparsely reasoned, sure. But zoom out, and what you see is that this decision is a microcosm of the various contests that the Indian Constitution failed to resolve even as it safeguarded various civil liberties. It never confronted state power head-on, instead adopting an approach where small zones of freedom were carved out from the overarching might of the state to at least allow for the Davids to try and battle Goliath. To call this a balancing approach is farcical, yet this notion of balancing is what has become best associated for the courts themselves when they deal with issues of fundamental rights. In Arup Bhuyan (Review) we get another reminder of just how skewed this balance always was in favour of the state’s interests—many of the judgments relied upon by the Court are from the 1960s—and how much farther it can tilt in times when the popular discourse is rife with ideas of threats to security and sovereignty. This privileging of public interest even under Article 21 is as ominous for the present times as is the alacrity with which the Supreme Court in Arup Bhuyan (Review) has accepted the submission that the Union of India must be heard before a court reads down a statute.  

So why do I say that the glass can still be seen as half full? Because there is still enough life left in Raneef, Arup Bhuyan, and Indra Das and many other judgments to allow the Davids to keep fighting. Since Raneef was not dealing with the membership offence, its observations that mere membership of a banned organisation is not an incriminatory circumstance to establish that I had conspired with other members of that specific organisation to commit crimes, would still stand. And since the injustices are far greater in relation to terrorism offences than those pertaining to ‘unlawful activities’ (both being separate concepts under UAPA), these findings (coupled with those in the more recent judgment of Thwaha Fasal) remain invaluable. Similarly, the observations in Arup Bhuyan and Indra Das that convictions for membership offences will not follow solely on the basis of purported confessions would remain valid and useful to combat eventual prosecutions. Lastly, the Court in Arup Bhuyan (Review) limits its observations to membership of the ‘unlawful’ organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.   

This is a mightily optimistic reading of the lay of the land. But what is left if even hope is lost? 

Guest Post: The Supreme Court strikes a blow for the LGBTIQ Community’s freedom of association in Kenya

[This is a guest post by Joshua Malidzo Nyawa. The judgment of the Supreme Court of Kenya has been previously analysed on this blog, here.]

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Introduction

On 24^th February 2023, Kenya’s apex Court delivered the much-awaited decision in NGO coordination board versus Eric Gitari and 5 others thereby bringing an end to a 10-year epic court battle. In 2013, the NGO coordination board wrote a letter to Eric Gitari informing him of their refusal to register a Non-Governmental Organization (NGO) seeking to champion the rights of the LGBTIQ community in Kenya. Eric Gitari had sought to reserve for the registration of his NGO any of the names: Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council; and Gay and Lesbian Human Rights Collective.

In its refusal to approve any of the names, the NGO coordination board was of the view that sections 162, 163, and 165 of the Penal Code criminalize gay and lesbian associations; and that further, the names could not be reserved because of the terms ‘gays’ and ‘lesbians’ in the proposed titles. Eric Gitari challenged this administrative action at the High Court arguing that it violated article 36 of the Constitution (freedom of association) and Article 27(freedom from discrimination). The High Court in Petition 440 of 2013 agreed with the petitioner and held that the refusal to reserve the name for registration of the NGO was unconstitutional. The NGO coordination board and the Attorney general appealed to the Court of Appeal on several grounds. The Court of Appeal (3:2 judges) in Civil Appeal 145 of 2015 agreed with the High Court that the action was unconstitutional. Undeterred, the NGO coordination board and the Attorney general moved to the apex Court, arguing that the High Court and the Court of Appeal were wrong in their interpretation of the law. 

The epic Court battle: from the High Court to the Supreme Court

At the High Court, the petitioner alleged that the impugned action violated articles 36 and 27. The government’s response was threefold. Firstly, that the freedom of association is not absolute and can be limited. Further that sections 162, 163, and165 of the penal code criminalise sexual acts associated with homosexuals, and that therefore, an association to promote homosexuality cannot be formed. On discrimination, the government responded by noting that Article 27 provides for the grounds of discrimination, and sexual orientation is not one of them. Thirdly, the government stated that homosexuality was against Kenyan culture and morals. As noted in the introduction, the High Court found in favor of the petitioner and this finding was upheld by the Court of Appeal with two judges dissenting. The NGO coordination board and the Attorney General moved to the Supreme Court, arguing that the High Court and the Court of Appeal were wrong, and further that the lower Courts had amended the Constitution through a back door. I will analyze the fundamental findings of the Supreme Court below:

Freedom of association

The Supreme Court, like the lower Courts, starts by making a disclaimer that the case before the Court was not about the decriminalization of homosexuality in Kenya but rather, it was about the registration of an NGO seeking to champion human rights. The Supreme Court finds that the freedom of association serves an important purpose in a democracy and can only be limited per Article 24 of the Constitution (the limitation clause) which requires that a human right can only be limited by a provision in the law. In considering whether there is a law prohibiting the registration of an NGO seeking to promote and protect the rights of the LGBTIQ community, the Court considered the argument advanced by the board and the Attorney General that sections 162, 163, and 165 of the penal code prohibit the registration of the NGO.

The Court (3:2 judges) makes three fundamental findings. Firstly, Article 36 of the Constitution provides that every person has a right to association and no one (class) is excluded from benefiting from this freedom. Secondly, that the provisions of the penal code do not prohibit the registration of the NGO but rather prohibit the act of engaging in sexual activity ‘against the order of nature’. Thirdly, that acts that are criminalized in the sections can be committed by anyone and not only members of the LGBTIQ community since the provisions use the term ‘any person”.

The Supreme Court should be applauded for the correct interpretation of the law. Indeed, Article 36 grants the right to every person to form an association and does not exclude any class from enjoying the freedom. A contrast can be drawn with other provisions of the Constitution that limit the beneficiaries of rights, such as Article 35, which provides that every citizen has the right of access to information, Article 38 which provides that every citizen is free to make a political choice, Article 46 which limits the enjoyment of the right to consumers and finally, article 50(2) which limits the rights to an accused person. For one to benefit from these rights, one must meet the precondition of either being a citizen, consumer, or accused person respectively. However, this is not the case for Article 36 which only requires one to be a person. The Constitution uses the term “every person”, and there is no exclusion whatsoever. This is to mean that freedom of association must be enjoyed by every member of the Kenyan society- the poor, the rich, the citizens, the social outcasts, etc.

Further, the Supreme Court makes the important finding that although certain sexual practices have been outlawed in Kenya by virtue of sections 162, 163, and 165 of the Penal Code, these acts are committed by people irrespective of the gender and sexual orientation of the perpetrator. Associations can be formed for the decriminalization of offences. The mere fact that an association has been formed to fight this course does not make it illegal. There is nothing illegal or unlawful in advocating for a change in the law. At least the majority of us were alive when we witnessed campaigns against the criminalization of abortion and death penalty, and we didn’t see the campaigners being classified as murderers or would-be murderers. Then why should the NGO be seen as violating the penal provisions? One must commit the prohibited acts to become a criminal and those acts can be committed by anyone. A society such as ours that claims to be proud of its diversity in the preamble of the Constitution cannot be in the business of criminalising unpopular organisations. The Court of Appeal for instance held in Attorney General vs Randu Nzai that the Mombasa Republican Council’s agenda of secession is not unconstitutional and that they had a right to demand secession but only within the law.

It is not denied that the members of the LGBTQ are vulnerable to corrective rape, violence, exploitation, and stigma, and the NGO was formed to fight for their human rights. There is nothing unlawful about this.

Freedom from discrimination

A reading of the judgment shows that the dissenting judges concentrated their energies on this subject. The majority, in a creative way, finds that discrimination based on sexual orientation is prohibited by Article 27 even though sexual orientation is not included as one of the prohibited grounds. The Supreme Court finds that article 27 uses the word ‘including’ to mean that the list is not exhaustive. Secondly, the Supreme Court relies on foreign jurisprudence to hold that the word sex also includes sexual orientation. The dissenting judges are however straightforward and their findings can be summarized as follows: ‘if the drafters wanted to include sexual orientation as a ground, they should have done so’. Indeed, Justice Ouko spends a lot of time reproducing the history of Constitutional drafting in Kenya.

