Guest Post: The Supreme Court’s IBC Judgment and the Continuing Problems with “Manifest Arbitrariness”

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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Dhruva Gandhi and Sahil Raveen, advocates at the Bombay and Delhi High Courts respectively.]


Last month, the Supreme Court delivered a much-awaited opinion in Committee of Creditors of Essar Steel v Satish Kumar Gupta (“Essar”). While clarifying the law on several aspects of the Insolvency & Bankruptcy Code, 2016 (“Code”), the Supreme Court held that a mandatory time-period of 330 days as fixed under the Code for completion of the Corporate Insolvency Resolution Process (“CIRP”) was manifestly arbitrary. While the decision on this point may be welcomed by several practitioners frequenting the National Company Law Tribunals, it serves as a prime example of an instance where there was little basis to take recourse to constitutional doctrine. It is also a case that makes us wonder about the unchartered territory that ‘manifest arbitrariness’ as a doctrine may lead us into and about the need to circumscribe its application.

Structure of the Code

The Code was enacted by Parliament to provide a consolidated scheme for the resolution of insolvency of corporate persons, partnerships and individuals (See: Statement of Objects & Reasons).

Under the Code, an application for the initiation of proceedings of insolvency resolution can be filed by a financial creditor (Section 7), an operational creditor (Section 9) or by the indebted company itself (Section 10). Once the Adjudicating Authority satisfies itself that a debt is owed by the corporate entity; the Adjudicating Authority admits the application and declares a moratorium on the ‘Corporate Debtor’. Thereafter, a Resolution Professional (“RP”) is appointed who takes over the management of Corporate Debtor and keep it as a going concern. The RP also constitutes a Committee of Creditors (“COC”), made up of the financial creditors of the Corporate Debtor.

Subsequently, the RP invites resolution plans (“plans”) from interested resolution applicants who may want to revive, restructure or simply take over the Corporate Debtor. In view of the fact that creditors now have debts to the tune of hundreds of crores lined up and that resolution applicants would want the process to be efficacious for it to make commercial sense, the Code and the appended Regulations provide detailed timelines for each step of the process.

On the receipt of various plans, the COC votes on each one of them and the plan receiving more than 66% of the votes of the financial creditors is accepted. The accepted plan is then placed by the RP before the Adjudicating Authority (“AA”), which is tasked with a confined mandate of ensuring that no provision of the Code has been breached and that the plan is not motivated by extraneous or mala fide considerations. In absence of any breach, the AA approves the resolution plan and lifts the moratorium, allowing the successful resolution applicant to revive the corporate debtor. As per the Code, the CIRP) is to be completed within a period of 180 days with an outer limit of 330 days. It is this timeline that has been held by Nariman J. to be manifestly arbitrary.

However, in our view, there was no need though for him to take recourse to this constitutional doctrine at all. The concerns about the strictness of the timeline could have been addressed by the ordinary tools of statutory interpretation.

Directory v Mandatory

Section 12 of the Code that speaks about the timeline of the CIRP says,

“(1) Subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of one hundred and eighty days from the date of admission of the application to initiate such process.

(2) The resolution professional shall file an application to the Adjudicating Authority to extend the period of the corporate insolvency resolution process beyond one hundred and eighty days, if instructed to do so by a resolution passed at a meeting of the committee of creditors by a vote of [sixty-six] per cent. of the voting shares.

(3) On receipt of an application under sub-section (2), if the Adjudicating Authority is satisfied that the subject matter of the case is such that corporate insolvency resolution process cannot be completed within one hundred and eighty days, it may by order extend the duration of such process beyond one hundred and eighty days by such further period as it thinks fit, but not exceeding ninety days:

Provided that any extension of the period of corporate insolvency resolution process under this section shall not be granted more than once:

Provided further that the corporate insolvency resolution process shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor:”

While there is no definition of CIRP, the structure of the Code makes it seem that the process logically comes to an end on the approval of the successful plan by the AA. However, nowhere in the Code do we find any mention of the consequences of the non-approval of the Resolution Plan by the Adjudicating Authority within the time-frame of 330 days. In the absence of any consequences for the violation of a mandatory clause, the Supreme Court could have simply read the clause to be directory in nature. It is now a well settled proposition of law that a clause which is mandatorily worded is in fact mandatory only if there are certain consequences listed for the breach of that clause. Therefore, this issue could have been resolved simply by resorting to a rule of statutory interpretation.

Harmonious Construction of Provisions

It could also have been resolved by a harmonious construction of Section 12 with Section 33 of the Code. Section 33 lists out the instances when the liquidation of a corporate entity may be initiated. It says,

“(1) Where the Adjudicating Authority, –

(a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or

(b) rejects the resolution plan under section 31 for the non-compliance of the requirements specified therein, it shall –

(i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter;

(ii) issue a public announcement stating that the corporate debtor is in liquidation; and

(iii) require such order to be sent to the authority with which the corporate debtor is registered.” (emphasis supplied)

A worry with the non-approval of a Resolution Plan within 330 days has been that the corporate entity is then sent into liquidation, a consequence that may not lead to a maximisation of the assets of that entity and may even truncate what the financial creditors and workers would receive. It is definitely a consequence that the AA would want to avoid unless absolutely necessary. However, Section 33 makes it clear that liquidation would not automatically ensue on a mere non-approval of the plan within the 330 days’ time period. Liquidation is the outcome only when either (i) no plan whatsoever is received by the Adjudicating Authority or (ii) the plan received is rejected.

In fact, the joint reading of the second proviso of Section 12 and Section 33(1)(a) suggests that it is only mandatory for the RP to submit a Resolution Plan to the Adjudicating Authority within 330 days. It is not mandatory for the AA to also approve the plan within 330 days.

While the pendency of a plan before the AA could have its own set of commercial consequences, the Legislature seems to have made it quite clear what the scheme ought to be. Based on this construction of Sections 12 and 33 too then, Nariman J. could have resolved the issue. There seems to have been little need to resort to Article 14 of the Constitution.

Little Basis to Say ‘Manifestly Arbitrary’

Leaving aside the fact that this issue could have otherwise been addressed, the use of the doctrine of ‘manifest arbitrariness’ itself is worrisome. To say that the word ‘mandatorily’ in Section 12 shall be read down, Nariman J says (Para 79),

“Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant’s case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date – without any exception thereto – may well be an excessive interference with a litigant’s fundamental right to non-arbitrary treatment under Article 14 and an excessive, arbitrary and therefore unreasonable restriction on a litigant’s fundamental right to carry onbusiness under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety. However, that would then throw the baby out with the bathwater, inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay, and which has made previous statutory experiments fail as we have seen from Madras Petrochem (supra). Thus, while leaving the provision otherwise intact, we strike down the word “mandatorily” as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant’s right to carry on business under Article 19(1)(g) of the Constitution.” (emphasis supplied)

What this means is that in the one-off case where the AA is unable to either approve or reject the resolution plan within the stipulated time period, the corporate debtor shall head into insolvency and this will adversely affect the rights of the litigants and stakeholders. As has already been spelled out, the statutory scheme does not say that a corporate debtor must head into liquidation and therefore, it was unwarranted to use a constitutional doctrine to account for a mechanism not contemplated by statute..

Even if we were to assume for a moment that liquidation did ensue, the use of this doctrine does not meet the very standards prescribed for it either. When enunciating the doctrine in Sharaya Bano v Union of India (“Sharaya Bano”), Nariman J. said that a provision of law would be manifestly arbitrary if it lacked a clear determinative principle or encapsulated a capricious or irrational measure (Para 55). It was this very standard that was followed in Navtej Johar v Union of India (“Navtej”) as well by him (Para 82), by Misra and Khanwilkar JJ.(Paras 238-39) and by Malhotra J (Para 14.9).

On this metric, it can hardly be said that Section 12 of the Code is manifestly arbitrary. A strict time-period was prescribed precisely to avoid the unpleasant situation that creditors found themselves in under previous statutes such as the Sick Industrial Companies (Special Provisions) Act, 1985. Those systems were found to be inefficient and tardy and were hardly of any assistance in pulling the economy out of quagmire of non-performing and stressed assets that it found itself in.

In fact, the Supreme Court itself in various judgements including Arcelor Mittal (India) (P) Ltd. v. Satish Kumar Gupta, Innoventive Industries Ltd. v. ICICI Bank, and Swiss Ribbons (P) Ltd. v. Union of India (“Swiss Ribbons”), has noted the importance of a time bound resolution of corporate debtors to maximize the assets for the stakeholders. In Swiss Ribbons, the court observed,

“27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete.Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code.

….

Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern.

…..

28.

…..

The timelines within which the resolution process is to take place again protects the corporate debtor’s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” (emphasis supplied)

Therefore, even without looking at the legislative history or parliamentary debates surrounding the Code and its amendments, the very observations of the Supreme Court suffice to suggest that a clear and determinative principle undercuts Section 12 of the Code. Section 12 can hardly be said to be lacking a determinative principle the way Section 377 of the Indian Penal Code did. It is not capricious or irrational by any means either.

Just because the application of a principle leads to some hardship in a one-off situation, it does not make the entire section manifestly arbitrary. The hardship could well have been accounted for by the Legislature and in some cases, could have been the only feasible option available to it. To cure such hardships that follow from statutory structures using the doctrine of arbitrariness only opens a gateway to substitute legislative choices with judicial wisdom.

