Evictions, Homelessness and the Constitution: The Delhi High Court and the Limits of Judicial Imagination

[This is a guest post by Rishika Sahgal.]


Two recent decisions of the Delhi High Court engage with rehabilitation for jhuggi dwellers in the face of the demolition of their homes. On 4 July, in Samarpal v Union of India the Delhi High Court interpreted the relevant rehabilitation policy to hold that the jhuggi dwellers were eligible for rehabilitation. On 2 August, in Shakarpur Slum Union v DDA, the Delhi High Court stayed a demolition exercise and granted temporary relief, but did not order a survey to determine eligibility for rehabilitation for the jhuggi dwellers. I discuss both decisions in detail below.

Overall, these cases are symptomatic of the original sin in Olga Tellis, wherein the Supreme Court recognised only a conditional right to rehabilitation. In subsequent cases, there has been no consistent response of courts regarding the requirement of rehabilitation prior to eviction. The inconsistency and inadequacy of these decisions will be resolved only once courts recognise rehabilitation as an essential component of residents’ right to shelter and housing, so that no evictions can take place without provision of rehabilitation, when the eviction will render residents homeless.

Samarpal

Samarpal represents the best case scenario under the existing framework. In the case, the Delhi High Court interpreted an existing rehabilitation policy in a rights-affirming manner, to hold that residents were eligible for rehabilitation.

Shahid Basti, a settlement near the New Delhi Railway Station, was demolished by the Indian Railways in 2008, to expand and modernise the station. Five residents of Shahid Basti claimed access to rehabilitation under the relevant policy, according to which residents of jhuggis which had been set up on or before 30 November 1998 were eligible for rehabilitation. The Railways claimed that these five residents were ineligible for rehabilitation, because their jhuggis had been set up in 2003. The residents admitted that the jhuggis they were living in at the time of demolition had only been set up in 2003, but they argued that they had been residing in another location near the New Delhi Railway Station since the 1980s, and were evicted by the Railways from that location in 2003, for a prior expansion of the station. They argued that their residence since the 1980s, rather than since 2003, ought to be considered for determining their eligibility for rehabilitation. These facts were not in dispute, and the controversy in the case revolved around how the cut-off date ought to be applied for determining eligibily for rehabilitation – whether residence in the jhuggi being demolished ought to be considered, or whether residence in a prior jhuggi also ought to be taken into account.

Justice C Hari Shankar of the Delhi High Court held that the rehabilitation policy ought to be ‘broadly and liberally interpreted’, given that it was an ameliorative scheme designed to fulfil fundamental rights (the right to shelter as part of the right to life under Article 21) and directive principles of state policy (Articles 38 and 39). If residents were able to indicate their residence prior to the cut-off date of 30 November 1998, albeit not in the jhuggis which were demolished by the Railways in 2008, they ought to be eligible for rehabilitation. This was more so because the Railways was responsible for the prior eviction of residents in 2003, and ought not to be able to take advantage of its prior action to avoid granting rehabilitation to residents eligible under existing policy.

Shakarpur Slum Union

In this case, the Delhi High Court adopted a restrictive approach towards the issue of rehabilitation, rather than the ‘broad and liberal’ approach in Samarpal. The case involved the demolition of 300 jhuggis by the Delhi Development Authority (‘DDA’). No notice was given prior to the demolition, and residents were unable to gather their belongings as their jhuggis were bulldozed.

The petitioners in the case, a union of the residents of Shakarpur basti, argued for the implementation of prior decisions of the Delhi High Court in Sudama Singh and Ajay Maken, The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015, and the protocol framed under the Delhi Urban Shelter Improvement Board Act 2010 (‘DUSIB Act’). They asked that the Court order a survey to be conducted to determine the eligibility of residents for rehabilitation under existing policy, and for rehabilitation to take place through meaningful engagement with residents. They were not asking for a revision of existing policy, nor for the Court to go above and beyond existing policy. Rather, they sought relief within the limits of existing judicial doctrine and state policy.

Justice Subramonium Prasad of the Delhi High Court read the requirements of Sudama Singh, Ajay Maken, the DUSIB Act and the 2015 rehabilitation policy in a restrictive manner. He determined that only those residents were eligible for rehabilitation, who were already notified by DUSIB as being so eligible (para 37). If a jhuggi jhopdi cluster had not already been notified, then it could not be eligible for rehabilitation, even if it fulfilled the requirements of the 2015 policy, and especially the cut-off dates put in place. This was a re-writing of the 2015 policy, and the protocol for eviction, rehabilitation and relocation of jhuggis in Delhi.

The Court simultaneously placed the burden on residents to prove their eligibility under the 2015 policy; and held that a writ court cannot get into ‘excruciating details of fact’ (para 29). But this is effectively having it both ways; instead, the Court ought to have required that these facts be determined by the relevant authority – DUSIB – by conducting a survey through meaningful engagement with residents, in accordance with Sudama Singh, Ajay Maken, the 2015 rehabilitation policy and the relevant protocol.

It is useful to recall the protocol at this point. This was drafted while the Delhi High Court was hearing Ajay Maken (para 41), and requires DUSIB to be involved prior to all evictions taking place in Delhi. The relevant land-owning agency is required to send a proposal for removal of jhuggis to DUSIB sufficiently in advance, and DUSIB is required to determine whether the residents are eligible for rehabilitation under the 2015 policy through conducting a survey. The protocol is explicit that:

If the JJ Basti was in existence prior to 01.01.2006, then the DUSIB will notify the said Basti under s 2(g) of the DUSIB Act, if not notified earlier

When applied to the Shakarpur case, this should mean that DUSIB conduct a survey to determine the eligibility of residents under the 2015 policy. The protocol contemplates a situation wherein a basti has not already been notified under s 2(g), and requires that the basti be notified once it is found that residents are eligible for rehabilitation. A literal interpretive approach would lead to this conclusion, let alone a broad and liberal construction of the protocol.

While the Delhi High Court in Shakarpur included lengthy quotes from Ajay Maken and the protocol, but it did not enforce the same, and particularly paragraph 189 of Ajay Maken wherein Justice Muralidhar held:

The key elements of the 2015 Policy, which are in conformity with the decisions of the Supreme Court of India discussed in Part VII of this judgment as well as in Sudama Singh, would apply across the board to all bastis and jhuggis across the NCT of Delhi. In other words, conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in all of the above decisions.

In this case, the Delhi High Court granted limited relief, holding that no demolition could take place without notice, early in the morning or late in the evening, and that a temporary location was to be provided to residents facing demolition so that they weren’t rendered completely shelter-less. The requirement of at least a temporary relocation may yet create more radical possibilities in an otherwise narrow decision.

Bourgeoise environmentalism, fragmentation and polyvocality

It should be noted that the demolition in the Shakarpur case took place upon the orders of the National Green Tribunal (‘NGT’), in a matter regarding rejuvenation of the Yamuna floodplains, whereby jhuggis on the floodplains were required to be removed by the DDA. When the Shakarpur Slum Union raised concerns regarding a violation of their right to housing if the DDA were to execute the NGT’s orders, without following the relevant judicial doctrine and state policy requiring determination of eligibility for rehabilitation prior to eviction, the NGT clarified that ‘it is only concerned with the pollution and is not the authority or forum to entertain pleas against demolition.’ On the other hand, the Delhi High Court held that, ‘as the NGT has assumed jurisdiction of the sensitive issue pertaining to the resuscitation and rejuvenation of the Yamuna floodplains, this Court does not deem it appropriate to disturb the same by way of a mandamus to the DDA to allow DUSIB to conduct a survey.’

This raises two issues. The first is of bourgeois environmentalism. As Baviskar argues, this kind of environmentalism does not strike at the root of what is jeopardising our environment; rather, it sacrifices the urban poor to resolve environmental issues as framed by the urban elite, through solutions that exacerbate inequality and often environmental degradation. It does not begin a shared conversation about environmental concerns that affect everyone, but more so the most marginalised. Here, to protect the Yamuna floodplains, jhuggis were demolished, whereas large scale development on the Yamuna floodplains, including an Information Technology Park, metro depot, and the sprawling Akshardham temple complex have been permitted to remain on the floodplains (see Baviskar ch 6).

Second, it raises the issue of fragmentation. If the NGT is concerned only about the protection of environment, but in the implementation of its orders, the state impinges on the right to housing, then it is a matter of concern that the issue about residents’ right to housing is not to be heard before the same forum. Simultaneously, the High Court cannot simply defer to the NGT without considering the impact on the rights of residents of jhuggis when the DDA implements the orders of the NGT. It ought to have required implementation of relevant judicial doctrine and state policy, especially conducting a survey prior to eviction to determine residents’ eligibility for rehabilitation, as the DDA implemented the NGT’s orders.

The issue of fragmentation of judicial decision-making across different fora should be seen in the backdrop of polyvocality within the courts. The response of Indian courts to the issue of rehabilitation prior to eviction has always been inconsistent, and it is important to recognise that this inconsistency is exacerbated by polyvocality within the High Courts as well as the Supreme Court. The High Courts and Supreme Court do not hear cases en banc, but rather in benches of different strengths. As I have indicated above, two different benches of the Delhi High Court took very different approaches to the issue of rehabilitation prior to eviction in Samarpal and Shakarpur Slum Union, indicating the inconsistent jurisprudence being developed by the Court.

The shifting contours of rehabilitation and the need for resolution

On the whole, Indian courts have not taken a consistent approach towards the requirement of rehabilitation prior to eviction. In Olga Tellis, the Supreme Court recognised a conditional right to rehabilitation, requiring the state to provide alternate land under existing schemes to people being evicted, if they were found to be eligible under those schemes. That has placed constraints upon any future cases engaging with the issue of rehabilitation; arguably for this reason, courts have not held that residents must be eligible for rehabilitation regardless of the limits in existing legislation or state policy. On the other hand, courts have required eviction without rehabilitation, even with the existence of state policy requiring rehabilitation to some extent. While Almitra Patel is a prominent example, perhaps Okhla Factory Owners Association is the most stark case of this kind, wherein the Delhi High Court declared a scheme for rehabilitation unconstitutional when the scheme permitted evictions from public land only when alternate accommodation was made available to all those being evicted.

This inconsistent approach towards the requirement of rehabilitation prior to eviction ought to be resolutely resolved once and for all, by holding that rehabilitation is an essential component of the right to shelter and housing, when an eviction will render people homeless. It has been almost 40 years since a constitutional bench of the Supreme Court last heard a case on the right to housing in Olga Tellis, and perhaps it is time to revisit the issue to strengthen the right to shelter and housing.

Separating Power: The Kenyan Supreme Court’s Judgment on Constituency Development Funds

The separation of powers is assumed to be an integral element of contemporary democratic constitutionalism. However, mapping the ideal of the separation of powers onto the complex reality of the modern administrative State is a challenging task. Enforce separation too rigidly, and governance will become impossible. Allow for too much leeway, and you risk a drift towards concentration and centralisation of power. How and where to draw the line has been a vexed question, which constitutional courts across the world have been forced to grapple with.

Introduction

In this context, the judgment of the Supreme Court of Kenya in The Institute for Social Accountability vs The National Assembly (8th August 2022) is a landmark judicial contribution to this global conversation. At issue before the Supreme Court was the constitutionality of the Constituency Development Fund Act of 2013 (as amended by Act No. 36 of 2013) [the “CDF Act”]. In short, the CDF Act created a fund [the “Constituency Development Fund”, or “CDF”], with money up to 2.5% of national government revenue collected in the financial year. The CDF would be used to fund various “community-based projects”, for the benefit of “a widespread cross-section of the inhabitants of a particular area” (s. 22(1)). The implementation of these projects would be monitored by the Constituency Development Fund Committee of the particular constituency (s. 31(3)). Importantly, eight out of ten members of the CDF Committee were to be appointed by the local member of parliament (who was, himself, an ex officio member of the Committee) (s. 24(3)).

