Addendum: Free Speech, the Armed Forces, and Albie Sachs

As an addendum to the previous post on the free speech rights of government employees, consider the following brief concurrence, penned by Justice Albie Sachs of the Constitutional Court of South Africa, hearing a case about the rights of soldiers to unionise:

“… a blindly obedient soldier represents a greater threat to the constitutional order and the peace of the realm, than one who regards him or herself as a citizen in uniform, sensitive to his or her responsibilities and rights under the Constitution. The Constitution proclaims that national security is not simply directed towards the maintenance of power but must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. [Section 198(a)]. It goes on to require that [t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law . . . [Section 199(5)]. It provides expressly that no member of any security service may obey a manifestly illegal order [Section 199(6)] and declares that the primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people . . . in accordance with the Constitution . . . [Section 200(2)]. These provisions clearly contemplate conscientious soldiers of the Constitution who can be expected to fulfil their constitutional duties more effectively if the values of the Constitution extend in appropriate manner to them and infuse their lives in the armed forces.

Secondly, I agree that, important though a communal esprit de corps may be for the armed forces, the mystique that any military force requires cannot take away the need for soldiers to be able to speak in their own distinctive voices on mundane but meaningful questions of service. In my view, however, the freedom of association that ‘everyone’ has [Section 18], and the right to fair labour practices that ‘everyone’ has [Section 23(1)], clearly entitle soldiers to set up a body such as SANDU to look after their employment interests. I therefore do not consider it necessary to go as far as O’Regan J has done in examining the complex question of whether soldiers qualify as ‘workers’ entitled to the panoply of workers’ and trade union rights set out in Section 23 (2), (4) and (5). Nor do I find it necessary to consider whether defining soldiers as workers entitled to form trade unions, and then denying them the right to strike, to organise in the full sense of the term, to engage in meaningful collective bargaining, or to join trade union federations, might only, in the words of Jackson J, result in ‘. . . a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.’

One can always hope.

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The Free Speech of Government Employees

Last week, the Economic Times carried a story about a proposed change to the All India Service (Conduct) Rules, which would prohibit government officials from “criticising” the government on social media. The Rules already prohibit critical statements on radio broadcasts or in the form of public utterances. In that sense, this change is simply expansionary. It does, however, give us a chance to explore a complex – and unresolved – area of constitutional law: the constitutional rights of government employees. The issue is an interesting one, because in its relationship with its employees, the government assumes two faces: as an employer, with the power to enforce discipline and unity, and as the State, which must respect fundamental rights. The scope of government employees’ rights to freedom of expression and association, therefore, depends upon which of those faces the Courts have considered to be the dominant one, and to what extent.

The story begins in 1957, with the judgment of a Constitution Bench of the Supreme Court in P. Balakotiah vs Union of India. Certain railway employees were terminated under Section 3 of the Railway Services Rules of 1949. Section 3 stated allowed for termination (in accordance with procedure) of an employee who ” is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability.” There was a further proviso that termination or compulsory retirement could be imposed only if in the view of the authority, retention of the employee was prejudicial towards national security. The case of the government was that the employees in question had been involved with communists, and had carried on agitations resulting in a general strike. The employees challenged both the orders of termination, as well as the Rules, alleging violations of Articles 14, 19 and 311 of the Constitution.

With respect to Article 14, the Court rejected the contention that the phrase “subversive activities” was too vague to provide an intelligible differentium, observing that “subversive activities” in the context of “national security” was precise enough. More importantly, however, the Court rejected the Article 19(1)(c) [freedom of association] argument, in the following terms:

“The argument is that action has been taken against the appellants under the rules, because they are Communists and trade unionists, and the orders terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranteed under Art. 19(1)(c). We have already observed that that is not the true scope of the charges. But apart from that, we do not see how any right of the appellants under Art. 19(1)(c)has been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19(1)(c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.”

The reasoning of the Supreme Court can be divided into two prongs. First, the Court holds that since the employees were terminated because of subversive activities (and not because they were associating with communists), Article 19(1)(c) was not attracted. The Court also holds that Article 19(1)(c) would not have been attracted even if the employees had been terminated for associating with communists. The underlying premise (spelt out only partially) is that since there is no antecedent fundamental right to government employment, the government is free to make employment conditional on the requirement that employees do not associate with communists. In this case, therefore, we see that the government qua employer, empowered to determine its own conditions of employment, wins out over the government qua State, which must respect fundamental rights.

