Guest Post: Article 131 and the Power of State Governments to Challenge Laws

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[This is a guest post by Amlan Mishra.]


The question of whether Article 131 of the Constitution can be used by states to challenge the vires of a Central legislation was referred to a larger bench of the Supreme Court in State of Jharkhand v. State of Bihar. With Kerala and Jharkhand challenging the constitutionality of Central laws, this question has come to the limelight again. In this piece I put forward a structuralist interpretation of the Constitution, to argue that states have such a right. ‘Structural interpretation’ here is taken to indicate the use of multi-provisional implications which are sensitive to the context and purpose of the provisions of the constitution.

Legal position so far

Article 131 provides that the Supreme Court shall have original jurisdiction to try cases between different federal units, if the dispute involves ‘any question of law’ on which the ‘existence or extent of a legal right depends’. The reference to a larger bench is for the interpretation of the words ‘legal right depends’. Two cases of the Supreme Court propose contradictory interpretations to this question. Both cases fail to offer any substantial philosophical or structural reading of the constitution in arriving at their conclusions.

First, consider State of Karnataka v. Union of India, where the Supreme Court held that ‘legal right’ here does not just mean the ‘legal right of the state’, but includes any legal right of State government or of other people. This case identified two ingredients that are necessary for an original suit under A. 131, a) the two parties (states or centre) and b) a substantial question of law arising out of ‘some legal right’. The interpretation of ‘legal right’ was delinked from the concept of a ‘cause of action’, such that the legal right of the ‘plaintiff’ (in this case, the state) need not be violated to move an original suit under this Article. The absence of a ‘legal right of the plaintiff’, the court held, should not stop the court from hearing the parties on merits. J. Chandrachud stressed on the ‘delicate relationship’ between the centre and the state to point out that the constitutional capacity of the litigants under Article 131 should not be narrowly limited. J. Bhagwati in his opinion undertook a textual reading of the Article, by noting that it does not explicitly say ‘legal right of the plaintiff only’. In absence of such a clear indication in the article, he was unwilling to read the concept of ‘cause of action’ into it.

The second case is State of MP v. Union of India wherein the constitutionality of a legislation was held to be unassailable by a state government moving a suit under Article 131. It gave a strained explanation which hinged on the 42nd Amendment and its subsequent repeal. It held that the amendment had, in the past, weakened writ jurisdiction under Articles 32 and 226 by giving exclusive jurisdiction to the Supreme Court, to adjudge constitutionality of central laws by inserting Art. 131A. So the latter repeal of Art. 131A, the court held, should be understood to mean that constitutionality of central laws are now to be decided solely under the writ jurisdiction of the courts. State of Madhya Pradesh does not, however, articulate as to why an additional challenge to constitutionality of statute cannot be moved under Article 131 (as is the case in Kerala’s challenge to the Citizenship (Amendment) Act, 2019), alongside other petitions under Art. 32. A petition under one need not limit the other.

In what follows I propose that using a structural interpretation of the Constitution, states have the right to challenge Central laws under Article 131.

Structuralist reading of Article 131: Basic structure as supra-statutory duty

The immutability of the key provisions of the Constitution, in the face of executive or legislative action, is a crucial facet of liberal democratic Constitutions. For example, the US Constitution provides under Article IV that the federal government shall guarantee a ‘republican form of government’. Deriving from this (see Ambedkar’s statement drawing the parallel), the Indian Constitution under Article 356 provides that the President’s rule can be invoked if the administration of the state is ‘against the provisions of the Constitution’.

In SR Bommai v. Union of India, Article 356 was invoked in 3 BJP ruled states, on the grounds that the state governments were acting against secular principles during the Babri Masjid demolition. The Supreme Court observed that ‘administration according to the provisions of the Constitution’ includes within its ambit more than mere ‘governance in accordance with electoral democracy’. It also includes fidelity to fundamental values of the Constitution, such as secularism. Accordingly, the test of ‘government in accordance with the Constitution’ demanded adherence to the ‘basic structure’ of the Constitution. Consider these statements by the judges.

Justice Sawant observed:

Any profession and action that go counter to [secularism] are a prima facie proof of the conduct in defiance of the provisions of the Constitution.

Similarly, Justice Reddy observed:

[I]t is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action.

It is to be noted that SR Bommai did not hold merely that anti-secular actions were a violation of basic structure, (thereby integrating basic structure considerations into the review of a higher executive’s action). It also established concomitantly, as Gary J. Jacobson argues in The Wheel of Law (2003), that the Union government has the power to take positive action to uphold the basic structure. Thus ‘electors’ and ‘courts’ were not the only decision-makers as to whether a government was working ‘against the provision of the Constitution’. The centre could also invoke Article 356 to put forward its version of the Constitutional truth and the courts, by reviewing such an exercise, could adjudicate if that reading of the Constitution was correct. In Bommai, the courts rooted this power of the Centre – in the duty of elected governments to not only abide by the basic structure but also to positively enforce it. Consider this by J. Ramaswamy in Bommai:

Secularism . . . is a part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man’s excellence with material and moral prosperity and political justice.

 

Jacobson reads this as “[g]overnment is being invited to act in furtherance of the basic features of the Constitution, not simply to refrain from acting in situations where fundamental rights have been threatened or violated.”(Pg. 150)

Is this invitation to act in furtherance of the Constitution a one way street? Surely, no counterpart of Article 356 exists for the states to move against the Centre. However, Article 356 is useful to see how one unit’s interference in the sphere of another is justified if it is to further the basic structure of the Constitution. The centre, by virtue of its more dominant position, can discipline the states if they don’t follow the basic structure.

But states also have a similar, albeit less explicit obligation to defend the Constitution in their respective spheres. This is by virtue of the oath a Governor takes where he swears to ‘preserve, protect and defend’ the Constitution. The Chief Minister of a state similarly swears to act ‘according to the Constitution’. In Manoj Narula v. Union of India the court read the oath to confer a ‘constitutional expectation’, albeit non-binding, upon the Prime Minister and the Chief Minister, to not include criminals in their cabinets. The oath of these functionaries, read with Jacobson’s idea that states have a positive duty to enforce the basic structure, raises a strong Constitutional expectation in the state government to defend and work in furtherance of the basic structure. What happens when their constitutional obligation/expectation to protect and defend the Constitution is in the opinion of the state in conflict with any act of the centre?

To illustrate this let me draw an analogy between the basic structure of the Constitution and Radbruch’s idea of ‘Supra- Statutory authority’. Evolved after the carnage of the holocaust, the principle says that actions of any government functionary should not be tested just on the ‘positive law’/’orders of superiors’ but also against some basic supra-statutory principles like human rights. The oath of a Governor can be said to test the action of a State Government (acting under his name) on the touchstone of the Constitution. This cannot, however, mean that the states should dissent when confronted with an unconstitutional act by the Centre. The Constitution, as I discuss below, forbids such dissent. There should be an alternative mechanism to voice this disagreement.

Enforcing unconstitutional directions?

Crucially, Article 247 under the Indian Constitution provides that directions can be issued to the State government, inter-alia to not impede the Centre’s executive functioning. Article 365 provides that non-adherence to instructions of the Centre is enough to invoke Article 356 in the states. Such a compulsory direction from the Centre cannot exist in absence of the right to challenge the constitutionality of the Central government legislation on the ground that it goes against the duty of the centre to act in furtherance of the basic structure. For example, if during the enforcement of the recently enacted Citizenship (Amendment) Act, 2019, the Centre directs State Government to make its machinery available for verifying the documents of refugees in India for eligibility for citizenship, the state may have to enforce what it feels is an unconstitutional act of the centre.

The states then should have a mechanism to clarify if it is indeed a violation of the Constitution. It can be done only by challenging it with reference to the Constitution.

Integrating text with structure

Let us see if we can apply the aforesaid structural reading to the text of Article 131. Article 131 uses in clear terms the phrase: ‘legal rights depends’. What I propose is to look closely at J. Chandrachud’s opinion in State of Karnataka. He stressed the ‘delicate federal relationship’ of India to read the words ‘legal right depends’ liberally. Inherent in this idea is the understanding that ‘the legal right’ should arise in the course of the federal relationship, which admittedly is incapable of precise description. On similar lines, in the case of State Bihar v. Union of India the court noted that ‘the legal right [under Article 131] should arise in the context of the constitution and the federalism it sets up’.

What is important to note here is that the Indian Constitution does not provide ‘rights’ (claim rights) to constituent units against each other (in the strict Hohfeldian sense). Instead it gives them ‘power to legislate’ (see Article 246). In addition to this the Constitution provides for immunities (enjoyed by constitutional functionaries), duties, privileges (enjoyed by legislators), and expectations (arising out of oaths) to/on constituent units [jural relationships]. More often than not, all constitutional provisions confer on constituents a fusion of these ‘jural’ terms. For example Article 356, as Jacobson’s exposition shows, confers on the central government a ‘power + duty’ to enforce provisions of the Constitution in a state.