In Sharaya Bano, Nariman J. sidelined this criticism by simply saying that our jurisprudence is replete with instances where courts have sat in decision over legislative wisdom {Para 44(3)}. However, this case for one is a good example to show how this criticism could have more depth than what Sharaya Bano attributed to it. The threat of liquidation and the associated minimization in the assets of the corporate debtor could have specifically been devised by Parliament to compel the AA to approve the plan in a time-bound manner.

While he substitution of judicial wisdom for legislative wisdom may be warranted and even welcome in some scenarios where say, fundamental rights, are at stake, doing so without a degree of circumspection may definitely dent the legitimacy of the doctrine in times to come. In fact, this may happen in the present instance itself. Even before the decision in Essar, there have been case where the AA has not approved a plan even after a year of its submission. While Nariman J. says that the time period should only be extended beyond 330 days where the AA has not been able to approve the plan because of its own failings, there is no outer cap on how long this extension can be or what counts as a justifiable basis for the AA. In fact, the Supreme Court would not be able prescribe this either because doing so would effectively add a third proviso to Section 12.

The outcome of Essar has only been that the AAs now have a precedent to fall back on when taking their own sweet time to approve resolution plans. Financial creditors continue to struggle to recover their dues and there are now instances where resolution applicants even want to withdraw their plans because of the tardiness of the system. There is also plenty of data being now emerging which suggests that the Code has not led to the revival of stressed assets in the manner envisaged. In these circumstances, there is plenty to say for the decision of Nariman J. and not the Code resulting in manifestly arbitrary outcomes. ‘Manifest arbitrariness’ is a powerful tool and one that may lead the Judiciary into unchartered territory. Circumspection in its use thus is better exercised sooner rather than later.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

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[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]


The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

  1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

Guest Post: Sex Discrimination and Pregnancy – Reviewing Khusbu Sharma’s Case

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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Satyajit Bose.]


Over the past year, the higher judiciary has adjudicated two cases that have vast implications for sex-discrimination jurisprudence in India. The first was Ankita Meena v. University of Delhi. In this case, the petitioner had been barred from writing the end-semester examination, on account of her failure to meet the 70% attendance requirement, which was mandated under the Rules of Legal Education of the Bar Council of India. Crucially, the petitioner was in the latter stages of pregnancy, which made it physically impossible for her to attend class. Aggrieved by the decision of the University, she filed a writ petition before the Delhi High Court. A single judge bench of the Court dismissed her writ petition, thereby upholding the decision of the University. The petitioner then appealed to the Supreme Court by Special Leave (which remains pending).

A year later, the Supreme Court had the opportunity to set the record straight. In Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and Ors., the petitioner had applied for the post of Police Sub-Inspector in the State of Bihar. The selection process was three-fold: two written examinations, followed by a Physical Evaluation Test (PET). However, the petitioner was in the latter stages of pregnancy when the PET was scheduled, and requested the Police Commission for an extension of three to six months on the PET. Having received no response, she filed a writ before the Patna High Court. A single judge bench of the Patna High Court initially granted her relief, which was subsequently overturned by a division bench. The petitioner then appealed to the Supreme Court by Special Leave. The Court allowed the appeal and directed the Commission to conduct a PET for all female candidates who had been unable to participate previously on account of pregnancy.

Barring obvious differences, both cases pertain to the same issue, namely, the beneficial treatment of pregnant women. Why, then, did the respective courts reach different conclusions? Interestingly, neither judgement even attempts to apply Articles 14, 15, 16 and 21 of the Constitution. In Ankita Meena, the judgement of the Delhi High Court was restricted to the Bar Council Rules and its apparent conflict with the Rules of the Delhi University. In Khusbu Sharma, the Supreme Court went one step further, and attempted to engage with beneficial treatment of pregnant women. In this article, I critique the approach adopted by the Court in Khusbu Sharma, and argue that the reasoning is at odds with Articles 16 and 21 of the Constitution.

The Equality of Opportunity

In its judgement, the Court directs the Commission to conduct the PET for all pregnant female candidates. However, the reasoning of the Court is contained in two passages, the first of which is:

“We face a dilemma arising from on one hand maintaining the schedule of the examination as sacrosanct and on the other hand the difficulties faced by women candidates who could undergo the competitive test but are constrained in undergoing PET on account of pregnancy. The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services. It is not as if some quota is being carved out for the women candidates but they are competing against men candidates. They have been successful in competitive examination getting higher merit.

There are two objections that may be raised with this argument. First, the Court frames the issue as a conflict between the sanctity of the examination and the difficulties faced by women candidates in undergoing a competitive test. As per this approach, the special treatment of pregnant women is an exception to the sanctity of the examination schedule, which presumably exists so as to ensure that all candidates have equal time to prepare and give the examination, a presumption which I shall address subsequently. Rather, I argue that the issue is better conceptualised as whether a woman’s pregnancy actively prohibits her from competing equally in such an exam, and what directions ought to be given in order to enable effective participation of women in the exam. This distinction is significant as it attributes the differential treatment of pregnant women as an attribute of equality of opportunity under Article 16(1) (which the Court omits from mentioning even once in its judgement, somewhat bizarrely), rather than an exception to equal opportunity in public employment.

Moreover, the Court assumes the value neutral character of the examination schedule as an objective tool in determining merit. What this implies is that institutional rules, such as the sanctity of examinations, may profess to be objective and neutral in selecting the best candidates, while in reality they perpetuate social hierarchies. This conception of merit was most recently espoused by Chandrachud J., in B.K. Pavitra v. Union of India, where it is stated:

“If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.”

In the present case, the need to preserve the examination schedule was presumably to ensure that candidates have equal preparation time and hence, the best method of selecting the most meritorious candidates. However, this has the indirect effect of selecting only men as policemen, as they cannot get pregnant. Such a theory of merit attacks the heart of substantive equality guaranteed under the Constitution, as it ignores the differential impact of institutional rules on different social groups, most prominently those who have suffered centuries of discrimination.

That being said, it may appear that this distinction is seemingly trivial. I argue that the consequence of framing the issue is seen in the reasoning that follows, which is the second objection that may be raised. In this matter, the Court resolves this conflict by highlighting the rise in crimes against women, thus establishing the necessity for greater representation of women in the police force. This reasoning is dangerous as it relies on policy considerations in order to grant the petitioner the relief that had been prayed for, for violation of a fundamental right. What this means is that the petitioner does not enjoy a right to take the examination after her pregnancy had been completed, but was rather being granted the same on account of collective social need for greater representation of women within the police force. Clearly, the emphasis shifts from enforcing individual rights to collective social benefit, which excludes Article 16(1). In a somewhat strange clarification that follows, the Court effectively excludes Article 16(4) as well, by stating that they are not creating a special quota for women in the police force. Therefore, how does the Court reach the conclusion that the PET has to be conducted for pregnant women on this basis?

Pregnancy and the Meaning of “Choice”

Furthermore, the Court also relies on an additional factor to grant the relief that has been prayed for:

We are persuaded to do the aforesaid also for the reason that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. However that has not happened and in fact, as stated aforesaid, it is on the prodding of this court that these examinations have been held.”

 

In this passage, the Court remarks that if the dates for the exam had been issued from the very beginning, it would not have directed the Commission to conduct PET for pregnant female candidates. Remarkably, the Court states that female candidates must “plan their life accordingly.” Such a statement should not be viewed with surprise. In numerous cases, Indian Courts have held that pregnancy is a voluntary choice that is made by a female, and if it conflicts with any other commitment, no affirmative action can be granted.

In addressing this issue, one of two approaches may be followed. The first approach, as was followed in Inspector (Mahila) Ravina v. Union of India, is to conceptualise pregnancy as a deeply personal and intimate decision that is made by a woman, which falls within the rights guaranteed under Article 21. The second approach, which in my opinion represents the reality of pregnancy, considers the social pressure to bear children that women often face at the time of marriage. In simpler terms, women are often coerced into having children, which negates any element of reproductive choice. Accordingly, it is often not possible to ‘plan their life accordingly’, and place women within the binary of having to bear children, or pursuing their professional ambitions.

Conclusion

From this judgement, it is obvious that pregnancy jurisprudence in India has a long way to go. While the Court must be commended for moving on from Ankita Meena, we are still far away from comprehensively protecting and enforcing the rights of pregnant women in India. At the heart of both judgements lies a question of constitutional interpretation, namely, what theory of equality the Constitution of India is committed to. Until that question is answered, equality of opportunity remains a distant dream.

Constitutional Functionaries, Constitutional Standards, and the Role of Courts: Lessons from the Miller

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(This is a Guest Post by Nivedhitha K.)


On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being lauded as a landmark one for its timely and precise intervention, it also involves some important questions of law. In this post, I will attempt to analyse the decision of Miller, and distinguish it with the Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.

Facts of Miller’s Case 

A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European Union (hereinafter referred to as “EU”). The government has since then been involved with the task of implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018 – passed by the UK Parliament – the withdrawal agreement must be approved by the House of Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed. However, following an extension to the mandatory two-year period that sets into play after an Article 50 Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore, irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the UK would have to leave the EU on 31st October.

However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.

The issues that were framed by the Court were fourfold: (paragraph 27)

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The test laid down in Miller on the justiciability of aid and advice

The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)

Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of justiciability of the advice rendered by the Prime Minister.  The two-prong test formulated to test the extent of justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?

To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked into whether the act effected at the violation of Constitutional principles. In this context, the bench observed that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional principles of parliamentary sovereignty and parliamentary accountability are violated.

On the question of justification, the bench referred to the documents that had formed the basis of the advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the violation test was guided by the ‘effects standard’, the justification test was guided by the ‘proportionality standard’ Though the court did not explicitly refer to the proportionality standard, it can be inferred by the arguments put forth below.