The story is then taken up five years later, in 1962, when two Constitution Benches of the Supreme Court decided Kameshwar Prasad vs State of Bihar and O.K. Ghosh vs E.X. Joseph within months of each other. Kameshwar Prasad concerned the constitutional validity of Rule 4A of the Bihar Government Servants’ Rules, which stated that “no Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.” The challenge was only to the prohibition of demonstrations, and not to the prohibition of strikes. On the logic of Balakotiah, this should have been a straightforward dismissal. The Court, however, took a radically different approach, and struck down the Rule as unconstitutional. It started by noting that “the mere fact that a person enters Government service, he does not cease to be “a citizen of India”, nor does that disentitle him to claim the freedoms guaranteed to every citizen.” The Court buttressed this argument by making the textual point that Article 33 of the Constitution specifically allowed the Parliament to modify the application of the fundamental rights chapter to the Armed Forces, forces charged with maintaining public order, and persons involved in intelligence. By omission, therefore, other branches of the government were entitled to the full enjoyment of their Part III rights. Therefore, in order for a restriction upon Article 19(1)(a) or (c) to be valid, it would have to meet the tests of reasonableness under Articles 19(2) and (4).

The State attempted to make the exact argument that had found favour in Balakotiah: that when an employee entered government service, she was deemed to have thereby consented to whatever service conditions the government, qua employer, chose to impose. To press this point, American First Amendment judgments were cited. The Court refused to rely on these judgments, noting that the First Amendment, being framed in absolute terms, had required the US Supreme Court to develop implied limitations to the right to free speech and association over the years, one of which was that of police power. The Indian Constitution, however, specifically stated the conditions under which speech and association could be restricted, and therefore did not allow the Court to traverse beyond the specific sub-clauses of Articles 19(2) and (4) [an aside: this is one of those rare cases where the Indian Supreme Court used the text of Articles 19(2) and (4) to evolve a more speech-protective standard than the American]. Then, Balakotiah was cited before the Court, and the Bench dismissed it in a line, stating that in that case, the validity of the rule had not been challenged. While conceding that the “nature” of the job might require some restrictions upon fundamental rights, such as the right to move freely throughout the territory of India (e.g., if a government servant was posted at a particular place), the Court stressed once more that as a general proposition, government employees had as much right to free speech and association as any other citizen.

Coming to the Rule in question, the Court held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the Rule was over-broad and void. The government’s argument that government servants constituted a specific class of people who needed to be disciplined in order that public order be maintained was also rejected on the ground that there was only one wing of government servants charged with maintaining public order – the police. The Rule, therefore, remained over-broad.

The logic of Kameshwar Prasad was then endorsed in O.K. Ghosh. A government employee was proceeded against for participating in demonstrations “in preparation” of a strike. One of the applicable rules was Rule 4A, which had already been struck down in part in Kameshwar Prasad. The other was Rule 4B, which prohibited government servants from joining associations not recognised by the government. Here, the Court struck down Rule 4B as well, on the same logic. It observed that:

“[Rule 4B] virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Association is withdrawn or if, after the Association is formed, no recognition is accorded to it within six months… Can this restriction be. said to be in the interests of public order and can it be said, to be a reasonable restriction ? In our opinion, the only answer to these questions would be in the negative. It is difficult to see any direct or proximate or reasonable connection between the recognition by the Government of the Association and the discipline amongst, and the efficiency of, the members of the said Association. Similarly, it is difficult to see any connection between recognition and public order.”

Notice once again how this logic is directly contrary to that of Balakotiah. While Balakotiah held that Article 19(1)(c) is not even attracted in cases where government qua employer sets the terms of service, Kameshwar Prasad and O.K. Ghosh, on the other hand, held that government qua employer cannot evade the obligations of government qua State, and that therefore, any restriction upon an Article 19(1)(a) or (c) right must be tested under Articles 19(2) and (4), just like you would do for any other citizen. While in O.K. Ghosh the Court conceded that at certain times, service rules dealing with the conduct of government employees could be justified under the public order prong, that determination would be made on a case to case basis, and the standard Article 19(2) – (4) test of proximity would apply.