However, the dissenting judges miss a fundamentally important point about Constitutional interpretation by adopting the originalism theory which is prevalent in the US, and insist on looking for the drafters’ intent and only asking the question ‘what did the drafters mean at the time of drafting the provision’. This is a minimalist view and cannot be used to interpret a transformative Constitution such as ours. Judges are not merely mechanics or computers that are only expected to reiterate the words of a provision. They are the guardians of the foundational values of our Constitution and have a burden of ensuring that these Constitutional values are protected and enforced. One way of doing this is by ensuring that the Constitution is a living thing and continues to adapt to new circumstances. The Supreme Court in one of its first decision advanced this argument when it held in the division of revenue bill advisory opinion that a Constitutional text may not properly express the minds of the framers and ‘and the minds and hands of the framers may also fail to properly mine the aspirations of the people’. The Supreme Court also found that the ‘limitations of mind and hand should not defeat the aspirations of the people’. The Supreme Court offered a way out in the following words ‘It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras’.

History alone as advocated by the dissenting judges cannot provide all answers for modern situations and judges must resort to the values in the Constitution to deal with modern circumstances. After all, ours is a living Constitution and we can’t be tied down by the ‘dead hands of the past’. Further, for a Constitution to survive and have a meaningful impact, it must adapt to modern circumstances that the drafters did not imagine. A Constitution must work for the people of today and an interpretation that is fixated on the drafters’ intent is simply unworkable in our ever-growing and dynamic society. It is for this reason that US Supreme Court Justice Brennan once pointed out that ‘the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.’

The use of the words ‘including’ and ‘such as’ in Constitutional drafting is an indication that the drafters contemplated that new groups of people deserving the protection of the law would arise. Put differently, drafters contemplated the categories that they had identified would evolve. Indeed, these groups are just examples, but not the only contemplated groups. By using the term ‘including’, the drafters admitted that they did not have a monopoly over wisdom and that with new generations new grounds would emerge. Simply, we are human beings and we are not static but ever-evolving with new ideas.

Take away

It is important to note that the 2010 Constitution is progressive and is intended to transform Kenya into a society that is founded on the values of equality, dignity, pluralism, inclusivity, tolerance, and diversity. It is therefore the role of Courts to midwife this transformation by continuously breathing life into the Constitution, and not by sucking the little life from it. Fortunately, the Supreme Court sparks new hope for the sexual minorities in Kenya by appreciating that the Constitution was not meant to serve the past and present generations alone but it is meant to serve even the unborn and it should not be allowed to be a ‘lifeless museum piece’. Further, the apex Court correctly appreciates its Constitutional role of protecting the minorities or outcasts in society, and that their enjoyment of the Constitutionally guaranteed rights is not subject to the views of the majority. The Supreme Court joins other progressive Courts in the global south such as the Indian Supreme Court, Botswanan High Court  and the Constitutional Court of South Africa that have been effective in protecting the rights of sexual minorities.

Guest Post: Judicial Review of Governors’ Delay in Assenting to Bills – a Response

[This is a guest post by Paras Khetan.]

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One of the most crucial functions of the Governor is to give his assent to state Bills. This power is derivable from Article 200 of the Constitution. Recently, the governors of different states such as Kerala, Tamil Nadu, and Chhattisgarh have withheld their assent to their state’s bills. This was also followed by the Chhattisgarh HC seeking the Governor’s reply over the delay in passing a Bill. This was later stayed by the Court itself. The Telangana government has also moved the Supreme Court over the delay in the governor’s assent to Bills. These recent events indicate the high stakes involved in the Governor’s withholding of assent.

Various Commissions like the National Commission to Review the Working of the Constitution and the Puncchi Commission have called for constitutional amendments to prescribe a time limit by which the Governor has to give his assent. However, no action has been taken in furtherance of these recommendations. The failure of legislative intervention necessitates judicial intervention by laying down standards to ensure that the Governor assents to the Bill.

This essay argues for the need to lay down judicially manageable standards of review for the Governor’s power to withhold assent. It suggests the possible standard for review that can be used by the judiciary. It also tackles the presence of Article 361 (personal immunity of the Governor) as a barrier to judicial review.

Article 200: Power to Withhold Assent and the Need for Judicial Review

Article 200 of the Constitution envisages four different options available to the Governor when presented with a Bill for his assent. The governor could assent to the Bill, withhold assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill to the State Legislature for reconsideration. The provision does not indicate any time restraint within which the governor should choose either one of the options. The only guidance provided to the governor is to return the Bill to the State Legislature for reconsideration “as soon as possible”. The Court in Purshothaman v State of Kerala expressed the view that the phrase “as soon as possible” is limited to returning the Bill and cannot be interpreted as applying to the other three options (including withholding assent). Therefore, there is absolutely no limitation to the power of the Governor to withhold assent.

Additionally, the power to withhold assent has been classified as the governor’s discretionary power in Nabam Rebia v Deputy Speaker. This implies that the governor is not bound by the aid and advice of the council of ministers under Article 163 of the Constitution. In a previous blog post, the ambiguity in this proposition is brought to light where various high court decisions have conflated the powers of the president and the governor to hold that governor’s discretionary powers are limited in the same manner as the President’s. However, it is respectfully argued here that there remains no ambiguity with respect to the power to withhold assent due to the decision of the Supreme Court in Nabam Rebia. The Court, here, relied on the Puncchi Commission Report and held that:

….The Governor’s discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200;…… We are of the considered view, that the inferences drawn in the Justice M.M. Punchhi Commission report extracted hereinabove, are in consonance with the scheme of the functions and powers assigned to the Governor, with reference to the executive and legislative functioning of the State, and more particularly with reference to the interpretation of Article 163. We endorse and adopt the same, as a correct expression of the constitutional interpretation, with reference to the issue under consideration. (Emphasis mine)

Thus, the power to withhold assent falls under the discretionary powers of the governor.

Therefore, the above indicates that the governor (a non-democratic authority) has unbridled power to withhold assent and can stifle crucial state legislations. This offends the principles of parliamentary democracy and responsible government which have been held as the guiding lodestars while interpreting the provisions of the Constitution by various judicial pronouncements such as Samsher Singh v State of Punjab and UNR Rao v Indira Gandhi respectively. This is also a part of the larger paradigm of legislative-executive tussle (state legislature vs governor) and executive aggrandizement (increasing power with the executive branch of the government).

Accordingly, there is a pressing need for judicial review of the governor’s power of withholding assent. Judicial review would help in alleviating the problems identified above by restricting the unbridled powers of the governor.

Possible Barriers to Judicial Review

There are two possible barriers to the possibility of judicial review of the governor’s power to withhold assent. One is the personal immunity of the governor under Article 361 and the second is the absence of any “judicially discoverable and manageable standards”.

Article 361: Personal Immunity of the Governor

Article 361 of the Constitution provides personal immunity to the governor from being answerable to any court for the exercise of his powers and duties. The Court in Rameshwar Prasad v Union of India has unequivocally held that A.361 provides absolute personal immunity to the governor. The Court emphasised that even a notice cannot be issued to the governor to act in a particular way. In fact, the Chhattisgarh HC recently stayed its order seeking a reply from the governor over the delay in assent due to the presence of Article 361.

However, this immunity to the governor should not act as a bar to judicial review of the governor’s power to withhold assent. The Court in Rameshwar Prasad brought in an important distinction between judicial review of the “actions” of the governor as opposed to holding the governor himself liable. The Court held that:

The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. (Emphasis mine)

The withholding of assent can be construed as an “action” by the governor or “actions” can be extended to include “inaction” of the governor. Either way will allow the court to judicially review the power to withhold assent. This may materialize in the form of a deemed assent since the court cannot direct the governor to act in a particular manner.

Absence of Judicially Manageable Standards

There has been little attempt to define the term “judicially manageable standards”. However, essentially, they are understood as those standards that the courts can legitimately employ to achieve a particular legal outcome that is closely related to the constitutional norm itself. The absence of judicially manageable standards is used to term the issue as a “political question” and hence outside the scope of judicial review. RH Fallon observes that judicial manageability is largely dependent on whether the future courts can consistently and predictably apply the particular standard. As will be seen later in the piece, the standard proposed for judicial review would fulfil this requirement for being termed as a “judicially manageable standard”.

Additionally, the Court in RC Poudyal v Union of India held that the mere fact that a particular provision of the Constitution may not allow for judicially manageable standards is not sufficient to bar judicial review. Recently, in Shivraj Singh Chouhan v. M.P. Legislative Assembly, the Court rejected the argument that the Court “should be wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can be maintained”. Therefore, even if the proposed standard for judicial review is not judicially manageable, it would not act as a bar to judicial review.

The conclusion that there is no bar to judicial review of the governor’s power to withhold assent also flows directly from other judicial pronouncements as well. The Court in Samsher Singh v State of Punjab held that the refusal of assent by the President and the Governor would be unconstitutional. It observed:

We have no doubt that de Smith’s statement (1) regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional… “. (Emphasis mine)

In Nabam Rebia, the Court held that the discretionary powers of the governor are amenable to judicial review. It also observed that the power to withhold assent is a discretionary power of the governor. This implies that the power to withhold assent is subject to judicial review. Therefore, by necessary implication, this implies that it is possible to lay down a judicially manageable standard for judicial review regarding the same.