Establishing the proportionality standard

Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench observed that “the proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business.” The bench was not convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?” Therefore, the first test that was used by the court under the proportionality standard was whether the materials had shown relevant reason to authorise the act that had the effect of violating Constitutional principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians the otherwise available time for discussion on the withdrawal agreement.

Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary” (paragraph 51). The bench here observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister was a justifiable reason. However, when a long term prorogation under an extraordinary situation was declared, it would not be justifiable on the wish of the Prime Minister alone; rather, reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the relevant reasoning was proportional to the effect. The court observed that the effects of a long term prorogation in the given extraordinary situation were graver in comparison to the effects of a short term prorogation, and the court required more convincing reasoning for graver effects.

Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the objective of the prorogation seemed to be the need to introduce new bills. This objective could have been fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate Constitutional principles.   It is clear, therefore, that the court looked into the materials to find a reasonable justification, for which it used the proportionality standard.

Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:

  1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
  2. Whether the violation can be reasonably justified through the application of the proportionality standard?

The proportionality standard applied requires the following tests to be fulfilled:

(a) Whether the reasoning has relevance to the effect of the use of prerogative power.

(b) Whether the relevant reasoning is proportional to the effect.

(c) Whether the least restrictive, but equally effective means is used to achieve the objective.

I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a comparison, two primary differences between the legal systems of India and UK will have to be addressed. First, the UK- unlike India- does not have a written Constitution. Therefore, Indian legal jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in applying the UK jurisprudence- laid down in Miller- on the subject matter.

The Indian test on aid and advice

In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the justiciability of aid and advice rendered – only excludes the questioning of whether there was advice given, and what advice was given. Further, the court engaged in harmonious construction of Articles 74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power shall be placed before it.

The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the Court further observed that the ‘legitimacy of the inference drawn from such material’ can be questioned.

The subsidiary question is how the court could question the legitimacy of the inference drawn from such material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable prudent man’s” test will have to be applied. Therefore, the test in India is as follows:

  1. Is there any relevant material to sustainthe action (‘relevancy test’)?
  2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?

There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the inference.

Form and effect of the prerogative act 

Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it would not do. Let me explain this through a factual situation. In November 2019, due to the inability of the party with the maximum members in the legislative assembly but with no simple majority to form the government in Maharashtra, the governor sent a report to the President that the Government cannot be formed in accordance with the provisions of the Constitution. Therefore, following the report of the Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the formation of the government.

Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now frame the legitimacy test from the perspective of the form and effect of the prerogative act.

  1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the reasons justifiableto declare Presidential rule (i.e the form)?
  2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the reasons proportional to the suspension of parliamentary democracy (i.e the effect)?

 

There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of choosing the better of two dolls. In the first circumstance, A is asked to choose the better doll between the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is asked to decide the better doll between two dolls- the dolls are completed and painted. The decision of A will be better guided in the second instance because while he looks at the final effect of the dolls, he has something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease if the judicial attention is on the effect instead of the form.

It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a purpose. When the effects standard is used, it would not matter if the reasoning only has some nexus with the effect. Rather, the question is whether the effect is justified – for which the proportionality standard will have to be put to use.

Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy. Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained. The above reasons led to the suggestion of usage of the proportionality standard (along with the three subsets) to decide the ‘reasonable prudent mans’ legitimacy test.

Proportionality standard and the Presidential rule

Before deciding on the constitutionality of the Presidential rule in Maharashtra by   applying the proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?

The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the underlying Constitutional principles. However, provisions in the Constitution allow for the suspension of certain fundamental rights during emergency. The question that then arises is: when fundamental rights cannot be enforced, how can certain constitutional principles be enforced? For example, reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic feature of the Constitution (which is also a constitutional principle). However, the crucial point is that the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg: Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency, suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the Constitutional principles guiding the fundamental rights chapter may be suspended but other Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the inability to form the government, all Constitutional principles are enforceable.

Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be required to identify the objective of the use of prerogative power, the means used to achieve the objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective, was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary democracy was frustrated by limiting the time provided to willing political parties to form the government.

On the application of the proportionality standard to the factual situation of Presidential rules’ in Maharashtra, the court would have to answer the following sub-tests of the proportionality standard: first, whether the material relied on has relevant reasoning on denial of time to political parties for forming the government. The reasoning in the material should not have merely focused on the reasons for the declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by Shiv Sena since it was willing to form the government.

Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should not settle for the same reasoning for acts that lead to different effects. For example, the reasons for the declaration of a Presidential rule when political parties express the ability to form the government, must be different from the reasons when political parties are unable to form the government.

And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The court should test if there are other restrictive but equally effective means to achieve the objective of remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need to prevent horse-trading.

Indian Jurisprudence on aid and advice, and the proportionality Standard

The closest the Indian courts have come to the UK jurisprudence is when the courts held that repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that they did not look into the aid and advice theory jurisprudence. Though there had been references to the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on the ground of the form– the necessity of placing the ordinances before the house.  

However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.” This is a very similar analysis to that which was taken in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.

Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller, to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the satisfaction of the President.

Guest Post: Engineering a Constitutional Crisis in Maharashtra

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[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]


To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

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

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.

Notes from a Foreign Field: The Hong Kong High Court’s Judgment on the Right to Protest (with Face Masks)

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Earlier this morning, the High Court of Hong Kong handed down an important judgment on the “balance” between personal liberty and national security. Readers will be aware that for the last few months, there have been mass public protests in Hong Kong. In response, the Hong Kong government passed the Prohibition on Face Covering Regulation [“PFCR”] which, as the name suggests, prohibited protesters in public spaces from wearing face masks to hide their identities. The PFCR was passed under the authority of the Emergency Regulations Ordinance (ERO), a colonial-era law that allowed sweeping powers to the Executive in an “Emergency” or during times of “public danger.”

The PFCR was passed on 4th October. It was promptly challenged (along with the ERO). The High Court heard arguments at the end of October, and handed down its judgment today. The Court struck down the ERO to the extent of its application during times of “public danger”, while leaving open the question of whether it was valid for “Emergencies.” The Court went on to hold that the PFCR was an unconstitutional and disproportionate violation of the freedom of expression of the citizens of Hong Kong.

In this post, I will discuss both holdings. The striking thing about this judgment is that despite conceding a high margin of discretion to the Executive, and despite accepting the Executive justification of maintaining law and order, the Court still found that the indiscriminate and non-targeted nature of the measure, which failed to distinguish between violent protesters and ordinary citizens, was disproportionate. As we shall see, this is by no means the judgment of an activist Court, which placed the claims of personal liberty beyond all question. On the contrary, this was a judgment by a cautious and deferential Court, which still found the ERO and the PFCR to violate Hong Kong’s Basic Law (the Constitution). And at the heart of its judgment, as I shall show, was a very simple logic: Constitutions allow the government to declare states of Emergency, and suspend certain civil rights. If, however, the government has elected not to declare an Emergency, it is not for the Court to presume their exists one. In terms of law and constitutionalism, there is no halfway house between Emergency and normalcy, where – in the absence of an Emergency proclamation – the Court nonetheless adopts a hands-off approach towards civil rights violations. Rather, if there is no Emergency, then the judicial approach towards civil rights violations must be one that applies constitutional principles with their full rigour.

The ERO

The ERO was a 1922 law, passed by the colonial British regime. Effectively, it authorised the Chief Executive in Council [“CEIC”, or “Executive”] to make “regulations” in times of Emergencies or public danger. These regulations were extremely wide in scope, including powers of censorship, seizure of property, amendment of laws, trial and punishment, and so on.

The High Court struck down the ERO on seven substantive grounds. Under Hong Kong’s basic law, it found that the Legislative Council [“LegCo”] was the primary legislative organ. The CEIC’s powers were limited to accepting or vetoing bills, and passing subordinate legislation. This is, of course, a familiar arrangement in parliamentary democracies. The Court then made the familiar point that “this constitutional scheme does not permit the LegCo to grant and the CEIC (or, for that matter, any other body) to receive and be vested with what is essentially the LegCo’s own constitutional power and function as the legislature of the Hong Kong SAR to enact, amend or repeal laws, except for an authorisation of subordinate legislation.” (paragraph 52)

This, of course, is the “excessive delegation” test known to students of constitutional and administrative law everywhere. Applying this test, the Court found that the “ERO confers general legislative powers on the CEIC.” (paragraph 55) This was because:

… the ERO is not a statute that legislates on a subject matter in principle leaving another body to devise the detailed legal norms that elaborate or put flesh on the broad matters laid down in the primary legislation. The long title of the ERO specifies that its object is to confer on the CEIC power to make regulations on occasions of emergency or public danger. But it gives no shape or direction of what the regulations that may be made are to be about. For example, the PFCR was enacted under the ERO not to work out and fill in the details for certain broad norms established by primary legislation, but as the very first piece of legislation in Hong Kong that has anything to do about face covering. This is fundamentally different from one’s ordinary conception of subordinate legislation. (paragraph 56)

Next, the Court found that the scope of the power delegated to the CEIC was extremely broad – to make “any regulations whatsoever” that it considered to be in the public interest. Thirdly, the powers could be invoked “on any occasion” when the CEIC was satisfied that there existed an emergency or public danger – neither of which were defined in the statute. In other words, such wide power was accorded to the Executive, that it was virtually unconfined – effectively (as the Court noted) it could never be argued that the Executive was going beyond the authority conferred by the  Legislature, as the authority itself had no boundaries. Not only that, but the ERO actually authorised the CEIC to amend existing legislation – i.e., it conferred – in so many terms – legislative power upon the executive (the Court’s fourth point). Furthermore, the powers of punishment conferred upon the Executive went beyond what was authorised in primary legislation (fifth); and there was no time limit upon the “validity and force of the regulations made under the ERO, nor any mechanism for constant review” (paragraph 68) (sixth).The power of “negative vetting” was held not to be a substantial check on the executive (seventh).