Let us imagine these ‘jural relationships’ as spheres inside of which the units must operate, with occasional access to each other’s sphere as laid down in the Constitution [jural spheres]. It is the unconstitutional encroachment into each other’s ‘jural spheres’ that must be at stake for a dispute to fall under Article 131. Each unit, as I have established above, enforces the Constitution in its own sphere. [See a similar characterisation of the word ‘rights’ in J. Bhagwati’s opinion in State of Karnataka]

For the Centre, enforcement of the Constitution maybe mean incursion into the state’s sphere through the invitation in Article 356 to act in furtherance of the Constitution. This is an issue squarely under the jurisdiction conferred by Article 131 as illustrated by State of Rajasthan v. Union of India, wherein Article 131 was used to challenge the dissolution of State Legislative Assembly. Similarly a duty/expectation to defend the Constitution in a state is also incumbent on the States acting in the name of their higher functionaries. A violation of core constitutional values by the centre may then infringe the higher functionaries ability to ‘defend the Constitution’, thereby infringing on the sphere of action of the state.

Such a conflict of ‘legal rights’ may not seem as obvious a conflict as the issue of ‘who can try the Chief Minister of the state for corruption’ (a question involved in State of Karnataka). But this is definitely a question arising out of the federalism set up by the Indian Constitution. Thus the phrase ‘legal right depends’ can be read to mean competing jural relationships in the Constitution which arise from the obligation of each constituent unit to enforce and uphold the Constitution in its respective sphere.

In sum, therefore, if the states hold a good faith belief that the enforcement of the CAA or the NRC (for example) runs contrary to core constitutional tenets, Article 131 ought to be read as granting to them the right to challenge this before the Court, and contest the centre’s understanding of what the Constitution allows.

Notes from a Foreign Field: Public Participation, Constitutional Rights, and Technological Design in the Kenyan High Court’s Huduma Namba Judgment [Guest Post]

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[This is a Guest Post by Anand Venkatanarayanan. Anand served as one of the Expert Witnesses for the Petitioners in the constitutional challenge to NIIMS/Huduma Namba, the Kenyan national biometric identification project, before the High Court of Kenya.]


This post analyses the Huduma Namba judgement of the Kenyan High Court, which was delivered on January 30, 2020 on the weighing stone of “public participation” (a guaranteed right under the Kenyan Constitution). It must be read along with the legal analysis for better context. 

Transparency Principle

It is now a well settled proposition that when it comes into deprivation of rights, people cannot be harmed based on a secret law whose contents and workings are unknown and unknowable to the affected party. Now, what if the State builds a technical system, whose workings are classified as a secret, based on which a determination is made about whether residents are eligible for welfare benefits? And what if the State then passes a law that governs the technical system and invites public consultation on the law, but not on the technical system itself

Arguments of the Parties

In the Huduma Namba case, the 2nd Petitioner, Kenya Human Rights commission, raised the issue of lack of public participation, as a ground for declaring the amendments unlawful (Paragraph 152). Note that – as indicated above – the Kenyan Constitution explicitly requires public participation as a precondition for passing legislation

a) A declaration that the amendments to the Registration of Persons Act, Cap 107 Laws of Kenya, vide the Statute Law Miscellaneous (Amendment) Act No. 18 of 2018 are unconstitutional null and void.

b) A declaration that the amendments to the Registration of Persons Act, Cap 107 Laws of Kenya, by the Statute Law Miscellaneous (Amendment) Act No. 18 of 2018 were enacted unprocedurally and without public participation contrary to Articles 10(2)(a) and 118(1)(b) of the Constitution.

The witness for the 2nd Petitioner, Mr. George Kegoro, brought out the issue of lack of information on the technical details of the system, in his testimony (Paragraph 195, Special emphasis included):

The second failing identified in the impugned law by the 2nd Petitioner was what was perceived as the opaqueness that surrounds the actual software that has been deployed for NIIMS. Mr. Kegoro averred that the nature, capabilities, ownership details and other critical features of the system were known only to the State, with no information with regard thereto known by the public. He discounted the 5th Respondent’s assertions that it designed and developed NIIMS with the combined effort of an inter-ministerial taskforce specifically formed for this purpose as a bare statement. In his view, there is no way of verifying that NIIMS meets minimum integrity, transparency and accountability standards as would guarantee privacy of personal information stored therein from unintended third parties or from abuse from within.

Another witness for the 2nd Petitioner, Ms. Munya, brought out an essential facet on the design being public, by advocating for Open Source design (Paragraph 236)

In supporting the position taken by the Petitioners that Kenya should have used ‘open source’ in the design of NIIMS, Ms. Munyua deposed that her company embraces ‘open source’. She stated that the term referred to “something people can modify and share because its design is publicly accessible.” She further averred that “the open source way” and “open source projects, products, or initiatives embrace and celebrate principles of open exchange, collaborative participation, rapid prototyping, transparency, meritocracy, and community-oriented development.

The argument, therefore, was that when a legislation encodes into law the a technological system, “public participation” on the terms of the law without public participation with respect to the design of the system, is meaningless.

On the other hand, the 2nd and 3rd Respondents, on the issue of public participation with respect to the design of the system, made the following averments (Paragraph 357, SIC):

When questioned on the public participation on NIIMS, Dr. Kibicho testified that he and various government officials and the national government administration infrastructure had sensitized the members of the public and carried out civic education on the benefits of NIIMS. He denied that they stated or threatened that the registration for Huduma Namba was compulsory. 

The witness for the 5th Respondent, Mr. Ochieng, made the following averments in reply (Paragraph 418):

On the preparations and development of NIIMS, Mr. Ochieng stated that the discussions on NIIMS started in January 2018, and he referred to a copy of his letter dated 10th May 2018 inviting the technical committee on NIIMS to a meeting. He, however, clarified that the technical development of NIIMS commenced in February 2019 even though the preparations had started much earlier. He testified that the software for NIIMS was developed by Kenyans, and stated that tests had been dome on algorithms to ensure they work, and on the system to verify its security and integrity, and ensure that there is no deduplication of data. He also explained that the data collected from NIIMS was currently not being utilized, in compliance with the orders of this Court, but that they had developed and tested the algorithms needed to utilize the data.

Another witness for the 5th respondent, Mr. Omwenga, made the following observations regarding using Open source software (Paragraph 442):

Secondly, open source software rides on the presumed goodwill of the coding community which assumption is flawed since open source software attracts all and sundry, including persons with malicious intent. A third reason is that closed source software fosters accountability unlike open source software which does not inspire accountability for the simple reason that the general public is a non-entity. Lastly, whereas the innovation cost of the open source software is borne by the general coding community, the costs attributable to additional services, assistance or added functionality are non-transferable and open source software is therefore not entirely free 

The government witness further reiterated that he was not aware of the design and the architecture of the system (Paragraphs 431, 449, 452, 455):

Mr. Omwenga contended that the said population registers may either be centralized, decentralized or a combination of both, and could also be manual or electronic. He noted that the United Nations Principles and Recommendations for a Vital Statistics System provides that a population register need not take a specific form and states have unfettered discretion regarding the choice of the form, and the content of their respective population registers. It was his deposition that the rationale for this unfettered discretion is logically informed by the need to allow states to customize their respective population registers to suit their unique circumstances, which discretion enjoys adequate expression in international law. He cited Article 86 of the European Union General Data Protection Regulation 2016/679 (GDPR) which gives Member States the discretion to determine the specific conditions for the processing of a national identification number or any other identifier of general application.

Dr. Omwenga stated that he had enrolled for the Huduma Namba using his identity card in order to be able to get government services. He, however, could not tell if he could have registered for it if he did not have his identity card. He conceded that though he had testified as a government expert, he had not tendered any evidence on the design and architecture of NIIMS. He maintained, however, that the more information NIIMS had the more accurate it would be, and DNA could be included as a means of identification. 

It was Mr. Omwenga’s evidence that the consolidated Petitions raise legitimate concerns on security of the system, accuracy of NIIMS and misuse of data. He could not, however, confidently explain what NIIMS was since he was only involved in giving advice at the initial stage. His evidence was that it was the client, the Ministry of ICT, that was involved with designing NIIMS

With regard to the issue of encryption of data, his evidence was that he did not know the encryption standard the government employed for the data collected in NIIMS. He further stated that if the government were to predefine its encryption standard for data it collects in NIIMS, it would address the Petitioners’ concerns. 