Standard of Judicial Review

After having established that it is possible to lay down a standard for judicial review, this section would lay down the standard of review that should be adopted by the Court.

In a recent Madras High Court case of S. Ramakrishnan v State of Tamil Nadu, the Court tried to hold the governor accountable for withholding his assent to a medical admissions Bill. The Court laid down a ‘public interest test’ to hold that the governor may be compelled to provide his assent in certain situations. The Court completely side-lines the issue of gubernatorial immunity under A.361 and holds that:

When situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the Public. It is well settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, this Court has to do its constitutional duties and to address the situation.

Even though the Court ultimately holds that such a situation did not arise in the present case, it has set up a dangerous precedent which might open up a pandora’s box of judicial problems. The Court’s intent to judicially review the governor’s power to withhold assent was laudable. However, the judgment suffers from two major defects. First, it does not provide any reasoning to deal with Article 361. It merely holds that “extraordinary situations require extraordinary remedies.” Second, the standard laid down by the Court, that is the ‘public interest test’ is not judicially sound. This standard is very vague in its conception and might fail the test of “judicial manageability”. The standard is also quite narrow in its conception. This is understood from the application of the test in the Ramakrishnan case where the future admissions of 400 to 500 students were not considered in ‘public interest’.

A better and far more superior and judicially sound standard would be the ‘arbitrary and the mala fides’ test. The standard prohibits the use of constitutional power in an ‘arbitrary’ or ‘mala fides’ manner. The use of the power should not be based on ‘irrelevant or extraneous considerations’ and should be guided by ‘good reason’. This is the dominant standard used while judicially reviewing the powers of the executive functionaries under the Constitution. This is the standard used for limiting the president’s power to dismiss the governor under Article 156(1) (See BP Singhal v Union of India) and the power to grant pardons under Article 72 and Article 161 of the Constitution (See Maru Ram v Union of India). This standard has also been used to enquire into the validity of a proclamation under Article 356 of the Constitution (See SR Bommai v Union of India).

This standard of judicial review also flows from the judgment in Nabam Rebia. The Court, here, affirmed Puncchi Commission’s remarks on the governor’s discretionary powers. The Commission noted that: –

…. [T]he area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution. (Emphasis mine)

These remarks, in essence, represent the ‘arbitrary and the mala fides’ test. Therefore, the Court in Nabam Rebia accepted the proposed standard to be used while exercising judicial review over the governor’s discretionary power (including the power to withhold assent). The use of this standard would help in limiting the delay in assent to bills since most governors’ decision to withhold assent is based on arbitrary reasons. This is precisely the claim made in the petitions challenging the governor’s delay in assent to bills. To determine when the delay turns into an ‘arbitrary or malafide’ delay, the Court would have to look at the particular facts and circumstances of each case. The relevant factors to be assessed should be guided by the principle that there should be minimum delay in the assent to bills. The Court could look at a range of circumstances such as the workload of the governor, the amount of time since the bill is pending before the governor, and the reasons given by the governor for not assenting to the bill.

Conclusion

This essay has proposed a sound standard of judicial review for the governor’s power to withhold assent. It identifies the need for judicial review and addresses the possible barriers to the exercise of judicial review of this power. The judicial review of the governor’s powers would help in alleviating executive aggrandizement and legislative-executive tussle. It is important to note that the institution of the governor, which was once understood as an institution of a high constitutional functionary, has been penetrated with politics. This is also evident from the recent appointments of governors where most of them have close connections with the ruling party. This compels one to reconsider the width of the power conferred upon the governor and how much trust can one repose in this functionary.

Decoding the Supreme Court’s Election Commission Judgment – IV: On Representation-Reinforcement [Guest Post]

[This guest post by Chiranth Mukunda continues the discussion, on this blog, of the Supreme Court’s Election Commission judgment. Parts One, Two, and Three can be accessed here.]

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The recent Supreme Court (SC) judgement in Anoop Baranwal v Union of India, directing the formation of a committee for the appointment of the Chief Election Commissioner (CEC) and Election Commissioners, has raised questions about the separation of powers and concerns about an activist judiciary. The concern is evident from the Attorney General’s submission that “accepting the petitioner’s contention would involve nothing less than an amendment to the provisions of Article 324.” According to the Solicitor-General, the case involved a political question, and did not justify judicial interference.

My purpose in this piece is to argue that the court’s intervention was essential to promote representative democracy, which the framers envisaged, and subsequent judgements of the Supreme Court have considered a part of basic structure. For this purpose, I make use of John Hart Ely’s representation-reinforcing, participation-oriented, political process theory of judicial review, which considers the constitutionalism to be principally and overwhelmingly concerned with allocation of voice and power. The application of this theory to the Indian context is suitable, since the Indian Constitution, though espousing substantive values for the new republic, is also substantively concerned with allocation and organization of power. Ely even recognizes the possibility of concerns about values and process being intertwined in the constitution. The following paragraphs explicate the theory and apply it to the case at hand.

 Representation-reinforcing theory and the need for judicial intervention

The vast powers which are vested in the Election Commission (EC) for the superintendence, control, and the issuance of directions regarding conduct of elections along with advisory, administrative and quasi-judicial functions, make it an important ‘fourth branch’ institution whose independence has considerable bearing on the legitimacy of the election process and the democratic character of the polity. The existing system of appointment of election commissioners is solely under the control of the executive. It is here that the central thesis of political process theory – namely, that tampering the channels of political participation and communication legitimatizes judicial intervention – gains importance.

Gardbaum summarizes the theory as essentially meaning: “… the protection of a system of representative democracy against erosion or degradation by elected representatives cannot be left exclusively in their hands.” But this is precisely what the existing system of EC appointment does by leaving it to the President who in turn acts in the aid and advice of council of ministers. This was even recognized in the Constituent Assembly Debates, when Prof. Shibban Lal Saksena noted that “if the President is to appoint this Commission, naturally it means that the Prime Minister appoints this Commission. He will appoint the other Election Commissioners on his recommendations. Now this does not ensure their independence.”

Ely argues that judicial review is legitimate in two situations where the political process is said to be deficient: (1) where the existing Government is resisting political change through entrenching its power by suppressing voices/votes; and (2) where the minority is systematically disadvantaged by majoritarian policies. It is the first point that is important for our present purpose. Deviant actions of the EC as an appointee of the executive results in a situation in which ground rules of the election process itself are titled to the favor of one party and as consequence elections cease to be “effective instruments of ascertaining popular will” (Indira Nehru Gandhi vs Raj Narain). This impinges on the process of free and fair elections, which is a part of the basic structure of the constitution.

The case

As it is argued here, limited judicial review and separation of powers between the legislature and the judiciary is premised on the presumption that the legislature represents the will of the people. Election malpractices and the ignorance of EC results in a situation where legitimacy of elections can be called into question, and legislative acts or omissions are no longer the true expression of the will of the people; consequently, judicial deference is no longer needed or justified. In this situation elections become “mere ritual calculated to generate illusion of deference to mass opinion” (Indira Nehru Gandhi vs Raj Narain).

In other words, partisan acts of the Election Commission (of which numerous examples can be found) result in corrupting the process of elections, which – in turn – jeopardizes the legitimacy of the body (the legislature) which is formed as the result of election. This situation requires judicial intervention to create a level playing field by securing the independence of the Election Commission. Judicial deference to the legislature – which the government side argued was necessary in this case – would have led to a situation in which an incumbent government can benefit from the unequal ground situation, by trying to avoid political change. This, in turn, would violate the rule of law and article 14 as the court recognized when it said that:

Any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach.

The majority judgement also recognized the implications of failure of political process and its role in rectifying it when it said that:

An unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.

It therefore found that the core values of the Constitution, including democracy, and the rule of law, depend upon a structurally independent election commission. This method of judicial review, by focusing on process and structure, rather than substantive values, has the potential to ensure that the ground rules for an effective democracy are ensured so that minority and divergent voices have space to ensure that they are not drowned out.

Article 19

In this case, along with transgression of article 14 and rule of law, the court also recognized possible article 19 violations without an independent Election Commission, in line with judgements of the court holding fundamental right of free speech and expression includes freedom to vote. The court held that independence of EC or the lack of “is also intricately interlinked with the transgression of Articles 14 and 19” and further opined that:

The right of the citizen to seek and receive information about the candidates who should be chosen by him as his representative has been recognized as a fundamental right. The Election Commissioners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick.