Drawing upon insights from comparative law, the High Court therefore concluded that:

“…the ERO, once invoked, seems to us to create in Hong Kong a separate source of laws that are primary legislation in all but name, but which are not made by the legislature in accordance with legal procedures (Art 73(1)) or reported to NPCSC (Art 17), and are not subjected to the scrutiny concomitant with the normal legislative process. Whenever the CEIC considers an occasion falling within the ERO has arisen, the CEIC becomes a legislature.” (paragraph 80)

This was evidently unconstitutional. And in response to the government’s argument that there were times that necessitated “swift and decisive action”, the High Court made the crucial observation that “the need for an urgent response is no justification for departing from or impugning the constitutional scheme.” (paragraph 95)

The PFCR

Let us now come to the prohibition of face coverings in public spaces. The PFCR prohibited the use of “facial covering that is likely to prevent identification” while a person was at an unlawful assembly, an unauthorised assembly, or even an authorised or lawful assembly (see paragraphs 25 – 29 for an explanation of these terms in Hong Kong law). It was common cause between the parties that the PFCR restricted the freedom of speech, assembly, and privacy. It was also common cause that the constitutional validity of the restrictions was to be determined according to the proportionality standard:

“…(1) does the measure pursue a legitimate aim; (2) if so, is it rationally connected with advancing that aim; (3) whether the measure is no more than reasonably necessary for that purpose; and (4) whether a reasonable balance has been struck between the societal benefits promoted and the inroads made into the protected rights, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.”

The government argued that the goal of the prohibition was “(i) deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and (ii) facilitation of law enforcement, investigation and prosecution.” (paragraph 130) The question then arose: why was the measure blanket in nature, targeting both potential law-breakers as well as legitimate public protesters? To this, the government argued – on the first count (deterrence) – that “those protesters who are not prepared to break the law may comply with the PFCR and this would generally result in lessening the support for the more radical and violent protesters”; that “masked protesters mix themselves into larger groups and instigate violence and vandalism“; that “non‑radical protesters will be less likely to be influenced by or emulate their violent peers and will think twice before emulating them when they know their identity is not concealed“; that “the PFCR can act as an effective deterrent against at least some students from wearing masks when joining a protest (lawful or unlawful), which thereby substantially reduces the chance that they will be induced to break the law.” (paragraph 133) On the second count (law enforcement), the government argued that protesters were using “black bloc” tactics (i.e., appearing in indistinguishable groups and wearing similar clothing), which made specific and targeted identification difficult. A prohibition on face covering would facilitate the police in being able to identify which of the protesters were acting unlawfully.

The government’s arguments will sound eerily familiar to those following the litigation around the communications lockdown in Kashmir. In both cases, the State’s primary justifications for blanket restrictions is (i) targeting is impossible, and (ii) the bad guys will mingle with and influence the innocent guys, and so we have to restrict everyone’s freedom. The only difference is that the Hong Kong government’s arguments before the Court at least sounded more sophisticated and plausible than the Indian government’s ham-fisted “terrorists use mobile phones” justification.

How did the Court engage with this argument? The first thing to note is that it did not deny that there existed an ongoing law and order situation in Hong Kong. In paragraph 132, it observed that:

“… there is evidence before us of the enormity of the damage and danger created by some of the protesters. In the few months leading to 4 October 2019, Hong Kong has witnessed numerous instances where certain protesters charged police cordon lines with weapons, blocked public roads and tunnels with a variety of large and heavy objects, attacked drivers who voiced complaints at such blockades, vandalised public facilities and buildings, burned public property, hurled inflammable liquid bombs at the police and at and inside Mass Transit Railway stations, damaged shopping malls, shops, banks and restaurants (with reports of looting and theft in some of the damaged shops), damaged residential quarters of the disciplined forces, crippled the operations of transport infrastructure, and harassed and attacked ordinary citizens holding different political views. These acts of violence and vandalism had increased in intensity and frequency, with the incidents on 1 October 2019 being especially serious. The more violent protesters were often all suited up and masked by facial covering such as surgical masks, balaclavas and gas masks which concealed their identity.”

Along with these facts, the Court also conceded that the government had to be given a “wide margin of discretion”, and that the necessity prong within the proportionality standard required only that the government’s action was “reasonably necessary.” Now within this framework, how did the Court apply the proportionality standard? It began by noting that “some participants in demonstrations may wish to wear facial covering for legitimate reasons, such as to avoid retribution.” (paragraph 148) Consequently, the restriction on freedom was not minor or trivial, but a serious one. By contrast:

… the effect of s 3(1)(b), (c) or (d) is to impose a near‑blanket prohibition against the wearing of facial covering by the participants, without any mechanism for a case‑by‑case evaluation or assessment of the risk of any specific gathering developing or turning into a violent one such as would make it desirable or necessary to impose the prohibition in relation to that gathering only. (paragraph 155)

Furthermore:

It is not clearly stated whether, to be caught by the prohibition, the person must be a participant in the relevant gathering, or whether it suffices for that person to be merely present at the gathering, eg a person who goes to the scene for the purpose of taking photographs, or giving first-aid to persons in need of help, or even a mere passer‑by who has stopped to observe the gathering. (paragraph 156)

This was, thus, prima facie evidence of over-breadth and disproportionality. What of the government’s argument that it was the only way to prevent violence? The Court noted in response that “the evidence before us is far from clear that the PFCR has achieved to any substantial degree the intended aims of deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, or facilitation of law enforcement, investigation and prosecution.” (paragraph 164) In other words, under the proportionality standard, the burden was upon the government to justify its rights-infringing measures on the touchstone of necessity and proportionality, with evidence (and not in a sealed cover). And the Court was unimpressed by the government’s exhortations of public danger, noting that “even in these challenging times, and particularly in these challenging times, the court must continue to adhere to and decide cases strictly in accordance with established legal principles.” (paragraph 165) Thus:

… having regard to the reach of the impugned restrictions to perfectly lawful and peaceful public gatherings, the width of the restrictions affecting public gatherings for whatever causes, the lack of clarity as regards the application of the restrictions to persons present at the public gathering other than as participants, the breadth of the prohibition against the use of facial covering of any type and worn for whatever reasons, the absence of any mechanism for a case‑by‑case evaluation or assessment of the risk of violence or crimes such as would justify the application of the restrictions, the lack of robust evidence on the effectiveness of the measure, and lastly the importance that the law attaches to the freedom of expression, freedom of assembly, procession and demonstration, and the right to privacy, we do not consider the restrictions of rights imposed by s 3(1)(b), (c) and (d) to be proportionate to the legitimate aims sought to be achieved by the imposition of those restrictions. (paragraph 166)

Thus, except insofar as it applied to unlawful gatherings, the prohibition was struck down. The Court used similar analysis to strike down Section 5, which empowered “a police officer to stop any person in any public place who is using a facial covering and to require that person to remove it so that his or her identity may be verified, if the officer reasonably believes the facial covering is likely to prevent identification.” The Court held that its indiscriminate character (“no limitations as to circumstances or period”) violated the proportionality standard.

Conclusion

The Hong Kong High Court’s judgment is a shot in the arm for civil rights. It demonstrates that even in the time of the proverbial “clash of arms”, courts can ensure that the laws are not silent. A few salient features of the analysis stand out. First, the High Court took seriously the indiscriminate and blanket nature of the prohibition, which failed to distinguish between criminals, and those who were lawfully exercising their constitutional rights to demonstrate and protest. This was perhaps the most damning feature of the government’s measure. Secondly, the government’s efforts to justify this fell flat. In particular, given that the restriction was blanket and indiscriminate, the onus was on the government to show that there was no other way to achieve the goals of law and order – and to show this with evidence. Unsurprisingly, the government failed, because there was no evidence. And lastly, the Court thoroughly rebuffed the government’s efforts to immunise its actions by making claims about the law and order situation. The Court’s approach to this issue can be summed up in paragraph 108:

  • In times of a public emergency officially proclaimed and in accordance with the other requirements of s 5 of the HKBORO, measures may be adopted under the ERO which derogate from the Bill of Rights (even so, excepting the specified non‑derogable provisions and discrimination on the prohibited grounds). Subject to the conditions of s 5 (including that the derogations are limited to those strictly required by the exigencies of the situation), this may have the effect of temporarily suspending the relevant human rights norms.
  • In other situations, measures adopted under the ERO may not derogate from the Bill of Rights, which means that if any such measure has the effect of restricting fundamental rights, then like any other restriction in normal times, it has to satisfy the twin requirements that the restriction is prescribed by law and meets the proportionality test.