The Issues

If we take a step back, therefore, we can see that in simple terms the CDF was (a) a national fund, (b) to be deployed for developmental projects on a constituency-wise basis, and (c) the implementation of the projects was under the effective control of the local MP. To Indian readers, this will be rather familiar: it is quite similar to the MPLAD scheme.

The CDF Act was challenged before the High Court of Kenya, which found it to be unconstitutional. The High Court’s judgment was partially upheld and partially reversed by the Court of Appeal. The case then traveled to the Supreme Court of Kenya, which – by its judgment on 8 August 2022 – also found the CDF Act to be unconstitutional in its entirety.

The gravamen of the substantive challenge before the Kenyan courts can be summed up through the following two propositions: first, the CDF Act undermined the devolved system of government under the Kenyan Constitution, by setting up a parallel, third level of government (at the constituency level), in addition to the national and the county levels, without constitutional sanction (this is essentially a federalism challenge, although – as we shall see – the Court did not analyse it in federal terms); and secondly, the CDF Act violated the separation of powers by granting MPs – who are part of the legislature – essentially executive powers of administration and implementation of developmental projects. There were other – procedural – challenges as well: for instance, it was argued that the CDF Act substantially affected the functioning of county governments. This required it to be scrutinised by the Kenyan Senate (the “Second Chamber”), which – under Article 96 of the Constitution – is tasked with representing the Counties, and safeguarding their interests. This, however, had not been done.

The Involvement of the Senate

On the procedural issue, the Supreme Court found that the 2013 amendment to the CDF Act had transferred the constitutional basis of the CDF from Article 202(2) of the Constitution (which authorises the national government to make “additional allocations” to county governments) to Article 206(2) of the Constitution (which authorises withdrawal of money from the Consolidated Fund). The Court found that this alteration of the constitutional basis of the CDF “had an effect on the functioning of country governments” (paragraph 64). In particular, the CDF Act contemplated that projects would pertain to infrastructural development, such as roads, health, agriculture, and trade, which were within the domain of county governments (paragraph 71). For this reason, the Senate’s involvement was a constitutional pre-requisite, before the CDF Act could have been validly passed (paragraph 72).

While this finding is logical enough, there are two interesting aspects. The first is that in this case, the Speakers of the National Assembly and of the Senate had resolved that the CDF (Amendment) Bill – as it then was – did not concern counties, and therefore, did not need to be tabled before the Senate. The Supreme Court’s response to this was straightforward: it upheld the High Court’s finding that while the decision of the Speaker(s) merited due deference, it did not oust the power of the Court to answer a “question regarding the true nature of legislation.” (paragraph 75) In other words, therefore, despite the Speaker’s position as the leader of the House, their decision on the character of legislation would be subject to judicial review. Naturally, this would apply to other situations as well, such as – for example – classification of bills as Money Bills. The importance of this finding lies in the fact that it allows the judiciary to act as a safeguard against partisan speakers, who can help the ruling party in the First Chamber circumvent the participation of the Second Chamber simply by mis-classifying bills as Money Bills (or, as in this case, as not involving county governments). This is particularly significant, as the Kenyan Constitution does not explicitly guarantee or protect the independence of Speakers. And once again, Indian readers will recall that the exact same issue has been pending before the Supreme Court of India for the last four years.

Secondly, it was argued that the CDF Act offended constitutional design by violating federal principles. The Supreme Court rejected this argument by noting that the Kenyan Constitution was not federal, but a “unitary system of government that decentralises key functions and services to the county unit.” (paragraph 80) It is submitted, with respect, that the distinction between a federal system, and a unitary system with devolution is not an iron-clad one, and there are cases where terminology might obscure more than it reveals. Indeed, if we look at the Supreme Court’s actual analysis on the devolution question (which we shall turn to in a moment), we find that is actually far more respectful of core federal principles than many other “formally” federal polities.

On Devolution

As indicated above, the first core substantive argument before the Court was whether the CDF Act offended the division of functions between national and county governments (see Article 6 of the Constitution). In simpler terms, the issue was whether the CDF Act basically undermined the decentralisation of power guaranteed under the Constitution of Kenya. The Court noted that under Article 95 of the Constitution, the powers of the National Assembly included legislation, oversight over national revenue and its expenditure, and allocation of national revenue between levels of government, but not “the power to implement projects as a service delivery unit at the county level” (paragraph 83). The service delivery mandate was essentially an executive function at the county level, and was therefore meant to be exercised by County Executive Committees which, under Article 179 of the Constitution, were meant to exercise the “executive authority of the County.” Thus, according to the Court:

…where a Member of the National Assembly is allowed to play a role related to functions vested in devolved units, then this will compromise the vertical division of powers between the national and county governments. (paragraph 85)

And in particular:

Subsidiarity is the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affect the life of the inhabitants and allow the development of the country in accordance with local conditions of sub-national units, while matters of national importance concerning the country as a whole and overarching policy formulation are assigned to the national government. (paragraph 88)

The Supreme Court thus held that the Constitution did not authorise the “national government to … usurp the mandate of the county governments.” (paragraph 90) Nor did it authorise a “third level” of governance, tied to the constituency. Crucially, the Court noted that this was because the constituency – in an electoral system – was tied to the idea of political representation, and not service delivery: in essence the constituency is an electoral unit, with its function tied to the functions vested in an MP; and that role, essentially, is a legislative role. (paragraph 92) For this reason, the CDF Act could not be saved by tying it to the unit of the constituency, as the whole purpose of having “constituencies” in the first place was entirely different. I would respectfully submit that this is a very important finding: a clear separation between the constituency as a unit for political representation, and as a unit of service delivery, provides the conceptual foundation for preventing the concentration of power at the level of the MP: it prevents a situation where MPs serve both as legislators, but also as dispensers of project-linked patronage in their constituencies, and – arguably – prevents the incumbency bias that comes along with placing MPs in charge of disbursal of funds for project development within the constituency.

On the Separation of Powers

Indeed, this last bit was an important feature of the Supreme Court’s separation of powers analysis. Arguments before the Court on this point followed a familiar theme, with the Appellants arguing that the CDF Act violated the separation of powers by vesting executive functions with legislators, and the Respondents arguing that there was no such thing as “pure separation of powers.” However, the Court’s response to this is of particular significance. The Court accepted that the Kenyan Constitution did not follow a “pure” separation of powers model, where the branches of government were hermetically sealed off from one another (indeed, which Constitution does?). However, that did not resolve the question in favour of the Respondents. The crucial question that needed to be asked was what purpose separation of powers was meant to serve in a particular constitutional system, and to derive its content from that analysis.

Here, the Court then found that the purpose of the separation of powers was essentially to prevent concentration:

Kenyans having witnessed excesses of absolute power vested in the Executive branch which operated with abandon and riding roughshod over other state institutions sought to constrain and temper the exercise of public power. Citizens during the pre-2010 dispensation chose to respond to excesses of that legacy by explicitly dividing state power into three branches of government to preclude the exercise of arbitrary power. (paragraph 116)

Keeping this in mind, the Supreme Court proposed a two-pronged test for determining when, in a given case, the separation of powers had been violated: first, ask whether a state agency was straying into the “nucleus, core functions, or pre-eminent domain” of another branch of government, from a functional point of view (as discussed in the previous paragraph); and secondly, ask whether the exercise of the impugned power would threaten the values and principles articulated in the Constitution. (paragraph 118) Applying this two-pronged test, the Supreme Court then found, first, that the Constitution was clear about what legislative power entailed: it was representation, legislation, and oversight over the government (paragraph 120). Under the CDF Act, however, through the Constituency Development Fund Committee, MPs were “in effective control [of the Committee] and that means that he/she influences the selection, prioritization of projects, allocation of funds and also monitors the implementation of the projects.” (paragraph 124) Therefore:

This means that the Fund, as conceived under the CDF Act 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fall within the nucleus, core function, or pre-eminent domain of the Executive branch. (paragraph 124)

What of the separation of powers in terms of constitutional values and principles? Here, the Court found that a core function of the separation of powers was to bring about a system of checks and balances, leading to accountability and good governance. At the heart of this was the avoidance of conflict of interest. However, the CDF Act created an open conflict of interest by giving to MPs a personal stake in the determination and implementation of projects out of the National Assembly’s CDF fund. In other words, MPs could not effectively perform their oversight functions over the use of the Fund, if they themselves stood to benefit politically from decisions about its implementation (paragraph 127). Thus, the Court summed up by holding that:

We, therefore, find that a Fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a Fund that allows personnel from the Legislative branch to exercise executive powers is problematic from a constitutional lens. In the context of this case, we adopt the view that the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that is, the maintenance of accountability and good governance. Were we to adopt a contrary approach, as urged by the respondents, even for the best of policy reasons, these constitutional values and principles will be eroded. (paragraph 129)

Comparing Institute for Social Accountability and Bhim Singh

The rigorous and in-depth analysis of the Supreme Court of Kenya stands out particularly starkly when we compare it with the judgment of the Indian Supreme Court in Bhim Singh, where the constitutionality of the MPLAD scheme was challenged (I have briefly analysed this case here). On the issue of the separation of powers, the Supreme Court repeated the mantra of there being no “strict” separation of powers, that “each one of the arms at times perform other functions as well“, and that “it is quite logical for the Member of Parliament to carry out developmental activities to the constituencies they represent” (needless to say, there was no explanation forthcoming for why this proposition is “quite logical”, because – unlike the Supreme Court of Kenya, there was no analysis of the role played by the “constituency” in the political process).

The Supreme Court also repelled the separation of powers challenge by noting that under the scheme the power of the MP was a “recommendatory” power, with the decision about which projects to implement lying with the district authority. Once again, though, the judgment of the Kenyan Supreme Court shows us how a Court need not equate form with substance: even under the CDF Act, the relevant MP was not directly implementing projects, as though he or she was a personal administrator. Rather, what the Court found was that the scheme, as a whole, gave to an MP a measure of effective control over how projects were selected and implemented. It is abundantly clear that MPLAD – in slightly different ways – has the same effect.

The federalism challenge was dealt with by the Supreme Court in similarly superficial fashion, by noting that India is a “quasi-federation”; indeed, it is particularly ironic that the Supreme Court of India used the mantra of the “quasi-federation” to avoid any serious analysis of whether the MPLAD scheme violated the Constitution, while on the other hand, the Supreme Court of Kenya – even while insisting that the Constitution of Kenya is unitary – engaged in a much more detailed consideration of whether the CDF Fund violated the devolved scheme of powers between national and county governments set up under the Constitution of Kenya. One can only wonder what the outcome of Bhim Singh would have been, had the Indian Supreme Court taken a principled approach towards the separation of powers and federalism under the Constitution, rather than a box-checking exercise.

Conclusion

In my view, the judgment of the Supreme Court of Kenya in Institute for Social Accountability vs The National Assembly is a landmark judgment, that makes many significant contributions to the global conversation around constitutional democracy. Among the highlights are: (a) the Supreme Court’s finding that the Speaker’s classification of bills is subject to judicial review, especially in situations where the participation of the Second Chamber turns upon how a bill is classified; (b) the Supreme Court’s clear analysis of the role of the constituency as a unity of political representation, and not of service delivery – and the consequences this has for the powers of MPs; (c) the Court’s principled, two-pronged test for when functional separation of powers is violated, and – in particular – its emphasis on preventing concentration of power and enabling accountability as the basis of the doctrine; and (d) its application of the principle to the case at hand, including the articulation of the distinction between legislative functions and executive functions.

