The RTI Judgment: On Proportionality

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


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

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

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

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

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

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

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

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

Chandrachud J. interprets this to mean:

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

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

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

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

 

The Tribunals Judgment – II: On Independence

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


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

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

The Majority Opinion 

The Act

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

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

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

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

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

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

The Rules

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

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

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

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

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

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

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

The Concurring/Dissenting Opinions

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

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

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

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

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

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

Addendum: Impact upon the RTI Amendments 

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

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

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

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

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

 

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is a “Review”?

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


Article 137 of the Constitution of India allows the Supreme Court to “review” any judgment passed by it. According to the jurisprudence of the Court, a review is to be granted in exceedingly rare circumstances. In Union of India v Sandur Manganese and Iron Ores Ltd., for example, the Supreme Court restated the position of law as follows: a review could only be allowed in cases of “discovery of new and important … evidence“, an “error on the face of the record“, or another “sufficient reason” that had to be analogous to the first two.

In this context, today’s order in Kantaru Rajeevaru v Indian Young Lawyers’ Association, concerning the Supreme Court’s 2018 judgment in the Sabarimala Case, is a curious one. The Chief Justice begins his order by observing:

Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. (paragraph 1)

This is bewildering. Let us say that there are two sets of petitions before the Court. One set of petition seeks “review” of the impugned judgment, on the grounds set out at the beginning of this post. The other set comprises of fresh writ petitions that assail the correctness of the same judgment. “Hearing them together in open Court” makes no sense, because not only is the scope of arguments entirely different, the forum within which these cases have to be heard is different too! A review is heard by the same judges who delivered the original judgment (apart from those who may have retired). In this case, as the Sabarimala judgment was heard by a bench of five judges, the review would also be heard by five judges (and in this case, four of them – apart from the Chief Justice – were parties to the original judgment). A fresh writ petition, on the other hand, would have to go through an entirely different process: it would first come up before a division bench (two or three judges) of the Supreme Court, where the petitioner would have to make out an initial case for even having the petition admitted, given the existence of binding precedent to the contrary, on the same issue. If that was successful, the petitioner would then have to convince the division bench that there was a prima facie mistake in the earlier judgment, that required to be reconsidered by a larger bench (another substantial hurdle). The division bench would – if convinced – refer the matter to a five-judge bench, where the same process would be repeated;  and then – if the petitioner was successful in each of these stages – would the matter go before a seven-judge bench to reconsider.

These processes are of fundamental importance. They are important because they preserve one of the crucial pillars of the justice system: the sanctity and finality of judgments (especially those of the Supreme Court). One may agree or disagree with a judgment, but in the interests of legal certainty and stability, the judgment (for better or for worse) is law, and remains law, unless there are powerful reasons to depart from it. Of course, no judgment is set in stone: that is why review jurisdiction exists, and that is why referrals exist. And both processes – as we have just seen – cast an onerous burden upon those who would have the Court revisit judgments that have attained finality.

The first problem with today’s order, then, is that it mixes up two things that are fundamentally different in character. Indeed, in no sense is this a “review” at all: the Court does not even attempt to point out “an error on the face of the record” in the original Sabarimala judgment that was ostensibly under review. But if this is actually a judgment about referral, then how did the writ petitioners short-circuit the entire process that exists for these cases, and land up directly before a five-judge bench in proceedings that everyone understood at the time to be proceedings in review?

That said, let us consider the substance of the order itself. In paragraph 3, the Court notes that issues surrounding the entry of women into religious spaces arise in respect of some pending cases before the Court, involving mosques and Parsi fire temples – and that there is also a pending case on the legality of female genital mutilation (FGM). In paragraph 4, the Court then observes: “it is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges … It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together.”

With respect, this is bizarre. What this appears to be is something wholly new, which we can perhaps define as an “anticipatory referral.” The Supreme Court is due to hear some cases that have overlapping issues. So before it hears those cases, a larger bench should decide those issues! But unless these different cases are all heard simultaneously, by different five-judge panels of the Court – which then throw up contradictory rulings – this has absolutely nothing to do with “judicial discipline and propriety” (in fact, some of the cases the Court mentions have not even been referred to larger benches!). Let us take a tangible example. Sabarimala was decided last year. Let’s say the next case to be heard is the Parsi Fire Temple case. To the extent that legal questions arise in the latter that have already been resolved in the former, the bench hearing the Fire Temple Case will be bound to follow them, unless it decides to refer the matter to a larger bench for resolution. That is how it has always worked. And there has never been a reason to depart from that practice – certainly not by ostensibly citing “judicial discipline and propriety”!

This is made clear by the fact that the Court goes on to note that the issues arising in these pending cases “may be overlapping and covered by the judgment under review.” Yes, exactly – and unless the “judgment under review” is set aside in review for having an error apparent on the face of the record, these pending cases will be bound by it! Which brings us back to what the Court was actually asked to rule on in this case, and which it simply did not do – decide the review!

The judgment then frames some issues that it says “could arise” in these pending cases, pertaining to the interplay between various constitutional articles. It also points to an apparent conflict between Shirur Mutt and Dawoodi Bohra, on the issue of “essential religious practices” (the conflict is more apparent than real, but that is a debate for another day), which needs to be resolved by a larger bench.

Notice, however – so far – that what has been referred to a larger bench are certain suggested constitutional questions that may have an impact on the Sabarimala judgment, but are not about that case. But it is now that we come to yet another bizarre part of this judgment. In the penultimate paragraph, the Court notes that “while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.

But where on earth has this sprung from? It would be appropriate for this “larger bench” to consider this question – that was settled in Sabarimala – only if it was sufficiently proven to another bench – either in Review or in referral proceedings – that a mistake had been made that warranted reconsideration. But – as already indicated above – the Court does not even attempt to show that a mistake has been made, or may have been made. It simply decrees that the larger bench “may” consider it appropriate to decide “all” issues. How and why? It does not say. This is not how a Court is supposed to reason.

The Court then ends by noting that the review petition and writ petitions shall be kept pending until these “questions” are answered. So, once again, we are back to the same point: it is not the judgment in Sabarimala that has been referred for reconsideration, but certain “questions” that are common to Sabarimala and other pending cases – without any judicial finding that Sabarimala got them wrong! What on earth is happening here?*

The incoherence of this judgment is highlighted in the dissenting opinion authored by Nariman J., on behalf of himself and Chandrachud J. In paragraph 2, Nariman J. sets out the exact point that this blog post has been making:

What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala.