Another witness for the 5th respondent, Mr. Muriithi, in his witness statement, viewed Open source as dangerous and preferred the closed source approach (Paragraph 478, 482):

Specifically, the costly programme that perform non-sensitive tasks were derived from open source software, which explains why NIIMS data capture kits were programmed to run on android operating system. On the other hand, programmes that perform critical and highly sensitive tasks such as encryption and deduplication were derived from closed source software in respect of which the government of Kenya restricts the sharing, viewership and modification of the underlying source codes to essential personnel only. He expressed the view that it would therefore amount to veritable irresponsibility on the part of the Kenyan government to disclose, to the general public, the very codes that found the programme meant to guarantee the safety of personal data of its citizens and foreign nationals resident in Kenya.

He further testified that the technical safeguards are only known to the developers of the system, and that the safeguards they put in place for children was that their biometric data would only be captured from the age of six years. According to Mr. Muriithi, there are two levels of architecture of NIIMS. The first, which he termed the high level architecture, can be disclosed. However, that the second, which is the low level detailed architecture of the system, cannot be provided for security reasons. 

The Court’s framing of the Issues involved

With the summary of the averments as described above, the Court framed the issue of Public participation as described below (Paragraphs 566, 570):

The Petitioners contend that the enactment of the impugned amendments did not comply with the constitutional requirement for public participation. The 1st Petitioner submits that apart from a call to the public to give views on the Statute Law (Miscellaneous Amendments) Bill 2018, no information was made available to the public as to what NIIMS was, what it would entail, its potential vulnerabilities, and how it would affect the lives of Kenyans and foreign nationals resident in Kenya. It submits that the right to public participation is intertwined with the right to information since, for adequate participation to take place, those participating must have the salient information necessary to intelligibly form and articulate their opinion on what is proposed. The 1st Petitioner cites the decision in the case of Katiba Institute vs President’s Delivery Unit & 3 others [2017] eKLR as stating that successful and effective public participation in governance largely depends on the citizen’s ability to access information held by public authorities, and the right to access information becomes a foundational human right upon which other rights must flow. 

The 1st Petitioner’s submission on the issue of public participation is linked to the claim that there was insufficient information on NIIMS. The 1st Petitioner submits that given the significant implication of NIIMS, the national government had a duty to disclose the information in order to allow the public to understand what was being proposed, how it would affect their lives and to make an informed decision whether the proposal was reasonable or not. 

It noted that the existing Kenyan jurisprudence on threshold of public participation requires citizens to have the necessary information (Paragraph 623):

Ensuring that ordinary citizens the “hoi polloi,” the “lala hoi” have the necessary information and are given opportunity to exercise their say not merely in election and appointment to political office but also economic participation, and conduct of their affairs.

 

And after a detailed analysis of various judgements, the Court concluded that there was indeed sufficient public participation under the given circumstances, without returning a finding if there was technical information available about the project as the petitioners had raised (Paragraph 636):

We also recognize that there were efforts made by the National Assembly in facilitating public participation when using the omnibus Bill mechanism in the Statute Law (Miscellaneous Amendments) Bill 2018. Unlike in the case of 2013 Law Society Case where the object of the Bill was clearly indicated as intended to effect minor amendments, in the instant case there was clear indication that the legislature intended to carry amendments on the targeted Acts without the use of the term ‘minor”. It is also clear that from the advertisement of 7th May 2018 that each Act targeted for amendment was linked to the relevant committee. Therefore, in effect, only a part of the amendments and not all of them were subject to stakeholder engagement in the Committees. Coupled with the fact that there was sufficient time availed to the public to give their views on the amendments, we find that there was sufficient public participations in the circumstances of these Petitions.

Why this is Problematic

Recall that the Petitioner’s case was that there was no effective public participation is not just about the law, but also about the technical information available about the NIIMS system. Even witnesses for the government testified in the court that 

  1. Only developers of the system know about the technical safeguards, and that they – i.e., the goverment witnesses – are themselves not aware of it. 
  2. The general public is a non-entity when it comes to open source.
  3. The state has unfettered discretion in designing the system. 
  4. Encryption and deduplication algorithms must not be disclosed. 

This actually proved the petitioners’ contentions. 

The Court, however, did not engage with the issue that was raised and instead focussed only on the legal and procedural aspects. Now, while a court might think that it does not have the competence to deal with technical architecture (this is problematic but we will deal with it later in subsequent posts), it definitely has the competence and the facts before it to determine if non-disclosure of technical information about a project that affects every resident Kenyan’s life can be construed as a “lack of public participation”. Indeed, a more nuanced understanding of “public participation” in this context would also be consistent with the principle of “technological self-determination” – discussed before on this blog – that requires individuals to have meaningful choice when it comes to engagement or participation in overarching technological systems.

Encryption standards in particular have been open for as long as 40 years and algorithms are open source for anyone to have a look and conduct security research. Modern browsers (Firefox, Chromium) are open source. Compared to NIIMS, they have much more access to individuals’ private data. Hence, the bar is already much higher, even for private corporations that are not backed by state power on information disclosure. 

That the Court chose not to decide this aspect, one way or another, is disappointing because there is no NIIMS (i.e., the biometric identification project) without the underlying technology layer. This is a general fact about all technological systems, and especially those that impact civil rights: the choice of design bears a direct correlation with the impact the system has on people’s rights. Thus, it is really not possible to separate the project’s technical aspects from its legal aspects, no matter how hard anyone tries; indeed, the legal form encodes the technological design, in a manner of speaking. 

Hence restricting the definition of public participation to only legal aspects but not the technical aspects is a blinkered view that requires reconsideration.

Nine Judges, Seven Questions

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Tomorrow, a nine-judge bench of the Supreme Court will begin hearing seven “questions” that have arisen out of a reference made in the Sabarimala review. On this blog, we have questioned the manner of the referral, the constitution of the bench, the constitution of the bench, and the framing of the questions. That said, the Court has decided to go ahead with the hearing in its present form; so the question now turns to what would be the best manner in which to answer these questions.

As a preliminary point, it is important to reiterate that many of the questions are framed in abstract terms. The best-case scenario remains – of course – for the Court to refrain from answering them in the absence of specific facts, from which legal doctrine can develop. If the Court does, however, intend to answer all the questions, then it follows that the answers, too, must be framed in the language of principles, not as concrete legal propositions. A good example of this is the last time a nine-judge bench was called upon to answer a purely constitutional question, in the absence of facts: Puttaswamy (I) v Union of India (the “privacy judgment”). Faced with the question of whether the Indian Constitution guaranteed a right to privacy, the Court – in the operative part of its judgment – simply affirmed that it did. Working out the contours of the right to privacy was left to future benches, which – for example – happened in Puttasamy II (the “Aadhaar judgment). The nine-judge bench, therefore, set out the principles involved, while concrete shape and flesh to those principles was given by later benches that had the benefit of specific facts before them. It is submitted that this salutary approach ought to be followed here as well.

On to the specific questions themselves: I will not in this post examine them individually (some of that work has been done before on this blog, and in this article, here). That may be left to later in the hearing, when there is a clearer sense of the parties’ arguments. What I want to indicate here, however, is that there is one common theme that runs through (many of) the questions: that is, the conflict between the individual and the group in the context of religion.

This conflict arises because the Indian Constitution understands religion as something that is practiced both individually (guaranteed under Article 25 of the Constitution) and in community (guaranteed by Article 26 and, in particular, Article 26(2)). In most circumstances, the contest will be between an individual and the State, or the community and the State, when laws are passed seeking to regulate or restrict elements of religious practice. There do exist, however, a set of cases where individuals are pitted against their communities – when the individual’s conception of what religious practice requires differs from what is officially sanctioned by the community, or when the individual believes that their rights are being violated by the manner in which the community’s decision-making structure functions. The classic example of this, of course, is the famous Dawoodi Bohra case, which involved the question of religious excommunication.

Now, how ought a Court to decide such a conflict if it comes before it? It is important to note, first, that there is no default “neutral” position on offer. The Constitution grants to religious denominations the right to determine matters of religion. It also grants to all the right to equally profess and practice religion. Thirdly, it grants a number of other individual rights, some of which are applicable between private parties (such as the right against “untouchability”) while others that are applicable against the State nonetheless place upon the State a positive obligation to protect them (i.e., affirmatively act to ensure that private parties are not violating them). The Constitution itself does not suggest a hierarchy of norms. Consequently, the question is one of interpretation.

Let us imagine two possible extreme approaches. Let us call the first extreme “group supremacy.” The group supremacy holds that once there exists a formal, community-sanctioned version of what religious faith or practice requires, that is sanctified by the Constitution, and nobody can interfere. Within the religious domain, in other words, there is no space for intra-group dissent, for individuals to assert their own interpretations of what faith requires, or any question of violating individuals’ rights.