The majority opinion holds that voting is a form of political expression involving choice. For the choice to be effectively and meaningfully exercised, information about the candidate to be selected needs to be disclosed (Union of India vs Association for Democratic Reforms); additionally, the voter needs to have confidence in the electoral process. An EC which treats different politically parties unequally by commission or omission and thereby makes the political ground, unequal hinders the ability of electors to meaningfully exercise their choice and therefore falls foul of any meaningful conception of freedom of expression which includes freedom to vote .This implies that ancillary aspects of freedom of expression for creating the conditions necessary for full and effective exercise of the right to freedom of expression also need to be protected. Naturally, this is not possible when the executive has complete control over appointments relating to guardian institutions like the EC, as any governing dispensation structurally lacks the incentive to ensure free expression to the end of political change. Attempts by the incumbents to entrench their power inevitably involve manipulation electoral mechanisms and targeting the speech of opponent candidates. These malfunctions of the process need correcting; therefore, the court was right to step in to ensure that the political processes do not or do not have the potential to suppress the citizens’ freedom of expression.

Conclusion

Opposition to courts intervention by citing separation of power misses the basic point of why separation of power is needed in the first place. The majority opinion rightly pointed out:

The theory of separation of powers in an ultimate analysis is meant to prevent tyranny of power flowing from the assumption of excess power in one source (read: the executive).

The existing system of appointments, by concentrating the power to appoint EC members in the hands of the executive, unduly aggrandizes the power of the executive at the cost of accountability. Therefore, it is submitted that it was not only justified but also necessary for the judicial intervention, to ensure independent institutional, structural and procedural mechanisms necessary for free and fair elections in a representative democracy. By undermining the independence of integrity institutions like the Election Commission, an executive can limit the checks on its authority. Judicial intervention is thus required to prevent a situation in which “the ins are choking off the channels of political change to ensure that they will stay in, and the outs will stay out.”

Decoding the Supreme Court’s Election Commission Judgment – III: On Assuring Accountability [Guest Post].

[This guest post by Kieran Correia continues the discussion, on this blog, of the Supreme Court’s Election Commission judgment. Parts One and Two can be accessed here.]

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The Supreme Court’s decision—in Anoop Baranwal v Union of India—to overhaul the process of appointing members of the Election Commission of India (ECI) sharply polarized legal opinion. On the one hand, critics have claimed that the Court violated the separation-of-powers doctrine. On the other hand, rejoinders have cited the ECI’s status as a guarantor or fourth-branch institution, necessitating independence (that is, insulation from executive control).

Others, including this blog, have already explained the Court’s two opinions. Therefore, in this piece, I will skip discussing the basic facts and issues outlined in the case. This post, moreover, does not seek to excavate reasoning I thought latent in the two opinions. Instead, I want to bring an argument about the ECI’s functioning into conversation with the guarantor-institution argument advanced so far.

This post uses two concepts: operational accountability and structural accountability. Theoretically developed by Professor M Mohsin Alam Bhat, operational accountability refers to oversight over an institution’s functions, whereas structural accountability is ensured by “creating processes that protect [fourth-branch institutions’] independence, competence and neutrality.” In this post, I argue that the ECI, due to the nature of the extra-legal functions it has arrogated to itself, can only be held accountable through securing its structural independence, as opposed to through operational accountability—leaving the Court with no alternative but to overhaul the appointments process.

The Guarantor-Branch Argument

Government is traditionally thought to consist of three branches—the executive, legislature, and judiciary. ‘Fourth-branch institutions’ are a relatively recent conceptual development. As Mark Tushnet has it, fourth-branch institutions comprise specialized bodies—electoral commissions, ombudsperson offices—that protect and stabilize constitutional democracy. In Sri Lanka, for instance, the Constitutional Council—which has been replaced and reinstated more than once since its inception—oversees appointments to certain commissions, including the election commission. South Africa also constitutionally entrenches certain institutions; a chapter called “[s]tate institutions supporting constitutional democracy” has special provisions for, inter alia, the country’s electoral commission, human rights commission, and the public prosecutor. The ECI has been, historically speaking, a relatively successful guarantor institution; India’s democratic legitimacy rests, more than anything else, on its having conducted largely free and fair elections federally at regular intervals (with the notable exception of the Emergency in 1975–77). However, controversies over the years have sometimes cast doubt on its popular legitimacy—necessarily rooted in its ability to transcend the partisan fray—largely based on the control the executive wielded in the status quo ante over appointments to the ECI..

This judgement, the argument goes, is the first step in the process of shielding these institutions from executive capture. Non-self-enforcing norms, in this case democracy, require independent institutions. Democracy, as evidence worldwide shows, is susceptible to democratic backsliding, a process in which liberal institutional norms are steadily eroded to ensure the longevity of the government du jour. In India’s case, because of the way our Constitution was drafted, this might require straying away from the traditional Montesquiean separation of powers. India, unlike countries like South Africa or Sri Lanka, has not baked in sufficient safeguards in its Constitution to sequester certain institutions from executive control. Protecting constitutional democracy, therefore, would require reimagining our rigid interpretation of the doctrine. We can therefore frame this judgement differently: as a verdict that shores up the separation of powers, when understood more expansively than the state’s three-way ramification.

The Court’s verdict, therefore, is said to be justified within this framework. However, while it answers why independence is required, the path the Court picked is still open to questioning. To justify the second part, we must examine the nature of the ECI’s powers. This element, I argue, completes the reasoning for the Court’s decision to (temporarily) replace the existing framework for selecting election commissioners (ECs).

Operational and Structural Accountability

Professor Bhat argues that the nature of the ECI’s powers repels operational accountability. What are these powers? According to article 324(1) of the Constitution of India, “the superintendence, direction and control” over the preparation of electoral register and conduct of elections is vested with the ECI. However, as Justice KM Joseph notes, this responsibility has steadily grown to encompass a wide range of powers. The ECI, he writes, “may exercise [article 324] in an infinite variety of situations” (para 156). After the 2002 Gujarat pogrom, for instance (discussed in para 157 of the verdict), the ECI refused early elections in the state. The violence deepened fissures between the Hindu and Muslim communities. State complicity was documented and alleged. In those conditions, the conduct of free and fair elections, in any meaningful sense, was an impossibility. The Supreme Court sided with the ECI, going so far to say that even Parliament could not supersede its power to determine election schedules.

This is only one constituent element in the ECI’s constellation of regulations. Much of the ECI’s powers are what Professor Bhat dubs “ANN regulations”—modalities of architecture, nudge, and notice. The ECI has exclusive control over physical electoral infrastructure, like electronic voting machines and so on. It also has the power to recognize and de-recognize political parties (the subject of recent controversy). Alongside these architectural regulations, the ECI has a Model Code of Conduct (MCC), a classic example of a nudge—it’s not legally binding, after all. Lastly, asset and criminal case disclosure requirements are what regulation scholars have called notice.These run the gamut of extra-legal election powers.

The Court has been complicit, through its “jurisprudence of deference,” in the ECI’s gradual colonization of powers. What Professor Bhat is referring to is the Court’s complaisance and alliance with the ECI—not only has it submitted to the ECI’s wisdom, but it has also seen it as a co-equal in its election reform cases. However, the nature of the powers the ECI has arrogated to itself pose another problem: they are often done without the subjects of the regulation knowing. As a result, Professor Bhat points out, the ECI can make considerable covert changes, without due process or deliberation, and that the scope for error is considerably wider. The ECI’s opaque process of determining electoral schedules (a double-edged power the Court was happy to endorse in 2002) as well as selective enforcement of the MCC are regulations that, arguably, do not lend themselves to judicial or popular oversight.

The ECI’s decisions count for much in today’s fragmented electoral landscape. Compared to the period of Congress hegemony, the coalition period has, on one scholar’s view, coincided with growing political consciousness, increasing the ECI’s responsibilities. Therefore, to allow the existing state of affairs to continue—with de facto executive control over appointing ECs—would severely compromise democracy.

Steeling the Appointments Process

Given the inability to oversee these extra-legal powers, which are largely exercised in situations that are then presented as faits accomplis, ensuring independence is the only way to secure accountability—structurally, if not operationally. The Constitution does not leave the ECs defenceless: article 324(5) provides them fixed and relatively secure terms. However, owing to an inability to reach a consensus in the Constituent Assembly, appointment was left to future parliamentary wisdom. In the absence of a statute, however, the task of appointing ECs has fallen on the Executive.

