Contempt of Court: The Meghalaya High Court’s Wafer-Thin Skin

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Paraphrasing a tweet that I read earlier today: “if the judges of the Meghalaya High Court were any more fragile, they’ll have to be checked in with fragile items and a sticker on top at the airport to be able to fly.” That, at any rate, seems to be the only conclusion one can draw from reading the bizarre order (and the equally disturbing record of proceedings) passed by a two-judge bench of that Court today, holding two journalists from the Shillong Times guilty of contempt of court, fining them Rs. 2 lakh, and failing that, six months imprisonment and a ban (!) upon the newspaper.

What calumny did The Shillong Times level at the Learned Justice S.R. Sen – who, incidentally, issued notice for contempt of himself, and then also wrote the judgment finding the journalist in contempt  (one might call that a classic case of being a judge in one’s own cause, but one wouldn’t, because that might be construed by the Learned Judge to be contempt)? In December 2018, the newspaper published reports captioned “When Judges Judge for Themselves.” The gist of the first report was that the Learned Justice S.R. Sen had passed orders directing that the spouse and children of retired judges should be accorded various benefits, such as medical facilities; and that retired judges themselves were to be granted Rs 10,000 per month for their phone and internet expenses. The second report included a brief summary, ending with:

In the recent order, Justice SR Sen, who is set to retire in March, wanted several facilities for the retired chief justice and judges, their spouses and children. Besides providing medical facilities for the spouses and children, the order stressed the need for providing protocol, guest houses, domestic help, mobile/internet charge at the rate of Rs 10,000 and mobile for Rs. 80,000 for judges”.

Learned Justice Sen took deep umbrage at these reports. A contempt notice was issued. The seriousness of the matter saw four senior counsel volunteer their services as amicus curiae. One of them filed an affidavit alleging that the report was in “bad taste, showed the court in “poor light”, was not “based on facts” and had been published “without research.” Learned Amicus went on to note that the report had been “aptly (sic) highlighted in colour”, and that “scornful” language had been used.

So far, so contemptuous. Immediately after recounting the contents of the affidavit in the judgment, however, Learned Justice Sen switched tack. Now the issue – as highlighted by another one of the affidavits – was that one of the contemnors – Patricia Mukhim – had taken “the help (!) of social media”, and unpardonably “gone to the extent of mocking (!) the judicial system of this country.” In one of the posts, she referred to a “judicial on slaught (sic)”, and in a second, compared her contempt hearing to the Day of Judgment (one may have thought that Learned Justice Sen might have been flattered to have been compared to Almighty God, but apparently not). In a third post, she asked whether “the legal counsel for the accused [should] be told by a judge to literally “Shut up” and not speak?” The affidavit then went on to mention (yet) another article titled “HC Judge should step down: HNCL”, but did not extract its contents. The Affidavit (also) made the argument that one of the contemnors had slandered the amicus curiae,which is a dangerous attack to the entire legal fraternity and publishing such false report is scandalizing the Court. (sic)”

Having traversed this somewhat bewildering factual terrain, Learned Justice Sen then posed the crucial constitutional question, and answered it as pithily:

“We would like to ask the whether the contemnor, Smti. Patricia Mukhim wants to control the judiciary as per her desire and will? If it is so, she is very much wrong.”

Learned Justice Sen then observed that “only true news should be published not the false report (sic)”, that Patricia Mukhim had earlier called for a bandh, proving that “this particular newspaper was always working against the Judges and Judicial System”, and that the media could not publish “false news.”

After so many references to false news, one was, of course, waiting with bated breath for Learned Justice Sen to expose the mendacity of The Shillong Times. This he proceeded to do forthwith, stating that the backdrop of the case had been that:

“… all of a sudden, Government of Meghalaya withdraws the protocol service to the retired Judges and their family members without consulting this High Court. When it came to the notice (sic), Hon’ble the Chief Justice of this High Court called for a meeting where the Chief Secretary, State of Meghalaya, Shillong, Law Secretary, State of Meghalaya, Shillong and the Commissioner & Secretary, GAD, State of Meghalaya, Shillong were placed questions as to how they withdraw (sic) the facilities which was (sic) already given earlier, but they had no answer. Therefore, they were asked to rectify it immediately and to restore the protocol service to the retired Judges and their family members. Unfortunately, after a lapse of 2 (two) months also when the matter was not solved, the retired Judges and their family members faced problems and a suo moto proceeding was drawn as WP(C) No. 337 of 2018 and endorsed to this Court to proceed with the case. Accordingly, notice was issued and since the Government remained silent, necessary order was passed directing to comply within a month. Thereafter, when the Government failed to do so, contempt proceeding was drawn and the Chief Secretary, State of Meghalaya, Shillong, Law Secretary, State of Meghalaya, Shillong and the Commissioner & Secretary, GAD, State of Meghalaya, Shillong were asked to appear in person.”

Thus did Learned Justice Sen nail the blatant lies told by The Shillong Times. Because, after all, The Shillong Times had only gone and written that:

As for the protocol service/Meghalaya State Guest Rules of retired judges, it was informed to the court that the matter was under process by the GAD. According to the court, the Meghalaya State Guest Rule, 1991, was there at the inception of the High Court but suddenly it was withdrawn without consultation of the High Court by some officers. The government had issued a notification on October 4 this year whereby it had amended Rule 10(a) of the Meghalaya State Guest Rule, 1991. “It is unfortunate that such amendment was made without consultation with the High Court. Accordingly, the notification dated October 4, 2018, is hereby set aside,” the court said. The court also directed the GAD to make protocol service as well as the Meghalaya State Guest Rules “at the same tune and equal facilities to be provided as is applicable to sitting judges, including spouse and children”.

Having nailed The Shillong Times by characterising the issue in almost identical terms to how the newspaper had characterised it, Learned Justice Sen then concluded that:

Therefore, the question of a particular Judge on the verge of retirement taking steps for himself or his family does not arise. Hence, the report which appeared in the Shillong Times by the contemnor No. 1 is totally false and without any basis.

The issue, of course, is that neither of the reports stated, as a matter of “fact”, that Learned Justice Sen “on the verge of retirement [was] taking steps for himself or his family” – in fact, the reports were consistent on the point that the order applied to retired judges and their families across the board. That apart, however, what the two reports set out were the facts of the proceedings – none of which were false. On the basis of these facts – which indisputably involved a judge passing very specific and concrete directions ordering the government (under pain of contempt) to provide for certain post-retirement facilities – the report was headlined “When judges judge for themselves.” In the course of this report, the similarity with another case where a judge on the verge of retirement had passed directions for benefits to retired judges was pointed out.

It should now be abundantly clear that Patricia Mukhim and The Shillong Times had no case to answer. Whatever contempt of court might be, publishing an account of a proceeding in which a judge orders the government to provide concrete benefits to retired judges and their families, questioning the putatively self-serving character of that proceeding through the headline, and pointing out a parallel situation from the recent past where judges closed to retirement have passed such orders, does not even come close to constituting contempt. Recall how high the threshold for contempt is: the statement must not only be false, but it must be of such a character that can proximately lead to impeding the course of justice.

Having disposed off the issue of the article, Learned Justice Sen now came to the issue of the fearsome social media posts. Suddenly switching tack and referring to himself in the third person, he observed that:

According to what the contemnor, Smti. Patricia Mukhim stated in the social media as reflected above, Justice S.R. Sen replied that if at all, any such remarks have been made to any litigants or officer by any Judge, the person concerned should have reported to Hon’ble the Chief Justice and I myself with full faith and conscience, I say that I never asked any litigants or officer or lawyer about their personal life, rather it is a known fact to every members in the bar that I speak very less and hear the matters in accordance with law. So, if it indicates to Justice S.R. Sen, it is totally false and without any basis and we Judges maintain the dignity of the Court at all costs. (Emphasis mine)

Having assumed that an allegation had been made about his conduct in court, and having emphatically denied it, one would imagine that Learned Justice Sen would promptly have initiated the normal evidentiary processes that come into play when one needs to adjudicate between two clashing factual accounts: he would, of course, subject himself to cross-examination on the point by the contemnor’s counsel. One would imagine.

Instead, Learned Justice Sen then set out the provisions of the Contempt of Courts Act, and then cited long extracts from various prior judgments, along with the Press Council Norms. Learned Justice Sen then expressed righteous anguish at the contemnor’s counsel argument that the proper procedure had not been followed in this case, as no formal charge had been framed against the contemnor, no evidence taken, and no right of reply granted. Learned Justice Sen considered arguments on “technicalities” to be “against the principles of professional ethics.” He then cited some more judgments to argue that contempt proceedings could be summary in character, and the normal rules of evidence dispensed with.

Having cited all of this, Learned Justice Sen then cited another article from The Shillong Times about another judicial order involving the starting of flights from the Shillong Airport, and took great pains to point out that, contrary to what the article said, the Supreme Court had not stayed the order of the Meghalaya High Court. What relevance this observation had to anything at all is unclear, as a quick Google Search reveals that the same error was made, inter alia, by LiveLaw, ANI, and The Hindustan Times. Learned Justice Sen then further observed that:

Considering the facts and circumstances of this case, we are of the considered view that the contemnor No. 1 has made a derogatory comment which also appears from the affidavit filed by the Amicus Curiae that she has posted in social media dated 17.12.2018 under the statement “Will God reserve the choicest abuses for us journalist? That‟s what the earthly Gods to believe”. When she was confronted on 25.02.2019 for these remarks, she had no answer.

As is par for the course in this judgment, Learned Justice Sen did not provide any further justification for why this “derogatory comment” amounted to contempt of court. Having said all this, however, he came to the order:

In exercise of the power vested on us by Article 215 of the Constitution of India, we sentence both the contemnors to sit in the corner of the Court room till the rising of the Court and impose a fine of Rs. 2,00,000/- (Rupees two lakhs) each which is to be deposited with the Registry within a week and then to be deposited in the welfare fund of this High Court. We also further direct that in default of payment, both the contemnors will have to undergo 6(six) months simple imprisonment and the paper so called “Shillong Times” will automatically come to an end (banned).