The second extreme is that of “individual supremacy.” This approach holds that rights under Article 26 are entirely subject to all other parts of the Constitution. There can be no claim on behalf of the group, therefore, that conflicts with other constitutional principles (such as the right to equality, for example), and to the extent that individual and group articulations of faith come into conflict, that of the individual will prevail.

Both extremes, I suggest, are unsatisfactory, and unfaithful to the constitutional vision. The “group supremacy” approach ignores entirely what Madhavi Sunder refers to as “cultural dissent”: that is, it ignores the fact that norms internal to religious groups are often under contestation and challenge. What the “group supremacy” approach does is to put State power (through the Courts) in service of the status quo, which is the version of religious truth imposed by the formal decision-making apparatus of the group. The group supremacy approach also ignores the fact that there exist, in our country, an entire set of practices sanctified in the name of religion, that have been – and still are – violent assaults on basic human dignity (see the example of madesnana, for instance). Group supremacy, therefore, would be fundamentally contrary to our constitutional ethos.

Individual supremacy, on the other hand, is equally unsatisfactory, as it ignores the undeniable fact that the Constitutional scheme considers group autonomy in matters of religion a fundamental value. And if group autonomy means anything, it means the power of the group to determine what norms it follows for itself, without interference by parallel sets of norms (such as – again – strict requirements of individual equality).

If neither group supremacy nor individual supremacy are satisfactory ways of interpreting the scheme of Articles 25 and 26 and how they are nested within Part III, then what is? I suggest that the answer is to be found in recalling a point that Ambedkar made in the Constituent Assembly: that the fundamental unit of the Constitution remains the individual. Group rights exist in the Constitution because the framers understood that individuals need community in order to fully flourish as human beings. However, the very rationale for group rights serves to place a limit upon their extent: the group has autonomy upto the point that its norms or practices do not cause harm to the dignity or civil rights of its constituents. What is crucial to note is that the dignitarian or other harms must not lie solely within the domain of religion, because that would make the argument circular: they must extend beyond the strictly religious domain. Once again, madesnana – where Dalits are required to roll upon the leftovers of food eaten by Brahmins – is an excellent example of dignitarian harm that is deeply linked to broader social structures that go beyond simple religious faith.

The ultimate rationale for this is – as many scholars have pointed out – that in India, religion continues to be deeply linked with larger society and social and cultural structures. The consequences of unequal – or oppressive – religious practices, therefore, is not always limited to questions of faith. And it is precisely when it goes beyond that the Constitution and the Courts step in. And of course, whether that test is satisfied is for individual cases, based on specific facts.

Elsewhere, we have called this the “anti-exclusion principle.” The idea is a very simple one: the Constitution guarantees rights to both individuals and groups. In cases of conflict, a balance is essential. This balance is best-served by asking whether a particular practice under consideration has the effect of causing exclusion, or of treating certain constituents as second-class members of society, in ways that harm their dignity, or other rights in the non-religious domain. Thus, when the Court is faced with a host of competing interpretations of the Article 25/26 scheme in the coming days, this basic moral and ethical framework may come of some use in charting a path through the minefield.

Reference in Review: A Response

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[Editor’s 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 Shivendra Singh.]


Background

An unexpected turn of events has led to the formulation of a preliminary question of law before the nine-judge Bench in Court No.1 of the Supreme Court of India. The issue formulated by the Hon’ble Court for adjudication is: “Whether this Court can refer questions of law to a larger Bench in a Review Petition”? Mr. Fali Nariman, Senior Advocate has essentially doubted the competence of a Bench hearing a Review Petition to refer questions of law to a larger Bench.

Scope of the Post

At the outset, I must clarify that this short article is being written as a response to Gautam’s post and I wish to express no opinion on the merits of the matter. This article is restricted only to the preliminary question before the Court on 6.2.2020 – which has now been answered in the affirmative.

Source of Review Jurisdiction of the Supreme Court

One of the issues that has arisen is the applicability of Order VI, Rule 2 of the Supreme Court Rules, 2013 (the “Supreme Court Rules”) to review petitions. The substantive source of the creation of the review jurisdiction of the Supreme Court is not to be traced to the Supreme Court Rules but Article 137 of the Constitution of India which reads as under:

“137. Review of judgments or orders by the Supreme Court- Subject to the provisions of any law made by Parliament, or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it”.

In fact, Article 145(1)(e) of the Constitution specifically provides as under:

“145. Rules of Court, etc.- 145. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—

……

(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered.”

Interpretation of Order VI, Rule 2 of the Supreme Court Rules

One must look at Order XLVII of the Supreme Court Rules against the substantive backdrop of Article 137 read with Article 145(1)(e) of the Constitution. Order XLVII of the Supreme Court Rules is neatly divided into five sub-rules. Now the question is whether Order VI of the Supreme Court Rules which is titled ‘Constitution of Division Courts and Powers of a Single Judge’ would be applicable to Order XLVII of the Supreme Court Rules. Order VI, Rule 2 of the Supreme Court Rules reads as under:

“Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing for it”.

The amplitude of the words ‘any cause’, ‘appeal’ or ‘other proceeding’ in Order VI, Rule 2 of the Supreme Court Rules is certainly wide enough to include review petitions under Order XLVII. Any other interpretation will not only be against the settled cannon of statutory interpretation that the rules in a subordinate legislation should be read holistically, but will also amount to imposing an artificial restriction on the untrammelled jurisdiction of the Supreme Court to refer matters of substantial public importance to a larger bench while considering review petitions under Order XLVII.

Prior Instance of Reference to a Larger Bench in Review Jurisdiction

Even otherwise, there has been at least one instance of the Supreme Court actually referring a question of law to a larger Bench/Constitution Bench in exercise of its review jurisdiction. I urge the readers to go through the judgment in Behram Khurshed Pesikaka v. The State of Bombay reported in [1955] 1 SCR 613 which was an appeal by special leave from a judgment of the Bombay High Court reversing the order of acquittal passed in favour of the appellant Behram Khurshed Pesikaka by the Trial Court, and, convicting him of an offence under section 66(b) of the Bombay Prohibition Act, 1949, and sentencing him to one month’s rigorous imprisonment and a fine of Rs. 500. A Bench of three learned judges heard the Special Leave Petition and dismissed it on 19.2.1954 by a majority of 2:1 (separate majority opinions of Justices Jagannadhadas and Venkatarama Ayyar). Justice Bhagwati, who dissented, allowed the appeal and acquitted the appellant Pesikaka. The majority judges, while maintaining the conviction, were pleased to reduce the sentence imposed upon Pesikaka to that already undergone by him. Being aggrieved, Pesikaka filed an application for review under Article 137 of the Constitution and Justice Bhagwati passed the following order on 28.4.1954 for the same Bench:

“58. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court.

“What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?”

59. On receipt of the opinion the case will be taken up for further consideration.”

 

On 23.9.1954, the Constitution Bench gave its opinion on the referred question and on the very next day, the original Bench quashed the conviction of the appellant Pesikaka. It is also important to point out that the original Bench did not identify any error apparent on the face of the record or any other patent error to review its final order 19.2.1954. The tables were turned in favour of Pesikaka only because of the reference to the Constitution Bench, and the favourable opinion rendered by it on the question.

To conclude, there is no reason to hold that the Supreme Court cannot refer questions of law to a larger Bench in a review petition.

The Supreme Court’s (New) Reservations Judgment and its Discontents

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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 Friday, a two-judge bench of the Supreme Court handed down a judgment holding that Article 16(4) of the Constitution is only an enabling provision, and does not confer a “right” to reservations. The context of the case was as follows: in 2012, the government of Uttarakhand decided to fill up the posts in the state’s public services without providing reservations to Scheduled Castes (SCs) and Scheduled Tribes (STs) (paragraph 5). This was challenged, and after a round of litigation before the Uttarakhand High Court, that court directed “the State Government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in Government services which would enable the State Government to take a considered decision on providing or not providing reservation.” (paragraph 7)

Appellants argued before the Supreme Court that the judgment of the Uttarakhand High Court was wrong, as “there is no constitutional duty on the part of the State Government to provide reservations.” Once, therefore, the government had taken the decision (in 2012) not to provide reservations, that decision could not be challenged (paragraph 8). Appellants further argued that as the collection of “quantifiable data” was a precursor to providing reservations, it followed ipso facto that “there is no necessity for collection of any quantifiable data after the Government has taken a decision not to provide reservations.” (paragraph 8)

The Court agreed with these submissions, and also agreed with its 2016 judgment in Suresh Kumar Gautam v State of UP, where these contentions had been accepted. In paragraph 12 of the judgment, it noted that:

It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed.