Indeed, if we read the judgment as a whole, what comes through most clearly is the Supreme Court’s pushback against a blurring of legislative and executive functions in a way that makes the constitutional terrain the site of a centralising drift. Although the Court doesn’t say so in as many words, its insistence on articulating the doctrine of separation of powers in a way that gives it “analytical bite” shows a clear preoccupation with preserving the Constitution as a check upon the centralisation of power. In this, there are lessons for all of us, around the world.


[My thanks to Joshua Malidzo Nyawa for giving this piece a once-over.]

The ConCast: Episode 4 (5 August 2022)

In Episode 4 of the ConCast, I spoke to Gauri Pillai about abortion laws and the legal landscape of reproductive rights in India. We discussed the recent High Court and Supreme Court orders relating to a twenty-four-week pregnant woman’s petition for an abortion, the history, design, structure, and implementation of the Medical Termination of Pregnancy Act, the origin of “medical boards”, and what a progressive abortion/reproductive rights law might look like.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

References:

Section 312, Indian Penal Code, 1860 [“IPC”].

Medical Termination of Pregnancy Act, 1971 [“MTPA”.

Medical Termination of Pregnancy (Amendment) Act, 2021.

Medical Termination of Pregnancy (Amendment) Rules, 2021.


Ms X vs Government of NCT of Delhi (High Court order).

Ms X vs Government of NCT of Delhi (Supreme Court order).

Gauri Pillai, “Two Courts, Two Conclusions: Abortion Law in India.”


Suchita Srivastava vs Chandigarh Administration.

Nand Kishor Sharma vs Union of India.

High Court On Its Own Motion vs State of Maharashtra.

Aparna Chandra, Mrinal Satish, Shreya Shree & Mini Saxena, “Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study.”


R vs Morgentaler (Canadian Supreme Court).

ICLP Turns 9 || The Leap of Faith

The Indian Constitutional Law and Philosophy Blog turns nine years old today.

Previous blog anniversaries have been used to look back on important events in the year gone by, or to look ahead to the future. This time around, though, I thought to briefly address a question that seems to become more salient with each passing year: the point – or purpose – of writing about the law (and constitutional law in particular), in the context within which we are presently located.

Recently, I was presenting some of my current research work in a seminar. That research deals with the Indian Constitution as a terrain of contestation between different visions of power. During the Q&A, a Russian political theorist in the audience raised his hand. He said that for him, the very idea of a Constitution as a terrain of contestation was a novel one. The thought that a Constitution could shape and constrain political power, rather than simply becoming whatever the dominant political power desired it to be at any given time, was something inconceivable.

The comment has stayed with me. I was thinking about it last month, for example, when a two-judge bench of the Supreme Court suspended the Xth Schedule of the Constitution through an interim order, and ordered a floor test through another interim order – while the Xth Schedule stood suspended, thus changing the composition of the House – all within the space of two days; soon after, the government fell. Now, you can try and somehow analyse that under existing doctrines of constitutional law. If you try hard enough, and engage in enough linguistic and conceptual pyrotechnics, maybe you’ll even succeed. Or you could trust the evidence of your eyes and ears, and acknowledge that what is happening here is not the application of constitutional law, but the Constitution – and constitutionalism – shaping itself to meet the demands of political power.

Examples of this could be multiplied. I have discussed some glaring illustrations in the seventh anniversary post for this blog. From the non-hearing of crucial cases such as the electoral bonds case, to countless substantive decisions (the most recent being, of course, the PMLA judgment, and other “Executive’s Court” judgments discussed in this blog post) where existing principles of constitutional interpretation are either discarded or simply ignored in order to reach the outcome, it seems to me that our present context is not too dissimilar from what my Russian colleague described: a situation where constitutional law is no longer constraining political power, but instead, is subservient to it, and in many cases, serves to entrench and legitimise it. This is the antithesis of both the idea of constitutionalism, and the idea of the rule of law.

Such a situation raises the obvious question of what purpose – if any – is served by constitutional scholarship and writing, which must continue to assume a reality that no longer exists in practice. In this piece, for example, Andras Jakab discusses various ways in which one may teach constitutional law in such a context – and how one might maintain one’s intellectual integrity in the process – but doesn’t go further in asking why one ought to do so, or what the point of it is.

One answer, I believe, is found in comparative constitutional history. For example, South African lawyers have highlighted the importance of a continued and regular engagement with constitutionalism and the rule of law during the years of apartheid, when – for decades – legal doctrine and court rulings valued neither. The importance of engagement lay in the fact that when South Africa transitioned into a constitutional democracy in the mid-1990s, it did not have to discover from scratch the concepts of constitutionalism and the rule of law. These concepts had been kept alive in adverse circumstances, and this meant that that the the tradition could simply continue, instead of having to be reinvented. The purpose of constitutional scholarship and writing, thus, is future-looking: it seeks its justification in keeping alive an intellectual tradition and a way of thinking that might be held in contempt in the present, but has been indispensable in the past, and will become indispensable again in the future.

If we do take this as the justification for continued constitutional scholarship and writing at this time, however, intellectual honesty demands admitting to ourselves a few uncomfortable truths. The first is that as far as the present is concerned, constitutional scholarship has no tangible contribution to make (to put it bluntly, it is useless). You can, for example, study the drafting history of the Xth Schedule, read all the prior cases on the point, and construct detailed arguments about interpretation, but when the exigencies demand it, the Xth Schedule will get suspended by a one-line interim order of the Supreme Court, and it simply will not matter what the canons of interpretation are. As pointed out above, constitutional scholarship operates in a world in which the Constitution determines the scope and limits of political power. There is another world in which political power determines the scope and limits of the Constitution. When the latter becomes the “real world” – the world in which we live in – then, for obvious reasons, constitutional scholarship becomes as illusory as the world within which it exists.

We then say that the justification for constitutional scholarship lies in the long term, and what sustains it is a vision of the future, much like the South African lawyers were sustained by a vision of the future. However, that requires a second admission, which is that there is no way of knowing just how “long” the long-term might be. Prominent Kenyan lawyers and constitutionalists who fought for constitutionalism and the rule of law in the 1980s were lucky enough to see something of it come to pass within twenty-five years, but not everyone might be so lucky (once again, I’m thinking of my Russian colleague). In that sense, then, continuing to engage in constitutional scholarship and writing requires admitting to oneself that not only is the work useless in the present, but might continue to be useless for a good while in the future, and indeed, one might never actually see it come to any use.

In doing this, therefore, one is betting upon a future that might never come to pass. This becomes even more difficult to justify when one thinks of the fact that there are other, more immediate, and more tangible uses to which the law can be put: for example, bail applications. In that context, continuing to focus on constitutional writing and analysis seems to become an almost unforgivable luxury. To keep doing it, one has to convince oneself to take a leap of faith.

As this blog enters its tenth year, these are the guiding principles under which it will continue to exist. The focus will remain on examining the interface between political power, the rule of law, and constitutionalism in present-day India, without deceit, and without illusions. And to the question of why, the only answer is: we are all on a leap of faith.

The ConCast: Episode 3, Part 2 (31 July 2022)

In Part 2 of Episode 3 of The ConCast, Abhinav Sekhri and I continue our discussion: we talk about Mohammed Zubair’s arrest, and what the events between his incarceration and his release tell us about how the Constitution protects – or fails to protect – the individual from the State.

The Podcast is available to listen below, and also on Podbean Google Podcasts, Apple Podcasts, and Spotify.

Selected References:

State vs Anil Sharma.

P. Chidambaram vs Directorate of Enforcement.

State of UP vs Mohammed Zubair (Sitapur bail order).

Coverage of remand hearing before the Mgaistrate’s Court, Patiala House.

Coverage of the bail hearing before the Magistrate’s Court, Patiala House.

Mohammed Zubair vs State of UP (interim bail order).

Mohammed Zubair vs State of UP (extension of interim bail).

Mohammed Zubair vs State of UP (no precipitate action order).

Mohammed Zubair vs State of UP (Supreme Court bail order).

The ConCast: Episode 3, Part I (30 July 2022)

The ConCast is back! In this Episode, Abhinav Sekhri and I look at the Supreme Court’s PMLA judgment, the interface between criminal law and the Constitution, and we talk about why criminal lawyers are a bit like Leonard Cohen.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

Select References:

Prevention of Money Laundering Act, 2002 [“PMLA”].

Vijay Madanlal Chaudhary vs Union of India [“PMLA Judgment”].

Abhinav Sekhri, “Of Old Wines in New Bottles: The Judgment in Vijay Madanlal Choudhary – Part One.”

Abhinav Sekhri, “Old Wines in New Bottles?: The Judgment in Vijay Madanlal Choudhary – Part Two.”


Peter Alldridge, What Went Wrong With Money Laundering Law? (Palgrave 2015).

Peter Alldridge, Money Laundering Law (Hart 2003).

United Nations Convention Against Corruption.

United Nations Convention Against Transnational Organised Crime.

Financial Action Task Force (FATF) Report on India, 2010.

FATF Follow-Up Report on India, 2013.


Forfeiture Act of 1859.

Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS”].


Tofan Singh vs State of Tamil Nadu.

Nikesh Tarachand Shah vs Union of India.

Ramanlal Bhogilal Shah vs D.K. Guha.

State of Bombay vs Kathi Kalu Oghad.

Satender Kumar Antil vs CBI


Abhinav Sekhri, “Confessions, Police Officers, and S. 25 of the Indian Evidence Act, 1872.”

Abhinav Sekhri, “Not so Civil: The Money Laundering Act and Article 20.”

The Executive(’s) Court: Notes on the Legacy of Justice A.M. Khanwilkar

This blog has a long-standing tradition of assessing the judicial legacies of Chief Justices of India, upon their retirement (see here, here, and here). This tradition has hitherto been limited to Chief Justices, because of the sway that they exercise upon the Supreme Court as “master(s) of the roster”, and because during their tenures, they tend to hear significant constitutional cases themselves.

Last year, an exception was made upon the retirement of Justice R.F. Nariman, for reasons explained in this blog post. Today, the retirement of Justice A.M. Khanwilkar requires, I believe, a second exception. One reason for this is that during the course of his career (as we shall see in this post), Justice Khanwilkar has written some of the most consequential judgments concerning State power and the rights of the individual. But secondly – and more importantly – when you study these judgments together, you glimpse a certain judicial philosophy – such as it is – at work. This judicial philosophy – subject to a few important exceptions – is, I believe, largely representative of the Supreme Court today (which also perhaps explains why, across Chief Justices, these kinds of cases have been regularly assigned to Justice Khanwilkar, one of its most forceful proponents).

What is this philosophy? In my earlier analysis of Justice Khanwilkar’s judgment in the FCRA Case (also discussed below) I had compared it to the Peruvian President Óscar R. Benavides famous line, “for my friends, anything; for my enemies, the law.” In a similar vein, the common thread running through Justice Khanwilkar’s constitutional law judgments is: “for the State, anything; for the individual, the law“: it is the philosophy not just of the executive court, but of the executive(‘s) court.