The dangers of such a state of affairs were laid bare in the case of Arun Goel’s recent appointment as an EC, discussed at length by Joseph J. Goel served as a high-ranking bureaucrat before he sought voluntary retirement six weeks ahead of his superannuation. He was then appointed an EC post-haste. As he was a month shy of sixty at the time of his appointment, this meant that he could not serve the full six-year term—section 4(1) of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act 1991 says that an EC must vacate her office upon turning sixty-five. A proviso says that in the event she turns sixty-five before the six-year period, she must vacate her office upon turning sixty-five. However, according to Joseph J, this exception has swallowed up the rule. This “undermines the independence of the Election Commission” (para 195). The threat posed by executive control over appointments is therefore not a hypothetical question.

The Court thus engaged in a “gap-filling” exercise, devising a temporary committee comprising the prime minister, leader of opposition in the Lok Sabha (or leader of the largest single party in opposition, if no leader of opposition has been officially notified by the Speaker), and chief justice of India. Many have already cast doubt on the efficacy of such a committee. But, as Gautam Bhatia notes, this constitutes a valuable first step in ensuring the independence and structural accountability of the ECI.

Conclusion

The Court’s constitution of a new mechanism of appointing ECs is an important step in pushing back against what Tarunabh Khaitan calls “killing the Constitution with a thousand cuts”—a pattern of subtle and incremental assaults on constitutionalism, arguably more insidious than the Emergency régime’s frontal assault on constitutional norms. However, as Joseph J’s history of the ECI tells us, this is not régime-specific; the constitutional design of the ECI renders it vulnerable to executive-led institutional erosion.

While the optimism over the judgement is not uncalled for, the fight for electoral accountability is far from over. The selection committee is temporary; the final committee will be set up by Parliament. It is entirely within the realm of possibility that Parliament creates an asymmetric committee, and a case challenging it is set into cold storage. This—by which I mean the set-up of the ECI—is a larger problem with the Constitution itself, as Bhatia highlights. We will have to think with and through this beyond the courtroom.

Book Review: Queer Lawfare in Africa – Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation [Guest Post]

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

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The Supreme Court of India is anticipated to conduct hearings and deliver judgments in some important issues concerning the LGBTQIA+ community- ranging from the constitutionality of the blood donation guidelines that discriminate persons based on sexual orientation and gender identity to petitions on marriage equality (under both the Special Marriage Act and the Hindu Marriage Act). In this context, the book Queer Lawfare in Africa, edited by Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen makes for a relevant and compelling read.

Queer Lawfare, according to the authors, is a strategy where rights and/ or laws are tactically employed to advance politically contested goals with regards to the rights of the LGBTQIA+ community. In the words of Siri Gloppen, Adrian Jjuuko, Frans Viljoen, Alan Msosa, the term “lawfare” used in the book describes the following:            

The concept of lawfare, as used in this book, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas. While sometimes associated with the misuse of law for political ends, ‘lawfare’ is here used as a descriptive, analytical term, de-linked from (the perceived) worthy-ness of the goal. The association with warfare is intentional and important: these are ongoing ‘wars’, with hard ideological cleavages and iterative battles. They are typically fought on several fronts and the contestants on each side have long term goals that they seek to advance by way of incremental tactics, often responding to, or anticipating their opponents’ moves, as well as other aspects of their (always potentially shifting) opportunity structure.

The book looks into queer lawfare in thirteen African nations- South Africa, Mozambique, Kenya, Botswana, Uganda, Malawi, Nigeria, Zambia, Ghana, Senegal, Gambia, Ethiopia and Sudan. Much like India, a lot of the nations discussed in the book had a criminal provision very similar to section 377 of the Indian Penal Code (before it was read down by the Supreme Court in Navtej Johar v. Union of India). Thereby, in many of these nations decriminalisation of sexual intercourse between consenting adults- irrespective of their sexual orientation or gender identity became (and in some countries still is) one of the first major goals of queer lawfare.

In some of the countries discussed in the book (particularly in those where queer lawfare has led to realisation of substantial legal gains for the LGBTQIA+ community), the movement started with seemingly neutral rights battles which intersected with discrimination law for instance, the right to association. The right to association cases in queer lawfare majorly consist of organisations or coalitions- established with the aim of further LGBTQIA+ rights- challenging the decision of the government to disallow their registration (set in a legal context where homosexuality is criminalised). In Botswana, such a challenge was decided in favour of the LGBT organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) by the Court of Appeal (see also, the recent judgment of the Supreme Court of Kenya). In Mozambique on the other hand, the Mozambican Association for the Defence of Sexual Minorities (LAMBDA) operates under a feminist umbrella organisation since it is not legally registered and as a natural corollary, the queer lawfare is influenced much by the strategies used by the feminist movement.

The book also refreshingly looks into the social contexts of each nation and discusses how despite LGBTQ+ movements sharing the same vision of emancipation, the means employed to achieve the end varies depending on social and political contexts in different countries. It also subtly gets across the point that there is ‘no one size fits all’ solution when it comes to queer lawfare. It discusses the different stages at which queer lawfare is in and how it varies from country to country- from South Africa where giant strides have been made in the judicial sphere to Ethiopia where ‘online lawfare’ is more prevalent due to which there is an absence of a significant progressive legal change.

As the marriage equality petition is listed for hearing before the Supreme Court of India is being heard by the Supreme Court of India, the chapter on queer lawfare in South Africa becomes particularly relevant. The landmark judgment of the Constitutional Court of South Africa in  Minister of Home Affairs v. Fourie that recognised marriage equality notably held that the constitutional rights of persons cannot be undermined or be determined by the religious beliefs of some persons. In this judgment, Justice Albie Sachs read the words “or spouse” after the words “husband” and “wife”, into certain provisions of the Marriage Equality Act, 1961. As has been articulated by Jayna Kothari in this piece, the adoption of a similar strategy in the marriage equality proceedings before the Supreme Court of India is central to making the provisions of the Special Marriage Act (“SMA”) more inclusive. Reading in the words “of spouse” after the words “wife” and “husband” used in various provisions of the Special Marriage Act in India would allow persons irrespective of their sexual orientation or gender identity to get the reliefs conferred by the SMA ranging from solemnization of marriage to provision of alimony.

The chapter also confronts the challenge of limited judicial imagination while dealing with marriage equality and states that the judgment delivered by the Constitutional Court of South Africa (which was hailed as progressive) still caters to the gender binary vision- one where the institution of marriage is valourised and idea of a ‘permanent same-sex life partnership’ essentially contains the characteristics of a typical heterosexual marriage. The chapter also highlights how the ‘good homosexual’ visualised by the Constitutional Court is generally ‘a partnered middle class, if not upper middle class, man or woman who, in a country like South Africa where class continues to follow race, is almost invariably white’ thereby bringing to light the class and racial undertones underlying the legal recognition of such unions. In India, given that the institution of marriage is intrinsically tied into caste, property and patriarchy, it will remain to be seen how the Supreme Court will navigate through complex questions of intersectionality while adjudicating this case.

The book also makes a passing reference to the transnational impact of judgments on queer rights delivered by the Indian Supreme Court. For example, where submissions made before the Kenyan High Court in EG v. Attorney General and the high court decision in Botswana in Letsweletse Motshidiemang v Attorney General were influenced by the judgment of the Supreme Court of India in Navtej Johar v. Union of India. This also points out to the butterfly effect in progressive queer jurisprudence and the important role the constitutional courts in India have to fulfill in the days ahead.

Another important feature is that none of the chapters miss an opportunity to inform the readers about the perseverance and resilience of LGBTQIA+ organizations, coalitions and activists. It does the important work of documenting their role in shaping the legal destiny despite facing legal setbacks and risks of coercive action by the state. It is a fitting tribute to the indomitable spirit of the queer rights movement across the said nations in Africa to challenge the legal and political system, despite it being designed to fail them.

Guest Post: The Shiv Sena Dispute – the Tenth Schedule and the Symbols Order

[This is a guest post by Yogesh Byadwal.]

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Recently, the Election Commission announced its order in the Shiv Sena dispute allowing the Shinde-faction to retain the party name ‘Shiv Sena’ and the party symbol ‘Bow and Arrow’. The case was unique, as argued by respondent, because it was the first time when disqualification proceedings overlapped with proceedings under Para 15 of Symbols Order. However, the commission rejected this contention and decided against deferring the proceedings until the speaker could decide on disqualification proceedings. I argue that the reasoning applied by the Commission in answering the question that the Tenth Schedule and the Symbols Order operate in ‘different fields’ is erroneous and the two are intertwined. I further elaborate the logical consequence which must follow in deciding a dispute under Para 15. I argue that the Commission, by not acknowledging the connection between the two laws, encourages political defections and violates the purpose of 10th Schedule. In my opinion, it is time to close the gaps which exist in the current legal framework which assumes ‘plurality’ to lend credence to political defections.