This, however, was limited to situations where the State made provisions for reservation. That, however – the Court held – was purely discretionary. Consequently:

As the Government is not bound to provide reservation in promotions, we are of the opinion that there is no justifiable reason for the High Court to have declared the proceeding dated 05.09.2012 as illegal. (paragraph 15)

In other words, there was no obligation upon the State to collect data in order to deny reservations.

There are, however, two problems with this line of reasoning, that I set out below.

Article 16 and Substantive Equality

The first is the Court’s characterisation of Article 16(4) as a purely enabling provision, and its conclusion from that that inadequacy of representation is a matter within “the subjective satisfaction” of the State. This, however, is at odds with the scheme of Article 16 of the Constitution as interpreted by the Supreme Court. As readers of this blog will be aware, until the mid-1970s, the Supreme Court’s position was that Article 16(4) was an exception to the guarantee of equality of opportunity set out in Article 16(1). In other words, 16(4) carved out a space (for inadequately represented sections) where the normal principles of equality of opportunity would not apply. It was, of course, up to the State whether or not it chose to avail of this exception, and provide for reservations.

In NM Thomas, however, that position changed. It was held that Article 16(4) is not an exception to, but a facet of Article 16(1). That changed interpretation flowed from the Supreme Court’s evolving understanding that the Articles 14-15-16 “Equality Code” under the Constitution was not about bare formal equality, but about substantive equality – i.e., equality that took into account existing social and structural disadvantages, and required the State to remedy them. This understanding of constitutional substantive equality has never seriously been questioned after N.M. Thomas, and has recently been reaffirmed (albeit in the contexts of Articles 14 and 15) in Navtej Johar and Joseph Shine.

Consequently, if Article 16(4) is a facet of Article 16(1), then it necessarily follows that what Article 16(1) guarantees is a right to substantive equality of opportunity (and 16(4) is – in the words of NM Thomas – an “emphatic restatement of that right.” Consequently, while it is correct to say that there is no right to reservations (as the language of 16(4) is indeed enabling), there is a right to substantive equality. This, in turn, means that if the status quo involves formally equal treatment of individuals in substantively unequal circumstances – when it comes to appointments or promotions in public services – Article 16(1) is breached.

The Uttarakhand High Court was well aware of this distinction (as it also was in another judgment it delivered a few days later, which I discussed here). Consequently, it did not direct the government to provide reservations. What it did do was direct the government to collect data on inadequacy of representation, so that a decision could be taken on how to remedy existing substantive inequality. This – as Karan Lahiri has argued previously on the blog – is a reading of the scheme of Article 16 that places a “power plus duty” upon the government.

As Lahiri writes

… a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.

Lahiri then argues that if Article 16(4) was to be read as a purely enabling provision that conferred no duties, this would mean that while there was an obligation upon the State to collect data before it granted reservations, there would be no such obligation if it chose not to do so. However, this would mean that:

There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognizes the fact that Article 16 contains within it an enabling power coupled with a positive duty.

 

Notice that the asymmetry problem is taken care of by NM Thomas’ reading of Article 16: because that reading makes the pulling up of “backward groups” an obligation upon the State. On the Supreme Court’s reading, however, it is made explicit that the government must collect data if it wants to provide reservations/substantive equality (“pull up”), but is not obligated to do any such thing if it wants to deny reservations/substantive equality (“pull down/ignore”). This is obviously at variance with the constitutional scheme.

What about NALSA?

The second problem is a more straightforward one. Recall that in NALSA v Union of India, the Supreme Court had taken judicial notice of the fact that the transgender community was underrepresented in government employment, and on that basis, had specifically directed affirmative action measures under Article 16. It follows from this that if indeed it has been found that a group falls within the scope of Article 16(4), the demands of substantive equality under Article 16(1) require the State to take measures to bring about real and effective parity. Thus, while admittedly there is no free-standing right to reservations, there is a right contingent upon a finding that a particular group is underrepresented.

If that is the case, however, than the obligation can simply be defeated if the State chooses not to conduct the data collection exercise at all. Consequently, it follows from NALSA that data collection to determine inadequacy of representation is indeed an obligation upon the State, as that is the pre-requisite for the further affirmative action that NALSA found mandatory.

Conclusion

It is submitted, therefore, that the Supreme Court’s judgment is at variance with NM Thomas, with NALSA, and indeed with the scheme of Article 16 and the Equality Code. Once we agree that Article 16(1) guarantees a substantive right to equality of opportunity, it necessarily follows – in the words of Lahiri – that a coherent reading of the scheme of Article 16 reveals that the discretion of the State under 16(4) is not unbounded. 16(4) codifies a “power plus duty”: the State is empowered to decide upon reservations, but it has a duty to collect information pertinent to that decision. Any other reading would defeat the basic idea of substantive equality under Article 16(1).

Notes From a Foreign Field: The Kenyan High Court’s Judgment on the National Biometric ID System

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Earlier this week, the High Court of Kenya delivered a landmark judgment on the constitutional validity of Kenya’s biometric identification system (the National Integrated Identity Management System (NIIMS)/Huduma Namba). In short, the High Court held that (a) the consensual collection of Kenyans’ biometric details for the purpose of identification and verification was constitutionally valid; (b) however, the collection of DNA and GPS details was unconstitutional; and (c) NIIMS itself would have to be halted until the Kenyan government implemented data protection legislation, as well as framed regulations in order to safeguard the data collected.

With this judgment, the Kenyan High Court becomes the third constitutional court in the world (after India and Jamaica) to rule on the constitutionality of centralised biometric ID systems. Before we analyse the judgment, two things must be noted. First, this judgment was delivered by a first-instance Court, following a formal trial and the taking of evidence. There are two further appeals within the Kenyan judicial system and therefore, this is unlikely to be the last word on the subject. And secondly, as indicated above and as will be seen below, the High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

The Issues

National biometric identification systems – and constitutional challenges to them – are, by now, familiar. Indian readers will immediately recall Aadhaar (although, funnily – as the judgment records – Kenyan government lawyers went to some extent to distinguish NIIMS from Aadhaar). Kenya’s NIIMS bears some similarities with Aadhaar, in that it too is a centralised, biometric identification system, that its purpose is to grant a “unique identification number” to registered purpose, and then to use this for the purposes of future verification of identification (see paragraph 3 of the judgment). There are also some differences: NIIMS does not, at this point, appear to have a procedure for authentication of transactions (the heart of Aadhaar); unlike Aadhaar, its use is (so far) open-ended, in that it is not specified that it will be required for a set of purposes, such as subsidies, tax-paying, and so on; the legal framework for NIIMS explicitly envisages “harmonising” of information in different existing databases; and – until the Court struck it down – NIIMS aimed to collect DNA and GPS details.

These differences notwithstanding, as in the case of India as well as Jamaica, the constitutional challenge took a similar form. Apart from a number of procedural issues that we shall not discuss in this post, there were two core issues: privacy/surveillance/data protection on the one hand, and exclusion/equality/discrimination, on the other.

Privacy, Surveillance, and Data Protection: The Analysis

The High Court’s analysis of the privacy issues began at paragraph 705, where it framed the core issues for consideration. As we have discussed previously on this blog, for clarity of understanding, it is helpful do divide the issues into three distinct phases (although there is, of course, overlap between them): data collection (Phase I), data storage (Phase II), and data use (Phase III). It can then be asked: is there a violation of rights at each stage, and if so, whether it is unconstitutional.

Data Collection

In summary – and apart from DNA and GPS collection, which the Court found disproportionately intrusive per se, and struck it down – it was held that (a) collection of biometric data for the purposes of identification was valid, but that its storage or use without an implemented data protection legislation was unconstitutional. The government, thus, was found in breach of its constitutional obligations with respect to Phases II and III, and the project was ordered to be halted until – and unless – the government complied.

It is important to note, however, that the validity of data collection was upheld on the premise that it had been done consensually (paragraph 765). This was the government’s case, and the Court held that the petitioners had not sufficiently established that the data had been taken under compulsion. Interestingly, the Court had another opportunity to rule on whether making enrolment into NIIMS mandatory in order to access entitlements or services would breach the Constitution later in the judgment, while assessing the equality challenge. There, again, it did not issue a finding on the subject. Consequently, while the Court found that (a) there was a strong privacy interest that individuals head in their biometric information (paragraph 760), but that (b) collection of biometric data for the purposes of identification was valid and proportionate, the question of whether compelled collection of biometric details for the same purpose violated the Constitution, was left open. This, of course, raises important issues in its own right, such as the principle of technological self-determination, which grants to individuals the choice of whether and to what extent they will engage with pervasive technological systems, and more specifically, provides them with a choice in how they will choose to identify themselves to the government.