Before we begin, a final point, by way of caveat: it is almost trite to say that I do not agree with the outcomes of the cases that I discuss below. I have criticised some of these judgments when they were delivered, and in the Central Vista Case (that I flag, but do not discuss), I was one of (many) arguing counsel on the losing side. My analysis below, however, is not founded simply upon the fact of disagreement with the outcome, or of dislike of these judgments. Regardless of my predilections, I believe that these judgments reveal something important, both about Justice Khanwilkar’s judicial career, and about the contemporary Supreme Court, which is important to articulate and to discuss. This post should be read in that spirit.

Watali: Taking a Sledgehammer to Personal Liberty

Any discussion of Justice Khanwilkar’s legacy must begin with the 2019 judgment in National Investigation Agency vs Zahoor Ahmad Shah Watali. The case involved the interpretation of Section 43(D)(5) of the Unlawful Activities Prevention Act [“UAPA”], India’s umbrella anti-terrorism statute. Section 43(D)(5) prohibits a Court from granting bail to an accused if “on a perusal of the case diary or the report made under Section 173 of the [Criminal Procedure] Code, [the Court] is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In layperson’s language, Section 43(D)(5) bars the grant of bail if it appears that the police version (through the case diary or the chargesheet) against the accused is, on the face of it, true.

Watali was an appeal by the National Investigation Agency [“NIA”] against an order of the Delhi High Court. In that order, the Delhi HC had granted bail to Watali (the accused), under Section 43(D)(5) of the UAPA. The High Court took into account the (uncontroversial) legal proposition that “as far as the statutes concerning serious offences inviting grave consequences are invoked, the trial Court will scrutinize the material with extra care.” The Court’s job was not to proceed simply on the basis of the statements made by the investigative agency, and nor to act as a “post-office” for the State. On this basis, the High Court subjected the police version – according to which Watali was involved in terror funding – to rigorous scrutiny. It found that many of the witness statements were inadmissible under the law of evidence, that the documents purporting to originate from the accused were neither signed by him and nor on his letterhead, and that other documents were entirely innocuous, and consistent with his position as a prominent Kashmiri businessman. On this basis, the Court found that at that point, the police version was speculative, and there was no ground for denying bail to the accused.

When the case came up in appeal, the Supreme Court – in a judgment authored by Justice Khanwilkar – overturned the High Court’s order, and put Watali back in jail (he stayed in jail – awaiting trial – for three more years, until in February 2022, he was moved to house arrest because of a terminal disease). Crucially, Khanwilkar J’s problem with the High Court was not that it had incorrectly appreciated the facts of the case. Rather, it was that the High Court had applied the wrong legal standard altogether, and that the true role of the Court under S. 43(D)(5) of the UAPA was, effectively, to act like a post office. He noted that while examining the question of bail, “elaborate examination or dissection of the evidence is not required to be done”, and that furthermore, to reject inadmissible statements at the stage of bail was akin to entering into the “merits and demerits of the case.” Instead, the Court was to form a view based on the “broad probabilities” flowing from all the materials supplied by the police.

The judgment in Watali was criticised at the time as being incorrect (see, e.g., Abhinav Sekhri’s blog post), and I do not intend to traverse covered ground once again. It is worthwhile, however, to recall once again just what it did. As is well known, at the time of bail, the defence cannot present its own arguments, put forward its own witnesses, or cross-examine the prosecution’s witnesses. It has no real way to effectively contest the State’s case. All that is for the stage of trial. At the time of bail, all the Court can look at – and all that the defence can point to – is the State’s version of events. Thus, when Section 43(D)(5) prohibits the Court from granting bail if “there are reasonable grounds for believing … that the accusation is prima facie true”, everything turns upon how closely and deeply the Court is authorised to examine the State’s version, on its own terms – for internal consistency, for plausibility, for whether the State is relying on materials that would even be admissible at trial (such as hearsay statements) – to come to its prima facie conclusion. And when, in Watali, Khanwilkar J barred all Courts from “examining” or “dissecting” the evidence, he effectively made the grant of bail in UAPA cases borderline impossible. As Sekhri wrote at the time, he “actively chose a legal position that makes lengthy undertrial detention more likely.”

The asymmetry in power is glaring. UAPA trials in India take years – decades – to complete. If the grant of bail is made borderline impossible, then all the police are required to do is to slap the UAPA onto a chargesheet, and an individual will be condemned to years – or decades – in jail without trial. The chargesheet and the materials need not be persuasive, need not be internally coherent, and in addition to all this, may even rely on plainly inadmissible material (as in Umar Khalid’s case): all that ceased to matter once, in Watali, Khanwilkar J turned all courts into stenographers for the Prosecution, while attaching dumbbells to the feet of the Defence and throwing it into the river to swim or sink. In this sense, Sekhri’s 2019 warning has turned out to be prescient: “it is hard to conceive of outcomes which are anything but fearsome. The decision could make the UAPA an even more attractive tool to law enforcement agencies now that getting bail is harder…” We now know that this is exactly what has happened: the UAPA is the foremost tool of political repression in India, and Watali has become the chant that almost all Courts (barring a few) invoke to justify keeping people in jail for years without trial.

PMLA: Taking another Sledgehammer to Personal Liberty

If the UAPA is the executive’s weapon of choice to keep inconvenient individuals in jail for years without trial, the Prevention of Money Laundering Act [“the PMLA”] is its political weapon. By now, every Indian knows about the “Enforcement Directorate” – or, as it is commonly known by its abbreviation – the “ED”. The eyeball impression that the ED is used to overwhelmingly to jail political opponents without trial, has been confirmed in this detailed analysis; that the purpose is jail without trial is borne out by the fact that while the number of PMLA cases filed by the ED has risen by eight times over the last eight years, the conviction rate under the law is under 1% – a statistic that should send alarm bell ringings for everyone (other than, it seems, the Supreme Court).

Amendments to the PMLA – passed in 2019 – which made the legal regime more draconian, were challenged before the Supreme Court. On 27 July – two days before his retirement – a three-judge bench led by Khanwilkar J delivered judgment, upholding all the provisions under challenge (see here, here and here).

A similarly exhaustive analysis of the judgment is not the subject of this post. However, its underlying philosophy is simple enough: while in every sense the officials of the ED act like the police – as coercive appendages of the State, and in the power that they hold over citizens – the Court liberated them from following the minimal procedural constraints under the Code of Criminal Procedure that do apply to the police. For instance, the Court exempted the ED from sharing the equivalent of the police’s First Information Report – the “ECIR” – with the accused, noting that communicating the “grounds” was enough; the Court held that as an ED summons was not an “arrest” (even though functionally indistinguishable from it), the constitutional right against self-incrimination doesn’t apply to statements made under ED questioning; that because ED officials weren’t “police officers” (even though functionally indistinguishable from them), confessions made to them were admissible in evidence (even though the whole purpose of making confessions to the police inadmissible was the fear of coercion); and that because the ED wasn’t a police force (even though functionally indistinguishable from one), the procedures that it followed (the “ED manual”) wasn’t required to be made public, but could remain an “internal document.” If all of this sounds somewhat reminiscent of the Stasi, it is because it is rather reminiscent of the Stasi (or, in Pratap Bhanu Mehta’s words, “Kafka’s Law“).

The effect of the judgment is clear: it is the sanctioning of a State-controlled, coercive militia, exempt from the basic principles of due process and the rule of law. To this heady cocktail, the Court added further, dangerous mixes: it upheld a bail requirement even harsher than section 43(D)(5) of the UAPA, and which the Supreme Court had itself struck down four years before (Khanwilkar J overruled precedent, simply to ensure that bail would become almost impossible under the PMLA), and upheld the “reverse burden” clause – i.e., that under the PMLA, the burden was on the individual to prove their innocence, and not on the State to prove guilt.

And finally, to expand the scope of the PMLA, Khanwilkar J went further: Section 3 of the Act stipulates that “whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.” In other words, for the PMLA to be attracted, two conditions had to be satisfied: involvement (whether intentional or unintentional) in connection with proceeds of crime, and the (definitely) intentional “projecting” or “claiming” it as untainted property. Khanwilkar J held, however, that actually, the word “and” meant “or” (just like “day” means “night”), and that therefore, simply being in possession of “tainted” property was enough for guilt under the PMLA.

When you now combine this with the reverse burden clause (that under the PMLA, the individual is guilty until proven innocent), and Khanwilkar J.’s finding that any criminal offence could be brought under the PMLA (thus effectively making the CrPC wholly redundant), the effects of this judicial rewriting exercise are terrifying. They also exacerbate and worsen the already wide definition of tainted property under the PMLA, which effectively covers just about everything (and makes just about everything subject to attachment orders (see here), financially crippling someone under PMLA scrutiny; note that Khanwilkar J also held that property can be attached right from the beginning of PMLA proceedings).

But there are three things really of importance here. The first is that the re-worded section makes no grammatical sense (try reading it aloud and see for yourself). The second is that this interpretation turns basic criminal law principles on its head: because criminal legal statutes are coercive, and impose jail time on people, there is a time-honoured, well-worn principle in criminal law that they are to be read strictly and narrowly. In Khanwilkar J’s judicial philosophy of “for the State, everything; for individuals, the law”, however, every canon of interpretation is upside down, and nobody is safe from arbitrary State action; and finally, of course, to accomplish this task, he had to rewrite the section, taking the word that existed and replacing it with its opposite. I have previously referred to this as “Humpty Dumpty jurisprudence“, where the Court – like Humpty Dumpty in Alice Through The Looking Glass – decides that words mean what it decides them to mean, just because it can:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

In his analysis of the judgment, Abhinav Sekhri points out that there was material on record to show that while drafting Section 3, the legislature had made a genuine error, and used the word “and” while it meant to use the word “or”. However, when it comes to criminal law, it is most certainly not the Court’s job to save the legislature from the consequences of its own incompetence (especially when the same leniency is hardly accorded to the individual!): the whole point of the doctrine of reading criminal statutes literally, narrowly, and strictly is that, given the differences in power between the State and the individual, the reach of the criminal law is not to be expanded any further than what the words can bear. It is that principle that is Khanwilkar J entirely forsook in rewriting Section 3.

Let us take a step back, and sum up. When we look at the judgment in a broader context, it is important to keep in mind Sekhri’s observation that not all of this is entirely new. In many respects, the PMLA judgment is a continuation of the Indian Supreme Court’s long-standing tradition of expanding the State’s coercive powers and erasing the procedural safeguards that the law extends to individuals. In the PMLA context, however, the statute’s provisions magnify that substantially: the statute “weaves together all the restrictive, rights-effacing clauses from this illustrious past in one fine blanket, and it then goes further.” And the PMLA judgment, in turn, is perhaps unique in that it brings all of those rights-effacing judicial predilections together, in one case – what Sekhri calls a “greatest hits” video, and to which we can add: the band is the Supreme Court and the “hits” are direct hits to our constitutional rights: in sum, Khanwilkar J rewrote a criminal statute to substantially widen its ambit; authorised the State to bring any offence within that ambit; upheld the reverse burden of proof within that widened ambit; deprived individuals of their procedural and constitutional rights within that widened ambit; made the grant of bail almost impossible within that widened ambit; and exempted the State authorities from any effective constraints, once they began to operate within that widened ambit. When you put all of these together, what emerges is the classic definition of a lawless law, blessed by the executive’s Court.

Noel Harper: Taking a Hatchet to the Freedom of Association

In April 2022, Khanwilkar J wrote a judgment upholding various amendments to the Foreign Contributions (Regulation) Act of 2022. Elsewhere, I have analysed this judgment at some length, and pointed out how the Court accorded its imprimatur to a set of provisions that had turned India’s NGO regulation law into a Russian-style legislation that effectively made the work of most NGOs either impossible, or prohibitively difficult. A few salient points stand out from this judgment.