TENTH SCHEDULE AND PARA 15

In the order, one of the issues framed was-

Whether the petition dated 19.07.2022 filed by the Petitioner is maintainable under Paragraph 15 of the Symbols Order in view of the pending disqualification proceedings.

The ECI answered the issue in affirmative. In para 54, the Commission held:

… the jurisdiction of the Hon’ble Speaker with respect to disqualification proceedings under the Tenth Schedule is separate from that of the jurisdiction of the Commission in deciding disputes under Paragraph 15 of the Symbols Order and does not overlap.

Further, in para 55, the Commission elaborated:

... disqualification of a legislator from membership of the Legislature by the Speaker is different from removal of a person from membership of a political party. The former situation is governed by the Tenth Schedule of the Constitution, whereas the latter is governed by the Constitution of the political party. The disqualification under the Tenth Schedule results in the member ceasing to be a member of the House. This does not necessarily mean that he ceases to be a member of that political party.

The Commission was using the “different fields theory” in rejecting the point raised by the respondent that the commission should defer its decision until after the disqualification proceedings  against the petitioner group is decided by the speaker or else it would result in “irreversible consequences.”

A similar line of reasoning was employed by the Commission in deciding the dispute related to Kerala Congress (Mani)[hereinafter, “KC(M)]. There, the issue was:

Whether the omission of Paragraph 3 of the Tenth Schedule by the 91st Constitutional Amendment Act, 2003 has made redundant the’ power of this Commission to decide dispute cases under the Symbols Order.

 The Commission answered, in para 28:

Tenth Schedule and the Symbols Order operate in two distinct and separate fields. The Tenth Schedule deals with the disqualification of sitting members of Parliament and State Legislatures on the ground of defection and it is the Speaker/Chairman of the House concerned who decides whether a sitting member of Parliament/ State Legislature has incurred disqualification on grounds of defection. On the other hand, the Symbols Order deals with the recognition of registered political parties by this Commission. for the’ purpose of allotment and reservation of election symbols to the recognized political party and further allotment of election symbols to the candidates sponsored by them at the time of elections.

Although the question of law in both the cases were different, the reasoning used was premised on the understanding that ‘Tenth Schedule proceedings’ and ‘Symbol order proceedings’ operate in ‘two distinct and different fields’. The implication is that the commission while deciding a dispute under Para 15 of the Symbols Order does not take into consideration the Tenth Schedule of Constitution.  This reasoning assumes that deciding one aspect has no ramifications or implications on the other. I argue that the “different fields theory” used by the commission in deciding a dispute under Para 15 is incorrect view of the law.

The Nexus

The different fields theory does not have an application when it comes to Symbols order and Tenth Schedule. The argument is apparent if we look closely at the present case.

Here, 36 MLAs from the Shinde Faction claimed to be the true Shiv Sena and defied the party whip by not attending the meetings called by the Uddhav Thackeray Faction. Therefore, disqualification proceedings were initiated against these members for indulging in anti-party activities and having ‘voluntarily given up the membership of the party’. The Speaker had not yet taken a decision on their disqualification when the order of the Commission came out.

However, after the order, the proceedings before the speaker become nugatory. Since the commission declared the Shinde-faction as the original Shiv Sena party, they never effectively left the party or indulged in anti-party activities or defied any party whip. As a result, the disqualification proceedings are, in effect, pre-decided by the order of the commission. On the other hand, the members of the Thackeray faction have now become liable for disqualification in case they do not align with the Shinde Faction. Therefore, it is wrong to assume that they ‘Symbols Order’ and ‘Tenth Schedule’ operate in distinct fields. The decision under Para 15 of the Symbols Order has significant bearing on disqualification proceedings. As was argued, ignoring this nexus between the Symbols Order and Tenth Schedule would have “irreversible consequences.”

The Commission, in arguing that disqualification under the Tenth Schedule does not mean that an individual ceases to be a member of that political party errs by not considering the inverse situation. In this case, an order under Para 15 leads to members of Thackeray faction becoming liable to proceedings under the Tenth Schedule. The theory of ‘different fields’ is hence disproved in this scenario.

Also, the Shinde faction, after forming the coalition government appointed a speaker aligned to their government which helped in stalling the proceedings. The decision of the commission further closes the gate on any possible action against the alleged rebel members.

The Effect of the Nexus

Para 15 of the Symbols Order empowers the Commission to determine, in case of splinter groups, which of the rival groups or sections is the party which was entitled to symbol. (see Sadiq Ali) Almost always, there arise splinter groups in the legislative and organisational wing of the partywhich claim to be the original party. Prior to insertion of Tenth schedule, the commission envisaged the ‘test of majority’ in order to determine which of the rival groups is entitled to the ‘reserved symbol’ of the original party. This was also upheld in Sadiq Ali And Anr. Etc vs Election Commission Of India. However, after the insertion of the Tenth schedule, I argue, the ‘test of majority’ is an irrelevant consideration in the legislative wing of the party.

Para 2 of the Tenth Schedule reads, in relevant part:

… a member of a House belonging to any political party shall be disqualified for being a member of the House … if he has voluntarily given up his membership of such political party…

Explanation.—For the purposes of this sub-paragraph,— an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member…

Para 2 of  the Tenth schedule clearly highlights that the ‘original political party’ means the party which set the elected member ‘as a candidate for election.’ Therefore, in order to determine which rival group is the original political party and entitled to the ‘reserved symbol’, the commission need only decide which group was in-charge of setting up the candidates for elections.

The above argument assumes greater significance in the present case wherein the dispute was decided by the commission by applying the ‘test of majority’ only in the legislative wing of the party. In this case, the 38 Sena rebels of the Shinde-Faction were set up as candidates to the legislative assembly by the Shiv Sena Paksha Pramukh as per Article XI of the Shiv Sena constitution. The Paksha Pramukh of the party during the elections was Shri Uddhav Thackeray who had the ultimate authority in all matters concerning the Party policy and the Party administration.

I therefore agree with Karan Kamath in his post where he argues that “the Commission’s insistence on a ‘democratic spirit’ [in the Party Constitution], once again disregards the right to associate on members’ own terms.” As a result, the non-consideration of the Party Constitution by the Commission for being ‘undemocratic in spirit’ is, in my opinion, wrong. Consequently, the commission should have deferred its decision until after the disqualifications proceedings were decided by the speaker. That way, the threat of ‘irreversible consequences’ flowing from Para 15 is thwarted as argued above. Also, it brings coherence in deciding these interconnected matters without pre-deciding an issue and upsetting other procedures in place. Then, and only then, the commission should decided the dispute under Para 15 of split in the party. This would mean the commission applying Para 2 of the Tenth schedule in recognising the ‘original political party’. As argued above, it would mean declaring the UT faction as the ‘original Shiv Sena.’

However, not only did the commission decide the matter under Para 15 before the decision of the speaker, it also applied the ‘test of majority’ in recognising the ‘original Shiv Sena.’ The  commission ignored the implications of the Tenth schedule by using the ‘different fields theory’ when in fact both the symbols order and tenth schedule have become intertwined in deciding splits in the legislative wing of the party. It also used the precedent in Sadiq Ali without acknowledging the changed circumstances after insertion of Tenth Schedule.

Moreover, as a consequence, the commission in its previous orders has failed to understand the significance of the deletion of Para 3 of the Tenth Schedule. Para 3 of the Tenth Schedule reads:

3. Disqualification on ground of defection not to apply in case of split –

Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party –

a) He shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground –

1. That he has voluntarily given up his membership of his original political party; or
2. That he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorized by it that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of  such voting or abstention; and

b) From the time of such split, such faction shell be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph.

Thus for the purpose of paragraph 3, two things were required. One is a split in the political party and one-third members of the Legislature party consists of the group splitting the original political party. (Baljit Singh Bhullar) It is clear from a reading of the said para that it recognised a split in political party only if at least one third members in legislative wing of the party split away. After its deletion, there is no basis, in constitution or statute, for recognising a split in the legislative wing in the party. Such splits have to be dealt with under the Para 2 of the Tenth schedule of the party. In this regard, I agree with Dr. Singhvi, arguing, in context of Para 3, that “if something is deleted, we must give effect to the intention of that deletion”. The reason behind deletion of Para 3 of the Tenth Schedule was on account of its ‘destabilising effect on the Government’. (see 91st amendment). The  decision was taken in the background of severe criticism against Tenth Schedule for enabling instability in governance by allowing bulk defections under Para 3&4. (see report) In light of this, the Commission was bound to not recognise the splinter group of legislative wing of the party as the ‘original political party’, more so, if it threatened the stability of government. Otherwise, as happened in this case, the commission would render the deletion of Para 3 as nugatory. As we now know, the splinter group formed a new coalition government. The decision of the commission in recognising the splinter group as the ‘original political party’ legitimises a ‘split’ in political party which, in fact, what was sought to be curbed in the first place by deletion of Para 3.