 

And indeed, it is difficult to understand how it could be any other way. Nariman J. then actually goes on to write a judgment applying the standards required in a review, and finds that no grounds for review are made out (and that, at the same time, writ petitions directly attacking the judgment are not maintainable). A debate on this could have been had if the majority judgment had actually engaged with any of the points that Nariman J. makes. But of course, as we have seen, they do not. And finally, Nariman J. goes on to point out that arguments around the protests that followed the original Sabarimala judgment cannot possibly constitute a ground for the Court to retrace its steps, in a country governed by the rule of law.

It should therefore be clear that what the majority judgment does in this case is indefensible under any standard. One may agree or disagree with the original judgment in the Sabrimala case. But what a three-judge majority has done here – that is, exhibit a cavalier disregard for a reasoned judgment of a Constitution Bench, and invent a whole new method for people to collaterally  challenge judgments they don’t like – cannot but have profound and dangerous consequences for the rule of law. In a Court of thirty-three judges – as I have pointed out before – these issues become particularly important. The more the gravitational force of precedent is weakened – either by declaring coordinate benches per incuriam, or by judicial pyrotechnics as in this case – the more we head towards a factionalised and divided Court, where judicial interpretation becomes less about principle and more about power-play. Sabarimala will be a small casualty in that conflagration.


 

*Incidentally, a corollary of this is that – for obvious reasons – the majority has not stayed the Sabarimala judgment itself. Until the seven-judge bench is constituted, therefore, the judgment remains good law, and binding and enforceable on all parties, including the State.

Revisiting the Aadhaar Judgment

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


It has been more than a year since the Supreme Court’s judgment in  K.S. Puttaswamy v Union of India (II) [“the Aadhaar Judgment”], which was delivered on September 26, 2019. The intervening period has seen some legislative developments – for example, resurrecting the use of the Aadhaar database by private parties, which had been struck down by the Court. It has seen the promise of fresh laws (such as the Data Protection Act, which – it is rumoured – will be placed before Parliament in the winter session). It has also seen the proposed extension of the Aadhaar programme (for example, mandatory linking of voter IDs), as well as other legislative proposals involving the collection and use of personal data (facial recognition systems, DNA profiling, and so on).

It is therefore important to revisit the Aadhaar Judgment, and determine what, precisely, the Supreme Court held in that case. While the judgment is widely known for having upheld the constitutionality of the Aadhaar programme while also limiting its scope in certain important respects, it was also the first time the Supreme Court dealt with the intersection of contemporary data collection, storage, and use practices, and fundamental rights. The principles that emerge out of that discussion, therefore, have a significance that goes beyond the specific holding in that case.

Overview 

To understand clearly what is at issue, let us begin with certain conceptual distinctions. The Aadhaar Judgment involved three levels of analyses: (i) an analysis of facts involving the Aadhaar programme; (ii) an analysis of applicable legal and conceptual standards; (iii) and an application of those standards to the facts (in order to determine whether and to what extent the Aadhaar programme passed constitutional muster). On this blog, in the aftermath of the judgment, a group of us analysed (i) and (iii) in some detail, and criticised the Court on both counts. The Court’s decision to uphold the Aadhaar programme, we argued, was premised on a wrong understanding of facts, and a wrong application of legal standards to those wrongly-determined facts. In this post, I intend to bracket those two questions, and complete the analysis be examining issue (ii) in some detail: i.e., the legal standards themselves.

I will argue that if we read the Aadhaar Judgment along with the nine-judge bench decision that upheld privacy as a fundamental right in K.S. Puttaswamy v Union of India (I) [“the Privacy Judgment”], certain important principles emerge (and on these principles, both the majority and Chandrachud J.’s dissenting opinion were in broad agreement). In summary, the Supreme Court held that (i) the collection, storage, and use of data in a manner that enables profiling is unconstitutional, (ii) data minimization, purpose limitation, and limited data retention are integral to any legislation or executive act involving data collection; (iii) use by private parties of the Aadhaar database is forbidden; and (iv) in testing the constitutionality of any specific measure that infringes the right to privacy/involves data collection and processing, the proportionality standard is applicable. This standard places an evidentiary burden upon the government to justify both the rationality of the measure, as well as its necessity (i.e., no alternative measures that infringe rights to a lesser degree are available).

The Role of Facts and Law

To understand the holding of the Supreme Court in the Aadhaar Judgment, it is important to begin with the main grounds of challenge. As indicated above, the Aadhaar challenge involved a set of legal claims, based upon a set of factual assertions. Relevant for our purposes here were the contentions that (i) Aadhaar enabled a surveillance State by allowing the government to track individual transactions through the authentication mechanism, (ii) Aadhaar enabled profiling by allowing the merging of data silos, (iii) the data collection was excessive and breached the right to privacy, (iv) Section 57, which private parties’ access to the database, breached the principle of purpose limitation, and also enabled commercial surveillance.

It is of vital importance to note that the Aadhaar Judgment rejected none of the petitioners’ legal claims; rather, to the extent that the Court found against the Petitioners, it did so because it disagreed with their factual arguments, while agreeing with the legal claims (and it was those findings that we criticised last year on this blog). In other words (to take one example), the Court found that the Aadhaar programme did not allow for the merging of data silos; however, it becomes clear from a reading of the judgment that had it been the case that the merging of data silos was allowed, the Court’s conclusion would also have been different.

Surveillance

So: on the first contention (surveillance), the Court found on facts that, among other factors, the legal prohibitions upon the sharing and disclosure of core biometric data, sharing of e-KYC data only with user consent, no transmission of identity information back to the Requesting Entity, and the retention of authentication logs only for a short period, precluded the possibility of State surveillance. In addition, the Court found on facts that the merging of data silos was prohibited, the data collection at the time of enrollment was minimal (fingerprints and iris), and the Authority was purpose blind. Consequently, the Court specifically held that we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR.”

Data Protection and Privacy: Principles of Data Minimisation, Purpose Limitation, and Safeguards

On the issue of data protection and privacy, the Court specifically observed that “the crucial requirements, which are indicative of the principles for data protection that India adheres to, inter alia include… information collected shall be used for the purpose for which it has been collected [“purpose limitation”]… Body corporate or any person on its behalf shall, prior to the collection of information, including sensitive personal data or information, provide an option to the provider of the information to not to provide the data or information sought to be collected … Disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information, who has provided such information under lawful contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation.” (paragraph 166)

In this context, the Court’s discussion of case law from the European Union was particularly illuminating. The Court discussed judgments such as Marper, where the storage of DNA profiles had been struck down because of their “blanket and indiscriminate nature” (paragraph 178) (in particular, failing to distinguish between suspects and convicts); Digital Ireland, where an EU Directive that enabled profiling without any temporal or spatial limits; Tele2, where metadata collection was struck down because it violated the data protection principles referred to above (again, it was indiscriminate in nature, and affected individuals without any probable cause of suspicion). The Court concluded by noting that “it is evident from various case laws cited above, that data collection, usage and storage (including biometric data) in Europe requires adherence to the principles of consent, purpose and storage limitation, data differentiation, data exception, data minimization, substantive and procedural fairness and safeguards, transparency, data protection and security. Only by such strict observance of the above principles can the State successfully discharge the burden of proportionality while affecting the privacy rights of its citizens.” (paragraph 187) It will be noted that these are the exact principles that the Court held operated in India as well; European case-law, thus, is heavily persuasive authority on this issue.