The last stop of the journey is 1984, and the two-judge bench decision of the Supreme Court in M.H. Devendrappa vs Karnataka Small State Industries. Here, yet again, the Court changed tack. An employee wrote a letter to the Governor of Karnataka, making various allegations against a state corporation, and also issued a press statement. Disciplinary action was taken against him, and he was dismissed from service. The relevant service rules prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation“, and from assisting “any political movement or activity.” This time, the employee’s invocation of Articles 19(1)(a) and (c) were to no avail. The Supreme Court held:

“Rule 22 of the Service Rules is not meant to curtail freedom of speech or expression or the freedom to form associations or unions. It is clearly meant to maintain discipline within the service, to ensure efficient performance of duty by the employees of the Corporation, and to protect the interests and prestige of the Corporation. A Rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a) or 19(1)(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not under challenge. What is under challenge is the order of dismissal passed for violating Rule 22.”

We can start by noting that this is very obviously an incorrect proposition of law. Ever since Bennett Coleman vs Union of India, the Supreme Court had abandoned the “object and form” test for the violation of fundamental rights, in favour of the “effects” test. Consequently, whether a Rule is “designed” to violate fundamental rights is irrelevant; whether, in effect, it – or executive action taken under its aegis – violates fundamental rights is the necessary enquiry.

The Court was then faced with the conflicting precedents in Balakotiah and Kameshwar Prasad/O.K. Ghosh. It wriggled out of the difficulty by a sleight of hand, quoting the following passage in Kameshwar Prasad:

… we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not be itself impose some limitations on the exercise of their rights as citizens.”

It then held:

“Therefore, in Kameshwar Prasad’s case (supra) this Court made it clear that it was not in any manner affecting by the said Judgment, the Rules of Government service designed for proper discharge of duties and obligations by Government servants, although they may curtail or impose limitations on their rights under Part III of the Constitution.”

What the Court in Devandrappa neglected to do, however, was to quote what came immediately after the cited paragraph in Kameshwar Prasad. There, the Constitution Bench had taken two specific examples: that of an income tax officer mandated to maintain secrecy of documents under the Income Tax Act, and an election officer mandated to do the same under the Representation of the People Act. The very narrowness and specificity of these examples directly contradicted the broad interpretation that Devandrappa placed upon Kameshwar Prasad, namely that a fundamental rights challenge could be avoided on the ground of requiring “proper discharge of duties by government servants”. The Court performed a similar sleight of hand with O.K. Ghosh, focusing upon its observation about how discipline and efficiency needed to be maintained among government servants, but then refusing to engage in a proximity analysis under Articles 19(2) – (4). Instead, the Court did the exact opposite, endorsing a breathtakingly broad proposition of law, completely at odds with the Supreme Court’s public order jurisprudence:

“In the present case, the restraint is against doing anything which is detrimental to the interests or prestige of the employer. The detrimental action may consist of writing a letter or making a speech. It may consist of holding a violent demonstration or it may consist of joining a political organisation contrary to the Service Rules. Any action which is detrimental to the interests or prestige of the employer clearly underlines discipline within the organisation and also the efficient functioning of that organisation. Such a Rule could be construed as falling under “public order” clause as envisaged by O.K. Ghosh (Supra).”

The Court ended by going back to Balakotiah’s original logic:

“In the present case, joining Government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduce necessary for the proper discharge of functions as a Government servant. That code cannot be flouted in the name of other freedoms.”

In sum, therefore, Devendrappa – a two-judge bench – wrongly applied the object-and-form test for fundamental rights violations, and wrongly interpreted Kameshwar Prasad and O.K. Ghosh to uphold far-reaching restrictions upon the free speech of government employees. However, the matter is not so straightforward, because Kameshwar Prasad and O.K. Ghosh themselves changed the law despite being bound by Balakotiah (as a coordinate bench). Kameshwar Prasad – as we have seen – tried to distinguish Balakotiah on the basis that the validity of the rule had not been challenged. However, this was both incorrect and irrelevant. The validity of the relevant rule had been challenged in Balakotiah; and even if it hadn’t, the central logic of Balakotiah – that government qua employer can regulate its terms of service since there is no antecedent fundamental right to government employment – was independent of the vires of any Rule. In other words, therefore, Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotiah, and were then themselves incorrectly interpreted by Devendrappa, giving us, at the end of the day, an initial Constitution Bench decision and a later two-judge bench decision on one side, and two Constitution Bench decisions in the middle on the other.