First, at the time of hearing Noel Harper, there were challenges to the FCRA pending in High Courts. Noel Harper itself was a limited challenge to one set of restrictions. Now, ordinarily, the Supreme Court is quick to talk about how the High Courts should not be bypassed; however, it seems that all that rhetoric ceases to matter when legislation that the political executive really cares about is at stake. Here, the Khanwilkar J-led bench could not wait to bypass those same High Courts, and hear and decide all questions about the constitutional validity of the FCRA, thus effectively depriving the High Courts from hearing the cases before them.

Secondly, the judgment in Noel Harper applied differential standards to the State and to the petitioners, where the State’s factual claims (contrary to the prevailing legal standard of proportionality) were taken as true without any scrutiny, whereas the petitioners’ claims – and bona fides – were taken with the highest level of mistrust. In my post analysing the judgment, I wrote that:

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

Indeed, this is a thread that runs throughout Khanwilkar J.’s judgments, and for a more elaborate articulation in this case, interested readers may consult the above blog post as a whole.

However, the most glaring aspect of Khanwilkar J.’s judgment (other than its impact on the freedom of association) – is that he explicitly and unashamedly framed its arguments in ideological terms, and this ideology was evidently the ideology of the political executive. Lines from the judgment include: The question to be asked is: “in normal times”, why developing or developed countries would need foreign contribution to cater to their own needs and aspirations?“; “Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens“; “There is no dearth of donors within our country.”

These are familiar lines. These are lines that we hear from the mouths of authoritarian leaders across the world, when they justify clamping down on civil society, and in particular, on NGOs. None of these words have anything to do with the law, legal reasoning, the Constitution, and the practice of constitutional adjudication. Yet here they are, serving as the articulated major premise of a Constitutional Court judgment that is supposedly about whether restrictions upon the freedom of association – achieved via choking off funds to NGOs – are reasonable or not. But as we have seen, that is not really what this judgment is about: what this judgment is really about is giving formal judicial imprimatur to some of the more extreme and prejudicial rhetoric of the political executive, giving a dressing down to citizens who have the temerity to want to raise funds for NGO work, and telling them to be “resolute and firm” if they want to have rights. This is the language not just of the executive court, but of the executive(‘s) court.

Teesta Setalvad and Himanshu Kumar: Taking a Dagger to Article 32

The language of the executive’s court is present most starkly in Justice Khanwilkar’s notorious opinion in the Zakia Jafri case. Once again, it is not my task here to examine the correctness of the judgment in refusing to set aside the SIT Report that had found that there was no controversy at high governmental levels during the horrendous 2002 Gujarat Riots (interested readers may refer to Nizam Pasha’s analysis of the judgment, here; see also the discussion in Episode 2 of the ConCast, with Abhinav Sekhri, on the criminal legal standards applied – or not applied – by the Court). For the purpose of argument, let us say that the Court found – as was its prerogative to find – that the petitioners had failed to provide adequate evidence to dislodge the SIT’s findings of no political conspiracy, and that therefore, the writ petition had to be dismissed.

But that is not the only thing that Justice Khanwilkar did. First, he spent some time in the judgment lavishing fulsome praise on the executive authorities (“indefatigable work”) – something particularly embarrassing, coming from a constitutional court, in a case involving large-scale riots. Most seriously, however, he then went on to note that this case was the result of a “coalesced effort by disgruntled officials”, that those who had brought the present proceedings “had the audacity to question the integrity of every functionary … to keep the pot boiling”, and “all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

There are a few things we need to note about these lines. The first is that in a functioning legal system, lines such as these would invite an immediate action for defamation, with heavy damages to follow. None of that, however, applies here: following the example set by Khanwilkar J., it seems that Supreme Court Justices, in the course of their official duties, are free to engage in character assassination, insinuations, and personal attacks, without being called upon to provide a shred of evidence for the same. Forget evidence, the Supreme Court did not even accord the petitioners the courtesy of a hearing on this point before damning them through its judgment. Needless to say, at the next available opportunity – judicial or extra-judicial – the same Supreme Court is likely to issue moral lectures on the principles of natural justice.

But what followed is even more alarming. The day after these “observations”, Teesta Setalvad – petitioner no. 2 in this case – was arrested by the Gujarat Police. The paragraph of the Supreme Court judgment that I have extracted above was the literal basis of this arrest: it was cited in the FIR. In other words, the Supreme Court – through Khanwilkar J – by making statements such as “all those involved in such abuse of process need to be in the dock” laid the groundwork for an arrest that State authorities followed up on within hours. And this arrest – it is important to note – was on the basis of a judgment in a case filed under Article 32 of the Constitution, which guarantees the right to move the Supreme Court for the enforcement of rights; in other words, the petitioner in a case filed against alleged State impunity, before the Supreme Court, was arrested by the State, based on the judgment of the Supreme Court.

At the time of writing, Teesta Setalvad remains in jail.

Perhaps you may say that this is a one-off, an aberration. Except that, a few days later, the same thing happened all over again, and once again it was Justice Khanwilkar who was the senior judge on the bench (although the actual judgment was written by a future Chief Justice of India, Justice J.B. Pardiwala). Himanshu Kumar vs State of Chhatisgarh involved a 2009 petition regarding extra-judicial encounter killings in the state of Chhatisgarh. As in Zakia Jafri’s case, this was an Article 32 petition against State impunity, seeking police accountability for a massacre of adivasis. As in Zakia Jafri’s case, the Supreme Court dismissed the petition, and then took it upon itself to do more. First, it imposed a fine of Rs 5 lakhs on the petitioner, Himanshu Kumar. And then, as in Zakia Jafri’s case, it laid the groundwork for legal action against the petitioner. It noted that:

We leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface.

Notice, once again, the loose language used by a Constitutional Court in a case that involved the undisputed massacre of adivasis: that a “case of criminal conspiracy or any other offence” under the IPC “may also surface.” Without evidence. Without a hearing. Once again, this is exactly the kind of stuff that gets you cleaned out for defamation in functioning legal systems; maybe it even would in India, unless you’re the Supreme Court. If you’re the Supreme Court – and especially if Justice Khanwilkar is on the bench – it’s open season, especially on citizens who take Ambedkar seriously when he said that Article 32 was the “heart and soul of the Constitution.”

It is also important to note that during the pronouncement, the Court only referred to the State of Chhatisgarh. The reference to the Central Bureau of Investigation [“CBI”] was added subsequently to the judgment, on the oral request of the Solicitor-General, after the pronouncement. Once again, you can see the attitude of the Constitutional Court in cases like this: just add a reference to a central investigative agency in the judgment, on the request of the union government’s lawyer, as if it was the correction of a typographical error. What else can we call this, other than the executive(‘s) court?

These two judgments – driven by Justice Khanwilkar – mark a profoundly dangerous shift in the history of the Supreme Court. It is one thing for the Court to dismiss Article 32 petitions against State impunity. However, it is quite another – and truly unprecedented – for the Supreme Court to turn upon the petitioners themselves, and pass prejudicial remarks against them that then become the basis of FIRs and jail time. In every way, this is an inversion of the rule of law, of the Constitution, and of the Supreme Court itself: from the protector and guarantor of fundamental rights, to persecutor-in-chief. Idi Amin famously said: “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.” Likewise, through these judgments, Justice Khanwilkar has said: “I can guarantee freedom to come to Court; but I cannot guarantee freedom once you’ve come to Court.”

Sabarimala: The Unreasoned Volte-Face

The final case that I want to (briefly) analyse is not strictly in the same line of cases as the others, but does bear a family resemblance, in terms of significant judicial action not backed up by any reasons whatsoever.

In November 2018, a five-judge bench of the Supreme Court held that the Sabarimala Temple’s ban upon the entry of women between the ages of ten to fifty was unconstitutional. The verdict was 4 – 1. Chief Justice Dipak Misra and Justices Khanwilkar, Chandrachud, and Nariman held against the exclusion. Justice Indu Malhotra dissented. All judges except for Justice Khanwilkar wrote separate opinion; Khanwilkar J joined the opinion of the Chief Justice.

I do not, in this post, intend to re-litigate the correctness of the Sabarimala judgment. The point, however, is this: an application for review was filed. Recall that for the Supreme Court to review its own judgment, it is not enough to just show that the judgment under review was mistaken on law, but to show that there was an inescapable error, on the very face of the record (that phrase, prima facie, again!) – and that this has to be demonstrated before the same bench that passed the original judgment.

The Sabarimala review was heard in open court. At the time, Chief Justice Dipak Misra had retired, and had been replaced by Chief Justice Gogoi. The rest of the bench was the same.

By a 3-2 verdict, the Supreme Court decided to “refer” certain “questions” about the correctness of the Sabarimala judgment for interpretation to a larger bench (this, effectively, stayed the implementation of the judgment). Two of the judges who voted to refer were CJI Gogoi (new to the case) and Malhotra J (a dissenter in the original judgment). Two of the judges who dissented were Chandrachud and Nariman JJ (both in the majority in the original judgment). The tie-breaking vote was that of Khanwilkar J, who had been in the majority one year before, but now seemingly believed not only that the judgment that he had signed on to was arguably wrong, but so wrong – so prima facie wrong – that the threshold for review was activated.

Can a judge change their mind about the correctness of a judgment they have signed onto? Yes, of course. We are all changeable creatures. Can a judge change their mind about the correctness of a judgment they have signed on to so much that they not only believe they were wrong, but blatantly, egregiously wrong – within a year? Perhaps. Perhaps Justice Khanwilkar had a Damascene moment about the rights of women to enter temples. But if that is the case, is there not a minimum – a bare minimum – requirement for a judge to explain themselves? To provide reasons for a 180-degree turn? What is notable is that in neither of the two cases – Sabarimala or Sabarimala “Review” – did Justice Khanwilkar do us the courtesy of a reasoned opinion. We do not know the reasons why he agreed with his brother, the Chief Justice, in 2018; and we do not know the reasons why he came to believe that his brother, the Chief Justice, was egregiously wrong in 2019. Walt Whitman could well ask the rhetorical question, “do I contradict myself?”, and expect his readers to nod knowingly when he answered, “very well then, I contradict myself”, but that is not open to a Supreme Court Justice who, with a stroke of the pen, can extend or withdraw rights from millions of people.

Conclusion: The Executive(‘s) Court

These examples could be multiplied. One could talk about Khanwilkar J.’s majority opinion in Romila Thapar vs Union of India – another UAPA case – where the Supreme Court turned a blind eye to obvious police misconduct in the prosecution of a case (see Abhinav Sekhri’s analysis here), and at the time of writing, the accused are still in jail without trial (can you see a trend here?); one could talk about the Central Vista Judgment, where Khanwilkar J’s majority opinion laid down a standard of public participation, and then refused to apply it to the facts at hand; one could talk about all these, but there is little benefit in belabouring the point.

And the point is this: the cases that we have discussed involve some of the most basic and crucial civil rights in our Constitution. Watali and PMLA involved the right to personal liberty; FCRA involved the right to freedom of speech and freedom of association; Zakia Jafri and Himanshu Kumar involved the right to enforce fundamental rights, and the right to seek judicial remedies against State impunity. Enforcement of these rights is at the heart of the rule of law, at the heart of what it means to be a constitutional democracy governed by the rule of law rather than by State arbitrariness. Each of these rights is a crucial bulwark between the individual and the State, and it is the task of the Court to preserve and maintain that bulwark.