The Court then went on to specifically analyse the provisions of the Aadhaar Act on the touchstone of these principles. It held that “data minimization” was satisfied because the information collected was minimal, and the nature of the transaction or the individual’s location was not revealed during authentication; at the same time, the Court invalidated the storage of any form of metadata other than “process metadata”, in order to meet the requirements of data minimization; it also held that “purpose limitation” was satisfied because certain definitional provisions had been read down – and – critically – Section 57, which allowed private parties to use the database under cover of any “law or contract” had been struck down (as would be done later in the judgment); on data retention, the Court restricted the time period for which the data could be stored to six months.

On both counts, the petitioners made a specific argument that there were insufficient safeguards under the framework of the Act with respect to data sharing, as – in particular – the police could gain access to the database. The Court answered this by holding that these concerns were assuaged by (a) reducing the period of data retention to six months, (b) requiring that if through a judicial order any individual’s information was to be shared, that person would have to be given a hearing (under S. 33 of the Act); in particular, and crucially, the Court noted that “there is a reasonable presumption that the said court shall take into consideration relevant law including Article 20(3) of the Constitution as well as privacy rights or other rights of that person before passing such an order.” (c) sharing of information that did not go through a judicial process (such as in cases of national security under S. 33(2)) was invalid, and a judicial member would have to be added to the decision-making authority; and that Section 57 had been struck down (paragraph 220).

Data Silos

Thirdly, on the aspect of the integration of data silos, the Aadhaar Judgment noted that in the Privacy Judgment, it had clearly been held that isolated information silos, when aggregated, could enable profiling (paragraph 232); as indicated above, the Court found that as a matter of law silos remained integrated, and were not permitted to be aggregated.

As an overall point, the Court held additionally – while addressing the privacy claim – that as part of the balancing process, the expectation of privacy in biometrics and irises was relatively low (as opposed to, for example, medical data); thus, overall, data collection remained “minimal”, and that this helped tip the balance of rights in favour of Aadhaar. (paragraphs 295 – 297, 308)

Proportionality

Fourthly, moving on to specific challenges beyond the Aadhaar Act, the Court upheld the mandatory linking of Aadhaar with PAN, but struck down linking with bank accounts and SIM cards. In each case, the Court’s rationale was founded on the question of whether the government had managed to discharge its evidentiary burden under the proportionality standard (i.e., demonstrating a legitimate State aim, a rational connection between the measure and the aim, that the measure was least restrictive with respect to fundamental rights as compared to all other alternatives, and finally, that on balance, it was proportionate). On the issue of PAN Cards, it held that the government had demonstrated with “empirical data” that as Aadhaar was a unique identifier, it could deal with the problem of bogus or duplicate PAN cards (paragraph 421, 423); on the other hand, as far as bank accounts were concerned, the Court specifically held that “that it does not meet the test of proportionality and is also violative of right to privacy of a person which extends to banking details.” (paragraph 429); importantly: “under the garb of prevention of money laundering or black money, there cannot be such a sweeping provision which targets every resident of the country as a suspicious person. Presumption of criminality is treated as disproportionate and arbitrary.”

The Court went on to hold that the State had not even demonstrated how mandatory linking would solve the problem of black money, and why alternative methods of KYC were insufficient; mere “ritual incantation” of black money would not suffice under the proportionality standard (paragraph 434), in a world in which maintaining a bank account had become “almost a necessity” (paragraph 435); rather, “there should have been a proper study about the methods adopted by persons who indulge in money laundering, kinds of bank accounts which such persons maintain and target those bank accounts for the purpose of Aadhaar. It has not been done.”

And the Court returned a similar finding on the issue of SIM cards, noting that “for the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also impinges upon the voluntary nature of the Aadhaar scheme. We find it to be disproportionate and unreasonable state compulsion.” (paragraph 442)

The Legal Standards

In summary, therefore, the Aadhaar judgment proceeded in this way: the Supreme Court accepted the Petitioners’ constitutional tests for adjudicating the validity of the Aadhaar programme. It found that parts of the Aadhaar programme were compliant with these tests, and parts of it were not. At some places, the Court found that compliance was possible if certain provisions were read down, or interpreted narrowly. At other places, it found that it was not possible – and those provisions were struck down. When we read this holistically, and in view of the Privacy Judgment, the following principles (as indicated above) emerge:

  • Profiling is unconstitutional. Consequently, aggregation of data silos that enables profiling is also unconstitutional. The “360 degree view” of citizens that certain states and police departments have proclaimed as a matter of pride, is not permitted under law.
    • As a corollary, collection and storage of metadata that enables profiling is also unconstitutional.
  • Purpose limitation is mandatory for data collection. In other words, if law enables data collection for “x” purpose, it cannot then be stored/used for any purpose other than X.
    • Two important corollaries follow from (a) and (b). First, the Aadhaar database cannot be accessed by other bodies (for example, the police). Not only would this breach both (a) and (b), it would also – in this specific case – breach the right against self-incrimination (it is for this precise reason that the Court insisted that sharing of information could only be done through a specific and individual judicial order, or an order involving a judicial member).
    • Secondly, laws for data collection cannot be framed in generic or open-ended terms. They must categorically specify the purpose for which data is collected (and will be stored and used), and their constitutionality will be judged on that count.
  • Private parties are not authorised to access the Aadhaar database. This becomes important in light of the fact that after the judgment, an ordinance – and then a law – was passed just to allow this. This law is unconstitutional. It may be argued that there are parts of the judgment that suggest that the only part struck down in Section 57 was the part that allowed access even through a “contract.” This argument cannot succeed. The Aadhaar Judgment is clear on more than one occasion that the part involving body corporates is the one that is struck down – law or contract notwithstanding. There are three further reasons why this interpretation is correct: first, the fact that clearly the database should not be made accessible purely through a contract was not the only reason why the Court found Section 57 unconstitutional. Section 57 was also struck down because it violated purpose limitation – and the distinction between law and contract is agnostic in that regard; secondly, the Court upheld the Aadhaar Act as a money bill on the basis (inter alia) that it had already struck down Section 57 (and that the rest of the Act was substantially a money bill). Obviously, this could not have been the case if only a part of Section 57 had been struck down – the procedural flaw would have remained in that case; and thirdly, the Court struck down Section 57 because it enabled commercial surveillance – another point that is agnostic about the difference between law and contract.
  • Any law requiring data collection must satisfy the principle of proportionality. This principle requires the government to demonstrate the necessity of the collection, through concrete evidence. (for example, if the government wants to mandatorily link Aadhaar with Voter IDs, it must demonstrate the factual necessity for it, and also that alternative methods of “de-duplication” are insufficient). Crucially, data collection cannot be blanket – that is, if the goal is to identify a specific instance of wrong-doing or prevent crime (in policing), the State cannot achieve that by blanket and indiscriminate data collection, that fails to distinguish between those against whom there is probable cause of suspicion, and against whom there is not. In other words, data collection statutes must be specific and targeted.
    • The period of data retention also speaks to the proportionality of the measure. Retaining data for an excessive period renders the measure disproportionate.
  • The greater the reasonable expectation of privacy in the data in question, the higher the burden of justification upon the State. In the Aadhaar Judgment, the Court held that the expectation of privacy in biometric details and iris scans was low. However, for any other species of data, (for example, DNA), the analysis will have to be undertaken afresh.