Data Storage and Use

This brings us to the second and third questions: that of data storage and use, or, in simple terms, the actual working of the NIIMS (paragraphs 772 & 773). Once again, for the sake of conceptual clarity, we can divide the challenges into three broad heads. First, there was a foundational challenge to the design of the system itself; as Petitioners’ witness, Anand Venkatanaraynan, pointed out during his evidence, “the law cannot fix what technology has broken.” It was argued, therefore, that the technical architecture of NIIMS – in particular, the decision to have a centralised system – violated constitutional rights. Secondly, there was a more concrete challenge to the legal design: it was argued that NIIMS’ legal framework was open-ended and did not specify the uses that it would be put to. This, therefore, violated the principle of purpose limitation. And thirdly, of course, there was the direct and specific challenge to the functioning of NIIMS in the absence of any data protection framework.

How did the Court answer these three questions? On the first, it held that the design of the system was not subject to judicial review, and therefore, ventured no opinion on it. On the second issue, it held that purpose limitation was indeed built into NIIMS’ legal framework: the purpose of data collection was identification and verification of individuals, and that was why the biometric data had been picked. And on the third, issue, the Court did indeed hold that the absence of a data protection framework made the project unconstitutional (indeed, the Court rapped the government for going forward with the project “in a rush”).

In this context, after the initial hearings had been concluded, the Kenyan Parliament had indeed passed a Data Protection Act. The Court took judicial notice of the Act, and observed that its provisions were “broadly” in line with data protection best practices (the Court sourced these from the OECD) (paragraph 852). Notably, however, that wasn’t enough for the Court: it insisted that until the DPA 2019 was actually implemented on the ground – that is, the Data Protection Authority was established, started functioning, and so on – the project couldn’t go ahead. It also held that until specific statutory regulations were enacted dealing with storage and sharing of data (it cited the Aadhaar Regulations for an example of how this could be done), the project would be halted.

I shall come back to points (a) and (b) later, as I feel that – with respect – the Court’s analysis on both counts was flawed. On point (c), however, two things must be noted: the first is the stark difference between the Kenyan High Court’s judgment, and the Indian Supreme Court’s Aadhaar Judgment. Recall that a “Data Protection Law” was promised by the government as far back as May 2017, even before Puttaswamy-I (privacy) was decided. In both Puttaswamy I (privacy) and II (Aadhaar), the Supreme Court took note of the government’s promises – but to this day, we do not have a Data Protection Act in India (despite Aadhaar now entering its tenth year). By expressly halting NIIMS until the Data Protection Act was implemented (note: not just “enacted”), the Kenyan High Court ensured that there would be no repeat of such bait-and-switch tactics. That said, however, there is a second point: while the Court did observe that the DPA broadly conformed to constitutional standards, a quick look at its provisions suggests that there are some concerning aspects to it. For example, the Kenyan DPA does not require the proportionality test to be satisfied in cases of non-consensual data processing, as long as “public interest” can be shown. Of course, the constitutional validity of the DPA was not itself before the High Court, and therefore, it did not return any detailed findings on the issue. Presumably now, however, if the Kenyan government implements the DPA and then goes ahead with NIIMS, the DPA itself will become the subject of constitutional litigation sooner rather than later.

Equality and Non-Discrimination: The Analysis

In a somewhat disappointing outcome, the High Court held that the challenges on grounds of equality and non-discrimination did not succeed. These challenges had been brought by groups representing Kenya’s Nubian population, which had been historically subjected to exclusion and discrimination – including discrimination in access to IDs. The High Court found that the NIIMS framework was neutrally worded, and did not impose any additional onerous requirements on Nubians as far as access to documentation was concerned. And on the issue of exclusion in case NIIMS enrolment was made mandatory for access to government services, the Court noted – in somewhat anodyne terms – that while exclusion was a matter of concern, there was no going back to the paper age; consequently, issues of exclusion would have to be tackled through “appropriate regulatory mechanisms”, but that was not adequate ground for holding NIIMS itself unconstitutional.

Perhaps the Court here was hampered by the lack of direct evidence of exclusion, as – unlike Section 7 of the Aadhaar Act – NIIMS is not at present mandatory for accessing entitlements or government subsidies. That said, with respect, the issues of equality and non-discrimination are more nuanced and layered than the Court gave credit for, and in due course, this issue will – hopefully – be revisited.

Design and Purpose Limitation: Two Flaws

While many parts of the High Court’s judgment are persuasive and strongly reasoned (as indicated above), there are two areas where, with respect, the Court got it wrong, in my view. I discuss these below.

Design

The first is the Court’s refusal to go into the question of the design of NIIMS (paragraphs 875, 876, and 882). The Court’s hesitation is entirely understandable: this is a technical issue, and the judiciary does not necessarily have the expertise to rule on technology. That, however, is neither here nor there: expert evidence was led on both sides, and the Court records the evidence of the witnesses with great facility.

More importantly, however, the Court cannot evade addressing questions of design, because when you have technological system like India’s Aadhaar or Kenya’s NIIMS, design and fundamental rights are inextricably bound up with each other (a point made by Chandrachud J. in his dissenting judgment in Aadhaar). This was also a point I highlighted a little earlier, while examining the Hague District Court’s judgment on SyRI: the choices that system designers make at the time of design have a direct impact upon how and to what extent the system, in its final form, will impact civil rights. For example, a centralised biometric identification system allows for seeding and profiling in a way that a decentralised system (Estonia’s example was specifically taken) does not. This was, of course, argued by petitioners in the Aadhaar case as well, where smart cards were put forward as a less intrusive alternative to the centralised database (as we know, the Supreme Court dodged the issue there as well, by pretending that it was never argued).

Why is this important? This is important because under the proportionality standard (applicable in both India and Kenya), the State is required to select – out of a range of choices open to it – the method that will infringe rights to the least degree, in pursuit of its goals (the “necessity” step). Thus, if I – as the system designer – have before me two design choices (say, centralised and decentralised), and I choose the one that enables or facilitates a greater degree of rights violations, then at the moment at which the State approves that design choice, it violates the proportionality standard.

Now of course, a Court may find that the choice of a centralised system does not violate proportionality. The point, however, is that a Court cannot avoid engaging with – and answering – that question. To do so is to implicitly endorse the State’s choice of design, and, by implication, take design questions out of the purview of constitutional reasoning altogether. Therefore, when the High Court itself noted just after declaring that it would not be looking at design, that it would be “confining” itself with issues of “privacy and data protection” (paragraph 876), it necessarily followed from that that it would have to deal with issues of design as well: because it could not deal with privacy and data protection without factoring in how the choice of design impacted both issues. In such a situation, to abstain would amount to an abdication of the judicial role.

Purpose Limitation

Secondly, it is respectfully submitted that the Court misapplied the requirement of purpose limitation. To put it very simply, purpose limitation – in the context of data protection – requires that information collected be used only for the purpose for which it is specified, and nothing beyond. Petitioners had argued that as NIIMS was entirely open-ended, and did not specify what the information was going to be used for, purpose limitation had been violated. To this the Court responded that the purpose was “verification”, and therefore, there was no violation (paragraph 787).

This, however, is flawed. Let me explain with the help of a hypothetical. Suppose I am a police officer, and I go to the Magistrate for a warrant to search a specific house. The Magistrate asks me, ‘what is your purpose in searching this house?’ I answer: ‘to find out what is inside.’ If the Magistrate has any sense, he will refuse the warrant. The point is simple: if “purpose” is defined in the very terms of the activity itself, then all you get is a tautology. ‘Why have you jailed this person?’ ‘To deprive them of liberty.’ ‘Why are you collecting identifiable biometric data?’ ‘To identify people.’ etc.

Purpose limitation, therefore, is not satisfied by holding that identifying data is being collected with the purpose of identifying people: the correct question is what are people being identified for. In the Indian context, for instance, there were a set of defined purposes for which Aadhaar was supposed to be used as an identifier, that were set out in legislation (the efficacy of that is something I will not get into here): accessing government subsidies, banking, buying a SIM card, and paying taxes. When we look at it this way, we also see another reason why purpose limitation is important: there needs to be an opportunity to challenge the collection and use of biometric data with respect to the specific purpose that it is being put to. In the Aadhaar case, for example, the Supreme Court found that it was proportionate for accessing subsidies and paying tax, but disproportionate for buying SIM Cards and opening bank accounts. A general, open-ended “purpose” of identification (as is set out in the NIIMS statutory framework) would have made these specific challenges impossible.

The “purpose”, therefore, has to be set out in concrete terms: why, specifically, is this data being collected, and what specific use is it going to be put to? With respect, the High Court’s framing of the issue betrayed the very assumptions that would lead it to the wrong answers.