 

The important of this observation cannot be understated. What the Hong Kong government was trying to do in this case – and indeed, what the Indian government is trying to do in the Kashmir litigation – is to create a third, midway category of (what is effectively) a “permanent, undeclared Emergency.” For political reasons, the government is wary of formally declaring an Emergency and suspending civil rights. But by repeated invocations of “law and order” and “security”, it is attempting to persuade the Court to act as if the situation is one of Emergency, and thereby, adopt the “judicial hands-off” approach” that it would be compelled to do if there was an Emergency. Paragraph 108 of the Hong Kong High Court’s judgment refutes this disingenuous and dangerous argument: it makes it clear that if there is no Emergency, then the restriction on civil rights must be judicially examined as “in normal times”, and the usual doctrines of reasonableness and proportionality applied. And as we have seen, proportionality takes a particularly dim view of blanket and indiscriminate restrictions (which are in effect, if not in form, Emergency-style suspension of rights – if everyone is prohibited from exercising a certain right, then it is hardly deniable that that right has been suspended for the relevant territory altogether). Such measures, therefore, must almost always be struck down as disproportionate.

It remains to be seen whether the excellent judgment of the Hong Kong High Court will be followed elsewhere, where governments make similar arguments to deny civil rights to their citizens.

“A little brief authority”: Chief Justice Ranjan Gogoi and the Rise of the Executive Court

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Ranjan Gogoi is no longer the Chief Justice of India.

There is much to write about today. But this post will follow precedent (unlike some of the major judgments delivered during the ex-Chief Justice’s tenure) and – like last year – focus on the law. I will not, therefore, discuss the sexual harassment allegations of April/May 2019, although they constitute an important part of the ex-Chief Justice’s legacy (discussed here, herehere, here, and here). I will not discuss the opacity of the Collegium or what was done to Justice Akil Kureshi, where a judge seemingly not considered “fit” to be Chief Justice of the Madhya Pradesh High Court was re-assigned to the Tripura High Court (see here). I will not discuss the time that the ex-Chief Justice told the lawyers of a man who had been jailed for satirical speech that “jail is the safest place for you“; or the time that he told the lawyers of a woman asking for her Article 19(1)(d) rights that “Srinagar is a cold place, why do you want to move around?” What these remarks say about the ex-Chief Justice’s attitude towards constitutional rights can be left to individual judgment. I will not discuss the prioritisation of cases – how, ostensibly, a “land dispute” was somehow heard by a Constitution Bench of five judges and fast-tracked, while civil rights claims connected to the lock-down in Kashmir went unheard because a Court of thirty-three judges – according to the ex-Chief Justice – “had no time.” And I will not discuss the problematic manner in which the ex-Chief Justice, while still the Chief Justice, defended his NRC orders in a public event, in the interests of “development.”

Interested readers can consult this piece, which discusses some of these issues in detail, and what they mean both for the ex-Chief Justice’s legacy and for the institutional credibility of the Supreme Court. Here, I will consider some of the important judgments and orders delivered by the ex-Chief Justice, during his tenure. My assessment will be simple: ex-Chief Justice Gogoi oversaw a drift from a Rights Court to an Executive Court. That is, under his tenure, the Supreme Court has gone from an institution that – for all its patchy history – was at least formally committed to the protection of individual rights as its primary task, to an institution that speaks the language of the executive, and has become indistinguishable from the executive. The “Executive Court” is visible in the ex-Chief Justice’s substantive adjudication [e.g., the NRC case and the Voice Samples case], in his penchant for procedural opacity [e.g., sealed covers], in his contempt for the Evidence Act [e.g., Rafale], in his treatment of fundamental rights as charity rather than entitlements [habeas corpus petitions], and in his judicial rhetoric.

The NRC Case

The starting point of any discussion about the ex-Chief Justice has to be the urgent – almost messianic – manner in which he drove the NRC process (even from before the time he became Chief Justice). Recall that the National Register of Citizens is a state-wide administrative process in Assam, aimed at creating a list of Indian citizens. The creation of the National Register of Citizens flows from – and is linked to – the Assam Accord, and subsequent amendments to the Citizenship Act. As indicated above, the NRC was always meant to be an administrative process – implemented by the government and executed by the bureaucracy. In 2014, however, acting under expansive PIL powers, the ex-Chief Justice – sitting with Nariman J. – effectively took over the entire process. Formally, it was Supreme Court “oversight” over the preparation of the NRC; effectively – as soon became evident – there was little difference between “oversight” and “control”.

Why was this a problem? I have discussed some of the issues in detail (see here, here, here, and here), and here I will summarise them. The NRC process wasn’t just any ordinary administrative process. It affected citizenship – the underlying basis of all other rights, the right to have rights. While the NRC itself would not deprive an individual of citizenship, exclusion from that list would severely prejudice people’s cases before the Foreigners Tribunals, which they would subsequently be hauled up before. Now with consequences as serious as this, one would expect the full panoply of constitutional safeguards to apply, with heightened rigour. And under our constitutional scheme, one of the most crucial safeguards is the separation of powers and judicial review. The executive implements policy, and if – in the process – it violates individual rights, the courts exist to test executive action on the touchstone of the Constitution.

The Supreme Court’s takeover of the NRC process effectively amounted to taking a knife and slashing right through this constitutional fabric. In consultation with the State Coordinator, it was the Court that was determining how the process was to be conducted, what the deadlines were, what documents were admissible, and so on. And because the Court had taken over the Executive’s task, there was no place where aggrieved people could go, if they felt that their rights were being violated; after all, whom do you appeal to from an order of the Court, apart from the Court itself?

This is not an abstract, theoretical concern. To take just one example: the use of the “family tree” method to determine citizenship was found to disproportionately disadvantage rural women, who had greater difficulty in accessing – and producing – the documents that it required. In an ordinary situation – that is, if this had been pure executive action – this could have been challenged before the courts on grounds of Articles 14 and 15, and struck down. But because the modalities of the NRC themselves arose from (often closed-doors) consultations between the Supreme Court and the NRC Coordinator, that entire set of remedies was blocked off. Examples of this kind abound; the situation, in effect, was like the poem from Alice in Wonderland: “I’ll be judge, I’ll be jury”/ said cunning old Fury:/ “I’ll try the whole cause,/and sentence you to death.

“Death” is not a euphemism here. People died because of the NRC. People died when the Court insisted on unachievable deadlines for publishing draft NRCs (to the extent that even the State – the actual Executive – asked for more time, and was denied). People died at the time of the publication of the final list, another accelerated process in which the government’s requests for an extension were shot down. Things came to stage where Genocide Watch issued a warning around the time of the final List – a rare time in history where judicial actions in a functioning democracy have led to a genocide warning. In another world, this would be a moment where a constitutional Court would be asked to step in and protect rights; but a world where the Court had become the perpetrator was a world long turned upside-down.

The problems were not limited to the ex-Chief Justice’s substantive role in the NRC process. The problems extended to process; they featured opaque proceedings where affected parties were not heard, and decisions were taken on the basis of “power point presentations” made by the State Coordinator to the Court. And they were taken on the basis of evidence in sealed covers – a point that brings us to our next issue.

Sealed Covers

Right from the beginning, the ex-Chief Justice’s tenure was marked by secrecy, opacity, and the ubiquitous use of “sealed covers” (see here, here, and here). The NRC case was marked by sealed covers. The Rafale dispute was marked by sealed covers. The Alok Verma litigation was marked by sealed covers. Sealed covers popped up in the one hearing that happened on the issue of electoral bonds, and they popped up – bizarrely – in the litigation around the Prime Minister’s biopic before the election.

I will, again, sum up an argument that I have made in detail in the posts above. Sealed covers are the absolute antithesis of open justice, one of the fundamental principles underlying the judicial system. The reason for this is simple: Courts have to give reasons for their judgments. Citizens are entitled to assess the strength of these reasons, as part of the framework of democratic accountability over courts. If, however, the evidence on the basis of which judgments are delivered is kept hidden, then any kind of scrutiny is nothing more than whistling in the dark. If I do not know why the Court has come to the conclusion it has, I simply cannot make up my own mind about the merits of what it has done. In such a situation, the Courts become little more than petty autocrats: their judgments are upheld only by virtue of their institutional power, and not on the strength of their reasoning. That is not how democracy works.

The ex-Chief Justice’s penchant for sealed covers suggests another way in which the Supreme Court has transitioned to the Executive Court. Secrecy is the hallmark of the executive: we all acknowledge that there are certain kinds of executive action that cannot be disclosed, as that would defeat the entire purpose: war plans, for example, or complex trade negotiations. The crucial distinction, however, is that whereas executive legitimacy for these actions comes from popular elections, judicial legitimacy comes from open and public reason-giving. Apart from certain exceptional situations, therefore (such as two corporations litigating over commercially sensitive information, or where other rights are at stake, such as the privacy of sexual assault survivors), the Court simply cannot justify withholding information in sealed covers – and certainly not in public law cases involving fundamental rights – as that defeats the very purpose of having an independent judiciary in a democratic system. As I have argued earlier, if the Court feels that certain information is sensitive because it pertains to national security, then the answer is for it to decline to hear the case at all (insofar as it pertains to that information), on the basis that it is not institutionally legitimate to intervene. But the Court cannot have it both ways (as it did in Rafale): it cannot both hear the case, but also hear it on the basis of secret material, and then pass judgment based on that secret material, so that nobody is in a position to understand or examine what it has done. That behaviour is more reminiscent of the Star Chamber.

And it is important to note that what the Supreme Court does has ripple effects throughout the entire legal system. On more than one occasion in the last few months, for example, the Delhi High Court has upheld bans on organisations on the basis of evidence in sealed covers, which even the organisation’s lawyers were not allowed to see. In other words, people have been deprived of their fundamental rights to assembly and association on the basis of evidence that they could not see and could not contest. It is difficult to see how this kind of kangaroo-Court behaviour could have gone on, had not the sealed cover practice received the direct behaviour of the ex-Chief Justice.