Conclusions

As we pointed out at the time of the judgment, there are some serious doubts over the Court’s analysis of facts, and application of law to the facts, throughout the course of the verdict. Those doubts remain. However, while issues of that kind are specific to the judgment – and to the constitutionality of Aadhaar – the interface between technology and fundamental rights obviously is not. It is here that the legal standards evolved by the Court in the Aadhaar Judgment are important, because is they – and not the concrete, fact-specific holding on the constitutionality of Aadhaar – that will provide the constitutional framework within which future disputes will be litigated. In this post, I have attempted to show that on that question, the Supreme Court articulated – and accepted – a rigorous and privacy-protective set of legal standards. A correct application of those standards would invalidate – or at least, throw into serious doubt – the government’s plans for open-ended data collection (under the guise of anodyne terms such as “data is the new oil), facial recognition tenders, and indiscriminate DNA profiling; most importantly, these standards provide a crucial yardstick from which to judge the adequacy of the Data Protection Act that is eventually passed by Parliament. Any such legislation – it hardly needs reminding – must comply with these standards, as they are grounded within the Constitution. In other words, the soon-to-come statutory landscape of data protection in India must adhere to the constitutional framework that has been traced out above.

Guest Post: Constitutional Silences, Balancing of Rights, and the Concept of a “Neutralising Device”

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


[This is a guest post by Anubhav Khamroi.]


The doctrine of balancing of rights have troubled constitutional courts across jurisdictions. The Indian Supreme Court, once again (although, in my opinion, unnecessarily), in Kaushal Kishor v. State of Uttar Pradesh [“Kaushal Kishor”], has taken upon itself the job of balancing two potentially competing fundamental rights, namely – Article 19(1)(a) and Article 21 or any unenumerated right within it. The Constitution Bench passed an order (see here) framing five questions for consideration. This Post concerns only the first question, which reads –

“Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?”

In some previous posts, Gautam Bhatia has dealt with the question of balancing of Article 19(1)(a) with other freedoms under Part III (See here and here). To summarise, his primary arguments are:

  • Article 19(2) does not contain a “public interest” limitation, such as found in Article 19(6), which suggests a deliberatechoice to reject a general balancing between the Freedom of Speech and the “social interests” not specifically enumerated under Article 19(2);
  • As the Constitution expressly enumerates limitations upon the Freedom of Speech within its text, the process of balancing has already been undertaken within the drafting of Articles 19(1)(a) and 19(2);
  • Article 19(2) does not contain any proviso or limitation that makes the Freedom of Speech subject to other provisions of Part III, such as found in Article 25(1);

In that light, some compelling questions arise: If there is no express mechanism for balancing of rights within the constitutional text, what is the significance of such “constitutional silence” in Article 19(2), or Part III in general? Does it make the Freedom of Speech a standalone right? Under what circumstances can one Part III right operate as a valid limitation on another? I shall deal with the aforementioned points in seriatim. Thereafter, I shall elaborate on the evolution of the concept of a “Neutralizing Device” by the Supreme Court.

Situations of Potential Conflict between Two Part III Rights

As discussed above, Article 19(2) sets out eight express limitations. But it does not contain any limitation that makes Freedom of Speech ‘textually’ subject or subordinate to other fundamental rights guaranteed under Part III. This is also the case for other Part III rights, with the exception of Article 25(1). However, we ought not lose sight of the possible clashes between two Part III rights. Following are some illustrations of such clashes:

  1. Freedom of Press [Article 19(1)(a)] vs. Right to Privacy [Article 21];
  2. Right to Freedom of Speech [Article 19(1)(a)] vs. Right to a Fair Trial [Article 21] – This conflict was being adjudicated upon in the initial proceedings of Kaushal Kishor, concerning a Minister calling the victim’s case a “political conspiracy only and nothing else”.
  3. Right to impart and receive Information on matters of public interest [Article 19(1)(a)] vs. Right to Reputation or Autonomy to control dissemination of personal information [Article 21]- The scope of this conflict was briefly commented on by SK Kaul J. in Paras 53 to 58 of his separate opinion in Puttaswamy.
  4. Freedom to manage religious affairs of religious denominations [Article 26] vs. Dignity and Liberty of women [Article 15 & 21] – This conflict came up for consideration in the Sabarimala

It is thus evident that constitutional values do come in severe conflict quite often. However, for resolution of such a ‘constitutional conflict’, there is no balancing mechanism set out within the text of Part III. This is a classic case of ‘constitutional silence’. To balance competing rights of equal supremacy is not a decision simpliciter for the judiciary and a proper mechanism must be formulated (See below – the use of a “neutralizing device”).

Now, let us specifically focus on Article 19(2). I do agree with Mr. Bhatia’s conclusions here, that it might not be appropriate for the Supreme Court to ‘invent’ additional grounds for restricting Freedom of Speech, such as “constitutional fraternity” or “constitutional compassion”, which are mere abstract concepts, incapable of sufficiently revealing their precise contents.

My disagreement is only to a limited extent – the limitations set out in Article 19(2) cannot be considered exhaustive, to the extent it might be necessary to balance Freedom of Speech against other Part III rights, such as Article 21 or unenumerated rights situated within it. However, to make the balancing process functional, the contents of such unenumerated rights must be somewhat objectively determinable. For example, the contents of right to privacy has been well defined in the Puttaswamy judgement.

In my opinion, while being in a state of mutual co-existence, the competing Part III rights operate as a valid limitation upon each other. The judiciary, which is the “balancing wheel between the rights” (See Chief Justice Subba Rao’s opinion in Golak Nath ), plays the role of a facilitator in this process.