The Commission, by not acknowledging the effect of the deletion of Para 3 on the Symbols Order, fails to give effect to the Tenth Schedule of the constitution. As PDT Achary argues, constitutional law, which is the Tenth Schedule, should have precedence over a statute such as Symbols order (here). An argument that article 324 gives wide plenary powers to commission to decide issues in such manner also falls flat in light of the judgement in Mohinder Singh Gill and another v. Chief Election Commissioner which defined the ambit of article 324:

Article 324 operates in areas left unoccupied by the Legislation. The words “superintendence, direction and control” as well as “conduct of all elections” appearing in Article 324 are in broadest terms and operate in areas left unoccupied by Legislation.

Therefore, the commission must abide by the Tenth Schedule of the constitution wherever it is applicable. The commission cannot decide disputes without acknowledging the presence and effects thereof in deciding disputes under the Symbols Order, as in this case.

What next?

The order by the commission upholds a dangerous precedent. The order flies in the face of the Tenth Schedule. As observed in Kihoto Hollohan vs Zachillhu And Others:

A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival.

This judgement puts the survival of political parties in jeopardy. The SC, in upholding the Tenth schedule, recognised the fundamental role of political parties in the political process. On the other hand, the Commission, by recognising a rival group within the legislative wing as the original party, furthers the evil of political defection. It upturns the objective of the schedule to ‘curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy.’ The commission, in this case, by declaring the Shinde-faction as the original party renders the disqualification proceedings before the speaker futile. It in effect encourages political defection as long as the numbers satisfy the ‘test of majority.’ This result completely violates the purpose behind Tenth Schedule and enables further exploitation of the its inherent loopholes.

In my opinion, it is time for us to acknowledge the flaw in the reasoning underlying Para 2 of the Tenth Schedule which was highlighted in Kihoto Hollohan:

That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bonafide. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between `defection’ and `split’.

The presumption that as the number of defectors increase, there is a bonafide intention behind the defection is flawed. This loophole has been used too often in the current times to threaten the stability of state governments. We must acknowledge the role of money in luring defections irrespective of whether by individuals or groups. In the past, group defections in Madhya Pradesh, Karnataka, and recently in Maharashtra, only show that any presumption of bona fide intention is wishful thinking. However, the responsibility squarely lies on the legislature to put its house in order.

Guest Post: Proportionality’s Fifth Prong – A Reassessment

[This is a guest post by Rudraksh Lakra.]

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Introduction

In this piece, I examine how the recent decision of the Supreme Court in Ramesh Chandra Sharma v State of Uttar Pradesh (Civil Appeal No 8819 of 2022) (“Ramesh v UP”) contributes to its jurisprudence on proportionality. I had previously noted in a blog post that the Supreme Court has yet to clearly define and consistently apply the standard of proportionality in its jurisprudence, a sentiment shared by many others (see here, here, here, here, here, here, here, here, and here). In fact, the Court’s track record on proportionality is best described as “patchy”.

Rather than extensively discussing the application of proportionality in the case of Ramesh v UP, I shall focus on the theoretical concerns that emerge from the judgement. Specifically, the judgement’s introduction of a “fifth prong” to the standard of proportionality: the requirement of “adequate safeguards”. I suggest that this prong is not actually a fifth stage of the test, but rather an inquiry that should be made within the existing stages of the proportionality test. This interpretation best enriches the standard of proportionality. I also explain at which stages the Court ought to demand and examine the requirement of “adequate safeguards”.

Standard of Review

The Supreme Court in the Ramesh v UP case was tasked with adjudication on the constitutionality of an impugned administrative measure against the touchstone of Article 14. The Court applied three standards for this task, the standard of reasonable classification, arbitrariness, and then finally proportionality. Although it has become customary for the Court to apply these tests together, they require the state to meet vastly different expectations and evidentiary burdens. Without delving into the criticisms of the standards of review under Article 14 and how they could be redesigned, which others have already examined (see here, here, here, here, here), I would like to make two limited points. [A], the first and second prongs of the proportionality standard already encompass these two less demanding tests, as implicitly acknowledged by the Court itself (see paragraph 52). [B] Second, given this overlap, it is unclear why the Court applies all three standards simultaneously, which goes against the principle of judicial economy.

Standard of Proportionality

The Court remarks that proportionality has been developed by the Indian Courts throughout the years and has now attained the form of a “five-pronged test”. For this assertion, the Court relies on the K. S. Puttaswamy v. Union of India (2017) (“Puttaswamy I”) judgement, and more recently, in the Gujarat Mazdoor Sabha v State of Gujarat (2020) (“Sabha v Gujarat”).

According to the Court in the case of Puttaswamy I, a nine-Judge Bench of this Court had laid a four-pronged test that can be summarised as:

…The action must be sanctioned by law;

The proposed action must be necessary in a democratic society for a legitimate aim;

The extent of such interference must be proportionate to the need for such interference;

There must be procedural guarantees against abuse of such interference. (Paragraph 49)

This paragraph along with the opinion of J. DY Chandrachud is interpreted as the Supreme Court endorsing the standard of proportionality in the Puttaswamy I judgement. This interpretation was initially adopted by one of the editors of this blog and has found support in subsequent decisions of the Supreme Court and academic literature (see here, and here). However, there was a lack of clarity regarding both the substantive content and evidential requirements of the test beyond the prima facie agreement between the bench vis-à-vis the adoption of the test (see here, and here). The plurality opinion contained an internal contradiction in the description of the design of the proportionality at various parts of the opinion, and it adopted evidentiary standards that were deferential to the state (see here, and here). On the other hand, J. Kaul, whose opinion was the controlling one, adopted the standard proposed by the petitioners without any guidance regarding the evidentiary standards (see here and here). The petitioners had forwarded the standard followed by the European Court of Human Rights, which uses the term “necessary in a democratic society” (see here, and here). This term has a very specific import in the European context and takes into account the “pressing social needs” within member states, which guides the European Court of Human Rights’ margin of appreciation jurisprudence. There was no clarity as to how this standard would be harmoniously incorporated into the existing rights review framework in India. In fact, the culture in the European Court of Human Rights is not to apply to four-prong test in a structured and sequential manner in every case, rather their focus is on the least restrictive stage and especially the balancing limb. 

The Supreme Court interprets the Sabha v Gujarat as laying down the following standard: “in order to determine the validity of state action that could infringe on fundamental rights, it must pass the following conditions, namely, (i) [t]he interfering with the fundamental rights must have a state purpose, (ii) the said rights-infringing measure must be based on a rational nexus between the interference and the state aim, (iii) the measures must be necessary to achieve the state aim, (iv) the restrictions must be necessary to protect the legitimate objective and (v) [t]he state should provide sufficient safeguards for the possibility of an abuse of such rights-infringing interference (Paragraph 50)”. The Court observes that “[a]lthough the fifth prong, as mentioned in the Gujarat Mazdoor Sabha (Supra) has not been expressly mentioned in Puttaswamy, Chandrachud J (as His Lordship then was), in our view, rightly has read that in the Gujarat Mazdoor Sabha case (supra) to complete the test (Paragraph 51)”.

Relying on Sabha v Gujarat, the Supreme Court adopted the fifth prong of proportionality, i.e., “sufficient safeguards”. The rationale for this adoption is found in another paragraph where the Court notes that “[s]tate action that leaves sufficient room for abuse, thereby acting as a threat against the free exercise of fundamental rights, ought to necessarily be factored in in the delicate balancing act that the judiciary is called upon to do in determining the constitutionality of such state action – whether legislative, executive, administrative or otherwise (Paragraph 51)”. As Bhatia has already noted, this paragraph recognizes two key points. Firstly, it acknowledges that abuse “does not take place outside the law, but is baked into the law”. Secondly, it places the burden on the State to proactively address and reduce the risk of abuse within the legislation itself. Bhatia concludes that “in future, highlighting the potential for abuse in a law is a good ground for challenging its constitutionality, under the proportionality standard.” By considering the sufficiency of safeguards, the Supreme Court has an opportunity to provide guidance on the baseline safeguards that must be complied with in specific cases. For instance, over the decades, the European Court of Human Rights has developed a rich jurisprudence on sufficient safeguards. It has established certain baseline safeguards for cases involving surveillance, DNA profiling, and data protection (see here, here, here, here, and here). This jurisprudence should be developed gradually, in a case-by-case manner, and should be context-specific. If this jurisprudence is well-developed, it can help internalise baseline good practices among state actors and increase the burden on the state to justify its interference, thereby acting as a counterweight against the abuse of state power. In the next section, I explore how the requirement of sufficient safeguards can best operate in the context of proportionality and enrich its analysis.