Contempt for the Evidence Act

If “sealed covers” represented one significant departure from the judicial process and towards executive process, the ex-Chief Justice’s bizarre approach to evidence in the Rafale case represented another (see here). During the hearing of the PIL petitions challenging the Rafale deal, the ex-Chief Justice “summoned” Air Force officials to Court to “interact” with them. It was then reported that the bench had an “oral” interaction with the Air Force officials, questioning them and hearing their answers.

But this doesn’t just take a knife to the Evidence Act, it takes a lighter and sets fire to it. One of the cornerstones of our legal system is the adversarial process: truth emerges out of a contest between rival views and competing evidence, and the foundation of that contest lies in procedures such as cross-examination. Ordinarily, it is only after the other side has had a chance to put testimony to the test, through cross-examination, that it can be given the status of “evidence”, and can be relied upon by the courts. And the procedure through which this happens is set out in detail in the Evidence Act.

Once again, therefore, the ex-Chief Justice acted as if the obligations that apply to legal proceedings – to clearly follow the law, and to provide legal explanations if one is departing from ordinary process – simply didn’t exist for him. Laws and processes were for lesser mortals – and lesser judges, presumably; the ex-Chief Justice, however, could simply call people to his Court, “interact” with them, and that would become “evidence.” We may call this “Humpty Dumpty jurisprudence”:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Which, of course, is reminiscent of an imperial Executive, and not a constitutional Court bound by the rule of law.

Habeas Corpus

After the events of the 5th of August in the State of Jammu and Kashmir (that have been discussed extensively on this blog), a clutch of petitions were filed in the Supreme Court. One set of petitions involved claims to habeas corpus: relatives and friends of individuals in Kashmir claimed that they had been unlawfully detained, and requested the Court to intervene.

Habeas corpus is a simple thing. No really, it is. It literally means “produce the body.” All the Court has to do is to ask the government to bring the detained person, and legally justify the detention. And habeas corpus – as just about everyone agrees – is one of the most foundational rights that individuals have against arbitrary State power.

What did the ex-Chief Justice do when these habeas corpus petitions came before him? Let us take the case of J&K MLA Yusuf Tarigami. His party chief, Sitaram Yechury, filed a habeas corpus for Tarigami to be produced, and his detention explained. After hearing the petition, the ex-Chief Justice “allowed” Yechury to “travel” to J&K to “meet” Tarigami, and then “report back” to the Court – on the condition that he could only travel for this purpose, and could not engage in any “political activities” while there.

Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to all citizens the freedom of movement within the territory of India. J&K is a part of India (is it not?). Yechury is an Indian citizen (is he not?). There was no Emergency declared in J&K, so Article 19(1)(d) had not been suspended (in fact, the government to this day insists that everything is “normal”). If at all Yechury’s movements could be restricted, it could only be on the basis of a “law” that met the test of reasonableness under Article 19(4). So where on earth did the Supreme Court get the idea that it had any power or authority to “allow” Yechury to travel to J&K, and place “conditions” on what he could or could not do when he was there? Where in the Constitution were these “conditions” sourced from? Was the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing Authority of India? And what happened to the right to habeas corpus? Had it been erased from Article 21 by this newly-minted Supreme Internal Visa Issuing Authority of India? As A.G. Noorani would point out a few weeks later, “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”

Needless to say, the ex-Chief Justice refused to provide any reasons for any of this. No reasons for what was done to habeas corpus, no reason for the extraordinary order that made fundamental rights subservient to the whims and fancies of the Court without even an effort to locate them in the Constitution, no reason for anything. This was a Court – and a Chief Justice – that had liberated itself from that annoying little thing called the Constitution. Aut Caesar, aut nihil.

Judicial Evasion and Electoral Democracy

For a Chief Justice that was willing to sit five days a week and after court hours to ensure that the Ayodhya case was decided, the ex-Chief Justice showed a surprising degree of reticence when it came to cases that go to the heart of our electoral democracy. At the head of the queue was the electoral bonds challenge. Recall that the electoral bonds law allows for limitless, anonymous corporate donations to political parties (see here). A challenge to the law has been pending from before the ex-Chief Justice became the Chief Justice, and has remained pending for the entire thirteen months of his tenure; during this time, multiple elections have taken place, and multiple cycles of electoral bond-buying has happened (for the staggering figures – all anonymous – see here: 6128 crores, out of which a majority has gone to the ruling party, because of the structural asymmetry within the scheme that benefits the ruling incumbent – whoever that might be).

When the case came up for hearing before the Lok Sabha elections, the Chief Justice after hearing it for a while, noted that the “weighty issues … would require an in-depth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure.” He then ordered that the details of the funding be given to the Election Commission in a sealed cover (again!), and by 30th May.

There is only one way to describe this order: judicial trolling. At this point, the case had been pending for over a year. To say that there was “limited time” to hear and decide it somehow implied that the petitioners had been sleeping all this while, and had only run to the Court on the eve of the Lok Sabha elections. And besides, as the Brexit hearing recently showed us, if a Constitutional Court really needs to hear and decide a crucial case within a limited period of time, it is perfectly capable of doing so – and writing a reasoned judgment to boot.

What, then, was the aftermath? 30th May came and went. Presumably, details were filed in a sealed cover. And the case has sunk without a trace. Another set of state elections have come and gone, in which electoral bonds were used – and the Court is yet to hear it. This is, as I have pointed out before, classic “judicial evasion”: the Court effectively decides a case by not deciding it, because the status quo so obviously favours one party (most times, the government) (see here and here).

Slouching towards the Executive: The Voice Samples Case

This post would be incomplete before highlighting one final – extraordinary – judgment of the ex-Chief Justice (no, not Ayodhya). In August, the ex-Chief Justice headed a bench that found that the mandatory taking of voice samples during interrogation of accused persons was not covered by any statute. Now, this should have been the end of the matter: if there’s no statutory authority for taking voice samples – a process that undeniably infringes the right to privacy at the threshold (whether it is a justified infringement is another matter) – then voice samples can’t be taken. Simple. The legislature has to amend the CrPC to allow it, and the amendment can be tested before the courts on constitutional grounds.

The ex-Chief Justice, however, invoked Article 142 of the Constitution to judicially authorise the mandatory taking of voice samples. As I pointed out at the time, this was utterly flawed and profoundly dangerous (see here). Because once again, the Court was running roughshod over the most basic structural principles of the Constitution: instead of the normal route where laws are passed that prima facie infringe rights, and then are tested before the Courts, the Court was itself legitimising a rights-infringing procedure before even it had been legislated, or even argued on merits before it! And this indeed was the apotheosis of the Executive Court: judging a case, making law, and implementing it, all at once, in service of an amorphous public interest that remains forever undefined.

Conclusion: At the Crossroads 

I have not, in this post, examined the Constitution Bench cases that have been delivered this week (although I have analysed them in separate blog posts). The RTI and the Tribunals judgments are regular judgments, analysed under regular legal frameworks. If this was all that the ex-Chief Justice’s tenure consisted of, then there would have been no need to write this post today.

Nor have I analysed the odd “review” judgment in the Sabarimala Case, judicial evasion and the strange final order in the Alok Verma case (see here), or the “balanced” order that never was in the Karnataka MLAs’ defection case (see here). These are issues that will probably occupy political scientists in the years to come. This post, on the other hand, has attempted to show that the dominant tone of the ex-Chief Justice’s tenure has been marked by a series of extraordinary judgments that fall within a coherent pattern: the rise and rise of the Executive Court.

I should be clear that this is not an issue pertaining solely to the ex-Chief Justice. It is not just Court No. 1 on Bhagwan Das Road that does this; the issue is a structural one, affecting courts across the board (see here). This has been accompanied by the Courts resiling from core functions such as policing the bounds of electoral democracy. Electoral bonds is the most glaring example, but the rejection of totaliser machines (that guarantee voter anonymity and protect the secret ballot) and the VVPAT issue are others (see here).

But it is important to focus on the ex-Chief Justice and his Court, for two reasons. First, as I have indicated, there is a ripple effect that flows from what the Supreme Court does – especially in high-profile cases that invariably end up in Court No. 1 – to other courts. And secondly, as the above analysis should demonstrate, in the ex-Chief Justice’s tenure, the Executive Court has come to the fore in a particularly concentrated form: taking over large-scale administrative exercises, sealed covers, undermining of evidentiary rules, disregard of constitutional rights, the abuse of Article 142 – all of this, and more, has defined the last thirteen months.

This leads to two conclusions. The first concerns those who study, write, and speak about the Supreme Court. For many years, there has been an established model to study constitutional courts in democratic republics (especially courts vested with the power of judicial review): as counter-majoritarian institutions (that may sometimes succeed but often fail to check majoritarian impulses), as (imperfect but important) protectors of rights, and as institutions that, at the end of the day, are built on a process of open and public reasoning and deliberations. Under the ex-Chief Justice, though, I would suggest that the Court has departed so far from these fundamental principles, that it is unrecognisable as a “Court” under the classical model. To continue to act as if it was, then, would be to make a category mistake. And this is why I have used the term “Executive Court”: the trappings remain, but the substance is radically different.

The second, of course, concerns the Court itself. We stand at a crossroads, and there is a clear choice that faces the Court. It may keep walking down the road it has chosen in recent times (and there is a continuity between the tenure of the last-but-one Chief Justice and that of the ex-Chief Justice, but that is a discussion for another day). It may carry on with the disastrous management of the NRC, continue with sealed covers, keep acting as if habeas corpus is a weird Latin term with no relevance to India in 2019, keep evading crucial constitutional cases where status quo benefits the government, and double down on Article 142. It may keep doing that, and soon there will be little left to call a “Court” in a true sense.