Here is something, however, that the judgments in Kameshwar Prasad and O.K. Ghosh did not notice. One year after Balakotiah, a seven-judge bench of the Supreme Court decided Re Kerala Education BillRe Kerala Education Bill was the first Indian case to lay down the doctrine known elsewhere as the prohibition of “unconstitutional conditions“. The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. To take a crude example: the Government cannot require you to access subsidies by taking an Aadhaar Card and thereby sacrificing your private data, even though you have no fundamental right to a subsidy.

The doctrine of unconstitutional conditions clearly knocked the bottom out of Balakotiah’s logic. While there is admittedly no antecedent right to government employment, nor can the government make your employment conditional upon your abstaining from exercising your constitutional rights to free speech and association. And this is exactly what was going on in Balakotiah, in Kameshwar Prasad, in O.K. Ghosh, in Devendrappa and in the proposed social media rules.

As a seven judge bench, Re Kerala Education Bill was well within its rights to impliedly overrule Balakotiah. And as a seven-judge bench, its enunciation of the doctrine of unconstitutional conditions has never been overruled. Consequently, it is my submission that Balakotiah no longer holds the field, that Devendrappa was incorrect in following it, and that Kameshwar Prasad and O.K. Ghosh continue to be good law (although for reasons outside the judgments). Consequently, the proposed social media rules ought to be struck down as unconstitutional.

 

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Entry Tax: The Four Constitutional Questions

Karan Lahiri has kindly passed on to me the four questions framed by the nine-judge bench of the Supreme Court in the ongoing Entry Tax case. They are:

  1. Can the levy of a non-discriminatory tax per se constitute infraction of Article 301 of the Constitution?
  2. If the answer to Question No. 1 is in the affirmative, can a tax which is compensatory in nature also fall foul of Article 301 of the Constitution of India?
  3. What are the tests for determining whether the tax or levy is compensatory in nature?
  4. Is the Entry tax levied by the States in the present batch of cases violative of Article 301 of the Constitution and in particular have the impugned State enactments relating to entry tax to be tested with reference to both Articles 304(a) and 304(b) of the Constitution for determining their validity?

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The Governor, the Assembly, and the Court: The Supreme Court’s Arunachal Decision (Guest Post)

(In this guest post, Jahnavi Sindhu decodes the recent Constitution Bench judgment on Arunachal Pradesh.)

Last Tuesday, in a landmark verdict [“Nabam Rebia”], the Supreme Court reinstated Mr. Nabam Tuki as the Chief Minister of Arunachal Pradesh by invalidating the actions of the State Governor that had precipitated a no-confidence vote against Tuki. The core constitutional question before the Court was about the scope of the Governor’s discretionary powers in a system of responsible government. Its judgment is a significant addition to the jurisprudence dealing with the constitutional relationship between the Government, the state legislatures, and the courts.

Facts and Verdict

Briefly, the facts: on 03.11.15, the Governor, on the advice of the Council of Ministers, issued an order summoning the 6th session of the Legislative Assembly of Arunachal Pradesh on 14.01.16. In the interim, however, factional politics raised its ugly head. A notice of resolution for removal of the Speaker of the house was moved on 19.11.15, with a copy to the Governor (coming on the heels of several Congress party meetings regarding dissident factions in the party). These meetings culminated in a petition for disqualification (on 07.12.15), under the Tenth Schedule of the Constitution, of 14 defecting MLAs of the Congress (including the Deputy Speaker).