In a judgment that had set a very high bar already, the last line performed a Fosbury Flop and went vaulting clean over the top. You might, on reading it, be wondering: what authority does the High Court have to “ban” a newspaper? The answer is “none at all”, and that’s an answer that could apply to many things going on in this judgment.

Sometimes, it seems, judges are so anxious to prevent being mocked, that they do things that accomplish that goal far more effectively than any journalistic Puck could ever hope to do. Apart from everything else in the judgment, this is reflected most clearly in the order issuing notice on contempt, which is extracted:

On perusal of the said news item, it is really shocking that the publisher and editor of the said newspaper without knowing the law or background of the case is making comments which is definitely derogatory to a Judge who is handling the case as well as the entire Judges fraternity, and that too I cannot understand what was so important that it is highlighted in pink colour. When the matter is pending before the Court, media has no business to comment on it and media is also not a party to this case. Secondly, media is not to dictate the Court: what the Court should do and should not do. Therefore, I find that it is purely contemptuous.

“Derogatory” to a judge. A pink colour highlight. And an outrage at the media daring to comment on a sub-judice matter. This is what it boils down to. In the words of Geoffrey Cox, Attorney-General for the UK, “what are you playing at?”

 

When this judgment is appealed, one can only hope that cooler heads in the Supreme Court will be equal parts amused and equal parts alarmed, and consign it to the scrap heap without much ado. And if such judicial pyrotechnics – coupled with what has been going on in the Supreme Court recently – do not prompt an urgent conversation about the dire necessity for doing away with this “boundless and boundlessly manipulable” contempt jurisdiction, one of the most stifling weapons against freedom of speech in contemporary India, nothing ever will.

Notes from a Foreign Field: The Canadian Supreme Court on the “Reasonable Expectation of Privacy”

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In an interesting judgment handed down on February 14 – Queen v Jarvis – the Supreme Court of Canada engaged in a detailed discussion of what constitutes a “reasonable expectation of privacy.” The facts in Jarvis were simple. The accused was a schoolteacher, who was caught while surreptitiously taking videos of (primarily) female students, within the school premises, through a pen-camera. The videos focused upon the students’ faces, upper bodies, and breasts. The accused was charged with the offence of voyeurism. The relevant part of the statute had two elements: it penalised observing or making a recording of a person in circumstances that gave rise to a reasonable expectation of privacy, if that was done for a sexual purpose. The courts below were united in affirming that the second element existed, but split on the question of whether students “engaged in ordinary school-related activities in common areas of the school” had a reasonable expectation of privacy within the meaning of the statute. The Supreme Court, therefore, was tasked only with answering this question, which it did in the affirmative.

Background

The significance of the Canadian Supreme Court’s judgment lies in the fact that the phrase “reasonable expectation of privacy” has attained near-universal currency, but its precise interpretation – and therefore, the scope and limitations of the right to privacy itself – remains disputed. It remains an open question whether a “reasonable expectation of privacy” turns primarily on an individual’s subjective expectations or whether those expectations are “objectively” reasonable – or some combination of both. And what constitutes a “reasonable” expectation of privacy? Does it depend upon social norms? Constitutional principles? Is it a function of the space a person is in – i.e., would it be unreasonable to expect privacy in what we understand as “public spaces”? These questions go to the heart of how we conceptualise privacy, and were therefore central to the Canadian Supreme Court’s analysis.

Counsel for the accused argued that “the common areas of the school” were quintessentially “public spaces”, where the students could not have reasonably expected to be free from being observed or watched, especially when the observers were other students, teachers, or anyone who had general access to those spaces. In other words, a reasonable expectation of privacy could arise when an individual was in a space where she did not expect to be observed by anyone (such as a home), or where she was observed by someone other than people who had access to those spaces (such as, for example, a trespasser in the school), or if the observation or recording was of a body part that she did not expect would be the subject of observation (such as, for example, body parts normally covered by the school uniform). (paragraph 25) In other words, the reasonable expectation of privacy depended upon “the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in the space.” (paragraph 26) This heavily spatial understanding of privacy has its roots, of course, in American Fourth Amendment jurisprudence, including the case that gave birth to the phrase “reasonable expectation of privacy.”

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The Majority View 

The Majority of the Court rejected this approach as unduly narrow. The Majority began its analysis by noting that there existed a reasonable expectation of privacy in circumstances where “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” (paragraph 28) This was not an “all-or-nothing” approach but a contextual enquiry, which required taking into account the location the person was in, the nature of the observation/recording (i.e., how intrusive it was), whether there was consent to being recorded, the manner in which it was done, its purpose, the subject matter, the relationship between the two parties, any background rules, and so on (paragraph 29). Consequently, as the Court observed. “a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.” (paragraph 37)

The Majority cited a number of examples to drive home the point: a person relaxing in a public park may reasonably expect to be incidentally captured in the background of someone else’s photograph, but would “retain an expectation that no one would use a telephoto lens to take photos up her skirt.” (paragraph 40) Similarly, “the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities.” (paragraph 62)

This contextual enquiry, the Majority stressed, was particularly important in order to cope with the evolving use of technology, and its impact on privacy interests. In particular, the evolution of technology that made it easier for government or private parties to “glean, store and disseminate information about us” (paragraph 63), did not therefore imply that “our reasonable expectations of privacy will correspondingly shrink.” (paragraph 63) And this contextual enquiry, further, had to be understood in light of the interests that a right to privacy sought to secure: in this context, for example, the right of individuals to “determine for themselves when, how, and to what extent information about them is communicated to others.” (paragraph 66)

A combination of these factors led the Majority to conclude, therefore:

“… “reasonable expectation of privacy” is a normative rather than a descriptive standard … [and therefore] the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced … whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable.” (paragraph 68)

Applying these principles, the Majority was easily able to find that the accused had breached the law. School students in common areas of a school may not have had a reasonable expectation not to be observed, or not to be recorded by security cameras, but they did have a reasonable expectation not to be recorded by other individuals for sexual gratification, especially when the recording was of intimate or sexualised body parts. The conviction, therefore, was affirmed.

Significance

The combined elements of the Majority holding – the delinking of privacy from space, the focus on contextualisation, the insistence that the “reasonableness” is a normative (not descriptive) enquiry, and the observation that “reasonableness” had to be determined within the framework of the individual right to control information about oneself – represent a valuable addition to global privacy jurisprudence.

In particular, the Majority’s sensitivity to the interface between privacy and evolving technologies is particularly important. To understand why – especially in the Indian context – take the example (of course!) of the Aadhaar case. An argument that was made – both in Court and in the media – went something along the lines of: “if people happily give up their biometric information to immigration authorities at the border or their personal information to Google or Facebook, the privacy interest in such information must be very weak or attenuated.” The Canadian Supreme Court’s contextual analysis demonstrates that this framing itself is fundamentally flawed, because it takes privacy interests as all-or-nothing, instead of context-dependent. It is entirely consistent for an individual to be willing to give up their biometric information at Immigration to an entity that – apart from stamping visas, has little other control over the individual’s life – while remaining unwilling to have it stored in a centralised information database that is then put to use across a number of critical domains, from banking to paying tax (in an abstract way, it is like the distinction in this case between mere observation, and a recording, which the Court measured in the language of intrusiveness). The point is not that because we easily give up personal information to Google, that personal information has lost its value, or that our claim to sanctity of personal information has become weakened. The issue turns, rather, on the manner or nature in which control over personal information is relinquished to an entity such as Google, on the one hand, and when it is commandeered by the State for the purposes of databasing, on the other. A contextual analysis demands, in other words, that each instance be taken on its own terms, and examined on its own merits, on the touchstone of the factors set out by the Canadian Supreme Court.

As I have discussed previously, the “reasonable expectation of privacy” standard was adopted by the Majority judgment in Aadhaar, and done so entirely acontextually. Indeed, the Aadhaar Majority made exactly the error that the Canadian Supreme Court warned against: by observing that there were other statutes that required demographic and biometric information to be yielded up to the State, the Majority then concluded that the privacy interest in biometric and demographic information was weak and attenuated. The Canadian Supreme Court’s judgment demonstrates, however, how out of step the Aadhaar Majority is with contemporary global privacy jurisprudence.

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The Concurring Opinion

Justice Rowe delivered a concurring opinion for himself and three other judges. While arriving at the same conclusion as the Majority, he took issue with the Majority’s use of Section 8 of the Canadian Charter to interpret the anti-voyeurism statute. That does not concern us here. However, there is another fascinating aspect to this opinion. Agreeing that the question of what constituted a “reasonable expectation of privacy” was a normative one, Rowe J. noted that:

“Privacy” defies a singular definition. It is a protean concept given content from the circumstances to which it is applied. But the privacy interest engaged by s. 162(1) is not so amorphous as to defy sufficient certainty and stability to meet the requirements of the criminal law. The phrase “circumstances that give rise to a reasonable expectation of privacy” in the context of the sexual offence of voyeurism is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (paragraph 128)

What is important about this paragraph is that it defines “reasonableness” not in terms of social norms, but in terms if constitutional values such as sexual integrity and autonomy (although here, in terms of Parliamentary intent behind introducing the voyeurism section). Rowe J., in other words, clarified and further elaborated upon the Majority’s more surface-level treatment of how the framework of constitutional interests shaped and gave meaning to “reasonableness.” Consequently:

In brief, an infringement of one’s privacy interest under s. 162(1) can only be sustained if that individual is recorded or observed in a way that both causes them to lose control over their image; and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the voyeurism offence: “the state’s interest in protecting the privacy of individual citizens and its interest in preventing sexual exploitation of its citizens coalesce where the breach of privacy also involves a breach of the citizen’s sexual or physical integrity.” (paragraph 133)

And:

The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy … privacy is the ability to control what is known or observed about oneself. An infringement of privacy occurs when that which is unknown/unobserved becomes known/observed without the person having put this information forward. These perspectives provide a framework inclusive of location as well as personal dignity: they identify an essential privacy interest that a person retains even when in a public place. (paragraphs 135 – 136)

 

The striking thing about this analysis is how closely it mirrors Chandrachud J.’s articulation of the “reasonable expectation of privacy” test in Puttaswamy. Chandrachud J. had likewise insisted that “reasonableness” had to be adjudicated not in terms of social norms, but in terms of constitutional values. In paragraph 169 of his plurality judgment, he expressly stated that “on an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.” It was this insight that formed the basis of the disagreement, in Aadhaar, between the Majority judgment and Chandrachud J.’s dissenting opinion: the Majority elected to go back to the old formulation of understanding “reasonableness” as what “society” considers to be reasonable, thus allowing it – in the manner described above – to dismiss the strength and intensity of the privacy interest in biometric and demographic information. On the other hand, it was the understanding of “reasonableness” in the language of constitutional values that formed a major plank of Chandrachud J.’s dissent.