However, when we look at the judgments in these cases (four out of five were authored by Khanwilkar J, and he was a party to the fifth), a disturbing picture emerges. It is not simply that the State always wins, and the individual always loses; regrettably, that is a familiar story in the history of our constitutional jurisprudence, with only a few exceptions scattered on the sands of time. Rather, it is the manner in which the State wins. When it comes to the State’s claims, the State’s interests, the State’s (presented) facts, the State’s vision of the world, the Court treats all this with a feather-light touch, takes everything as true, and occasionally takes the time out to praise the State and its authorities for the great job that they are doing. On the other hand, when it comes to the individual, the Court turns into the proverbial “lion under the throne”, baring its fangs and unsheathing its claws. Under this judicial philosophy, rights are nuisances, individuals are dispensable, and to approach the Court for justice is like playing a game of Russian Roulette: it’s you who might end up in jail after the dust has cleared. And, as Justice Khanwilkar’s conduct in Sabarimala shows, none of this needs justification: it is not the exercise of reason that drives this judicial philosophy, but the exercise of raw power. The Court does, because it can. And that’s about it.

This phenomenon of judicial rule by decree, of orders without reason – the language of the executive, in other words – is why, in a previous post, I referred to the Court led by the previous Chief Justice as an “executive Court”: “an institution that speaks the language of the executive, and has become indistinguishable from the executive.” Judgments in cases like Watali, for example, are classic examples of the workings of an executive court. But at the same time, the observations in the FCRA Case, and in Zakia Jafri and Himanshu Kumar’s cases, are more than just that: it is not simply that the Court is speaking the language of the executive, but has become an institution where executive ideology can be laundered, and shown to the world as sparkling, judicially-declared truth. This is what happens when, in FCRA, Khanwilkar J speaks about citizens needing to “be firm and resolute” so that they wouldn’t need foreign remittances; and this is what happens in Zakia Jafri, where Khanwilkar J’s character assassination of Teesta Setalvad and the suggestion that she be “put in the dock” is immediately followed up by an FIR (which quotes his very words), arrest, and jail.

Khanwilker J is now gone. His individual legacy can be measured in the months, the years, and the decades that people have spent and will spend in jail, without trial (indeed, the State’s lawyers have already begun arguing that under the PMLA, a Court can only ever grant bail on health grounds, and never otherwise). It can be measured in ruined lives and broken futures. But it is the coming time that will reveal whether the normalising of the Supreme Court as the executive(‘s) court would, at the end of the day, be his most significant contribution to Indian constitutional jurisprudence.

Guest Post: MeitY-enforced horizontal application of Constitutional Rights

[This is a guest post by Utkarsh Srivastava.]


On 6 June 2022, the Indian Ministry of Electronics and Information Technology (MeitY) released a draft of the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines). While the major concern in the amendments is the proposed appointment of Government Appellate Committees (GAC) which could become the ultimate censorship body for content on online platforms, another proposed obligation (which has largely flown under the radar) could have a massive impact on content moderation as well. The proposed addition of Rule 3(1)(n) to the Intermediary Guidelines will require the intermediary to ‘respect the rights accorded to the citizens under the Constitution of India’ (Rights Obligation). As I discuss below, the consequences of this obligation could cause extreme confusion regarding content moderation with regards to posts by Indian citizens on social media platforms.

Intermediary Protection

Intermediary protection allows entities which handle data on behalf of another person or provide any service with respect to that data to avoid liability with regards to that record. Indian law requires intermediaries to comply with certain conditions to avail intermediary protection. One of these conditions is compliance with the Intermediary Guidelines. If the proposed amendments are adopted into law, then it would require intermediaries to comply with the Rights Obligation and accordingly ‘respect the Constitutional rights of Indian citizens’. The language in Rule 3(1)(n) puts a mandatory obligation on the intermediaries as it uses the word “shall” (MeitY has also stated that it may be inclined to harden the language of this rule). This would entail a horizontal application of Fundamental Rights, marking the first time that the State has made a private entity liable to respect Constitutional rights through its rulemaking power.

Horizontal application of Constitutional rights

This blog has earlier examined how while the default rule is to enforce Constitutional rights against the State (Vertical Application), Constitutional courts have found ways to apply Constitutional rights in matters involving private actors (Horizontal Application). Of the four approaches discussed in the earlier analysis, two require the entity against whom the rights are being enforced to have a nexus with the State and are therefore inapplicable in the present scenario. The third approach is one of indirect horizontality wherein the respondent is a private actor who in its capacity as a private actor uses a law to justify its acts. The law is then challenged on the basis of indirect horizontality. This approach too is inapplicable in the present scenario. Finally, the fourth approach is where the private act of a private party is challenged on the touchstone of the Constitution. This approach typically applies only where the Constitution specifically outlaws horizontal rights violations, i.e. (a) restriction from access to public places on the basis of religion, race, caste, sex or place of birth; (b) untouchability; and (c) human trafficking and bonded labour.

The Rights Obligation is a fifth approach of Horizontal Application where the government has made private entities liable to comply with Constitutional protections. Bear in mind that this action would be dubious even if done by the legislature. That it is done by the executive makes it even more Constitutionally suspect. The language in Rule 3(1)(n) is broad and does not carve out any exceptions.

Effect of the Rights Obligation on the Freedom of Speech

Currently, social media platforms regulate speech on basis of their community standards/terms of service (Platform Restrictions). Therefore, while certain speech may not be illegal per se, it may be removed on the grounds of infringing the Platform Restrictions. However, under the Rights Obligation, users will be able to enforce their Fundamental Right to Freedom of Speech (FoS Right) against the platforms. The FoS Right is a broad one which accords citizens the right to freedom of speech and expression, and is limited only by Article 19(2). Since the Article 19 was clearly intended to govern State action (as recognised by the Supreme Court in PD Shamdasani v. Central Bank of India, AIR 1952 SC 59), Article 19(2) only applies to laws and platforms cannot use it to protect their content moderation actions. Theoretically, the Rights Obligation could lead to a scenario where the user commands absolute right to freedom of speech on platforms with no restrictions (including those that the platform might seek to enforce under Platform Restrictions).

This blog has already discussed how the GAC proposed under the amendments may force the platforms to host speech contrary to Platform Restrictions and how that may violate the platform’s own free speech rights. This current post argues that the government may have added rules to provide backing to such compelled speech by way of Rule 3(1)(n).

Harmonious reading

Intermediary Guidelines themselves permit content moderation under Rules 3(1)(b) (which lists out prohibited information) and 3(1)(d) (which requires removal of prohibited information). Further, they provide for a mandatory grievance redressal mechanism that the intermediary must implement. Therefore, there is some grounds for the platforms to moderate content.

However, since Rights Obligation must also be recognized, the Intermediary Guidelines must be read harmoniously and the only way to do so is such that content moderation can only be on the basis of the categories of prohibited information listed in Rule 3(1)(b) and the platforms may not enforce any other restrictions including Platform Restrictions. This is different from the earlier approach of intermediary regulation as earlier there was a baseline set up by listing prohibited information and the platforms were allowed to go over and above the prohibited information restrictions and add their own restrictions.

Government views

The Rights Obligation must be seen in light of the government’s public views on the matter. The Minister of State for Electronics and Information Technology Rajeev Chandrashekhar has been the driving force behind recent Indian laws governing the Internet and chaired the discussion on proposed amendments on 23 June 2022. In the context of former US President Donald Trump being banned from various social media platforms, Chandrashekhar had tweeted: “Deplatforming is a big deal – Its a violation of fundamental rights of users n must hv force of law behind it for any platform to exercise n must never ever be be done arbitrarily.

The government therefore seems to be inclined to protect the rights of the user on the platforms even where the platform finds them in violation of its Platform Restrictions. Indeed, the MeitY has stated before the Delhi High Court that “Only in cases where the majority of the contents/posts/tweets in a user account are unlawful, the platform may take the extreme step of taking down the whole information or suspending the whole account.” At the very least, this implies that the government is comfortable in overruling the Platform Restrictions and severely limit the control platforms have over the content hosted by them if they wish to retain their intermediary protection.

This would also be in line with certain efforts in the USA where State governments have sought to put limitations on how platforms regulate content. Given the effect social media has had on the real world, it appears that governments are uncomfortable with the power wielded by platforms and are trying to enact laws which overrule Platform Restrictions. However, this would take away from the important function served by the platforms where they prevent/reduce undesirable/harmful speech from flooding their users’ timelines.

More questions than answers

The Rights Obligation through a one-line addition to the Intermediary Guidelines raises some very complicated questions:

  1. Are platforms now required to abandon their own Platform Restrictions and only moderate content posted by Indian citizens from the lens of information prohibited by Rule 3(1)(b)?
  2. Would moderation techniques which do not involve outright removal of content, but instead reduce the reach of the content (for instance by making posts from certain accounts ineligible for sharing/recommendation on the platform or displaying replies from the account in a lower position in conversations) be hit by the Rights Obligation?
  3. In addition to approaching the GAC in case of moderation of content, do citizens now also have the right to approach the Constitutional courts for violation of their Constitutional rights by platforms?
  4. What other Constitutional rights are protected by the Rights Obligation? For instance, Article 301 provides for the freedom of trade, commerce and intercourse. Does this mean that platforms must take advertisements from all businesses regardless of whether it might be part of their Platform Restrictions to prohibit certain kinds of businesses from advertising on the platform?

Another potential wrinkle to this situation may be through the Delhi High Court’s decision in Sanjay R Hegde v. The Ministry of Electronics And Information Technology, W.P.(C) 13275/2019, CM APPLs. 53972/2019, 5543/2020 wherein the petitioner has challenged the “illegal suspension” of his Twitter account. While the Intermediary Guidelines themselves did not exist at the time of the suspension of Mr Hegde’s account, the court may be roped into the controversy as well, especially if the proposed amendments are passed into law prior to the delivery of the judgment in the matter.

The proposed amendment to the Intermediary Guidelines are still undergoing discussion and consultation. The government must consider the Pandora’s box it may open with the proposed amendment including through the Rights Obligation before passing the amendments into law. Otherwise, platforms may find it extremely difficult to moderate content as they will be caught in a Catch-22 situation where (a) users will abandon the platform for showing undesirable content; or (b) the courts may decide that platforms are not eligible for intermediary protection and are therefore liable for the content posted.

As this blog has already articulated:

The Union government is trying to solve a real problem. Online platforms have often acted arbitrarily in taking down content (see here and here) and providing users some redress against unreasoned takedowns may be well-intentioned.

However, the Rights Obligation is an extremely broad solution to this problem which will at best cause extreme confusion and at worst result in the platforms being full of undesired content.

Guest Post: Two Courts, Two Conclusions: Abortion Law in India

[This is a guest post by Gauri Pillai.]


On 15 July 2022, the Delhi High Court, in Ms X v The Principal Secretary of Health and Family Welfare Department Government of NCT of Delhi (‘Ms X’), denied an unmarried woman permission to terminate her unwanted pregnancy at 23 weeks under Section 3 of the Medical Termination of Pregnancy Act, 1971. A week later, through an ad-interim order, the Supreme Court allowed the woman’s appeal against the Delhi High Court’s order, permitting termination as long as a Medical Board confirms that abortion is medically safe for the pregnant woman. In this post, I discuss both these orders, which differ not just in their outcomes but also their reading of the law, and the factors they take into account in decision-making. But first, I briefly set out the legislative framework governing abortion in India.