Incorporating Adequate Safeguards within the Proportionality Framework

As previously mentioned, in Ramesh v UP, the Supreme Court drew inspiration from the Sabha v Gujarat judgement and included “adequate safeguards” as part of the fifth prong of proportionality. While I support the inclusion of the requirement of “adequate safeguards”, I do not believe it should be treated as a separate element of the test. Rather, a more strategic and appropriate approach would be to incorporate the requirement within the existing four pillars of the test. According to scholar Panaccio, proportionality is best viewed as a heuristic tool, where the quality of reasoning and justification improves as the quality of the information provided at each stage of the test improves. Understanding the design and effectiveness of the safeguards could enhance the stages of necessity and balancing (more on this shortly). It is not sufficient to assess a state’s measure in isolation; instead, the measure’s design as a whole must be closely scrutinised in the specific context and circumstances of the case. From this, it follows that understanding the impugned measures along with its proposed safeguards is a precursor to and is indispensable to the process of assessing its constitutionality at each stage.

Alternative Imagination of Proportionality

In this sub-section, I build upon my claim that “adequate safeguards” should be incorporated with the  requirement of proportionality but not as a distinct limb of the test. For this objective, I shall take a case study and explain how the examination of the stage of necessity and proportionality stricto sensu/balancing would be augmented by the examination of the stage. In fact, these are the two stages where Court often examines and reads in safeguards within the impugned measure. For the case study, let us take up a legislation that purports to provide a framework for communication surveillance. 

Necessity

At the stage of necessity, the state is required to adopt the least restrictive measure that would achieve its objective. The different versions of the test diverge on the question of the extent to which an alternative measure needs to advance the stated goal. According to the dominant version of proportionality, the alternative must achieve the state’s goal to the same extent (the “traditional understanding of necessity”). However, a different understanding of this stage is based on the decision of the Canadian Supreme Court in Alberta v Hutterian Brethren of Wilson Company. According to this, at the stage of necessity, the state should adopt the less restrictive alternative that achieves its aim to a “real and substantial degree”.

Under both the Hutterian model of necessity and the traditional understanding of necessity accounting for safeguards is integral to the process of conceptualising alternatives. In the context of the communication surveillance law, possible less restrictive measures could include ex-ante and ex-post independent review, incorporating data protection principles, establishing the procedure for authorisation, defining the role of actors, exception of certain categories, and redressal mechanism. This is not to say that every one of these possible alternatives would be the “legitimate” alternative measure in contrast to the state’s measure and this would also be contingent on the version of the necessity a Court adopts. For example, if a court applies the traditional understanding of necessity, there is a greater chance that an alternative like ex-ante and ex-post oversight by an independent body (Alternative A) would not be considered a legitimate alternative compared to only ex-ante oversight by an independent body (Alternative B) in achieving the state’s goal, as it adds preliminary procedural steps before initiating an investigation. However, if the court adopts the Hutterian model of necessity, Alternative A may be considered a better alternative than Alternative B, as it would still advance the goal of state communication surveillance albeit to a slightly less extent.

Regardless of which version of necessity is adopted, taking into account the feasible safeguards, as discussed above, allows the Court to examine a number of alternatives. Another tactical advantage is that this enables the Court to explore less restrictive options without questioning the wisdom of the means adopted by the state. If the Court were only to review the measure by itself without considering the safeguards, it would significantly limit its scope of inquiry. In this scenario, the Court could only envision alternatives that would question the wisdom of the means adopted by the state. In the context of communication surveillance, such potentially less restrictive alternatives could be investigative tools that do not involve communication surveillance.

Proportionality stricto sensu/Balancing

At this stage, the extent of the interference with the right/interest should be proportional to the extent of contribution of the state’s measure to the competing right or interest. To this end, the two interests/rights have to be balanced against each other. Let us return to the example of communication surveillance legislation. One important factor in determining if the law is disproportionate will be the possibility of abuse. To understand the possible degree of abuse, the incorporation of the aforementioned safeguards is integral. This would locate the analysis in the concrete circumstances of each case. To ensure that the measure proportionally balances the right and the competing interest, a court may even read in or demand that the state incorporate certain safeguards. In the context of communication surveillance legislation, this may include safeguards that may not be considered legitimate alternatives under the third stage, such as ex-ante and ex-post oversight by an independent body, as discussed earlier.

In conclusion, the requirement of adequate safeguards should be incorporated within the existing framework of proportionality. This is because the requirement is already inherent within the different stages of the test, and considering safeguards is crucial for the proper adjudication of proportionality. Moreover, I posit that safeguards are best examined and incorporated at the third and fourth stages of proportionality. However, the approach of the European Court of Human Rights regarding the element of adequate safeguards is distinct. In the following sub-section, I will present arguments against the adoption of the approach of the European Court of Human Rights.  

European Court of Human Rights Approach to Adequate Safeguards

One element of the European Court of Human Rights test to determine the consistency of a member state’s interference is to ensure that any interference by a public authority with a right has to be in accordance with the law. This expression not only necessitates compliance with domestic law but also relates to the “quality of that law”, requiring it to be compatible with the “rule of law” (Big Brother Watch and Others v. the United Kingdom [GC], 2021, para 332). Quality of law includes the following requirements: clarity, foreseeability, accessibility, and adequate safeguards to protect against arbitrary interference (Big Brother v. UK Para 332-339).

In my view, examining “adequate safeguards” is more appropriate at the stage of necessity and balancing, rather than legality (as is the approach of the European Charter of Human Rights). I present two arguments to support this claim. Firstly, as we have seen before, the element of ‘adequate safeguards’ can be included within the test, while enriching the adjudication at the third and fourth stages. Secondly, the European Court of Human Rights practice of examining the adequacy of safeguards at the stage of legality can introduce balancing at this stage.  This means that the Court would then be required to examine whether the safeguards are designed in such a manner that it can proportionately address the harm. For example, in the case of Roman Zakharov v. Russia, the Grand Chamber of the European Court found that although Russian law requires prior judicial authorization for interception measures, in practice, Russian judges only apply purely formal criteria in deciding whether to grant authorization, rather than verifying the necessity and proportionality of imposing such measures (Para 272). Introducing balancing at the stage of legality raises serious conceptual concerns because it conflicts with and significantly devours the scope of balancing. Furthermore, the Supreme Court has a long history of carrying out general “all things considered” balancing exercises between various interests, rights, and duties at stake in the matter at hand. Deviating from the discipline-inducing structural and sequential nature (see here, here, here, here, and here) of the test can lead to the Court falling prey to its old habit. This would lead the Court to again applying lower standards of review under the disguise of applying proportionality (see here, here, here, and here). Finally, it is also important to remember that balancing is the most controversial stage of the test  (see here, here, here, here, and here) so introducing it within the stage of legality can raise legitimacy concerns. 

Conclusion

The Supreme Court decision in Ramesh v UP has contributed to the evolution of proportionality in India by introducing the requirement of “adequate safeguards” as part of the fifth prong of the test. However, I have attempted to make a case for the incorporation of “adequate safeguards” within the existing four pillars of the proportionality framework. I sought to demonstrate this would enable the Court to engage in a nuanced and contextual analysis of measures in each case. I clarified at which stages this inquiry is best conducted.

The evolving proportionality jurisprudence of the Supreme Court has highlighted a lack of understanding of the theoretical underpinning of the test, its architecture, and how it operates in practice. As Chandra has noted in her work the adoption of the proportionality test has not unsettled or disrupted “preexisting configurations of relations between citizens and the State as mediated through rights, or between the judiciary and other branches.” For proportionality to be a bridge to “culture of justification” the duty falls squarely on the Supreme Court to first, provide the proportionality test a theoretical grounding which best aligns with the constitutional vision, second, to design and coherently lay down the both substantive and evidentiary aspects of the test in manner that forwards this theoretical framework and finally, to apply this test in concrete cases. The last aspect is the most pertinent as theoretical expositions and explications matter little if they do not translate into a counterweight against the executive’s excess in cases where the stakes are “real”.