Subsequent to this, the Governor took two actions that formed the basis of the challenge before the Court. These were:

  1. An Order dated 09.12.15 issued under Article 174(1) of the Constitution, “pre-poning” the Assembly session from 14.01.16 to 16.12.15, and citing the Governor’s constitutional obligation to ensure that the resolution of removal of speaker be considered expeditiously.
  1. A message dated 09.12.15 issued to the Legislative Assembly under Article 175(2) directing that the resolution for removal of speaker be taken up as the first item on the agenda with the Deputy Speaker presiding over the session. Interestingly, the Governor also ordered that “until the session is prorogued, no Presiding Officer shall alter the party composition in the House.”

In response, the State Cabinet issued a resolution on 14.12.15, echoing the opinion of the Advocate-General that the unilateral actions of the Governor were unconstitutional. On the expiry of the notice period under Schedule X, the Speaker went ahead with disqualification proceedings and passed an ex-parte disqualification order on 15.12.15 against the MLAs including the Deputy Speaker, thus altering the party composition in the House. On the same day, the Deputy Speaker set aside this order of disqualification citing, inter alia, the impropriety of the Speaker’s action in taking up disqualification proceedings while the resolution for his removal was slated for the next day. The other faction of the assembly went ahead with the pre-poned session ordered by the Governor on 16.12.15. These proceedings resulted in the removal of the speaker, a no-confidence motion against Nabam Tuki’s Government and a confidence vote in favour of a government led by Kahiko Pul. Though the Petitioners, (the Speaker and some members of the Congress) challenged all the aforementioned orders and proceedings (except the order of the Speaker), they focussed their submission on knocking off the first domino i.e. the unilateral intervention of the Governor in matters of the House.

The Court was unanimous in its ruling in favour of the Petitioner to quash the summons order and message as unconstitutional. The majority opinion of Justice Kehar, Justice Ghose and Justice Ramana (“the majority”) restored status quo ante as on 15.12.15. Justice Lokur, while generally agreeing with the majority, recorded separate reasons for his conclusions. Justice Misra recorded separate reasons on the interaction between Article 179(c) and the Tenth Schedule of the Constitution. However, this post will only focus on the first issue of the constitutional validity of the actions of the Governor, specifically, the reasoning of the majority.

Contentions

In assailing the actions of the Governor, the Petitioners relied on the general scheme of responsible government envisaged in the Constitution that dictates governance be carried out by those who are responsible to the people, i.e. the Council of Ministers collectively responsible to the Legislature. The Governor is a nominated official who performs functions only on the aid and advice of the council of ministers. The Constitution has carefully delineated certain functions and powers which she can exercise in her discretion, but this power cannot be conflated with a general discretionary power to summon the Assembly under Article 174, and to direct the manner of proceedings in the house through messages under Article 175.

The respondents, on the other hand, relied on the broad ambit of Articles 163(1) and (2), which state that:

(1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion

       (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

The Respondents argued that the Governor, unlike the President, is vested with discretionary powers under the constitution to avert perils to democracy of the kind that had arisen in this case. They also took strength from past instances where the Governor’s power to independently summon and dissolve the Assembly under Article 174 was considered valid. The mainstay of the Respondents’ argument was Article 163(2), which specifically vests the final determination of whether a matter falls within the discretion of the Governor with the Governor herself, and therefore bars judicial review of this aspect. The Court, therefore, was not entitled to look into the legality of the two impugned orders at all.

The Constitutional Background

Now, there can be no quarrel with the proposition that judicial review, a component of the basic structure of the Constitution, serves as a form of a check and balance on other organs of the Government and cannot be proscribed by any statute or amendment to the Constitution. However, Article 163 is distinctive for it is an original provision of the Constitution that appears to bar judicial review. The Court too, having recorded this contention of the Respondents, was conscious of the fact that the doctrine of basic structure would not apply to an original provision of the constitution to invalidate this bar on judicial review. Thus, the Court had two options: either to hold that the nature of powers exercised by the Governor in this case did not fall within Article 163(1), or to hold that Article 163(2) cannot be interpreted to mean a complete bar on judicial review. Unfortunately, it is not clear as to which of these lines the Majority tried to toe in their decision.

To answer this question satisfactorily, we need to begin at the beginning. The nature of the office of the Governor was fervently debated in the Constituent Assembly, and the relevant provisions underwent significant changes between 1947 and 1949. Initially, the Governor was intended to be an elected office. On May 31, 1949, the Assembly adopted an amendment changing the mode of selection of the Governor to a mere nomination by the President. Dr. Ambedkar justified this move explaining that, “according to the principles of the new Constitution he [the Governor] is required to follow the advice of his Ministry in all matters.”