Conclusion

The judgment of the High Court of Kenya provides us with a strong and well-reasoned analysis of the NIIMS framework, and has some important findings: in particular, on the strong privacy interests in biometric data, as well as the necessity to implement data protection laws before taking on a nation-wide data collection exercise. That said, on issues of design and purpose limitation, the High Court’s conclusions may need reconsideration. And on a third set of issues (the data protection framework itself), the field remains open. What is certain is that this is only the first salvo in a long struggle, and the progress of this case through the Kenyan courts will be fascinating to watch.


(Disclaimer: The author provided research assistance to some of the petitioners in this case).

King Menelaus at the Bar of the Indian Judiciary

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Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.

Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.

Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.

One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”

No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.

More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.

Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.

The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”

Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.

Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:

“‘Tis sad, truly, that he who judges should misjudge.”

Mian Abdul Qayoom, meanwhile, remains in jail without trial.

Notes from a Foreign Field: The Dutch Court on Privacy, Surveillance, and Welfare Fraud

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In an interesting judgment (in Dutch; use Google Translate) delivered by the Hague District Court earlier this week, the Dutch government’s Risk Indication System [“SyRI”] was found to violate the European Convention on Human Rights (read summary). SyRI was an algorithmic system designed to “prevent and combat fraud in the field of social security and income-related schemes, tax and social insurance contributions and labor laws.” It involved using data held by various government departments, and linking it in order to generate a “risk report.” The data then collected would be processed against certain “risk indicators”, and according to a “risk model”, in order to produce the “risk report”. And the “risk report”, in turn, would flag a person as potentially involved in possible fraud (in relation to access to welfare benefits, tax payment etc.), and a possible subject of further investigation. That data that could be processed included information about work, taxes, property ownership, trade, demographic details, and multiple other categories. Therefore:

Collection of Data from Different Government Departments —-> Encryption and Pseudonymising of Data —-> Processing of Data against Risk Indicators and through the Risk Model (First Phase) —> Decryption and De-Anonymising of Data that is Flagged as an “Increased Risk” —-> Further Analysis —–> Preparation of Risk Report —-> Potential further action on the basis of the Risk Report.

The enabling legislation that authorised SyRI was challenged by a group of petitioners and privacy organisations, on the now-familiar grounds of privacy and discrimination. The State defended it on the – also familiar – ground that it was of overriding importance to identify fraudulent claimants, so that the welfare system could continue functioning.

The Framework

As we have seen on multiple occasions by now, the outcomes of such cases – involving dense factual disputes – often hinges upon the initial analytical framework set out by the Court. In this case, the Court began by setting out two important principles. First, it noted that the “development of new technologies also means that the right to the protection of personal data is increasingly important.” An implicit rebuke to the “move fast and break things” school of technological utopianism, the Court emphasised that the greater the scope for technology-enabled intrusion into private life, the greater the importance that must be given to issues of privacy and data protection. Secondly, the Court set out in advance that whatever the stated benefits of SyRI in combating welfare (and other kinds of) fraud, its deployment would have to comply with the data protection standards of transparency, purpose limitation, and data minimisation (see paras 6.31 – 6.33) in a “clear and verifiable way.” This put the burden firmly upon the State in establishing compliance with these fundamental principles, an ensuring, in turn – as we shall see – that unresolved factual disputes would mean a verdict in favour of the citizen and against the State, rather than the other way round.

The Analysis 

The Court began by noting that:

…the State has not made the risk model and the indicators that make up or may consist of the risk model public. In these proceedings, too, [it] did not provide objectively verifiable information to the court in order to enable it to test the views of the State on what SyRI is. The reason given by the State for this is that citizens could adjust their behavior accordingly. This is a conscious choice by the State. (paragraph 6.49)

In this context, the Court noted that the SyRI process involved the use of large data sets (from different sources), their inter-linking, and the potential use of data mining and predictive analysis. The linking of data made it a clear case of profiling (indeed, both parties were in agreement on this). The Court therefore held that while no civil or legal consequence immediately flowed from the preparation of a risk report, it did nonetheless “have a significant effect on the private life of the person on who the report relates to.” Article 8 of the ECHR (the right to privacy) was therefore attracted.

In sum, therefore, SyRI involved profiling individuals on bases that were “secret”, in a manner that impacted their right to privacy, and whose results were not communicated to them. The question then was whether this interference with the right to privacy could be justified as being “necessary in a democratic society.”

During the course of this – essentially – proportionality analysis, the Court accepted the government’s contentions that tackling welfare fraud was both a legitimate State purpose, and a pressing social need. However, it went on to find that SyRI violated all three prongs – transparency, purpose limitation, and data minimisation – of the data protection principles. On the first prong, the Court observed that the “legislation in no way provides information about the factual data that can justify the presence of a particular circumstance, or which objective factual data can justifiably lead to the conclusion that there is an increased risk.” In other words, both the indicators and the risk model – as observed above – were secret. Thus, the Court held:

…it is impossible to check how the simple decision tree that the State is talking about comes about and what steps it consists of. It is thus difficult to see how a person concerned can defend himself against the fact that a risk report has been made with regard to him or her. It is equally difficult to see how a data subject whose data have been processed in SyRI, but who have not led to a risk report, can be aware that his or her data has been processed on the right grounds. (paragraph 6.92)

This, the Court found, was a clear breach of the principle of transparency. The Court did not – as certain other Courts might have done – ask for the indicators and the risk model in a “sealed cover”, so that it could consider their validity for itself. Rather, it straightforwardly held that consequential State decisions involving a violation of the right to privacy could not be made in a non-transparent fashion.

The Court also went on to note that transparency was crucial because of “the risk that (unintended) discriminatory effects will occur.” In fact, relying upon a report submitted by the UN Special Rapporteur for Extreme Poverty, the Court noted that “areas that are already known as problem neighborhoods are being investigated further. As a result, the chance that irregularities are found is higher than in other neighborhoods, which in turn confirms the image of a problem neighborhood, encourages stereotyping and a negative image of the residents who live in the neighborhood is reinforced, even though there is no question of them. risk reporting” (paragraph 6.92). This, of course, is a standard issue with all such algorithmic procedures: recall that it has repeatedly been found, for example, that the use of DNA databanks in crimefighting has a discriminatory effect, as the the composition of the databank is already likely to overrepresent marginlised populations (the known example is that of black people in the USA) – thus leading to a greater chance of false positive, false negatives, and wrongful convictions of members of those populations.

Crucially, in light of this, the Court found that “it is not possible to assess whether this risk [i.e., of discrimination] has been adequately addressed, in the absence of verifiable insight into the risk indicators and the (operation of) the risk model, including the method of analysis by the Inspectorate SZW” (paragraph 6.94). This is a crucial point, that takes us back to the issue of framing. Here – as in other similar cases, such as the litigation around Aadhaar in India and the Huduma Namba in Kenya, the Court had to deal with an information gap on a crucial issue (in this case, the non-disclosure of the indicators and the risk model). Now, there are two ways a Court can respond to this: first, to say that as these are issues of technological design, they are not fit for judicial review, and that therefore, in the absence of adequate information, they will presumptively be decided in favour of the State, in accordance with the principle of judicial deference. The second way, however – and this is how the Dutch Court responded – is to say that given that crucial rights are involved, and given the well-known potential of exclusion and discrimination that comes with such algorithmic systems, the onus lies upon the State to affirmatively demonstrate that there is no violation of rights. This is the role played by the data protection principles of “transparency and verifiability”, and this is how the Court was able to conclude that:

without insight into the risk indicators and the risk model, or at least without further legal safeguards that compensate for this lack of insight, provides insufficient guidance for the conclusion that with the use of SyRI the interference in private life in the light of the abuse and the fraud that is intended to combat is always proportional and therefore necessary. (paragraph 6.95)

The Court then went on to hold that the principles of data minimisation and purpose limitation had also not been complied with. This was because there was no provision for a “pre-test” to determine “whether the interference in private life due to all files linked to that project is necessary, proportionate and subsidiary in view of the specific objective of that project.” (paragraph 6.99)

Conclusion

Questions involving the interface of technology and fundamental rights will – as discussed above – necessarily take Courts into the technical domains. In such situations, the easy thing for the State to do is to engage in information asymmetry, withhold key factual details, and claim that the Court is neither competent, nor authorised, to get into question of technological design. Giving in to these arguments by invoking judicial deference is an easy answer for the Court as well.

The easy route, however, is not the correct one. This is because when you are dealing with technology and fundamental rights, issues of design are crucial: the manner in which a technological system will affect fundamental rights is dependent upon how it is designed (is the data collection centralised? Federated? Can information silos be linked? etc.) Therefore, adjudicating upon issues of design is unavoidable: even when the Court is refusing to engage with those questions, its very non-engagement is an active decision that then grants to the State a kind of impunity to violate fundamental rights by not being constrained in the design of the systems that it deploys.