Dealing with the absence of a Stipulation/Preface stating – “subject to other provisions of this Part”

The absence of a proviso or a clause such as “subject to other provisions of this Part” does not put any one particular Part III right at a higher pedestal in constitutional order of priorities. During the operation of a Part III right, as explained above, it might experience clashes with another right. In that event, ‘pragmatic reasoning’ clearly suggests that these rights cannot work in complete isolation. For example, there must exist a functional cooperation between Article 19(1)(a) and Article 21, so as to make the operation of both sustainable.

In a different context, Chandrachud J. pointed out the need to harmonise different provisions under Part III of the Constitution, in the Sabrimala judgement (Para 13 of his separate opinion). I attempt to use his reasoning as a suitable illustration and analogy to buttress my point. In that case, he was evaluating the consequences of a similar absence of ‘words of subjection’ in Article 26, as compared to the wording of Article 25(1). In this regard, he had observed that:

Even where one provision is not subject to another there would still be a ground to read both together so that they exist in harmony. Constitutional interpretation is all about bringing a sense of equilibrium, a balance, so that read individually and together the provisions of the Constitution exist in contemporaneous accord….[T]he freedoms which find an elaboration in Part III are exercised within a society which is networked. The freedoms themselves have linkages which cannot be ignored.”

The inherent inter-relationship and cohesion between fundamental freedoms in a modern democratic society also lends support to the above reasoning. Herein, it might also be noted that the legal maxim “expressio unius est exclusio alterius” (express mention of one/some, leads to the exclusion of others) does not strictly apply in the context of constitutional interpretation.

As we are well aware, any written constitution is never complete or comprehensive. The gaps in the Constitution are ought to be filled with societal values and common experiences, promoting a notion of fluidity. The Part III rights are not placed in “water-tight compartments”, operating in a staccato fashion (See Rustom Cavasjee Cooper v Union of India & Maneka Gandhi). They do not exist in an exclusive sphere of operation and therefore, a measured calibration of each of them is a ‘constitutional necessity’.

Conceptualizing the Idea of a “Neutralizing Device”

The questions that now haunts us are – in actuality, how and when do we balance freedoms of identical or equal importance? What measures ought to be deployed to recalibrate two Part III rights, wherein neither substantively loses its essence?

The answers to the above questions may be found in certain general principles laid down by a Constitution Bench (five-judges) in Sahara India Corporation v. SEBI (Paras 42-43). Accordingly, a three-step test must be followed before a balancing measure is deployed:

  • Operation of one Part III right poses a “real and substantial risk” to the effective operation of another;
  • A balancing measure is necessary i.e. no ‘reasonable’ or less intrusive alternative can assist in prevention of the said risk (necessity test); and
  • The salutary effects or benefits of such balancing measures outweigh the detriment caused to the operation of the right/freedom, which is sought to be limited (proportionality test).

Upon fulfilment of the above test, as per the Sahara decision, the courts must deploy a “neutralizing device”. Of course, there cannot be a straightjacketed or common formula for what “neutralizing device” ought to be used in every possible situation of conflict between Part III rights. It will vary depending on the peculiar facts of each case. But as a general principle, these devices must – (1) operate within the parameters of necessity and proportionality as set out above; (2) pass the test of reasonableness under Article 14, 19(2) and 21 (Maneka Gandhi); and (3) have the capacity to ‘neutralize’ the friction and discord between two Part III rights.

For example, in the Sahara decision, there was a conflict between the Freedom of Press guaranteed under Article 19(1)(a) and Right to a Fair Trial under Article 21. In that case, the Supreme Court devised the use of postponement orders, as a “neutralizing device”, against any publication or broadcast that may put the proper administration of justice or fairness of the trial at “real and substantial risk”. Also, in accordance with the tests of necessity and proportionality, the Supreme Court declared that such orders should have effect only for a limited duration.

Moreover, in a recent 2018 decision in Kanimozhi Karunanidhi, the Madras High Court considered another conflict between Free Speech under Article 19(1)(a) and Right of Privacy under Article 21 (Para 26). Although it did not cite Sahara, the High Court adopted a similar conflict-resolution strategy and passed an injunction order that only prohibited publication of ‘private information’ about the applicant’s life without her consent. But it was clarified that the injunction shall not extend to any information relating to the work of the applicant as a Member of Parliament or as a leader of the political party (Paras 43-44).

This must operate as a guideline for all Courts in future cases of similar conflict.

Conclusion- So isn’t Kaushal Kishor (Q1) An Unnecessary Academic Exercise?

As clarified above, the Supreme Court in Sahara has already declared “the law under Article 141 on balancing of Article 19(1)(a) rights vis-à-vis Article 21” (Paras 15, 42 & 45). Although, the decision was relating to contempt of court, I believe the Constitution Bench had sufficiently clarified the general principles that ought to apply in all cases of conflict between 19(1)(a) and Article 21 rights, notwithstanding the context. Therefore, the Supreme Court has already answered the first question framed in Kaushal Kishor in the positive, and the question is no more res integra.

According to a Constitution Bench decision in Central Board of Dawoodi Bohra (Para 12), though a bench of co-equal strength may express an opinion doubting the correctness of the view taken by an earlier bench of co-equal strength, but thereupon such a matter must be “placed for hearing before a bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”

Accordingly, judicial discipline and propriety suggest that the five-judges bench in Kaushal Kishor must either uphold and reiterate the decision in Sahara; or refer the matter to a larger bench of seven-judges for reconsideration. They should not themselves deviate from or declare the decision in Sahara per incuriam, as clarified in Dawoodi Bohra. 

Natural Justice at the Bar of the Supreme Court

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


M.C. Mehta v Union of India is numbered Writ Petition No. 13029/1985. In other words, this public interest litigation has been pending in the Supreme Court for the last thirty-four years. Every once in a while, the Supreme Court Registry unfreezes it from its cryostat, dusts it down, and posts it for hearing. One of those occasions was yesterday, when the city of New Delhi was suffering from extremely high air pollution. A bench was constituted, and a slew of directions were passed to ostensibly address the situation.