The very next day, Article 163 (Article 143 as it then was) came up for discussion. It encountered great opposition on the ground that it gave the governor vast discretionary powers. Dr. Ambedkar once again cautioned, “The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution.” Therefore, Article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.” Thus, it is evident that Article 163 was not intended to be a general source of discretionary power of the Governor but had to be read with those Articles in the Constitution that grant express discretion to the Governor in respect of a function or power – an enabling provision, akin to Article 355.

Now, at that time, Article 174 (i.e., the provision that grants the power to the Governor to summon the House, and was invoked by the Governor in this case) was one such provision that specifically used the phrase the phrase “Governor, in his discretion.” However, the provision was amended on June 2nd 1949 to delete “in his discretion”, on the ground that the provision to this extent was “inconsistent with the scheme of a constitutional governor.” Similarly, the phrase “in his discretion” was deleted from Article 164 and Article 200 of the Constitution, and later, on August 3rd 1949, from Article 188, which gave discretion to the Governor to temporarily take up the administration of the State in the event of a constitutional breakdown in the State. Thus it is clear, that eventually, the Constituent Assembly was of the opinion that the Governor was not supposed to have any discretionary powers as under Article 163(1) in respect of these provisions, specifically Article 174.

Over time, however, the judiciary read in “discretionary powers” into these provisions to specify certain situations where the Governor would be obliged to disregard the advice of the Council of Ministers or act on his own if the advice is not available. This judicial determination took root in Samsher Singh where the majority ruled that the Governor must only act on advice of the council of ministers. However, in paras 54 and 55, the Court adverted to Articles 200 and Article 356 to hold that under these provisions the Governor would be entitled to disregard the advice of the council of ministers. The concurring opinion of Justice Krishna Iyer and Justice Bhagwati put forth a longer list that included dismissal of a government that lost its majority, and the dissolution of the house if a government has lost its majority under Article 174. Over time, this list of “exceptional powers” has been expanded by cases and advisory reports such as the Sarkaria Commission and Justice Punchii Commission to include situations where the advice of the Council of ministers is not available, or situations dictated by propriety and constitutional necessity. Specifically Article 174 has been included in this list to the extent that the Governor can summon the assembly for a floor test when the Chief Minister who seems to have lost majority refuses to do so, or dissolve the assembly when a Government loses majority.

Therefore, the key question that needs to be posed at this stage, which has not been definitively considered or answered by the Supreme Court in any case till date, is whether these implied powers (read into the Articles by the Supreme Court) of the Governor would be covered under Article 163(1) so as to be hit by the bar upon judicial review under Article 163(2)?

The Majority Opinion and its Discontents

Interestingly – and almost paradoxically – the Majority does seem to think so. In para 143, where the majority summarises its conclusions in six points, the first point states the “measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).” Thereafter, apart from express provisions of the constitution that grant the Governor such discretion, in points three and four, the majority holds that the Governor “can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise” and “in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest.” A reading of Article 163 would establish that once a Governor exercises discretion covered under Article 163(1), the bar to judicial review under Article 163(2) would be attracted. Therefore, the Majority holds that “the finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.”

Thus, irrespective of the contentions of the parties, once the Court concedes that a particular power is within the discretion of the Governor under Article 163(1) the bar of judicial review under Article 163(2) is attracted. By the Majority’s own admission in para 151, Article 174 is a provision that encompasses situations where the Governor would have to exercise discretion as discussed above, thus perhaps attracting the bar of judicial review under Article 163(2) if the Governor chooses to act in his discretion under the provision.