In that context, the judgment of the Hague Court is crucial, because it squarely takes the bull by the horns, and categorically holds that the absence of information is a reason to hold against the State. This, as we have seen, is possible only with a certain kind of framing: a framing that neither takes technological utopianism at face value, and nor does it take the role of technology in the State’s pursuit of “social goals” such as fraud prevention as an unmitigated good. Rather, it is a framing that takes seriously the potential of technology to violate rights – both privacy and equality – and insists that it is the role of the State to ensure that those concerns are adequately addressed before it can proceed with its project of harnessing technology into the service of its goals. This, I would submit, is far truer to the judicial role of safeguarding fundamental rights.

 

The Afterlife of the Sabarimala Review: On the “Preliminary Question” before the Nine-Judge Bench

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On this blog, I have previously discussed – and criticised – the “review” judgment in the Sabarimala case, as well as the Supreme Court’s subsequent actions in constituting a nine-judge bench to address some of the questions that arose out of that judgment. Earlier this week, during the course of oral argument, senior counsel brought up some of these issues – pointing out, in particular, that the five-judge bench could not, in the course of a review order, have “referred” legal questions to a larger bench. As a result, the nine-judge bench framed a “preliminary question”, which will be heard tomorrow: “whether this Court can refer questions of law to a larger bench in a review petition?”

Facts and Norms

This week’s hearing itself revealed two issues with the original “review” judgment, that we can take in turn. The first is the speculative character of the questions themselves, which go against the grain of how constitutional adjudication should normally happen. Doctrines of law evolve out of specific factual situations before the Court, and not out of abstract abstract philosophical enquiry. This is because, ultimately, doctrine has to be responsive to the wide range of factual disputes that could – and do – come up before the Court. In such a situation, a Court that deals in abstraction will inevitably create one of two undesirable situations: either it would have framed doctrine in such abstract terms, that it will be of no use in hearing and deciding the case before it; or it would have framed it in such concrete terms, that it would tie the hands of future benches in adapting doctrine to fit the peculiar facts that are before it in any given case.

To take the example of this case, the “referred” questions – that are about the intersection between religious freedom and gender equality – exist in a domain where there are a bewildering variety of social and religious practices. Take, for example, the religious practice of madesnana, that Suhrith and I discussed here (it is not about gender equality, but raises substantively similar questions); it should be obvious that practices of this kind are so particular and specific in character, that constitutional doctrine can only make sense if it flows from a careful consideration of the legal issues that they present, rather than first laying down abstract law, and seeing which side madesnana falls. In fact, in Sabarimala itself – as I have previously discussed – there wasn’t a whole lot of difference between the majority opinions and Malhotra J.’s dissent on the correct legal test – both sets of judgments agreed that religious practices that were oppressive or harmful to human dignity would fail the test of constitutionality. The only disagreement was whether in the specific facts of the Sabarimala case, the disputed practice fell within that definition or not. And that is exactly how adjudication should normally proceed.

In this context, the Chief Justice’s comment in Court – that the reason for this nine-judge bench hearing was that “these issues will arise again and again, resulting in a reference” – is an important one. Because that is precisely why, in fact, this nine-judge bench should not be hearing this case. The very fact that “these issues” (i.e., the interplay between women’s right to equality and religious freedom) will arise again and again is the reason that they should be decided as they arise, because the issues that they present to the Court will be layered, nuanced, and will require sensitive adjudication that is cognisant of those nuances. And as they arise, the judges who deal with them will – in the normal course of things – engage with existing precedent; they may agree with that precedent, they may disagree with it but nonetheless – exercising judicial discipline – follow it, or – if they think it is too wrong to follow – refer the issue for reconsideration. Once again, it is important to emphasise that this is how constitutional adjudication happens in the normal course of things, and that is entirely fit and appropriate: the law develops incrementally, responsive to facts, and gives judges the flexibility and the scope to modify, adapt, or alter doctrine as time goes by. It is that crucial flexibility – the hallmark of constitutional adjudication – that will be threatened if a practice of settling abstract questions in advance of concrete cases takes root in the Court.

Jurisdiction

While the first issue is one of desirability – i.e., that the Court should not decide these questions sitting as a nine-judge bench – there was, of course, a deeper issue raised by counsel in this week’s hearing: that the review judgment could not have “referred” legal questions to a larger bench. As discussed previously on this blog, that issue stems from the limited character of review jurisdiction, which is confined to checking if the original judgment suffered from an “error on the face of the record.”

It was contended by the Solicitor-General, in response, that Order VI(2) of the Supreme Court Rules, 2013, states that: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” The argument, thus, is that the phrase “any cause, appeal or other proceeding” includes proceedings in review.

To understand why this argument is flawed, we need to go back to the basics. How – and why – does a referral happen in the normal course of things? It happens when, while hearing a case, it is brought to the judges’ attention that there is a legal issue – most often, a conflict – that has a bearing upon the case, which they cannot resolve, and which only a larger bench can resolve (because – presumably – the bench hearing the case is of too small a size). The issue of referral, therefore, is bound up with the process of deciding a case.

review, on the other hand, takes place after the case has been decided. And at that point, the bench is no longer considering what the legal answer to the case before it is. What it is considering is whether the reasoning that led to the decision was so fundamentally flawed, in some manner that is present “on the face of the record” (and therefore, by implication, requires no “interpretation”), that it simply cannot stand.

The distinction is crucial, because it demonstrates how the reasoning process that (potentially) leads to a referral, and the reasoning process that leads to a review, are fundamentally different – and that, by definition, the latter excludes the former. Because it is critically important to recall that a Review is not a “re-hearing” of the original case. If it was, then of course, all arguments in a hearing would be open to be re-litigated in Review. A Review is limited to a situation where the error is on the face of the record, i.e., so obvious that there can be no two ways about it. But an argument for referral always – and by definition – has two ways about it: the existing doctrine – which binds the bench hearing the case – and the interpretation that the bench may be persuaded to accept, but cannot, and is therefore referring the issue to a larger bench to decide.

Consequently, even if the Review bench believes that the original judgment answered the legal question before it incorrectly, that is not a ground for it to reopen the question; the only ground is a finding that there is an “error on the face of the record” in the original judgment (which, as we have seen, the Sabarimala Review order did not even attempt to demonstrate).

While this distinction may appear pedantic, it is of vital importance in a judicial system bound to the rule of law and the doctrine of precedent. A fundamental building block of this system is the importance of consistency in precedent. So, while the Court can always revisit – and overrule – its previous judgments, there exists a set procedure for doing so, which acts to ensure that such decisions are not taken lightly. So, in the normal course of things, if there is a five-judge bench decision holding “X”, then for it to be overruled, petitioners would have to (a) convince a two-judge bench to admit a case arguing for interpretation “Y”; (b) in a referral hearing – which can be opposed by the other side – convince the two-judge bench to refer it to a three-judge bench; (c) convince the three-judge bench to refer it to a five-judge bench; (d) convince the five-judge bench to refer it to a seven-judge bench; (e) convince the seven-judge bench to overrule the original decision. These hoops exist for the simple reason that without them, the law would be in a perpetual state of unsettled chaos, where individual judges would be perpetually at odds with one another, tugging at the law in different directions.

What the Sabarimala Review order did, on the other hand, was to short-circuit this entire process, and effectively sanction a “Sabarimala Round 2” without going through the inbuilt checks and balances that the legal system provides. This is presumably what Mr. Fali Nariman meant in Court when he said that it would set a “bad precedent”, and this is also why Order VI(2) of the Supreme Court Rules ought not to extend to hearings in Review: what it would then sanction, going forward, would indeed be a situation where Review hearings would become a “Round 2” – where speculative legal questions could be raised even after the original case had been decided – and thus seriously undermine the sanctity of precedent.

Conclusion

As discussed previously, the issues at present are no longer about the merits of the original Sabarimala judgment. They are about something deeper, and more institutional: in a poly-vocal Court of thirty-five judges, where the Office of the Chief Justice wields tremendous administrative power in selections of cases and benches, how do we ensure that the Court remains a coherent institution, and does not break down into competing factions? The present institutional structure of the Court – with its number of judges and small panels – makes judicial discipline and adherence to conventions around precedent even more crucial than in a more traditional Court (such as the US or South African apex Courts) that sits en banc, and speaks as one. From that perspective, the nine-judge bench has an onerous responsibility to discharge when it hears the preliminary question tomorrow.

 

The Constitutional Challenge to the Transgender Act

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On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identificationinstead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.