The Supreme Court’s seventeen-page order, authored by Justice Arun Mishra, is difficult to read, and even more difficult to comprehend: it is rambling, and at times borders on the incoherent. For example, the opening line is: “We have heard Mr. Bhurelal, who has pointed out about irrigation.” Who is Mr. Bhurelal?* But more importantly, what is it that he has pointed out “about irrigation”? We do not know, and the Court does not tell us. Two paras down, the order says: “Today everyone is concerned about level of pollution in Delhi and NCR region. This is not something new, every year this kind of piquant situation arises for a substantial period.” The word “piquant”, according to the Merriam-Webster Dictionary, means “engagingly provocative” or “agreeable stimulating to the taste.” The Thesaurus lists some of its synonyms as “peppery”, “poignant”, “pungent”, “racy”, and “savoury”. Pollution is “piquant”? What on earth is the Court talking about? Later on, the Court appears to confuse “tortious action” (i.e., a tort) with “tortuous action” (i.e., convoluted or meandering acts). The Court asks why state governments of Punjab, Uttar Pradesh and Haryana “should not be held liable to compensate [for allowing stubble burning]”, but refuses to complete the thought and explain who it is that will be compensated. There is repeated reference to statutory obligations (at one point, the odd phrase “statutory mockery” is used), but the Court refuses to tell us what statute it is invoking, what the obligations are, and what (statutory) consequences exist. And some of the directions simply boggle the mind: on the advice of an unnamed “expert of the IIT”, the Municipal Corporation is told to use water sprinklers on roads (the “pressure” at which they will be used is to be determined on the basis of the aforementioned unnamed IIT expert); because generators cause pollutions, the state governments are told that electricity is not to be cut, so that there will be no need for generators. And so on.

There is a lot to be said here about the use of PILs to resolve complex poly-centric problems, and how this order represents a textbook examples of all the perils underlying that approach. But for the moment, I want to focus on something else. In particular, I want to focus on this paragraph in Justice Mishra’s order:

No farmer can be said to be having a right under the guise that he is not having sufficient time to use the stubble for the purpose of manure, since they have less time between two crops, cutting and sowing of next crop. As such, they cannot by burning it in their fields, put life of sizeable population in jeopardy.

Reading this paragraph, it would seem that the farmers of Punjab and Haryana are a bunch of perverse individuals who literally want to watch the world burn. Naturally, nothing could be further from the truth. As environmental journalist Aruna Chandrasekhar explains, the roots of stubble burning go back to the Green Revolution, and are linked to patterns of agriculture, water usage, and laxity on part of the State to implement available policy solutions. In other words, stubble-burning does not happen because farmers just love being surrounded by all that smoke and fire – but rather, it is an economic compulsion closely linked to structural questions of livelihood.

This could have been explained to the Court. It could have been explained if the farmers were effectively represented at the hearing.** But the order makes no mention of any arguments advanced on behalf of the farmers. Instead, it goes on to say:

We direct the Chief Secretaries of the State Governments, District Collectors, Tehsildars, Director General, IG/SP and other police officers of the area of concerned police station and the entire police machinery to ensure that not even a single incident takes place of stubble burning henceforth. If it is found that any stubble burning has been made not only that person doing it will be hauled up for the violation of the order passed by this Court but the entire administration, right from the Chief Secretary, Commissioner, Collector and all other concerned functionaries and Panchayats. Gram Pradhan/Sarpanch Panchayat are also directed to ensure that no such stubble burning takes place.

We also direct the Sarpanch of each and every Panchayat and SHO of the concerned area to prepare inventory of the incumbents who have burnt the stubbles in their fields. We also direct the Sarpanch, Gram Panchayat as well as the concerned police of the area and local administration including the Collector and all subordinate authorities to ensure that no further stubble burning takes place.

And here is the problem: these are undoubtedly coercive orders passed against the farmers. They undoubtedly affect their livelihood (notwithstanding the Court’s bizarre use of the words “in the guise of”). In other words, they affect their Article 21 rights – the same Article 21 that the Court is so quick to invoke in order to justify its jurisdiction in this very case. How can the Court possibly pass these orders without hearing the affected farmers – and hearing them at length, recording their arguments, and addressing them? The Supreme Court is not Emperor Jahangir, dispensing “swift and brutal justice” whenever someone rings his golden bell, however much that vision might appeal to public imagination. It must follow certain basic rules and principles that underpin its adjudication, and one of the most important of those principles is that if you are going to deprive people of livelihood, you have to give them a fair hearing. This cardinal principle was, of course spelt out in the famous Olga Tellis judgment, in the context of executive action; and there is no reason why it does not apply with equal force to the Court.

In other words, the Court passes orders on stubble burning (a) without considering the structural reasons underlying the activity, (b) determining in advance that any justification that might be proffered will ipso facto be fake and a sham (“… under the guise of…”), and (c) without effectively hearing the people whose rights will be directly affected. Needless to say, this is light years away from how a constitutional court is supposed to conduct itself.

The procedural injustice of the order is reflected in the final paragraph of Chandrasekhar’s report. She points out that “the unions have even suggested that while the government gets its act in order, farmers are ready to reduce the burning to 25 percent” – but, as noted by representatives of the farmers’ Unions, completely stopping the burning is not economically feasible. Such issues should not – and indeed, cannot – be resolved by gunboat-style judicial orders threatening to “haul up” anyone found burning stubble, and the preparation of “inventories” of people who have (previously) burnt stubble (under what law?) – without even according a substantive hearing to the people involved. I say this at the cost of repetition, because above all it is important to push back against the creeping normalisation of the manner in which the fundamental principles of judicial adjudication are being eroded by the Court; it becomes necessary, therefore, to record the proliferation of such violations, even when they occur at such a basic and an obvious level, that it hardly seems worthwhile to dignify them with analysis.

 


* He is the chairperson of the EPCA.

** It is impossible to tell from the order whether the farmers were formally represented at the hearing. However, as the order makes no reference whatsoever to arguments advanced on their behalf – or any attempt to address them – the point that it is an order without an effective hearing of the affected parties remains.

Addendum: “Some things are not worth getting over.”

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Yesterday, I wrote a post on how the changing of the guard at the top of the Supreme Court represents a chance to fashion an institutional solution to the institutional problem that came to the fore when allegations of sexual harassment were levelled against the Chief Justice in April/May 2019. I also wrote that the failure to grasp this chance would leave us treading the dangerous line between institutional failure and institutional complicity. This morning, I came across a piece by Dahlia Lithwick that expresses – in much clearer language – a few of the points I was trying to make.

Writing in the context of bearing witness to Justice Brett Kavanaugh’s senate confirmation hearings – at a time when he stood accused of rape by Professor Christine Ford – Lithwick talks about the temptation to “routinise” and “normalise” the “unprecedented seating of someone who managed to himself evade the very inquiries and truth-seeking functions that justice is supposed to demand.” (emphasis supplied) She talks about how the Senate Republicans’ refusal to “investigate, acknowlege, or even turn over” the existing evidence makes the incident difficult – or impossible – to simply “get over.” But for many people however, Lithwick goes on to acknowledge, “getting over it” is an imperative necessity in “in service of long-term tactical appeasement.” Lithwick then writes what (for me) are the two most important paragraphs of the article:

That is the problem with power: It incentivizes forgiveness and forgetting. It’s why the dozens of ethics complaints filed after the Kavanaugh hearings complaining about the judge’s behavior have been easily buried in a bottomless file of appeasement, on the grounds that he’s been seated and it’s too late. The problem with power is that there is no speaking truth to it when it holds all the cards. And now, given a lifetime appointment to a position that is checked by no one, Washington, the clerkship machinery, the cocktail party circuit, the elite academy all have a vested interest in getting over it and the public performance of getting over it. And a year perhaps seems a reasonable time stamp for that to begin.