Conclusion

Queen v Jarvis marks the latest attempt by a constitutional court to grapple with the interface between a world in which technology has made collection, storage, and retrieval of information almost costless, and the right to privacy. The Canadian Supreme Court has offered up a nuanced understanding of this interface, providing us with the conceptual framework and the analytical tools to apply it to the more complex situations that we shall face in the future. There is also an interesting conversation between Jarvis and Puttaswamy (Privacy) on the question of how we ascertain the “reasonable expectation of privacy.” The Aadhaar judgment marked a rollback of this progressive understanding, and it remains to be seen what the future holds in this regard.

The First Line of Defence

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Today, the Chief Judicial Magistrate of Imphal East – Nigthoujam Lanleima – granted bail to Veewon Thokchom, a former student of Ambedkar University, in a sedition case. Thokchom had written, in a Facebook post, that:

Indefinite curfew imposed in Manipur. Internet banned for five days. All cable networks asked not to cover any speech or footage of the protests. High possibility that CAB (Citizenship Amendment Bill, 2019) will be passed today at Rajya Sabha. Manipur once burned down the State Assembly in 2001. Self determination the only way forward.

Rejecting the police application for remand in a terse, two-and-a-half-page order, Lanleima J. had this to say:

It is not stated anywhere the accused committed any other act, apart from the uploading of the said post. It is also not the case that any offence has been committed besides the posting of the said Facebook post. Grant of police custody cannot be conducted in routine manner, remand prayer is allowed. If there exist a well founded accusation for commission of an offence. There has to be a prima facie case that an offence has been committed.

At most, the accused mentioned the incident of burning of Assembly with approval, but I do not find any attempt or incitement to commit violence. After consideration of the materials on record, I do not find the facebook post as mentioned above to be prima facie seditious.

 

This is, of course, entirely correct. It is by now established beyond any cavil, in numerous judgments of the Supreme Court, the correct standard to apply in deciding whether or not sedition has occurred is the “incitement to violence” test. Anything short of that – including advocacy of revolutionary views – is protected by the Constitution’s free speech guarantee.

In ordinary times, this case – of a trial judge doing her job – would not merit mention. However, in a month in which three young men in Punjab were given life sentences for possessing Khalistani literature and writing Facebook posts, when multiple arrests for “sedition” have been made across the country, when jail remains the default judicial option the moment sedition/NSA/UAPA are invoked, and when the Delhi High Court’s infamous “gangrene” judgment in Kanhaiyya Kumar’s bail order is still fresh in the memory – applying Supreme Court precedent correctly and making it clear that incendiary rhetoric on Facebook should not put anyone in jail – is a courageous act, and ought to be recognised as such.

In her bail judgment, austere, brief, and free of frills or rhetoric, Lanleima J. has proved the old adage – the trial courts are the first lines of defence of our civil liberties.

Guest Post: A Comment on the Supreme Court’s verdict in ‘Union of India v. Mohit Minerals’

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(This is a guest post by Karan Trehan.)


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Meme Credit: Neerja Gurnani

The Constitution (One Hundred and First Amendment) Act, 2016 [‘Amendment Act’], introduced the Goods and Services Tax [‘GST’] regime in India which came into force from 8th September, 2016. Various laws were also passed subsequently for implementing the GST, which became effective from 1st July, 2017. The amendment act and corresponding legislation empower both Parliament and the States to levy GST on supplies of goods and services.

Background

Various States raised concerns regarding substantial loss of revenue as a consequence of introducing the GST, which had accrued to them earlier on account of levying numerous indirect taxes. Thus, the Goods and Services Tax (Compensation to States) Act, 2017, [‘CSA’] was enacted in order to compensate the States for this loss of revenue. Section 8 of this act provides for levy of a ‘cess’ on intra-State and inter-State supply of goods or services, or both, as a means of compensation for a period of five years, or for such period prescribed as per the recommendation of the GST Council. This cess collected has to be distributed amongst the States in the manner prescribed under the Act and the corresponding rules framed under it.

The constitutional validity of the Goods And Services Tax (Compensation To States) Act, 2017, and the Goods and Services Tax Compensation Cess Rules, 2017, came up before consideration before the Hon’ble Supreme Court [‘SC’] in Union of India v. Mohit Minerals Pvt. Ltd, AIR 2018 SC 5318. Among the contentions raised, one was that the act was beyond the legislative competence of the Parliament. The court, however, upheld the legislative competence of Parliament to enact the law, pointing out that Article 270, after the Constitution (One Hundred and First Amendment) Act, 2016, specifically empowers Parliament to levy any cess by law.

Although the court also emphasized the fact that Section 18 of the Amendment Act expressly empowers the Parliament to compensate the States for loss of revenue arising on account of implementation of the GST, ‘by law’, this factor did not form the basis of court’s decision.

Before delving any further, it is apposite at this stage to refer the language employed by Section 18. The Section states that:

Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the goods and services tax for a period of five years.

Thus, this clause authorizes the Parliament to frame law for compensating the States on account of loss in the revenue arising due to the implementation of GST. It is pertinent to note that although Section 18 forms a part of GST amendment act, it has not been reflected in the amended text of Constitution.

This article aims to argue firstly, that Section 18 of the amendment act is not an ordinary piece of legislation and in fact has a constitutional basis [against what has been argued here]; and secondly, although Section 18 does not specifically amend the text of Constitution, it can still be considered as a source of power to frame a law providing for compensation to the States. In addition to this, the possibility of conflict of such a power with the residuary provisions under Schedule VII, and the manner of resolving such a conflict, has also been discussed.

 Can a law be framed through the power granted under Section 18 of the 101st Amendment Act?

Section 18, which forms a part of the Amendment Act, has not been reflected in the Constitution. Indeed, the present case falls under a peculiar scenario, where a section that forms part of the Constitutional amendment act has not made any change to the bare language of Constitution. Hence, can one say that above clause will have the same legal status as other sections of the amendment act reflected in the Constitution? Further, can the law-making power granted be exercised to frame a law for compensating the States?

In this regard, there have been previous instances where provisions of an amendment act, though not reflected in the Constitution, have been relied upon and given full legal effect by the courts. Two of these can be traced back to the First and Forty-Second Amendment Acts to the Indian Constitution. Section 3 of the Constitution (First Amendment Act), 1951 made certain changes to Article 19. It had two sub-sections, of which the first modified clause 2 of Article 19 and substituted new words in the text for old, with retrospective effect. The second sub-section, however, did not alter any existing words but mentioned that no law in force at the commencement of the Constitution would be deemed to be void on the ground that its operation was not saved by Clause 2 of Article 19, as originally enacted. The Allahabad HC court in Purshottam Lal Sayal vs Prem Shanker, AIR 1966 All 377 while deliberating upon the above clause held:

“25. ……. Sub-section (2) of Section 3, on the passing of the Bill, became a part of the Constitution Amendment Act. Therefore, after the passing of this amending Act the Constitution stood amended in accordance with the terms of Sub-section (3).”

 

Further, in Shantilal Ambalal Mehta vs M.A. Rangaswamy, (1977) 79 BOMLR 633 and Shripatrao Dajisaheb Ghatge v. The State of Maharashtra, (1977) 79 BOMLR 259, the issue before the Bombay HC was about the enforceability of Section 58 of the Constitution (Forty-Second Amendment) Act, 1976. The Section contained some special provisions regarding pending petitions under unamended Article 226 and 227. It also did not form a part of the text of Constitution. The court in these cases held the clause to be enforceable.

It is established that as soon as the procedure enjoined for amendment under Article 368 is fulfilled, the Constitution stands amended in accordance with the terms of the Bill. Moreover, no particular phraseology for amendment is prescribed, and there is not a word in this article which requires that a Bill for amending the Constitution must alter the existing text of the Constitution.

Consequently, in simple terms, an amendment modifies/adds to the existing provisions of a Constitution. If an amendment or a certain provision of the amendment gets repealed by the legislature or is struck down by the court, the Constitution gets restored as if no change had ever taken place. It is a cardinal principle of statutory interpretation that every part of a statute must be regarded as material and given effect to and no part rejected as superfluous or decorative.

Therefore, to say that only those parts of the amendment act which explicitly bring about changes to the text of Constitution can be said to have added something to the existing provisions would be to render other provisions superfluous. This would also amount to saying that those other provisions were not included in the Bill for the purpose of amending the Constitution. This makes it difficult to comprehend the intention behind the insertion of such a provision.

Hence, in order to avoid superfluity, the terms ‘addition’ or ‘change’ to the Constitution would not only include clauses that are reflected in the text, but also others that form a part of the amendment. Thus, the Constitution has to be read along with the amendments, which, to the extent of their validity, are a part of the Constitution in entirety.

Based on the above discussion, it can be concluded that the court could have sourced the validity of GST (Compensation to States) Act, 2017 through Section 18 of Constitution (One Hundred and First Amendment) Act, 2016 without going into Article 270 so far as the power to frame a law providing for compensation to States is concerned.

Conflict with Residuary Provisions

Article 245 read with Entry 97 in List I of VII Schedule and Article 248 deals with residuary powers of Parliament to legislate with respect to any matter not enumerated in the Concurrent List or State List. [‘Residuary provisions’]. This includes the power to enact any law imposing a tax not mentioned in either of List II or III.

Article 246A empowers the Parliament and States to impose goods and services tax subject, to conditions stipulated therein. Through the GST Amendment Act, Article 246, which demarcates the subject matter over which Parliament and States can legislate and Article 254, which is the repugnancy provision; have been made inapplicable to Article 246A. Furthermore, the applicability of Article 248 has also been explicitly excluded. In addition, several heads of legislation which were earlier provided under Seventh Schedule, were also omitted through the Amendment.