Or, it may remember once again Patanjali Sastri J.’s words – back in the days when the government actually lost some constitutional cases when it mattered – that the role of the Court is that of “a sentinel on the qui vive.” It may recall Justice Khanna’s admonition, that “the history of personal liberty is largely the history of insistence upon procedure.” And it may recover its classic role as the counter-majoritarian institution that stands between the individual and unaccountable, arbitrary State power.

The choice has never been clearer. And the jury, as they say, is out.

 

The RTI Judgment: On Proportionality

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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Elsewhere, I have analysed the recent judgment of the Supreme Court, holding that the Right to Information Act applies to information held by the Office of the Chief Justice of India. In this post, I want to briefly flag an issue that cropped up in each of the three opinions in the case: applying the doctrine of proportionality to a case of balancing rights.

Recall that the Majority Opinion holds that under Sections 8 and 11, the right to privacy must be “balanced” against the “public interest” in disclosure. In paragraph 88, the Court observes that this balance is achieved through an application of the proportionality standard, drawn from Puttaswamy. The Majority Opinion applies the proportionality standard to highlight – for example – the “nature and type” of information as relevant indicative factors for the Public Information Officer to consider when deciding whether or not to provide the information. In his Concurring Opinion, Ramana J does something similar, noting that “the contextual balancing involves ‘proportionality test’. [See K S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is to see whether the release of information would be necessary, depends on the information seeker showing the ‘pressing social need’ or ‘compelling requirement for upholding the democratic values’.” (paragraph 41)

There is, however, a slight problem with this form of analysis. The proportionality standard in the context of privacy violations, as developed in Puttaswamy, is applicable against the State. It consists of a four-pronged test that is applies to decide whether rights-infringing State action is constitutionally valid or not. The “balancing” in this case, however, is not between State goals and the right to privacy. Rather, it is between two rights: the right to privacy and the right to information (which, in social terms, becomes the “public interest” in disclosure of information).

The proportionality standard sits uneasily with the second situation. To see why, consider for example the “necessity” prong of the test. Necessity requires that the infringing law be the “least restrictive” alternative; in other words, the infringement of rights must be to the least degree that is consistent with achieving the State’s goals. That makes perfect sense when you are considering State action; however, how do you apply that when you have to balance two rights against each other? Both the parties in this case have normative claims against each other, founded in rights. So you cannot simply ask, for example, is this claim to information the “least” amount that can be asked for in order to satisfy the claimant’s purpose? Consequently, without a clearer anchor, the invocation of the proportionality standard in the Majority Opinion and in Ramana J.’s concurrence, can end up becoming a shield for arbitrary and ad hoc “balancing of interests” by Public Information Officers.

The issue is addressed to an extent in the concurring opinion of Chandrachud J. In paragraph 89, he observes that:

It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question.

Chandrachud J. provides greater clarity in paragraph 111, where he quotes the opinion of Baroness Hale in Campbell v MGN LtdIn that case, Baroness Hale noted that:

The application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a ―pressing social need to protect it … this involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.

Chandrachud J. interprets this to mean:

As observed by Baroness Hale, both the right to privacy and the right to information are legitimate aims. In applying the principle of proportionality, the Information Officer must ensure that the abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by enforcing the countervailing right. (paragraph 112)

In practice, therefore, this would appear to be a two-step test. First, you apply a proportionality analysis to the question of the infringement of privacy occasioned by the demand for information. You identify the policy underlying the latter, treat that as the “legitimate aim” under the proportionality framework, and then apply the four-pronged test (including the necessity/least restrictive alternative prong). Then, you flip it around, and repeat the same process – but this time, the right is the right to information/freedom of expression, and the “legitimate aim” is the policy underlying the protection of privacy.

It may be conceptually possible that the PIO might find that the “right” to privacy is being disproportionately infringed by the claim to information, but also that the freedom of expression is disproportionately infringed if the information isn’t disclosed. Such a clash is unlikely to happen in practice, though; it might, however, demonstrate a need for the actual analysis to be done in one step (in the “balancing” form outlined above – or a more refined variant of how earlier Indian cases have done it: simply by asking which of the two rights in this case would serve “greater” public interest, if implemented), while for conceptual reasons, the two need to be kept separate.

The devil, of course, will be in the details; and as the proportionality standard continues to take root and grow in Indian constitutional jurisprudence, such difficult issues about its meaning and application will continue to come up before courts.

 

The Tribunals Judgment – II: On Independence

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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


In yesterday’s post, I discussed the significance of the Tribunals Judgment on the vexed issue of money bills. Today’s post discusses the judgment’s engagement with the principal legal provision under challenge – Section 184 of the Finance Act. While the majority upheld the constitutionality of the Finance Act – but struck down the Rules framed under it – Chandrachud and Gupta JJ, writing separate dissenting opinions, struck down the primary legislation as well.

Recall that Section 184 of the Act authorised the Government to “by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service” of Tribunal Members. It set upper age limits, and prohibited the variance of the terms and conditions to the detriment of members, after their appointment. The Petitioners argued this amounted to excessive delegation, and would make “the Tribunals amenable to the whims and fancies of the largest litigant, the State.” On the other hand, the Section was defended by the Union of India on the ground that the existence of multiple Tribunals in the country required harmonisation.

The Majority Opinion 

The Act

The Majority Opinion restated the law on excessive delegation, noting that what is prohibited is the “abdication or effacement by conferring the power of legislation to the subordinate authority” (in this case, to the government) – that is, “essential legislative functions” could not be delegated. Or, to put it another way, legislation would have to stipulate the policy with sufficient clarity, while leaving the implementation of it to the executive branch.

Applying this test, the Majority held that Section 184 did not suffer from excessive delegation. However, the Majority’s rationale for that was somewhat curious. In paragraph 143, it noted:

The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra), L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas (supra) undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature had intended to differ from, let alone make amendments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the learned Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions.

In other words, the Majority held that the “policy” came not from the Finance Act, but from previous judgments of the Court that had set out the framework within which Tribunals would necessarily have to function; and it then deemed that the Finance Act had adopted this framework, as it had given no indication to the contrary. This framework, the Majority went on to hold, was constituted by principles such as independence (both individual, and institutional) of the Tribunal. Independence required “a sufficient degree of separation” between Tribunals and the Government:

Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres – economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence. (paragraph 144)

It must be said that this is a somewhat innovative development in the law of excessive delegation. Interestingly, the Court was unable to provide precedent to support its view that “legislative policy” – the existence of which was an essential precondition for delegation to be valid – could itself be – er – delegated to the Courts instead. That said, however, this was a highly specific case: the history of Tribunalisation in India has been a history of dialogue between the Court and the Legislature; in a sense, the constitutional framework within which Tribunals function has evolved out of this dialogue. To the extent that the Majority Opinion is justifiable, then, it is a justification that – at best – is limited to the facts of this case.

The Rules

Having laid out the principle of independence – and what it required – the Majority went on to examine the Rules that the government had passed under Section 184. Appointment to the Tribunals were to be made upon the recommendation of a “Search-cum-Selection Committee.” These Committees were dominated by government nominees and bureaucrats. On this basis, the Majority Opinion held that “the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain.” (paragraph 153) This was specially important because “the Executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in judicial appointments.” (paragraph 157)

Next, the Majority found that the qualification of the members was lacking. Technical members without any adjudicatory experience could be appointed, and Presiding Officers need not have any judicial experience. This was particularly important, as these Tribunals had been formed after divesting the Courts from adjudicating in these domains; consequently, it was necessary that “the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred.” (paragraph 163) And even the qualifications of judicial members had been weakened, with a substantial amount of discretion being placed in the hands of the government, to appoint individuals it considered suitable. This, the Majority held, was unconstitutionally vague.

Thirdly, the Majority found that the removal process vested too much power in the hands of the government as well; the government could constitute a committee, which could recommend removal. The Court noted that “it is well understood across the world and also under our Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions.” (paragraph 169)

Fourthly, the Majority found that there were inconsistencies in retirement ages, and the tenures themselves were short – they were of three years. The Court held that “a short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals.” (paragraph 175)

On the bases of these findings (summed up in paragraph 179), the Majority Opinion found the Rules to be unconstitutional, and struck them down.

These observations and findings are undoubtedly correct. The Majority Opinion drew a clear link between institutional independence (the “policy” underlying tribunalisation, as reflected in the Finance Act), and the government control over (a) appointments, (b) qualifications, (c) removal, and (d) tenure. It also went on to note – while considering the issue of a “nodal agency” to oversee the functioning of tribunals – the importance of (e) financial independence.

And lastly, the Majority Opinion found that direct appeals from the Tribunals to the Supreme Court were constitutionally problematic, and directed the government to reconsider the appeals process within six months. Perhaps unfortunately, however, the Majority Opinion framed this as a question more about judicial efficiency, and less about a valuable procedural right to access the High Courts under Article 226.

The Concurring/Dissenting Opinions

A large part of Justice Chandrachud’s substantive analysis of the Act was integrated with his analysis of the Money Bill issue (discussed in the previous post). Chandrachud J. did note, however, that:

By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-effacement by Parliament. The conferment of the power to frame rules on the executive has a direct impact on the independence of the tribunals. Allowing the executive a controlling authority over diverse facets of the tribunals would be destructive of judicial independence which constitutes a basic feature of the Constitution. (paragraph 88)

While this was not framed as a response to the Majority Opinion on the issue of excessive delegation, in effect, that is what it is. According to Chandrachud J., Parliament could not validly delegate “controlling authority” over Tribunals to the Executive, given the overarching framework of judicial independence. On the analysis of the Rules, Chandrachud J.’s analysis mirrored that of the Majority.