The problem with power is that Brett Kavanaugh now has a monopoly on normalization, letting bygones be bygones, and turning the page. American women also have to decide whether to get over it or to invite more recriminations. That is, for those keeping track, the very definition of an abusive relationship. You stick around hoping that he’s changed, or that he didn’t mean it, or that if you don’t anger him again, maybe it’ll all be fine when the court hears the game-changing abortion appeal this year. (Emphasis supplied)

That the participants in the legal culture that surrounds the Supreme Court of India and the judiciary in general have exhibited a strong interest in “getting over it” when it comes to the events of April/May 2019 is a stark fact. It is exhibited in the complete silence that has followed the issuance of the “clean chit” to the Chief Justice (notwithstanding the procedural irregularities in the process, which were detailed at the time); but it has been exhibited even more sharply at this time, when newspaper pieces around the outgoing Chief Justice have discussed the important judgments that he is going to deliver in his last working week (as though the past has ceased to matter), and even more so, in the profiles – and interviews – of the incoming Chief Justice, where this matter should be front and centre – both in the sense of personal responsibility (past) as well as in the sense of institutional responsibility (future) – but is not.

But as Lithwick writes, “picking up an oar to help [us] get over [our] sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice.” Far from an apology or a reconciliation, we still do not have an acknowledgment of the injustice that was done when the Chief Justice himself sat on the bench to hear the case against himself; or of the injustice that was done when three other judges attacked the character of the complainant from the bench; or yet again, of the injustice that was done when the In-House Committee’s ad-hoc procedures effectively convinced the complainant that the prospect of justice was so distant, that there was nothing further to be gained from participating in the process.

Lithwick ends her piece by writing:

I haven’t been inside the Supreme Court since Brett Kavanaugh was confirmed. I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

Lithwick’s dilemma is an old and familiar one: at what point does continued participation amount to normalising the unacceptable? If you’re going to pretend that everything as if everything is alright, when it clearly is not, at what point does that pretence turn into cheating both oneself, and everyone else? In my mind, Lithwick’s line is the line between institutional failure and institutional complicity. At the point at which institutional failure turns into institutional complicity, it becomes necessary to say, with Lithwick, that “my new beat is justice, as opposed to the Supreme Court … and my new beat now seems to make it impossible to cover the old one.”

What that means in practical terms, of course, is a question that still awaits an answer.

 

Sexual Harassment at the Supreme Court: A Time for Institutional Accountability

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On Tuesday, in accordance with long-standing convention, the President of India signed the warrant appointing Justice S.A. Bobde as the next Chief Justice of India. Since the news of the appointment broke, there have been a few articles in newspapers about Justice Bobde’s notable judgments and his adjudicatory style, as well as an interview with NDTV. However, apart from a throwaway line here or there, these accounts have ignored a rather large elephant in the room: the manner in which the Supreme Court handled allegations of sexual harassment against the outgoing Chief Justice in April/May 2019.

It is of particular importance that this issue be discussed now, at the time of a changing of the guard. This is because the events of April/May 2019 were not simply about one individual, or one accusation. They represented – as I had attempted to show at the time – an institutional failure on the part of the Supreme Court. To recapitulate, as the famous MacPherson Report defined the concept of institutional racism:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.

An institutional failure, therefore, does not require malicious intent from any one person or set of person. It manifests itself through “prejudice”, “ignorance”, and “thoughtlessness”, whose effect is to place substantive justice out of reach of the vulnerable and the marginalised. In the sexual harassment case, the Supreme Court’s institutional failure began with the Chief Justice constituting a bench and then presiding over it to hear the allegations against himself (the final written order, however, does not show his name); it continued when another three-judge bench of the Court questioned the motives of the complainant, and entertained a parallel petition about “bench fixing”; it went on when an “ad-hoc” “In-House Committee” set up to hear the allegations departed from best practices as set out under the POSH Act, to the extent that the complainant herself withdrew from the proceedings – but then went ahead and issued a “clean chit” to the Chief Justice anyway; and it also manifested itself in how none of the other judges of the Court (with the exception of Chandrachud J.) objected to this set of processes.

The institutional failure of the Supreme Court (involving the active participation of no fewer than eight judges at various times), therefore, stemmed from a failure to understand that sexual harassment is a question of power, and that a fair investigation of allegations of sexual harassment – “due process” – must be designed to mitigate those power imbalances, instead of perpetuating them. As the judge heading the In-House Committee, it is a failure for which the incoming Chief Justice bears a degree of responsibility; however, that is not the main point. The main point is that the institutional failure is a continuing one – it cannot simply be buried with the departure of the soon-to-be former Chief Justice, and it cannot be brushed away as an isolated event that has now been resolved. An institutional failure requires institutional solutions.

Now, in the spirit of realism, one could grant that as the soon-to-be former Chief Justice was himself at the centre of the April/May 2019 controversy, it would be too much to expect institutional accountability mechanisms to be put in place while he continued in office. It is for this reason that a change of guard is a particularly important moment, because it presents a clear opportunity for a fresh start. There needs to be an acknowledgment that what happened in April/May 2019 was an injustice, that its underlying cause was institutional, and that its solution must be institutional: i.e., the setting up of a formalised structure for dealing with sexual harassment complaints within the Supreme Court, a structure that takes into account the basic questions of power that come with such cases.

What shape this structure might take is, of course, not for this author to set out. At a minimum, though, it must arise out of a frank dialogue between the major stakeholders (in particular, women lawyers, judges, as well as employees of the Supreme Court), and take into account existing best practices (as reflected, for example, in the POSH Act). And as responses to the Supreme Court’s conduct in the wake of May 2019 showed, there is no shortage of expertise when it comes to crafting norms of due process that ensure substantive justice in sexual harassment cases, in the context of the court structure.

If there were pragmatic reasons why this could not happen so far, as pointed out above, those reasons no longer exist with a changing of the guard. As the administrative head of the Supreme Court, the new Chief Justice is ideally placed to initiate the process of institutional accountability, and to ensure that there is no repetition of the events of April/May 2019. But what would be most unfortunate would be if nothing was to happen, if everything was to continue in the “business as usual” sense, if the events of April/May 2019 continued to be buried under a veil of mutually-accepted and mutually-acceptable silence; because there comes a point when institutional failure turns into institutional complicity. And the continuing absence of structures of institutional accountability within the Supreme Court would surely take us swiftly into that latter domain.