Thus, by excluding the applicability of aforementioned provisions, the powers (residuary and others) which were earlier available under VII Schedule have been sourced outside exclusively to Article 246A in so far as imposition of goods and services tax is concerned. The purpose for this is clearly to avoid any conflict in terms of the source of power and subjects of legislation.

Interestingly, Section 18 has no such exclusion clause present. Hence, regardless of whether ‘law’ under Section 18 includes the power to levy cess, it can be argued that law making power provided in this section is also available under Article 245 r/w Entry 97 and Article 248 which brings it in conflict with the residuary provisions. (Since there is no other entry which deals with power to make a law for compensating States, Entry 97 is the only possibility).

It has to be noted that Section 18, like Article 246A, also forms a part of the GST regime and is an important source of power as it allows law making for purpose of compensating the States. If the Section is interpreted in manner stated earlier, this will result in overlap with respect to legislative competence of Parliament and States to enact laws which the legislature clearly did not intended. Thus, the power under Section 18 has also to be read as if it has also been sourced outside the Seventh Schedule and Article 248 (in similar manner as Article 246A). This is the only possible manner of resolving the conflict.

Guest Post: The Case against the 103rd Amendment

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(This is a guest post by Malavika Prasad. A prior version appeared here.)


The 103rd Constitutional Amendment permits the State to:

  1. make special provisions (Article 15(6)),
  2. make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
  3. make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).

In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.

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Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.

This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.

The Rights of Later-Generation SC/ST/OBC Learners

After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.  

Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.

This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.

The Logic of Group Representation

This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.

If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:

First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:

In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”

Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:

He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).

Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.

Equality and the Basic Structure

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Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India.  This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.

The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

 

If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.

The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.

Conclusion

In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.

Guest Post: Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues

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(This is a guest post by Shuchita Goel.)


The statutory licensing scheme provided under Section 31D of the Copyright Act, 1957 (“the Act”) has recently faced a constitutional challenge in the Supreme Court in M/s Lahari Recording Company v Union of India (W.P. (C) 667/2018), as well as the Calcutta High Court in Eskay Video Pvt. Ltd. v Union of India (W.P. 14979 (W)/2016). A similar challenge was previously rejected by the Madras High Court in South Indian Music Companies v Union of India, on certain limited grounds.

Section 31D was introduced into the Act through Section 18 of the Copyright (Amendment) Act, 2012, that came into force on 21 June 2012. It is supplemented by Rules 29 – 31 of the Copyright Rules, 1958 (“the Rules”). The Scheme essentially grants broadcasting organisations the right to communicate to the public, by way of broadcast or performance, a previously published literary or musical work and sound recording, after giving notice of its intent to do so, and upon payment of royalties, to the owner. This notice is given after the process of determining the rate of royalty is completed by the Intellectual Property Appellate Board (“Appellate Board”):

Section 31D: Statutory licence for broadcasting of literary and musical works and sound recording

(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.

(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the Appellate Board shall fix separate rates for radio broadcasting and television broadcasting.

The Section has been challenged for being ultra vires Articles 14, 19(1)(g), 21, and 300A on the ground that it does not allow for a reciprocal understanding between copyright owners and their licensees. Rather, it allows any broadcasting organisation to unilaterally publish copyright owners’ works without allowing them any say in the matter, thus taking away their incentive to create original works and bear the fruit of their intellect by collecting their ‘IP reward’.

What the challenges seem to have neglected, however, is an associated issue of the constitutionality of an Office Memorandum (“Memorandum”) issued under Section 31D by the Department of Industrial Policy and Promotion (“DIPP”). In this piece, I will be arguing that this Memorandum is issued outside the competence of the DIPP and violates Articles 14 and 19(1)(g) of the Constitution.

The scope of Section 31D seemed to be limited to two modes of broadcasting i.e. radio and television, as they are the only modes of communication mentioned in both the Act and the Rules. However, the DIPP’s Memorandum issued on 5 September 2016 clarifies that “internet broadcasting” and “internet broadcasters” fall within the ambit of Section 31D, as it does not contain a prohibition on either the modes of broadcasting, or classes of broadcasters.

Arrogation of Legislative and Judicial Powers

raptor

The constitutional competence of the DIPP in issuing such a memorandum is questionable. While there is no strict separation of powers doctrine followed in India, it has been held previously to be part of the basic structure of the Constitution in Kesavananda Bharati v State of Kerala. Under Articles 73 and 162 of the Constitution, the Union and state executive authorities, too, may exercise limited functions of legislative interpretation or clarification if the statute enacted by the legislature permits them to make such determinations. Shamnad Basheer has discussed the argument of how an executive agency can give limited statutory interpretations which are necessary for rendering its own functions, and only as provided by the statute. However, the DIPP has neither been granted such authority, nor is such an interpretation necessary to its functioning. The issuance of the Memorandum is quite clearly an act of arrogation of unauthorised legislative power by the DIPP.

It is also an accepted tenet of our constitutional scheme that the power of interpreting statutory instruments lies solely with judicial or quasi-judicial authorities. The power to interpret the provisions of the Copyright Act, 1957 had been given to the Copyright Board, which was held to be a judicial body exercising predominantly judicial functions by the Madras High Court in Shamnad Basheer v. Union of India. It was later merged with the Appellate Board, which has also been held to be a judicial body exercising judicial functions in the same case. Interpreting the Act is therefore, a function of the Appellate Board as a quasi-judicial entity, and any act of interpretation made by the DIPP that extends, not clarifies, the scope of Section 31D is impermissible for want of Constitutional authority.

Arbitrary Executive Action

The arbitrariness doctrine is a well-accepted tenet of determining the scope of Article 14, where it provides a guarantee against arbitrary State action, whether exercised under authority of law or in exercise of executive power without making of law. The Supreme Court, in Om Kumar and Ors. v Union of India, has laid down the grounds to be followed to challenge an administrative action as arbitrary, where the order of the administrator needs to be examined to see if it is ‘rational’ or ‘reasonable’. The basis of inquiry is “whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken.”

Section 31D opens with the words “any broadcasting organisation desirous of communicating to the public…” The Memorandum reads “internet broadcasting” into Section 31D by virtue of the definition of “communication to the public” in Section 2(ff) of the Act. Section 2ff includes within its ambit any work or performance being made available to the public by any means of “display or diffusion”, and even goes onto clarify that communication through satellite or cable or other means of simultaneous communication to more than one household or place of residence is included within such definition. The DIPP has taken this language to mean that such communication ought to not be restricted to only television or radio broadcasting, and also includes internet broadcasting.

The opening words of the Section reflect the breadth of view taken by the legislature when it comes to the classes of broadcasters and does not refer to any class in particular. The DIPP, however, stands on shaky ground when it assumes that Section 31D allows for including different modes of broadcasting, and not only the different classes of broadcasters.

The legislature has specifically restricted the scope of Section 31D to radio and television broadcasting given the specific text of the provisions in Section 31D(3), and Rules 29(3), 29(4)(b), 29(4)(g), 29(4)(h) 30, 31(1), 31(5), and 31(6) of the Copyright Rules, 1957 where “radio” and “television” broadcasting are the only modes mentioned specifically with no indications that the language may be broadened to include “internet broadcasting” as well.

Further, if we look at Rules 29(4)(j) and 31(7)(a), the scheme seems to have been made applicable only to programmes that are scheduled to appear “on air” with pre-specified time slots. It is a fact that radio and television broadcasting are media where the time at which particular programs occur depict their relative importance to the channel, and the viewership it brings in. Internet broadcasting does not have the same drawbacks that require viewers to adhere to schedule because they may choose to consume any content at any point of time as per their wishes.

From this, it is apparent that the legislature seems to only have envisaged radio and television broadcasting as the modes of broadcasting that were to qualify for statutory licensing in India. The effect of the Memorandum is to extend the scope of Section 31D to a mode of broadcasting over the internet, when the same is neither reflected expressly in the text of Section 31D, nor supported by any judicial decisions favouring such an interpretation.

The DIPP is also mistaken when it assumes that the modes of broadcasting all have the same rules applicable to them. The Act and the Rules create a clear distinction between different modes of broadcasting (and not classes of broadcasters), reflected in their insistence on delivery of separate notices, fixation of separate royalty rates, and maintenance of separate records and books of accounts for television and radio broadcasting. The arguments of the DIPP assume that all internet broadcasters are bound by a single royalty rate, irrespective of whether they choose to broadcast over the internet, or television, or radio. This would defeat the purpose of the law because a single organisation may be both, for example, a television and an internet broadcaster. It would then be able to follow a lower rate by election, regardless of which mode it broadcasts content over. Considering all this, it is evident that the Memorandum violates Article 14 because it is arbitrary, and does not confine itself to the purview of the law laid down by the legislature.

An Unreasonable Restriction on Article 19(1)(g)

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Finally, we come to the issue of the rights of content owners under Article 19(1)(g) which includes the right to contract freely while carrying out that business or trade. However, this right may be curtailed under Article 19(6) by reasonable restrictions in public interest. The reasonableness standard has come to be equated with a proportionality analysis by the Supreme Court in Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh, affirmed in Binoy Viswam v. Union of India (popularly referred to as the AADHAR/PAN judgement). The test itself consists of a conjunctive four-part analysis which begins with an enquiry into whether the purpose of imposing that limitation is legitimate. Secondly, it must be established that the measures are rationally connected to fulfilling that purpose. Thirdly, no alternative measures must be available that fulfil the same purpose with a lesser degree of limitation, and finally, the relative importance of achieving the end sought to be fulfilled by the measure ought to be adjudged vis-à-vis the social importance of preventing limitations on Article 19(1)(g).