Lastly, on the issue of excessive delegation, Gupta J. filed a brief opinion agreeing with Chandrachud J. As he observed:

We are in the present case dealing with the appointment of Chairpersons/Members to various Tribunals. They are enjoined upon to discharge a constitutional function of delivering justice to the people. What should be the essential qualifications and attributes of persons selected to man such high posts is, in my view, an essential part of legislative functions. (paragraph 27)

Gupta J. went on to make the important point that the Constitution itself could not have “delegated” the appointment process for judges to the executive (although recall that the NJAC did delegate it to the legislature!). And if Tribunals were meant to substitute for Courts, then – logically – the same considerations had to apply. Gupta J. specifically took issue with the Majority Opinion that the legislative policy was provided by the judgments of the Court; he noted – and in my view correctly – that it could not always be assumed that the other branches were prompt and accurate in following Court judgments.

Addendum: Impact upon the RTI Amendments 

Previously on this blog, we have discussed the amendments that were made to the RTI Act earlier this year. In a similar fashion, the RTI Amendments had delegated to the Government authority over the constitution and running of the Information Commission, through secondary legislation. Now, it is true that the Information Commission is not identical to the Tribunals that were dealt with under the Finance Act. That said, however, in my view, this judgment has an important impact upon the RTI Amendments – and the Rules that were subsequently framed.

First, let us see the extent to which there is similarity between the two situations. In my view, the similarity exists in two important respects. First, in view of the fundamental right to information, and the role played by the Information Commission (as I argued in that earlier post), the requirement of individual and institutional independence is at least as pressing for the Information Commission as it is for the Tribunals. Secondly, the presence of the government as the largest litigator was an important factor in this case; in the RTI context, however, the Government is an even bigger litigator, as information requests are made to Public Information Officers. Institutional independence, then, becomes even more important.

With that having been established, this judgment makes clear that (a) appointment, (b) qualifications, (c) removal, (d) tenure, and (e) financial independence are all integral facets of institutional independence. While the Court’s specific findings with respect to the adjudicatory character of the Tribunals may not be directly applicable (although the point is arguable), the link between the above five factors and government control applies across the board. The RTI Rules, therefore, can be directly examined under this framework.

And lastly, as I have argued above, the Majority Opinion’s finding that Section 184 did not suffer from excessive delegation was based upon the very specific history of the tribunalisation. In the absence of that history, I believe that it is more than arguable that the RTI Amendments suffer from the vice of excessive delegation (again, in the context of the fact that the right to information is a fundamental right); indeed, Chandrachud and Gupta JJ.’s dissents on the point show us exactly how.

It remains to be seen, however, how the Courts will deal with these issues if a challenge is brought before them.

 

The Tribunals Judgment – I: A Course Correction on the Money Bill

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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Yesterday, a Constitution Bench of the Supreme Court delivered an important judgment concerning the constitutional validity of the Finance Act of 2017. Briefly, through the Finance Act, Parliament had merged a number of Tribunals, and delegated to the government the task of framing rules for their functioning. The Finance Act had been passed as a money bill, which barred the Rajya Sabha from amending it. There were, therefore, three issues before the Court: (i) whether the Speaker of the Lok Sabha had correctly certified the Finance Act as a money bill; (ii) whether Section 184 of the Finance Act – the delegation provision – was constitutional, and if it was, whether the rules the government had framed for the Tribunals were constitutional; and (iii) miscellaneous issues around the functioning of Tribunals in the country. The last issue – strictly – is one of legal policy, and I will not discuss it here. This post will discuss the debate around the money bill, and the next post will discuss Section 184.

The debate around the money bill was framed in the background of the Supreme Court’s Aadhaar Judgment, of September 26, 2018. Recall that in the Aadhaar Case, the Speaker’s certification of the Aadhaar Act as a money bill was under challenge. There were a number of issues that the Court had to consider: first, whether the Speaker’s decision was subject to judicial review; secondly, if it was, how was the Court to interpret Article 110 of the Constitution, that set out the conditions for what constitutes a money bill?; and thirdly, was the Aadhaar Act correctly certified as a money bill?

As Suhrith Parthasarathy pointed out repeatedly in the aftermath of the Aadhaar Judgment, the majority decision returned a confused set of findings on this issue. The primary reason for this was that it mixed up the order of the questions. Instead of first deciding whether the Speaker’s certification was subject to judicial review, it went ahead and reviewed the law anyway – thus implying that it was – but later, went on to say that it wasn’t answering the question of review. On the substantive issue, it first struck down a provision of the Aadhaar Act (Section 57) that clearly couldn’t be traced back to Article 110 – and then held that the rest of the Act passed scrutiny as a money bill. The consequence of this was that it failed to provide clear standards for how the Court should interpret Article 110.

Importantly, the majority judgment in The Tribunals Case – authored by the Chief Justice – points this out clearly and unambiguously. In paragraph 122 it notes that:

Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches.

Having taken this view, the Chief Justice then correctly refers the question to a larger bench for resolution. In doing so, however, he also makes it clear that on the point of judicial review, the law is now settled. By examining the Aadhaar Act on merits, it was a necessary implication that the question of the Speaker’s certification is subject to judicial review (and this in line with previous judgments, such as Raja Ram Pal); and contrary judgments, such as Siddiqui, now stand expressly overruled. The consequence, then, is this: the speaker’s certification of money bills is now subject to judicial review. The standards that a Court must apply – balancing respect for the Speaker’s prerogative against the importance of bicameralism and the Upper House – will be decided by a larger bench.

In this context, Chandrachud J.’s concurring opinion repays careful study. Recall that Chandrachud J. had dissented in the Aadhaar Case, including on the point of money bill. Here, he takes the argument further. After setting out the history and origins of money bills in British parliamentary practice, and noting that as a matter of constitutional text and structure, the “finality” of the Speaker’s decision doesn’t necessarily exclude judicial review, Chandrachud J. comes to the heart of the case: the issue of bicameralism. Put very simply, “bicameralism” refers to the existence of two legislative chambers, where – depending upon the circumstances – the participation and/or concurrence of both  chambers is required to pass laws. In the Indian context, “bicameralism” is a specific, structural check upon majoritarianism, as well as a guarantee of states’ representation in the federal scheme. The Rajya Sabha exists both to articulate the interests of the states in Parliament, as well as act as a check upon the Lok Sabha. Thus, as Chandrachud J. notes:

The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an indispensable constitutive unit of the federal backbone of the Constitution. Potential differences between the two houses of the Parliament cannot be resolved by simply ignoring the Rajya Sabha. In a federal polity such as ours, the efficacy of a constitutional body created to subserve the purpose of a deliberate dialogue, cannot be defeated by immunising from judicial review the decision of the Speaker to certify a Bill as a Money Bill. (paragraph 65)

What Chandrachud J. is doing here is what the legendary American constitutional scholar, Charles Black, called “structural interpretation“: constitutional interpretation that flows from the structures and relationships between various constitutional provisions. Here, Chandrachud J. uses the importance of bicameralism as providing the interpretive framework within which to examine the issue of the money bill; or, in other words, any interpretation of Article 110 must be one that advances and protects bicameralism, rather than diluting or eroding it.

This interpretive framework comes into play when Chandrachud J. examines the merits of the dispute. He notes that the inclusion of a non-fiscal provision matter in a money bill is permissible only if it is “incidental” to a matter specified in Article 110. Or, in other words, the legislation must essentially relate to one of the clauses under Article 110. The Finance Act – to the extent that it dealt with the restructuring and composition of Tribunals – clearly did not fall within this category. Therefore:

We are unimpressed with the submissions of the learned Attorney General that since salaries are payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c) and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include qualifications and process for appointment terms of office and terms and conditions of service including salaries, allowances, resignation and removal which cannot be reduced to only a question of the financial burden on the Consolidated Fund of India. The effect of Part XIV is to amend and supersede the provisions contained in the parent enactments governing all aspects of the appointment and terms of service of the adjudicatory personnel of the tribunals specified in the Eighth and Ninth Schedules. This exercise cannot be construed as a legitimate recourse to the power of enacting a Money Bill. (paragraph 77)

It is crucial to note that this analysis on merits flows from the structural analysis discussed above. In paragraph 86, Chandrachud J. goes on to observe:

… the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an exception which has been carved out by the Constitution to the constitutional requirements accompanying the passage of ordinary legislation. In passing the Bill as a Money Bill, the immediate impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of legislation.

On this basis, he finds that the Speaker’s certification was incorrect, and sets it aside; the rest of the Act, however, is saved on principle of severability.

It is important to note that this is not the first occasion in recent times that structural analysis has played a role in the Court’s judgments. It was also in play in the NCT of Delhi v Union of India decision. In that case, while interpreting Article 239AA of the Constitution – that defined the relationship between Delhi and the Union of India – the Supreme Court held that principles of federalism and representative democracy constituted the interpretive framework within which textual ambiguities were to be resolved. The principle is a simple one, but has powerful consequences: when used well, it ensures that the Constitution’s fundamental principles act as waymarkers upon the often perilous road of judicial interpretation; these principles help to anchor the Court within a principled adjudicatory framework.

In that sense, Chandrachud J.’s opinion has already done the work that the majority has left to a larger bench.

And incidentally, it also makes it clear that the Aadhaar Act is unconstitutional.