 

A Very Strange Constitution Bench

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


More than three years ago – in August 2016 – I’d written about an odd Supreme Court hearing where “questions” were framed (inter alia) about whether the freedom of speech could be restricted on grounds of “constitutional compassion.” The case had come to Court when UP politician Azam Khan had labeled a gangrape as a “political controversy”, and then-Justice Dipak Misra had taken the opportunity to also ask whether political functionaries had a more restricted right to free speech than ordinary citizens.

Subsequently, Azam Khan apologised to the Supreme Court, and his apology was accepted. However, the case continued. In an order dated 5th October 2017, the matter was referred to a Constitution Bench (!) to decide. On that same day, Mr Fali Nariman and Mr Harish Salve, acting as amici in the case, framed further “questions” to be decided. Among Mr. Nariman’s questions was the following:

Whether, and if so under what circumstances (if any) would a private individual or group of private individuals (including private corporations) be required to conform to the rigor and discipline of Article 21 (in the Fundamental Rights chapter) of the Constitution – whether as “State” as broadly defined, or otherwise.

CJI Misra himself retired last year, with no further progress on this case. One would have thought, then, that this little piece of judicial buccaneering would meet a quiet and deserved end. But no: it turned out last week that the Constitution Bench of the Supreme Court – consisting of Mishra, Banerjee, Saran, Shah and Bhat JJ – would indeed sit and hear this case. And in a hearing on 24th August, events took an alarming turn, when the Attorney-General “reframed” his questions, and the Court’s order finalised them as follows: 

  1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
  2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
  3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
  4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
  5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

There are a few points I want to note about this Order. While questions (4) and (5) have at least some relationship with the original case of Azam Khan, and are relatively focused, the first three questions are simply broad-ranging enquiries into general constitutional philosophy. It is entirely unclear why they have been framed in the first place, and why a Constitution Bench needs to answer them, in the absence of a specific lis that brought them to Court. Question (2), for example, is a question about horizontal rights – a vexed and fraught question that jurisdictions across the world have been grappling with. Question (3) is a question about positive obligations – another issue that Courts all over the world have spent years engaging with, and incrementally developing jurisprudence. These questions are too complex, too multi-layered, and too poly-centric to be answered in an abstract enquiry; they don’t become any simple just because a Senior Counsel has “framed” them. To take just one example: if you hold that Article 21 is indeed horizontally applicable, then how does that affect the entire swathe of Indian criminal law, whose task is precisely to protect the life and liberty of individuals from encroachment by other individuals, through legislation? Does it even affect criminal law? Should it? Legal scholars have written entire books grappling with the complex engagement between horizontal constitutional rights and existing private and public law regimes. And therefore, the correct way of addressing these issues – and the correct way for constitutional courts to behave –  is to address them in light of concrete cases that are called before it for determination, because it is only then that it can actually be seen how horizontal rights – or positive obligations – play out in the real world. Without that, this is nothing more than whistling in the dark.

But if questions (2) and (3) raise the prospect of a headless jurisprudence, question (1) is profoundly dangerous. To start with, where on earth did it come from? It wasn’t in the original four questions framed by Dipak Misra J.’s court. It is not connected to questions (4) and (5), which are the ones that are really about what speech a minister may or may not engage in, and which basically deal with the question of how and when you can attribute a minister’s speech to the State. But most importantly, this question has already been answered. It has already been answered by the Supreme Court. It has already been answered by the Supreme Court multiple times. In fact, it has been answered by a Constitution Bench of the Supreme Court. In Sakal Papers v Union of India, a five-judge bench held:

It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19 … Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public … For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.

Sakal Papers is one of those landmark judgments in Indian free speech jurisprudence. The fundamental propositions that it articulates have never been seriously doubted in sixty years, and were accepted by the Supreme Court as recently as Shreya Singhal (2015). Most importantly, as a five-judge bench, it is binding upon the present Constitution Bench. There has been no referral to reconsider its correctness. So then, why was this question framed? Why did the five learned judges on the Bench accept it? Perhaps we’re going to find out shortly that Sakal Papers has been per incuriam these six decades, and we just didn’t know it? Who knows.

In short, therefore, a case about a Minister making a statement about a gang-rape – crass and condemnable as it was – has somehow morphed into a Constitution Bench hearing where the Supreme Court is going to opine about horizontal rights, positive obligations, and the prospect of additional limitations on free speech, all in the abstract (as the original lis has long been lost in the mists of time). And that, in a nutshell, is the problem with what PIL has become today:  it is no longer about expanding the concrete fundamental rights of the most vulnerable, but something else entirely, something that has become hostage to the fancies of individual judges and senior lawyers.

Indeed, the history of this case reveals something important about that last relationship. The history of these orders show that while the initial four questions were framed by the Court, the questions that the Constitution Bench is now going to “answer” have been framed by the two amici mentioned above. While Mr. Fali Nariman was appointed initially by the Court, Mr. Salve’s appointment came about in an order dated 29.3.2017, which records that “Mr. Harish Salve, learned senior counsel, who was present in Court, expressed his intention to assist the Court.”

Now I wonder how many of us are accorded this unique privilege of simply standing up and “expressing our intention” to assist the Court, being promptly being made an amicus, and then framing questions that are going to affect fundamental rights across the country. And this is not the first time: in the famous 1997 phone tapping case, PUCL v Union of India, while PUCL’s lawyer, Mr. Sanjay Parikh was arguing, there was another courtroom intervention. The judgment records it thus:

At this stage, Mr. Kapil Sibal & Dr. Dhawan, who are present in Court, stated that according to them the matter is important and they being responsible members of the Bar, are duty bound to assist this Court in a matter like this. We appreciate the gesture. We permit them to intervene in this matter. They need a short adjournment to assist us.

 

Mr. Sibal then went on to justify telephone interception and proposed a “non-judicial” oversight mechanism – a proposal that was accepted by the Court, and continues to haunt our surveillance jurisprudence till today. Similarly, in the notorious Devidas Tuljapurkar case, the framing that “historically respectable personalities” should be given some kind of different protection against “obscene speech” was propounded by Mr. Nariman, who had been appointed as an amicus.

None of this is the mark of an egalitarian, democratic, or even healthy legal culture, where seniority has become a kind of special-access gateway (for more on the outsize role of the amicus in PIL cases, see Anuj Bhuwania’s Courting the People). And apart from its iniquitous character, it is particularly problematic in civil rights cases, where what is at stake are fundamental liberties: these fundamental liberties should not become playthings of whatever fancy takes a Senior Counsel at a particular time. The first three “questions” that this Constitution Bench of five learned judges is now proposing to “answer” shows us the perils of such a legal culture.