The Memorandum, being clarificatory of an existing legal position, merely reads the language of 31D in a broad sense, without placing the inclusion of internet broadcasting within the larger objective of the Section itself. To determine if the Memorandum serves a proper purpose, we need to examine the purpose with which Section 31D was enacted as well. The Madras High Court in South Indian Music Companies (supra) discusses this, and justifies it as a limitation on Article 19(1)(g) on the following reasoning:

[Section 31D] provides for a mechanism to deal with the public interest vis-a-vis the private interest. It has been introduced by way of a public policy… It was meant to support the development and growth of private radio broadcasting. The object is also to strike at the monopoly to the detriment of the general public. [Emphasis supplied]

 

The Court thus states that Section 31D was enacted in public interest, with the intent of supporting the growth of private radio and television broadcasting. Radio broadcasting was slowly dying, where copyright owners had no incentive to license their content at low rates, and radio companies did not have the listenership that brought in high advertising revenues to pay adequate royalties to copyright owners. Thus, it was intended to allow radio broadcasters access to a mechanism where they would pay royalty at fair rates set by the IPAB (and not copyright owners) for use of their content.

The logic for television broadcasting is similar. It is pertinent to notice at this point that Section 31D does not include all forms of television broadcasting. It is very limited in scope, permitting only literary, musical and sound recording works to be broadcasted over television. This necessarily excludes visual and cinematic content. The idea was to protect a form of television broadcasting that was dying as well – synchronisation works, where music is played behind a static visual background unrelated to the music itself, and not all forms of television broadcasting. Finally, if we look at the drafting history of Section 31D as well, it was initially introduced in Parliament in 2010 with the intent of protecting only radio broadcasting. However, the final version of the amendment had included limited forms of television broadcasting as well in support of this idea.

Coming back to the Memorandum – is internet broadcasting a medium that requires protection in the public interest such that its inclusion in Section 31D acquires a legitimate purpose? Internet broadcasting is an industry on the ascendant. Out of 1.32 billion people in India, the internet has reached over 500 million in such a short period of time. Internet users are now switching from television to digital streaming services due to ease of access and diversity content they can access on demand at any time they wish. All of this means that copyright owners will retain the incentive to license their work at fairer (or even lower) royalty rates to be put up on internet broadcasting platforms because a wider audience will not only bring in increased royalties, but also wider recognition of their work, something that radio and limited television broadcasting simply cannot achieve. The argument used by the Madras High Court of striking at the copyright monopoly for radio and television broadcasting will not stand when it comes to internet broadcasting.

There, then, seems to be no prima facie public interest involved in protecting internet broadcasting as an industry which is a mode of broadcasting that is both currently flourishing, and is likely to continue doing so, keeping in mind its inherent advantages of ease and convenience of access, lower cost, and choice-based viewership capabilities. The Memorandum ought to fail the first test of proportionality and is an unreasonable restriction on the rights granted in Article 19(1)(g).

Conclusion

It is clear, therefore, that while arguments of the competence of the DIPP in issuing this Memorandum exist, there also exist potential arguments challenging its content as well. The broader effect of this Memorandum until now has been to create massive confusion and multiple challenges to licenses granted for internet broadcasting as no royalty rates have, as yet, been set by the IPAB. While the constitutionality of this Memorandum specifically is not currently under challenge yet, it would be interesting to see it taken up were the Supreme Court to hold Section 31D itself as not being ultra vires the Constitution.

Guest Post: Homosexuality, the Army, and the Constitution

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(This is a guest post by Hari Kartik Ramesh.)


The judgement of the Supreme Court in Navtej Singh Johar v Union of India, and recent comments by the Chief of Army Staff, Bipin Chandra Rawat regarding the army’s commitment to resist recruiting members of the LGBTIA+ community, has raised the question of the eligibility of members of the queer community to join the various armed forces operating in the country.

While countries all across the world have been showing evolution and change in their enrolment procedures and qualifications in order to remove historical restrictions on members of the queer community, from serving in the armed forces, Indian military leaders have constantly stated their intention to shield the army from these changes. As of today approximately 51 countries across the world allow for some queer representation in the armed forces, with varying degrees of restrictions being placed in respect to specific identities, such as gay, trans, etc.

This article wishes to show that the armed forces’ argument that they are under no obligation to change from their homophobic ways, is no longer tenable in the face of contemporary change in jurisprudence regarding gender, sexuality and the armed forces as well. This article shall address the gay community’s exclusion from the army in particular.

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Article 33 of the Constitution

The members of the armed forces do not enjoy fundamental rights in the same manner as any other member of the populace, due to the operation of Article 33 of the Constitution:

  1. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
    (a) the members of the Armed Forces; or
    (b) the members of the Forces charged with the maintenance of public order;…
    …(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
    be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Therefore, Article 33 empowers the government to restrict and reduce the rights that can be enjoyed by members of the armed forces, in pursuit of maintaining the efficiency of the army and discipline of the force. This Article is the basis on which military generals are defending their exclusionary practice. Their argument stems from the exclusion prescribed by the relevant armed forces statutes, which prevents members of armed forces from making the claim that their fundamental rights have been infringed by the ban on queer folk.

An example of this is the Supreme Court’s decision in Mohammed Zubair v Union of India (2017 2 SCC 115). The petitioner, a Muslim soldier wished to keep his beard, but his Air Force commanding officer rejected this request on the ground that it was Air Force policy for members of Air Force to shave their beards. The petitioner was given a show cause notice by the Air Force after he filed a writ petition in Punjab and Haryana High Court regarding illegality of the order, directing him to shave his beard. While the petition was pending he was released by the Air Force through Regulation 13 of the Air Force Rules. A three judge-bench in the Supreme Court held that the regulation was legal, on the basis of Article 33:

Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force. Every Armed Force raised in a civilised nation has its own ‘Dress and Deportment’ Policy … India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline. That is why the Constitution in the provisions of Article 33stipulates that Parliament may by law determine to what extent the fundamental rights conferred by Part III shall stand restricted or abrogated in relation inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Additionally, the Supreme Court has repeatedly saved court-martial proceedings from unconstitutionality by utilizing Article 33. In Ram Swarup v Union of India (AIR 1965 SC 247), the Court held that the fact that counsel of one’s choice was not provided at the court-martial would not vitiate the court-martial’s ruling. The petitioners argued that in Suk Das & Anr v Union Territory of Arunachal Pradesh (1986 AIR 991) the Supreme Court had ruled that not providing counsel of one’s choice was violative of Article 22(1), but the court rejected this argument saying that Suk Das did not involve any armed forces personnel, and therefore was inapplicable. Indeed, the court held that even if the specific fundamental right is not mentioned and the extent to which it has been curbed has not been described in the statute, each provision will have to be assumed to affect the respective fundamental right:

We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right.

This position was further reiterated by the Supreme Court in Lt. Col. Prithi Pal Singh Bedhi v Union of India (1982) 3 SCC 140, where the court held that

Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin…. ….Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act.

Not a Blank Cheque 

However, this does not give the legislature a free license to completely deny all rights to members of the armed forces, nor does it render members of the armed forces as a right-less population. Article 33 itself is clear that such restriction and abrogation must be in order to allow them to discharge duties properly and maintain discipline. It should be noticed in judgements of Mohammad Zubair and Prithi Pal Singh Bedhi, in the cited paragraphs, the court has emphasized the importance of discipline and unity within the armed forces when discussing Article 33. Therefore, restrictions to the rights must be such that they are necessary for maintaining discipline and cohesion within the armed forces.

In fact, a Constitution Bench of the Supreme Court recognized this limitation to the power wielded under Article 33 in the case of R Viswan and Ors v Union of India (1983) 3 SCC 401:

The Constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them……. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them…

The court cited the above case with approval in its judgement in Union of India v LD Balam Singh (2002) 9 SCC 73: 

While it is true that army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to Parliament to abridge the rights conferred under Part III of the Constitution in respect of the members of the armed forces, but does that mean and imply that the army personnel would be denuded of the constitutional privileges as guaranteed under the Constitution? Can it be said that the army personnel form a class of citizens not entitled to the Constitution’s benefits and are outside the purview of the Constitution? To answer the above in the affirmative would be a violent departure from the basic tenets of the Constitution. An army personnel is as much a citizen as any other individual citizen of this country. Incidentally, the provision as contained in Article 33 does not by itself abrogate any rights and its applicability is dependent on parliamentary legislation.

Hence it is clear on a reading of the constitutional provision, and the case law available, that Article 33 cannot be used as an all-purpose immunity shield for the armed forces to defend themselves in cases involving the infringement of fundamental rights by the statutes.

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The Limits of Deference

The Supreme Court has tended to defer on questions of national security and public order to the legislature. However, deference does not indicate a blank cheque. For example, in Prithi Pal Singh Bedi the Supreme Court noted:

While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilised life.

Now, for the Court to be able to accurately balance fundamental rights with the necessity of discipline, factual information is key. As will be shown there is no dearth of research when it comes to proving that the presence of gay men in the armed forces does not harm the discipline or efficiency of the army.

Further, in the Viswan judgement the Supreme Court also stated:

The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in Article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. …. The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of this power, the court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands.

Thus, the court has recognised that on occasions it shall have to differ from the Government’s interpretation of the needs of the situation. In the present case, it is necessary for the court to exercise this option because if the Central Government makes the argument that gay men do not fulfil the eligibility criteria for the armed forces, it may well be based on arguments whose foundations are based on prejudicial notions of the gay community.

This is borne out by experience. If we look abroad, the reason why so many countries opposed the integration of gay men into the armed forces were based on factually inaccurate ideas such as gay men are all suffering from mental illness and the notion that once gay men are in the military, they will have an unquenchable need to have sex with men in the unit thereby hampering the cohesion and unity of the unit. In Navtej Singh Johar the Supreme Court has gone to great lengths to explain that these prejudicial and false notions of a community cannot be the basis for denying rights to them. Therefore, these arguments cannot be justified by the invocation of Article 33. Article 33 does not authorise the armed forces and the government to ignore and deny the existence of facts – to which we we now turn.

Gay Men in the Armed Forces

It is important at the outset to state that there is no provision of any statute that explicitly debars homosexual men from joining the military. Neither the Army Act, 1950, the Army Rules, 1954, The Air Force Act, 1950, the Territorial Army Act, 1948, or any other Regulation, explicitly prohibits homosexual men from joining the armed forces. Neither is homosexual intercourse explicitly made an offence in any of these statutory instruments.