Legal Background

The legal regulation of abortion in India began with criminalisation. The Indian Penal Code 1860 (‘IPC’) declared criminal voluntarily causing a woman with child to miscarry, unless done in good faith for saving the life of the woman. It brought within the scope of the law both the person causing the miscarriage, and the woman herself. Predictably, criminalisation did not eliminate the need for abortions and only compelled women to seek abortions in unsafe settings from unskilled practitioners, causing death. To quell the rising mortality rate, the State introduced the Medical Termination of Pregnancy Act (‘MTPA’) in 1971, conditionally legalising certain categories of abortions, and exempting them from criminal sanction.

The MTPA allows termination up to an outer limit of 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the foetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped. The 1971 Act was amended in April 2021. As per the amended law, the limit of 20 weeks has been extended to 24 weeks—as long as the above conditions are met—for certain categories of women, as specified in the Medical Termination of Pregnancy Rules 2003, amended in October 2021. Rule 3B lists the following categories: (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government. An assessment as to whether the conditions specified are met is carried out by one medical professional for termination before 20 weeks and two medical professionals for termination between 20 and 24 weeks.

Inclusion of Unmarried Women

An immediate question before both the Delhi High Court and the Supreme Court in Ms X was whether an unmarried woman with a unwanted pregnancy at 23 weeks fell within the ambit of Rule 3B. The Delhi High Court adopted a literal interpretation, holding that since the rule did explicitly not specify unmarried women (unlike, say, widows or divorcees), it did not extend to the petitioner. The Supreme Court, in contrast, deviated from this ‘unduly restrictive’ interpretation, and adopted a purposive reading of the MTPA, making four crucial observations.

First, the Court held that the listed categories of widows and divorcees were simply illustrative of the broader category of change in marital status; they did not exhaust it. This implied that other instances of change in relationship status would also fall within the ambit of the rule. In this case, the petitioner, who was in a consensual relationship, sought termination because she was deserted by her partner: in other words, she decided to terminate her pregnancy due to a change in relationship status, accounted for by Rule 3B. Second, the Court noted that the 2021 amendment to the MTPA modified Section 3 to extend it to unmarried women. Section 3 states that a grave injury to mental health justifying termination can be presumed if pregnancy is on account of failure of contraception. While the 1971 Act saw such failure of contraception as occurring only between a ‘ married woman and her husband’, the 2021 Amendments extend it to ‘any woman and her partner’. This, the Court held, clearly indicated legislative intent to bring pregnancies outside marriage within the reach of the MTPA. Third, the Court observed that the MTPA recognises the ‘reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child’. In light of this underlying purpose, denying the petitioner the choice of termination simply because she is unmarried, the Court remarked, would be at odds with the spirit of the MTPA. Finally, the Court held that live-in relationships have previously been recognised by the Supreme Court, which has refused to impose subjective notions of social mortality through the law to ‘unduly interfere with the domain of personal autonomy’. Drawing the four arguments together, the Supreme Court allowed the unmarried petitioner to terminate her unwanted pregnancy.

This is certainly a crucial development in Indian abortion law. The exclusion of unmarried women from Rule 3B speaks to the law’s questionable elevation of marriage as the only form of relationship that deserves legal recognition, on the basis of which certain groups of women are denied an essential form of healthcare (access to abortion). The exclusion also cements the patriarchal assumption that women ought to express their sexuality only within the institution of marriage. Women who experience a change in marital status (on account of death of their partner or divorce) are thus seen as deserving of the law’s sympathy, while women who engage in sex outside of a marital relationship are punished through withholding their right to access an abortion. In reading Rule 3B and Section 3 to include unmarried women, the Supreme Court rightly refuses to perpetuate these assumptions.

Ignoring the Body

Beyond the Delhi High Court’s restrictive reading of Rule 3B, the High Court also shockingly minimised—to the extent of ignoring—the bodily impact of pregnancy. During the hearing the Court told the petitioner that ‘hardly 12 weeks’ were left to carry the pregnancy to term, after which she could give up the child for adoption. When the petitioner remained firm in her decision to terminate the pregnancy, the Court responded by offering to pay for childbirth in a good hospital. All the petitioner then had to do, the Court’s observations implied, was to carry the pregnancy to term for the remaining 12 weeks. Is that not a reasonable ask, the Court appeared to entreat, to ensure that the foetus survives? In refusing termination, the Court in essence concluded that it was, indeed, a reasonable ask.

However, in arriving at this conclusion, the Court completely disregarded the impact of an unwanted pregnancy on the body of the pregnant women. Pregnancy involves ‘all the body systems, displacing body parts, depleting the body of its necessary elements and changing its chemical balance’. As has been noted within the literature, it increases blood volume by 50%, stroke volume of the heart by 35% and renal function by 50-60%. It decreases lung volume by 20% and the respiratory rate by 15% (2-3 breaths per minute). The pituitary gland enlarges 135% and the production of growth hormones increases dramatically. A whole new organ, the placenta, is generated by the body. The excess progesterone produced by the placenta can cause fluid retention, increase in blood pressure, weight gain and inability to sleep. The size and position of the heart and the uterus change, the latter displacing and compressing other organs in the gastro-intestinal tract. The resulting pressure may affect the circulation of blood, sometimes causing irreversible varicose veins, haemorrhoids and disabling thrombophlebitis. The interference with the gastro-intestinal tract can also cause constipation. The displacement of the urinary tract can result in urinary tract infections. The weight of the uterus can create sacroiliac strain, backache and pressure on the cervical spine, potentially resulting in numbness, tingling, and proprioceptive acuity reduction in the hands. Metabolically, the pregnant woman is in an accelerated stage of starvation due to the nutritional demands of a growing foetus. Increase in oestrogen levels can cause nausea and vomiting in the first four months, resulting in dehydration, extreme fatigue, headaches, confusion, fainting, low blood pressure, rapid heart rate, and anxiety or depression. Childbirth frequently damages the pelvic organs which might then require corrective surgery. Bladder control may be permanently lost.

Notably, these are the biological indications of a medically ‘normal’ pregnancy. Complications during pregnancy could result in a worsening of these conditions or an exacerbation of pre-existing health conditions such as asthma, high-blood pressure or thyroid disease. When the pregnancy is desired, the pregnant woman willingly assumes this demanding physical responsibility. However, when the pregnancy is unwanted, these significant biological changes are externally imposed, and their cost undervalued (or ignored), motivated by the ‘latent assumption’ that ‘motherhood is women’s ‘normal’ condition’, rendering state actors ‘oblivious to the life-consuming consequences of forcing women to perform its work…[A] legislature may not decide that it is reasonable to save unborn life by compelling pregnancy ‘but for’ the archaic or stereotypic assumptions about women it holds’.

The strength of the stereotype is heightened when we acknowledge that in no other context does the law demand that one individual offer bodily assistance to another. As some authors note, the law does not mandate that one jump into a river to save a child from drowning. Closer to the context of pregnancy, the law does not require that a parent run into a burning house to rescue a child, or compel a parent to donate a kidney to a child who needs a kidney even for one day, forget 12 weeks (see here, here and here). Of course, a parent might willingly go into a burning house or donate a kidney to save her child, just like a pregnant woman, who desires the pregnancy, willingly provides her body to nurture the foetus. However, at issue here is an unwanted pregnancy, not a wanted one. Despite refusing to impose a similar responsibility in other analogous contexts, the law on abortion expects pregnant women to protect the foetus in this manner, indicating the role of underlying assumptions about women as mothers.

The Delhi High Court, in its order or during the hearing, made no reference to this demanding, one-of-a-kind physical responsibility imposed on women. The bodily cost borne by women in carrying to term an unwanted pregnancy was thus not just undervalued by the Court, but outrightly ignored. The Supreme Court’s order offered some respite, by emphasising women’s right to bodily integrity. However, even the Supreme Court did not acknowledge the sheer extent of the bodily demand made on women. Forcing a woman to carry to term an unwanted pregnancy is not just a question about her body being used against her will, but also about how her body is being used, and the magnitude of the ask being made of her. Without explicitly recognising the immense bodily responsibility that pregnancy is, especially when it is unwanted, the cost to women from compelling pregnancy will always be diluted (or worse, disregarded).

Growing Prominence of Foetal Interests

The Delhi High Court’s observations during the hearing also speak to another worrying trend: the growing prominence of foetal interests in India’s regulation of abortion. The Court repeatedly stated that allowing termination at 23 weeks would ‘virtually amount to killing the child’. In so observing, the Court seems to view the 23-week old foetus as a child (presumably with a right to life). This is contrary to the earlier Supreme Court decision in Suchitra Srivastava, which views the foetus only as a ‘prospective child’, and the Bombay High Court decision in High Court on its Own Motion where the Court held that ‘an unborn foetus is not an entity with human rights… A child when born and takes first breath, is a human entity’. Even parliamentary debates on the MTPA make clear that the foetus, under Indian law, is not seen as an unborn child. Though two members of the Parliament in 1971 and one member in 2020 opposed the MTPA on the basis that abortion is ‘virtually murder’ and a ‘crime against humanity’, their objections were rejected, pointing out that ‘there is no violation of [the right to life] in any manner’. The Delhi High Court decision, then, is inconsonant with precedent and legislative intent in India.

The Supreme Court’s order, in contrast, speaks a different language. In assessing whether the termination ought to be permitted or not, the Supreme Court does not refer to the foetus. While that is certainly a position the law can take—that the foetus ought to be irrelevant in determining the permissibility of abortion—that conclusion has to be reasoned, especially in light of the earlier Supreme Court decision in Suchitra Srivastava which takes the foetus’ status as a prospective child into account as a ‘reasonable limitation’ on the right to abortion. It is therefore important for the Supreme Court in Ms X to set out a principled basis for its stance, failing which it risks contributing to doctrinal confusion on the role of the State interest in preserving the potential life of the foetus in limiting the abortion right; it remains to be seen whether this will happen when the case is finally considered on merits. On this point, instead of silence, a more helpful response would be for courts to ask, and to hold the State accountable for answering with evidence, several key questions: Is the potential life of the foetus a legitimate aim which the State can pursue? Even if it is, are restrictive abortion laws suitable in achieving the aim? Are such laws necessary to protect foetal potentiality? Going forward, the answers to these questions will be central in determining the shape of the law on abortion in India.

Notes from a Foreign Field: The US Supreme Court’s Abortion Judgment in Dobbs v Jackson

[This is a guest post by Aakanksha Saxena.]


The United States Supreme Court delivered its decision in Dobbs v. Jackson on 24th June 2022, holding that there was no fundamental right to abortion guaranteed by the US Constitution, and that decisions about regulating abortion were to be left to the legislatures of the US states. There are five opinions: the majority judgment, three separate concurring opinions, and one dissenting opinion (signed by three justices).

All the opinions deal with various questions – was the Roe Court correct when it recognised the unenumerated right to abortion? Does stare decisis demand following Roe, Casey, and therefore demand upholding the right to abortion? Do the basic principles of liberty and equality require that women be granted bodily autonomy?

This post shall attempt to unravel these threads, and ultimately posit that Chief Justice Roberts’ separate opinion in Dobbs is correct on each of these questions, and ought to have obtained the approval of the Court.

The background to Dobbs

The background to Dobbs is decades of threat, both explicit and implicit, to the decision in Roe v. Wade. Roe held that as part of the right to privacy, a woman has a fundamental right to decide whether to carry a pregnancy to term, subject only to regulations which may be placed by the State in furtherance of its legitimate interests in protecting the health of a woman and foetal life. Roe therefore judicially recognised a fundamental human right, which is otherwise unenumerated in the United States Constitution. This right was held to be enshrined in the 5th Amendment Due Process Clause which provides that no one shall be “deprived of life, liberty or property without due process of law.

The Roe Court also laid down the bright line viability test as the barometer to determine whether a restriction on the right to abortion was valid. This test revolved around whether a foetus was viable outside the womb in order to justify the State interest in protecting it.

A call to overturn Roe was made but turned down by a 5-4 majority in Planned Parenthood v. Casey. The Casey Court however, rejected the viability test, and instead held that the right to abortion stemmed from liberty under the 14th Amendment Due Process Clause, and restrictions on this right were to be tested on an ‘undue burden’ standard. The 14th Amendment came into effect after the Civil War, and is the bulwark of protections of rights against interference by the states.

In any event, Casey cemented Roe as precedent about the recognition of the right to abortion. More relevant to this post is the fact that Casey is also a precedent about precedent and formulated a test to be met by future courts to overrule what is otherwise binding precedent by virtue of the doctrine of stare decisis. Critics of Casey state that it in fact diluted Roe by negating the viability bright line – and they are wrong. Casey, by narrowing Roe but upholding the unenumerated right recognised by Roe, secured Roe’s position and furthered its core holding qua abortion rights into present day – that is, until Dobbs.

A small but relevant detour – the US Supreme Court grants certiorari to limited cases each year, each of which requires to be heard on a constitutional question, and each of which is admitted on this question alone. The question on which certiorari was granted in Dobbs was consideration of the constitutional validity of the Gestational Age Act enacted by the State of Mississippi (“the Act”). Enforcement of the Act had been enjoined by the District Court and affirmed by the Fifth Circuit Court of Appeals. It was specifically urged at the time of granting certiorari that Petitioners did not require Roe to be overruled; a judgement in its favour simply required reconsideration of the bright-line viability test. To be clear – the State of Mississippi sought a clarification whether abortion prohibitions before ‘viability’ are always unconstitutional (see, majority opinion @ pg. 8). Only after certiorari was granted, meaning basically that the Supreme Court would hear the case, did the State launch into a full-frontal assault on Roe and its essential holding.

The majority opinion

The majority opinion (authored by Alito, J., joined by Thomas, Gorsuch, Kavanaugh, and Barrett JJ.) opens with a moral, not a legal debate, laying the foundation for the Court to overturn Roe. What follows is an overbroad discussion of whether the US Constitution confers a right to abortion. At the risk of repetition – this had not been the question before the Court. The Court had already recognised and protected the right to abortion; all it was originally called upon to do, was to examine the validity of a restriction on this right by the State of Mississippi.

There are several reasons marshalled for not adhering to stare decisis without actually engaging with the contours for the same: that the Roe Court was “remarkably loose in its treatment of the constitutional text” since while holding that the right to abortion was part of the right to privacy, it didn’t specifically identify which part of the Constitution provided for either of these rights. The majority further argues that in any event, this was repudiated by the Casey Court when it held that the right to abortion stemmed from the 14th Amendment Due Process Clause.

The Court applies Timbs v. Indiana, to argue that when a right is to be recognised under the 14th Amendment Due Process Clause, it must be deeply rooted in the history and tradition of the United States and be essential to the nation’s ‘scheme of ordered liberty’. The opinion however descends into what must have been meant by the 14th Amendment as ‘liberty’ – at the time it was ratified. This culminates with the majority echoing the words of Thornburgh v. American College that “Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.”

The 14th Amendment was ratified and adopted on 9th July 1868. It defined “citizens” and “voters” as male. In addition to being unable to vote, discrimination against women was very much part of the social and national fabric in the USA – in equal wages and hiring, in federally supported education programs, being excluded from the draft, and so on. In fact, it was only in 1923 that the draft ‘Equal Rights Amendment’ was proposed to the Constitution – its deadline was extended multiple times, and it has not yet been ratified. Incremental progress over the years has brought women into the 21st century in the USA. Despite this history of recognition of women’s rights from 1868 till Dobbs, the majority though it fit to go back to 1868 and the position in 1868, to ascertain whether the right to abortion was required to be protected. In fact, as recognised by the Court itself, most states had criminalised abortion at all stages. This is, on a plain reading, a leap unfathomable to the basic belief that the Constitution was envisaged as a document meant to evolve with time and the march of civilisation. This is, as aptly put in the starkest, most truthful line in the Dobbs dissent reflective of the harsh reality that “people did not ratify the Fourteenth Amendment. Men did.”.

The concurring opinions

It is natural that the dangers of the majority opinion are highlighted and attacked in the dissent. This is why the post will now turn to the criticism of the majority opinion by 2 of the 3 concurring opinions, i.e., those authored by Chief Justice Roberts and Justice Kavanaugh. Kavanaugh’s opinion claims to remain neutral on the question of abortion; that the Court’s decision does not outlaw abortion in the Unites States. This concurring opinion also opines that Casey, though relevant to the stare decisis analysis, cannot dictate the question of overruling Roe. This is a convenient sidestepping of Casey which is a precedent about precedent itself, for which the only reason forthcoming is that post-Casey as well, several states have enacted abortion legislations which are contrary to Roe. The opinion balances the precedential value of Roe and Casey and holds that it does not outweigh the political will of these anti-Roe states and their laws. Was this a factor outlined by Casey in its four-pronged test? No.

Justice Roberts’ opinion as well as his stare decisis analysis and application are clear from the quote he uses from Washington State Grange v. Washington State Republican Party (quoting Ashwander v. TVA), and which seems apposite to reproduce – “… the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case”.

This, it is submitted, is the essence of stare decisis. A doctrine which demands an adherence to precedent to enable consistency and robustness, and requires deviation to be tested and limited to a narrow path. Applying stare decisis especially as laid down by Casey, Roberts J. implores the majority not to conflate the 2 distinct rules of constitutional law laid down by Roe – one, the recognition to the constitutional right to abortion, and second the bright line viability rule formulated basis the State’s interest once a foetus become viable outside the womb. These, he correctly records, are 2 independent rules, and the abandoning of the latter in Casey and subsequent case law did no manner of harm to the validity and binding nature of the former. This is critical – he correctly opines that an independent holding which identifies the mode in which a constitutional right is to be treated ought not to be regarded as part and parcel of the right itself. The viability test raises questions of arbitrariness given that there arise issues in determining and pin-pointing at what stage viability occurs. By way of an example, the Court may recognise the constitutional right to euthanasia / physician assisted suicide, and then also lay down a test on how this right is to be effectively realised, given the State interest in protecting life. A test may be formulated basis how terminal a patient’s illness has to be, in order to avail this right. These are two discrete holdings, and the latter can easily be detached and struck down by a subsequent court, while still preserving the former.

The record of overruling precedent cited by the majority

A large plank of the majority decision was that the SCOTUS itself had plentiful times overruled precedent, and veered off the course of stare decisis. The majority chose to cite 3 instances, all of which are distinguishable on one fundamental basis, i.e. the doctrine of non-retrogression. The 3 judgements cited by the majority all deviated from precedent so as to recognise a new right. However, the Dobbs Court deviates from precedent to achieve the opposite – striking down a previously protected right. This is directly contrary to the doctrine of non-retrogression, which recognises that protection may be granted to rights which are otherwise unenumerated, but once such rights are protected, the protection cannot be taken away or revoked.

Brown v. Board of Education overruled Plessy v. Ferguson and repudiated the doctrine of “separate but equal” i.e., racial segregation in public education. This judgement Roberts, CJ says cannot be compared with Brown which was a unanimous, pithy judgement of the Court. This is relevant since a long-winded and splintered judgement like Dobbs discloses the conflict within the Court and renders the judgement itself vulnerable. The conflict is in fact made clearer from Thomas J.’s opinion which proclaims that other rights under the 14th Amendment require reconsideration – a proclamation that other members of the majority take pains to distance themselves from. Brown on the other hand was a resounding rejection of segregation after reviewing the history of public education since the ratification of the 14th Amendment. The Court in one voice declared that “separate but equal” legislation was unconstitutional and had no place in public education, and the right to a good, equal education was fundamental to democratic society. Several cases in the run-up to Brown had already challenged segregated schools furnishing a judicial basis to depart from precedent, as contrasted from Kavanaugh J.’s argument that several states had enacted laws violative of Roe, i.e. furnishing a legislative basis to defeat precedent.

Adkins v. Children’s Hospital of DC, which held that laws requiring minimum wages to be paid to women was violative of the 5th Amendment’s Due Process Clause, was overruled by West Coast Hotel Co. v. Parrish. This was brought about in a sea-change in economic and social conditions that necessitated a departure from precedent. Up until then, the Lochner era meant that in the garb of freedom of contract, SCOTUS invalidated innumerable worker and consumer protection laws.

Lastly, West Virginia Bd. Of Ed. v. Barnette overruled Minersville School Dist. v. Gobitis, holding that public school students could not be compelled to salute the national flag if it violated religious beliefs, and that consequently schools did not have the right to expel students if they refused to salute the national flag on these grounds. Barnette invoked both freedom of religion and an individual’s freedom of speech—and that freedom of speech included the right not to be forced to speak against one’s will.

The common thread therefore is that all 3 previous incidents of overruling cited by the majority to support their overruling of Roe, were instances where the Court by overruling precedent, recognised a right. I think it is bears relevance that no rights that were previously protected were being eroded or erased.

Slippery slopes recognised by the Court  

There are a few slippery slopes identified in Dobbs. This is yet another reason that Chief Justice Roberts’ approach ought to have been adopted, keeping the judgement’s scope confined and narrow.

The majority holds the view that a broad right to bodily autonomy would somehow justify or encompass fundamental rights to “illicit drug use, prostitution, and the like”. It is telling that the majority chooses to compare the right of a woman to control her own body to activities that have been considered largely illegal / unlawful and have been criminalised across jurisdictions over the years. Further, Dobbs only serves to provide the foundation in the larger movement to expand state surveillance and eventually perhaps erode the right to privacy – a campaign that sex workers have been fighting for decades.

The most chilling is the outright call for reconsideration of rights such as the right to obtain contraceptives, right to privacy in sexual acts, right to same-sex marriage, in the Thomas concurrence. This approach will descend into regression of unimaginable proportions – which is why the other majority judges are keen in distancing themselves from the view.

The other slippery slope is identified by the dissent, with respect to what kinds of legislation would now be possible post-overruling Roe: laws compelling women to carry to full term pregnancies that are the outcome of rape, or compelling women to carry to full term foetuses with known terminal illness, or even laws criminalising the act of travelling across state lines to obtain abortions. There is no answer to this in any of the opinions penned by the majority judges.

Conclusion

Returning the power to decide abortion-related policy to “the people” while at first blush seems to be correct, the structure of federalism in the US means that very often, state legislatures do not perfectly or even adequately represent the will of the people. Further, the deviation from stare decisis to revoke protection to a right which had been recognised and protected for decades is, in no small measure, a cause for alarm. Not only has the Supreme Court retrogressed and undone years of progress as regards the constitutional right to abortion, but the deviation from precedent has also now reopened the gamut of protections which were similarly afforded by substantive due process.

Let there be no mistake – overruling Roe was a major plank on which Trump rode to presidency, which set in motion the chain of events that led to Dobbs. SCOTUS was packed with judges who were appointed simply to overrule Roe, despite some them in fact professing loyalty and deference to Roe and Casey in their congressional hearings. But the politics surrounding the SCOTUS aside, a reading of the opinions displays a sheer wanton disregard for basic principles of constitutional law that now stands available to support similar overruling of settled constitutional precedent. It will do well to heed to the warnings by way of slippery slopes contained in the opinions – none of those rights remain safe.