The closest we have are Sections 45 and 46 of the Army Act, which provide:

Section 45-Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court- martial…

Section 46- Certain forms of disgraceful conduct. Any person subject to this Act who commits any of the following offences, that is to say,- is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind;…

 

Section 46, in particular, is couched in similar terms to Section 377 of the Indian Penal Code, which prohibits “acts against the order of nature”.

Now, before Navtej Singh Johar v Union of India decriminalized homosexual relations and removed them from the ambit of Section 377, the armed forces could dismiss a member of the armed forces using Rule 14 of the Army Rules, 1954, and its equivalent in the rules of the navy and air force. Rule 14 of the Army Rules allowed for termination on the ground of misconduct and empowered the Central Government to terminate the service of a member of the armed forces after their conviction by a criminal court if they feel that it is no longer desirable for that member to continue their service. Hence the armed forces did not even have to initiate court-martial proceedings if they wished to remove a gay soldier of the armed forces.

Navtej Singh Johar completely changed the situation when it decriminalized consensual homosexual intercourse and ruled that acts of consensual homosexual intercourse cannot be criminalized by the government. No longer could the armed forces rely solely on the conviction of a criminal court, if they wished to remove a soldier for partaking in consensual homosexual conduct. Instead, they would have to resort to a court-martial and invoke section 45 or 46.

As noted above, however, the Navtej Singh Johar judgement did not merely decriminalize consensual homosexual intercourse. Three opinions (Misra CJ, Malhotra J, Chandrachud J) held that it was an erroneous belief to understand homosexual intercourse as unnatural and further, in the course of holding Section 377 to be manifestly arbitrary and violative of Article 14, the judges pointed out how sexual minorities are no longer considered to be suffering from mental disorders. Consequently, an interpretation of Section 45 and 46 so as to consider consensual homosexual intercourse as “conduct unbecoming of an officer” or “conduct…of an unnatural kind” would also be unconstitutional for the same reasons Section 377 was struck down.

As discussed earlier, for this interpretation to receive the immunity granted by Article 33, it must be shown that the admission of gay men to the armed forces shall cause a problem to the discipline of the armed forces and will be a hinderance in the daily operations of the armed forces. However, the idea that lifting the ban on gay men from entering the military has a negative effect on effectiveness and leads to drop in morale is a myth which has been disproved by several studies in different countries showing the lack of any drop-in effectiveness and combat-readiness due to the induction of gay men in the military. Studies from Israel, Canada, the United Kingdom and the United States on effectiveness of the military in the aftermath of the lifting of restrictions on gay men for recruitment show that there was no drop-in effectiveness. A study from Hague Centre for Strategic Studies on LGBT Military personnel showed that there was no proof that members of the LGBT community were inherently lacking in any of the eligibility criteria for recruitment to the armed forces.

Hence the armed forces cannot distinguish Navtej Singh Johar on the basis that it did not involve any personnel from the armed forces, as it can be shown that the new interpretation of the relevant sections of the Army Act, does not affect discipline morality or unity of the armed forces. The jurisprudence evolved by courts have shown there needs to be a link between the fundamental right which is being restricted and abrogated and the discipline and functioning of the armed forces.

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Conclusion

Army Generals may be correct when they say that the military is not a vehicle for social change, but they cannot be allowed to use this to resist societal change occurring around them. It is clear from the change in jurisprudence that an exclusionary attitude towards queer community members is no longer constitutionally tenable. The armed forces cannot try to avoid their obligations to include members of the community on the basis that they are a conservative institution. Ultimately, they form an arm of the government and must abide by the same principles of fundamental rights as everybody else.

A Constitutional Muddle: The Supreme Court’s Bar Dancers Judgment

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Earlier this month, the Supreme Court handed down a judgment dealing with the constitutional validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 [“the Bar Dancers Act”], and its attendant rules. The Bar Dancers Act – that had been passed after the Supreme Court struck down a prior attempt to prohibit bar dancing – effectively imposed such a stringent set of requirements as pre-conditions for granting bar dancing licenses to establishments, that it was, for all practical purposes, prohibited (not a single license had been granted since the Act came into force).

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In a judgment authored by A.K. Sikri J. (with whom Bhushan J. concurred), the Supreme Court struck down some parts of the Act and the rules, watered down others, and upheld yet others. In a word, it “relaxed” the license conditions, while upholding the overall statutory framework of licensing in the first place. But when one reads through the judgment, it is difficult to discern the guiding principles at play; instead, the different parts of the judgment seem to be at war with one another, where the logic behind striking down certain restrictions would appear to apply squarely to others as well – but is not. The judgment, then, appears to be an unsatisfactory halfway-house, with the Court fashioning a compromise that would allow bar dancing to go on, but leave substantial discretionary power in the hands of the government to control it in the manner that it chose.

What were the provisions that the Court struck down? Inter alia, a ban on bar dancing within one kilometre of a religious or educational institution, a prohibition on the same establishment being granted a license both for a discotheque or orchestra and for bar dancing, a prohibition on tipping in any form, a prohibition on serving alcohol, mandatory CCTVs, and making a license conditional on the proprietor’s “good record” and “lack of criminal antecedents.” What were the bases on which the Court did so? Inter alia, that there was no factual foundation for the State’s claims bar dancing was likely to “deprave” public morals, that bar dancers were vulnerable and trafficked into the profession, that bar dancing was not res extra commercium and indeed, was protected under Articles 19(1)(a) (freedom of expression) and 19(1)(g) (freedom of trade) of the Constitution, and that the State was “influenced by moralistic overtones.”

However, if these were the bases of striking down what the Court did strike down, then it’s difficult to understand why the Court upheld what it upheld. For example, the Court upheld a prohibition upon people “showering coins” on bar dancers, on the basis that it had a “tendency to create a situation of indecency.” Sikri J. did not specify what, exactly, “indecency” meant, and what manner of “indecency” it was concerned with here. It’s difficult to understand how, on the one hand, prohibition on alcohol was struck down on the basis that the State was only “influenced by moralistic overtones” while on the other, the prohibition on “showering coins” was upheld on grounds of decency. Next, the Court upheld the restriction restriction requiring bar dancing to stop by 11 30 PM, even though the establishments themselves could remain open longer. However, the Court provided no reason whatsoever for this, something that is particularly glaring given that it had already affirmatively found that bar dancing was protected by Article 19(1)(g), and struck down a number of other provisions on that basis. Indeed, the Court’s only answer was that five-and-a-half hours (6PM to 11 30 PM) was enough time for bar dancing. That, however, is neither here nor there; it certainly does not explain the constitutionally justifiable basis for the restriction.

The most glaring set of contradictions, however, occurs in the Court’s examination of the claim made by the Bhartiya Bargirls Union: that the prohibition of “obscene dances” as a condition of the license was unconstitutional. “Obscenity” was (familiarly) defined as “appealing to the prurient interest”, and Sikri J. responded to this argument by quoting lengthy extracts from prior judgments on obscenity to hold that the term “prurient interest” was well-defined, and based on an assessment of community standards (indeed, the Court cited community sentiment as the basis for regulating obscenity in the first place).

This examination of the Court is particularly interesting, because it demonstrates with particular starkness how contradictory impulses can be at war within the same judgment: on the one hand, the progressive and liberal impulse, which insists that bar dancing is protected under Articles 19(1)(a) and (g), calls out the State for being driven by antediluvian moral sentiments, and cites feminist literature in order to endorse the agency of the bar dancers (whose union – as noted above – was a Petitioner before the Court); and on the other, the old, conservative impulse that still feels “this far and no further“, whose acceptance of a potentially subversive activity is conditioned upon first defanging it of any subversive elements. The persistence of the faintly hilarious, quaintly antique phrase, “prurient interest”, is perhaps a reminder that a frank discussion about the legitimacy of regulating sexual expression is still something that our courts instinctively shrink from.

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It is important to note that this was a situation where the Court was not bound to keep to the established obscenity standard. In both Puttaswamy (privacy) and Navtej Johar (377), nine- and five-judge benches had made it abundantly clear that, as far as fundamental rights are concerned, invocations of community morality (that, more often than not, are nothing more than stand-ins for the moral values of a governing elite) simply cannot suffice to restrict those rights. To keep on keepin’ on with the “prurient interest” standard of obscenity, therefore, marks something of a disappointing regression in the age of Puttaswamy.

There is a deeper issue here as well, which the Court did not consider: the core issue of licensing. In fairness to the Court, that aspect was conceded by the Hotel Association (although it does find mention in the written submissions of the Bargirls Union). Once the Court accepted that bar dancing was protected under Article 19(1)(a), the requirement of a license ipso facto amounts to pre-censorship and prior restraint. We know from Brij Bhushan’s Case that prior restraint when it comes to free expression is presumptively unconstitutional, while K.A. Abbas, of course, carved out a limited exception to that rule in the case of film censorship. But the Abbas judgment was based on very specific (if flawed) logic about how cinema impacts viewers; the automatic extension of that principle is certainly not warranted without careful consideration. Consequently, that issue remains open – and hopefully, will be raised again in the future.

The bar dancers judgment, then, is a curious one: it exhibits a Court that is struggling to publicly demonstrate that it is no longer bound by hidebound notions of community morality and elite disgust about potentially subversive sexual expression – but a Court that still remains deeply, instinctively, uncomfortable with the consequences of applying a full-blooded constitutional rights jurisprudence to this domain; a Court that wants to rhetorically remove the stigma associated with bar dancing, rhetorically clarify that it is as legitimate as any other profession, but nonetheless, when it comes down to the brass tacks, continues to treat it as a potentially threatening activity in special need of State licensing and regulation. What we end up with, therefore, is performative jurisprudence that takes us to an unsatisfactory half-way house – a supposed liberalisation of the regime, but with the critical power of granting the licenses (along with vast attendant power of abuse) with the State (and in this specific case, with the Commissioner of Police).

Round-Up: ICLP Book Discussion on Rohit De’s “A People’s Constitution”

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In the first half of January, the ICLP Blog organised a book discussion on Rohit De’s A People’s Constitution. The essays, in chronological order, are below:

  1. Introduction (by Gautam Bhatia).
  2. The Search for Truth in the Republic of Writs (by Suhrith Parthasarathy)
  3. Husna Bai, Sex Work, and the Constitution (by Ratna Kapur)
  4. Always of the People? (by Namita Wahi)
  5.  We (are also part of) the People (by Bo Tiojanco)
  6. The Author Responds (by Rohit De)

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – VI: The Author Responds

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(This is the concluding essay in our blog Round-Table on Rohit De’s A People’s Constitution.)

I am grateful to Gautam Bhatia for hosting this discussion on A People’s Constitution. I am thankful to Gautam Bhatia, Suhrith Parthasarathy, Prof Ratna Kapur, Dr Namita Wahi and Dr Bryan Tiajocano for their generous, thoughtful and deep engagements with the book. This has really been a privilege.

Response to Gautam

Gautam Bhatia offers a marvelous summary of my book and it’s core arguments, with clarity and precision that I am envious of. I have little to add, except address two of the points he raises, as they become relevant in the later discussions.

As Gautam states, at its core the book asks what makes the Indian constitution legitimate and worth defending. Both these propositions are truisms for most lawyers, indeed, the nature of legal practice requires lawyers, even in systems whose legitimacy is far more fraught than India, to take it on their own terms. The Indian lawyer’s burden becomes easier (particularly compared to their South Asian neighbours), as Namita Wahi points out, by the fact, that the Indian constitution was a rare postcolonial constitution which was authored by Indians through a representative process. While it is impossible to have an authentically representative assembly, it’s equally necessary to not reproduce the claims made by the Congress in 1946 to be the sole national voice representing all shades of opinion.

While the Indian constituent assembly was a remarkable experiment, which made efforts towards inclusion, it is important to recognize that both at the time and later, questions were raised about its representative capacity. The socialist leadership, including Jaiprakash Narayan, Achyut Patwardhan and Kamaladevi Chattopadhyaya, who were a powerful force within the Congress refused to participate in an assembly that was not elected on adult franchise. As the assembly was based on the limitations of franchise in 1946, several influential groups like the Scheduled Caste Federation or the Justice Party had much lower representation than they would have in 1952 (or did in 1937) As the book shows, both the Communists and the Hindu majoritarian parties saw the constitution as an alien object, imposed from above without reflecting popular will or national culture. Furthermore, the constitution applied to territories and people who were not involved in its writing, including Hyderabad, Goa and Sikkim. Pooja Parmar has shown how the Constitution had limited participation and excluded representation from many tribal areas.

India’s constitutional legitimacy has been seen as being renewed through the largely uninterrupted practice of universal adult franchise and elections. As Ornit Shani shows, in How India Became Democratic, the creation of an inclusive electoral democracy went hand in hand with the making of the constitutional compact. This is why the Indian constitution did not face the kind of crisis of legitimacy that Pakistan’s early constitutions (which, like India’s, looks remarkably like the Government of India Act of 1935) or the Soulbury or Jenning’s Constitutions in Sri Lanka did.

My book addresses both these concerns, by showing how groups that did not necessarily participate in constitution making and were often written out of electoral logic and competition continued to engage and strengthen constitutional culture. At its most polemical, it argues that the constitution owed more to the engagement by those on the margins of democracy, for whom the courts and the text was the only resource in their moments of desperation or their basis for aspiring to inclusive citizenship.

Finally, critical constitutionalism in India, perhaps best articulated by Prof Upendra Baxi, has argued that the Indian constitution redeemed itself only after the adoption of PIL and engagement with substantive socio-economic rights in the 1980s and 1990s, becoming a constitution for the proletarian instead of just the “propertariat”. As I discuss later, the book shows that even in the “so called conservative period”, the court could be a resource for the poor and disenfranchised. It mines debates framed in formal procedural liberalism, to show its roots in demands for substantive justice, socio-economic claims and community identity.

This brings me to the last point identified by Gautam i.e. a close look at the contexts of these cases pushes back against another dominant narrative – that of the Nehruvian governments being “anti-market.” Politics in the Nehruvian state is often understood through the lens of class conflicts, between agrarian elites and industrial capital, with a technocratic state playing a balancing act. In a recent review essay, Sudipta Kaviraj describes the early phase of politics in India as one in which the debates were carried out primarily in the language of familiar Western democratic discourse, in terms of conflicts between the political ideals of laissez faire and state intervention, between capitalist freedom and socialist redistribution. These politics visualized the movement between social classes as central to public life, while politics based on caste and religious identity remained underground and inarticulate. Almost nostalgically Kaviraj notes that it is in the 1970s that Indian politics begins to speak a political vernacular, when the politics of caste, region and religion completely erased an earlier vocabulary of class interests, capitalism and socialism. This curiously mirrors the narrative of constitutional litigation, which suggests the first two decades were dominated by formalist debates over liberal rights to property, but after the Emergency turned towards questions of substantive distribution.

The book aims to complicate this narrative in two ways: the first, by showing that the Nehruvian government was attempting to create a new set of market norms and reshape networks of circulation, whether of goods (alcohol, beef, and cotton), capital, or of bodies. This process led to the translation of some issues as economic while others were seen as political or cultural. Thus, sex work becomes a question of morality and public health, and cow slaughter one of faith and religion, though the legal challenges arise due to questions of livelihood. Similarly, cases that read as standard invocations of individual liberty were challenges to police powers to enforce cultural practices and protect individual interests.

Response to Suhrith

Suhrith through his crisp engagement, gets to the heart of the procedural legal puzzle in the book, one faced by many of the actors and perhaps best understood by the litigating lawyer. My research shows that assertions for “substantive rights” got less traction than assertions made over procedure. Suhrith argues that this is because the former required the court to engage with competing arguments over facts and testing claims which constitutional courts were not procedurally equipped to do. This comes through most clearly in the Hanif Qureshi cases, where faced with competing reports, figures and affidavits on the economic impact of a ban on cow slaughter, Chief Justice Das complained about being lost in the “labyrinth of figures”. The nefarious consequences of being unable to ascertain facts continued when the Supreme Court upheld an absolute ban on cow slaughter in 2005, relying largely on the BJP-led Gujarat Governments report that said that the value of cow dung and urine was sufficient to keep the cow economic after its milk had dried up.

 Suhrith alerts us to the limitations and dangers of the strategies that courts have used, relying on amici or setting up commissions, and underlines the inherent limitation in the republic of writs, i.e., a reliance upon the State for facts. As a historian, I would like to underscore that constitutional adjudication was new to lawyers, litigants and judges in the 1950s and their remained a great deal of uncertainty about procedure. Shanti Bhushan in his memoirs recalls an anecdote where he decided to challenge a traffic violation ticket through a writ petition, but this involved him educating the judge on how a writ worked.

The courts and the state in 1950s were unprepared by the consequences of writs. This is, for instance, why a municipality found itself praying for time to file a response as they had not budgeted. The institution of constitutional remedies in the 1950s was a radical act, which has often been underappreciated. Prior to the constitution, while a handful of High Courts could issue writs within a circumscribed geographic area, legislation sought to render the government immune from prosecution. Various indemnity clauses made it mandatory to acquire the consent of the governor-general before the institution of proceedings against government officials, and the courts were precluded from investigating the validity of government orders. All matters relating to revenue or its collection were excluded from the jurisdiction of the high courts, ensuring that the chief objective of the colonial government remained unhindered.

Constitutional remedies were profoundly disruptive in the 1950s and opened up spaces for resistance and cooption. Lawyers and litigants turned to it in droves, and this novelty is remarked upon in law textbooks, newspapers, bureaucratic reports and memoirs. Vikram Seth who wrote much of his Suitable Boy in the shadow of his mother’s law reporters, captures some of this when Justice Chatterji remarks “the law is changing everyday. One keeps reading about writ petitions being filed before the High Courts. Well, in my day we were content with regular suits”. While politician Mahesh Kapoor follows writ petitions filed by the princes against land reforms, young lawyer Firoz Khan is admonished by the Chief Justice of Brahmpur for filing a writ against the University, and is told “I see no reason for a writ at all, young man. Your client should have gone to a munsif magistrate. If he wasn’t satisfied with his decision he could have gone to a district judge on appeal and come here on further appeal. You should spend a little time choosing the appropriate forum rather than wasting the time of the court. Writs and suits are different things, young man, two quite different things”. A fuming Firoz marked presciently, “in a few years writs will be accepted method in such cases. Suits are too slow….I hope they will be flooded with writs soon.”[1]

Response to Ratna Kapur

I am grateful to Prof Kapur for her careful reading of chapter 4, which dealt with challenges by sex workers to the anti-trafficking law, and for making explicit the ways in Husna Bai’s petition intervenes in current debates on trafficking and sex work. In particular she argues that the partnership between Indian feminists and the postcolonial state to bring about a coercive anti-trafficking law in the name of rescue and rehabilitation mirrors contemporary critiques of alliances between “conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking”, as well as the emergence of what Janet Halley, Prabha Kottiswaran and others have described as “governance feminism”. I am humbled by her suggestion that this chapter provides “a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles” and that the legacy of Husna Bai’s struggle can be found in undercurrents of contemporary trans rights and LGBT advocacy. As Prof Kapur underlines, this episode of claim making and organizing by sex workers remains a largely forgotten history.

I wanted to briefly expand on this “forgetting” and the process of archival excavation. When I began my research in 2009, I had expected to find most of the figures who appear in the book. The court cases involving prohibition, essential commodities and cow slaughter had become part of the formal legal canon and circulated as precedents. I was consciously looking for engagements by women, but assumed I would find it around questions of personal law, an area on which the majority of work on gender and citizenship in the 1950s has focused on. I was also aware of a body of work that focusses on partition, and the creation of gendered forms of citizenship either through linking citizenship claims by marriage or through the process of recovery of abducted women.

Husna Bai’s case wrote itself into my project, as I was surprised by the volumes of anxious bureaucratic correspondence generated by a single judge decision of the Allahabad High Court, which did not give any legal relief. I soon realized the decision had become canonical for the interpretation of the Suppression of Immoral Trafficking Act, and circulated among lawyers engaged in defending women arrested under it. As one of the earliest cases on the SITA, decided within two weeks of the act coming into force, the decision was reproduced in all leading commentaries on the act. Mazhar Hussein’s popular commentary on the SITA published in 1958 reproduced a newspaper article that described Justice Sahai’s decision, as the case had not yet been published in any law journals. In an introduction, Hussein noted that Justice Sahai had observed that sections 20 and 4(A) placed unreasonable restrictions and were hit by Articles 15 and 19 of the Constitution. I also found that similar arguments were being made by women engaged in sex work themselves, either in public protests or in their conversations with social workers and women activists.

Secondly, Husna Bai’s case helped me think about the complexities of the promise of freedom and liberty that the Constitution offered. For the women representatives in the constituent assembly, almost all of whom were active in the campaign to enact SITA, freedom in their view would not only mean formal equality between men and women, but include an active duty cast upon the state to intervene to bring about substantive equality and to free “unfree populations” like women trapped in sex work.

As the historian Daniel Botsman has argued, freedom needs to be understood as “an idea that has in modern times been used to reorder social relationships and constitute new frameworks for their management”. In making this argument, Botsman builds upon the idea of freedom as an integral part of the “reorganizing project of modern power”. The insertion of Article 23 into the Constitution and the STIA needs to be understood as facilitating the democratic state’s regulation of the sexuality of marginal women, the reimagining of prostitution as an economic problem central to the nation’s development, the replacement of the discourse of penalization with that of rehabilitation, and the legitimization of the role of welfare agencies and women social workers in the process.

Response to Namita Wahi

I greatly appreciate Dr. Namita Wahi’s rigorous examination of the arguments made in my book and pushing me to take some of the arguments further. She points out that my work rebuts the assumption that the pre-emergency court worked for the propertied by showing how it was open to and in some cases receptive of the claims of the “proletariat”. She suggests that a stronger rebuttal would be to engage with the Supreme Court’s formal property rights jurisprudence which would show that the state lost fewer cases over property rights than were “embedded in public imagination” and that these losses did not pose fundamental barriers to the state’s redistributive plans. I would concur, and look forward to reading Namita’s forthcoming history of the “Fundamental Right to Property” which I believe will fundamentally unsettle existing narratives on the court.

While my book does engage with insights on the court’s behavior, my emphasis was less on what the courts did but on why people came before the court. I see the court’s decision and final judgment as only one point, in a larger process through which a question gets constitutionalized. Lawyers are trained to treat the Supreme Court judgement as a final word on a question, to be pored over, analyzed, mined for extractable precedent and principles and in cases of unwanted results to be overturned through a judicial process. This is partly why the Chief Justice expressed great surprise at my desire to look through the entire case proceeding, when the final judgment was available. What I hope I was able to show was that for the litigations, or the people, the judgment itself was only a small part of larger process. For instance, despite the Supreme Court holding in Kaushaliya that Article 19 did not confer a right to prostitutes to practice their profession, sex workers continued to assert their right both before courts and in the public. Or in Mhd Yasin’s case, well before the Supreme Court reached a decision, the petitioner hired a drummer to announce to the public that in the case between the people and the town, the people had prevailed.

Property cases (particularly pertaining to agricultural land) made up the majority of cases before appellate courts in the 1950s, continuing a trend from the late 19th century where the majority of civil litigation was around agricultural land. This, and the existing body of work on land reform litigation, helped me decide to focus instead on other aspects of the postcolonial regulatory state. As Indivar Kamtekar has shown, the colonial state grew dramatically both in its ambitions and its personnel during the Second World War, a period when even the limited liberties and procedure available at the time were suspended. These coercive administrative technologies were eagerly embraced by the postcolonial state as part of its ambition to transform Indian society and economy, but had to be reconciled with electoral democracy and a republican constitution that promised a “community of political equals before constitutional law.”

Secondly, and again echoing Wahi’s findings, I too find that the right to property is a weak one and suggest that it’s the weakness of the right that leads to the recoding of property claims as those of free speech, equality or privacy. This innovation is particularly striking because the colonial order of rights was rooted in claims to property and custom, both of which were heavily circumscribed in the new constitutional order, and held to be morally abhorrent in public discourse. In the late 1930s, Parsis involved in the liquor trade had protested prohibition on the grounds that it destroyed their businesses   or interfered with religious practice, but in the 1950s cast their objections on the grounds of equality (the exemptions granted to various classes) or liberty.

 I appreciate Wahi’s invitation to explain what I mean by “the people”. As I mentioned, the dominant protagonists of my book include both figures like Parsi journalists and Marwari merchants who possess wealth and status along with figures like Qureshi butchers, vegetable sellers and prostitutes who are close to what the imagined figure of the subaltern would be. I would resist reading marginality merely by class status or economic wealth. Indeed, it’s not clearly evident that a vegetable seller or a prostitute would necessarily be destitute (though there are several petitions from refugees who had recently lost all their material means of support).

I argue in A People’s Constitution that independence produced a particular form of subalternity –electoral minorities who were unable to convince political parties and representatives to address their issues. The protagonists of the book had limited social capital against a state whose legitimacy was rooted in popular representation. They all belonged to groups that were vilified in public discourse- the Anglophilic Parsi, the corrupt Marwari, the cruel butcher or the immoral prostitute- and had limited opportunities for alliance building outside their own group. The basis for rights claims in colonial India had often been tied to claims to “ancient customary liberties.” For instance Muslims had argued for a long standing custom of cow sacrifice on Eid to challenge municipal regulations against cow slaughter or prostitute. However, with independence, electoral participation and representation became the basis for claim making. Unsurprisingly, these minorities were overrepresented in constitutional litigation. Constitutional law offered a way to frame their particular concerns as a generalizable problem for the broader public and private interests assumed public significance.

Wahi clearly identifies that all these groups largely live within urban areas, ranging from big cities to qasba towns, and leave out a large swathe of the Indian population. This represents the reality I found in the archive and I think offers some insight into how law and society operate in India. It is clear that the option of litigation was not available to all groups. In some ways, the ability to litigate was networked resource, available to groups that had access to capital and information. This was not determined solely by class, but was tied to the existence of informational networks, as can be seen by the sequential litigation that began to come from vegetable vendors from towns across Western UP challenging municipal licensing laws. Finally, it’s clear that legal consciousness was stronger among groups that were subjected to greater regulation and scrutiny by the state, which was often the case in urban areas. However, as work by scholars like Anand Vaidya shows, these options became available to groups like tribals, as they come under greater regulation through legislations like the Forest Rights Act.

Finally, Wahi suggests that my reading of the Nehruvian state as not being anti-market but seeking to create an alternate market ethics and forms of regulation needs to engage more seriously with American legal realism. This scholarship made a significant intervention in challenging the mythology of the “free market” and “free labour” in American public discourse and the idea that the market is distinct from the state. While appreciative of the suggestion and the scholarship, I find it less helpful to explain the situation in India in the 1950s. Living in a colonial economy, Indian politicians and thinkers, since the late 19th century demonstrated keen awareness that the “economy” that they functioned in was a bounded object created by colonial law. Dadabhai Naoroji in his “Poverty and UnBritish Rule in India” framed the existing political economy as one that far deviated from the “natural laws of the economy” and the promise of British governance. Historians like Ritu Birla and Julia Stephens have shown how vernacular merchants like Marwaris and Muslim mercantile groups were aware of how colonial law marked some of their activities as economic and others as “cultural”. By the late 1930s, when the National Planning Committee was set up, almost all shades of Indian political opinion saw an expansive role of the state in managing and developing the “national economy”. Rather than depicting the Nehruvian state as anti-market, I argue that one needs to pay attention to the kind of market and market ethics the state sought to promote. This comes out most explicitly in the chapter on commodity controls, where the state targets the petty merchant as a hoarder/usurer and an “uneconomic capitalist”, unlike large industry. In a caste society, economic activities were closely connected to ascriptive identities. Thus, the Nehruvian states attempts to reengineer production, distribution and consumption were often resisted through caste networks. This challenges conventional distinctions between “economic” and “cultural” rights as well as individual and group rights.

Response to Dr Brian Tiojanco

I am grateful to Dr Tiojanco for putting my book in conversation with the scholarship on popular constitutionalism. In particular, he notes an apparent tension in my reading of roots of Indian constitutionalism with that of Prof Bruce Ackerman’s, a scholar who both of us owe an intellectual debt to.

In his forthcoming book on world constitutionalism, Prof Ackerman argues that the Indian constitution’s durability can be attributed to the “ textual enshrinement of the principles that the founding generation had so valiantly won” and the popular legitimacy enjoyed by Nehru and the Congress party due to the memory and participation of thousands of people in the Congress led freedom struggle.

Tiojanco carefully shows how, despite the apparent contradiction, our arguments are complementary. As I show elsewhere, with their opposition to the Simon Commission and the writing of the Nehru Report and the Karachi Declaration on Fundamental Rights, the Congress had made it clear than any future constitution of India would be authored by Indians. Through successive demands for a Supreme Court, a bill of rights and the separation of the executive from the judiciary, they had made explicit a commitment to constitutionalism. However, with independence and the challenges of office, while the Congress was committed to constitutionalism in form (as demonstrated by the relative lack of interference in judicial appointments in the 1950s in contrast to other postcolonial states), they were less concerned about the content. Thus, when the constitution became an obstacle, the ruling party followed legal process and amended the constitution. In contrast, partly because they were outside the electoral game, the protagonists in my book sought shelter and fidelity to the constitutional text and constantly held the government accountable (taking seriously Zairul Hasan Lari’s plaint that the government too should learn “constitutional morality”).

In this, I owe a debt to Ackerman’s foundational scholarship where he argues that only those who are politically mobilized form a part of the people. What I hope to show is that political mobilization, particularly after independence, included many groups and peoples who were outside the consensus of the ruling party, whose engagements reinforced the constitutional charter than the Congress had played a significant role in creating. This contradiction comes through most explicitly in one of the first cases before the Indian Supreme Court on preventive detention, where the leader of the Communist Party of India was defended by the President of the Hindu Mahasabha (both parties that were critical of the constitution at the time of writing). A People’s Constitution shows that even in cases of everyday life, that were less explicitly political, constitutional litigation was enabled not by enlightened individuals but due to the existence of energized associational groups be it the Qureshi Jamaat or the Tawaif’s Association.

[1] I am grateful to Manav Kapoor and Mythili Vijaykumar for reminding me of Seth’s references.