Perhaps, this can be countered by arguing that the majority meant that the Governor has implied discretion in respect of certain situations as opposed to provisions. For instance, the Governor will have the discretion to summon the House for a floor test and not a general discretion to summon (which is what happened in the present case), such that only the former falls within “discretion” under Article 163(1). This strained interpretation of Article 163 is difficult to accept. The rationale of Article 163 was to specify those provisions or powers which the Governor was to exercise in her discretion and to leave to her to decide the occasion and manner of the exercise of discretion. Thus, the Court having characterised the power to summon as a discretionary power under Article 163(1), could not provide a satisfactory reason for overcoming the bar of judicial review under Article 163(2). There is an attempt to further do so in point five of the majority’s conclusions where they hold, “any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.” Unfortunately, this solitary line on why Article 163(2) does not serve as a bar on judicial review only provides cold comfort.

‘Discretion’ and the Concurring Opinion

It is clear that the problem is rooted in the characterisation of these implied powers as ‘discretion’, which attracts the terms Article 163(1). And this, in my view, is where the flaw lies in the opinion of the Majority, which draws it into its dilemma. Contra the Majority’s belief, discretion under Article 163 was intended to have a very specific connotation. As admitted in the Constituent Assembly, the provision was copied from Section 50 of the Government of India Act, 1935. The provisions are almost in pari materia, with the exception that Section 50 of the Government of India Act refers to both ‘discretion’ and ‘individual judgment’ of the Governor. From the debates on Section 50 it can be garnered that both terms were intended to have distinct meaings- ‘discretion’ connoted areas of governance where the governor was supposed to act without the advice of council of ministers, areas which were reserved for the Governor. On the other hand, the exercise of ‘individual judgment’ of the Governor would arise in situations wherein the Governor was normally supposed to act on the aid and advice of the Council of Ministers but circumstances existed compelling the Governor to disregard or dissent from the advice of the Council of Ministers. This distinction has been recognised by Justice Lokur in his separate opinion. In para 125, he holds that there are three exceptions to the rule that the Governor is bound by the advice of the Council of Ministers: first, discretion conferred by the Constitution (i.e. as per express provisions in the Constitution); second, discretion conferred under the Constitution (i.e. from rules made under the Constitution such as the Rules of Procedure under Article 208) and third, individual judgment in instances specified in the constitution. Justice Lokur explains that B.N. Rau was conscious of the distinction between discretion and individual judgment of the Governor while inserting Article 163 in the first draft. Further, that this distinction continues to be maintained under the Constitution under Article 371-A and Article 371-H and has found mention in the Sarkaria Commission Report. On this basis, in para 20, Justice Lokur holds that Article 163(2) cannot be all pervasive and will only apply in respect of discretion exercised in terms of Article 163(1) (that is, discretion specified by the Constitution).

Under Article 174, the power to summon is ordinarily supposed to be exercised as per the aid and advice of the council of ministers the Governor can disregard this advice only in limited circumstances. Therefore, it is submitted that the power of the Governor in this respect falls within his individual judgment and not his discretion. Therefore, it also falls outside the scope of Article 163(1), and is not hit by the bar under Article 163(2). Indeed, to hold that the implied power to summon the assembly in certain situations would amount to exercise of ‘discretion’ by the Governor would also go against the express intention of the Constituent Assembly which specifically removed the phrase ‘in his discretion’ from Article 174.

Their reasoning notwithstanding, the majority and concurring opinion appear to converge on the conclusion that these implied powers or functions when exercised by the Governor would be subject to judicial review of the same standard afforded to other constitutional functionaries as held in the cases of BP Singhal v. Union of India and Kihoto Hollohan v. Zachilhu. On facts, the majority notes that the decision of the Governor can be faulted on the ground of constitutional impropriety since the Governor has no formal role to play in the removal of the Speaker or disputes between the political parties. The Majority seems to limit the formal role of the government to if and when the situation escalates to a point where the Government has seemingly lost majority to summon a floor test. However, in this case it is evident that the Governor’s actions were pre-mature for he failed to pause to engage with the Council of Ministers to discuss any possibility of pre-poning that the Chief Minister could refuse in the first place. Justice Lokur’s opinion further supplements the findings on constitutional impropriety by noting that the Governor in fact ignored the resolution of the Cabinet denouncing the Governor’s actions. This demonstrates that the Court was conscious that it was entering a seemingly political arena only after all political negotiations between the constitutional functionaries had failed to yield an amicable result.

In all, the decision of the Supreme Court in Nabam Rebia is a welcome development in the jurisprudence of the Court in adjudicating scenarios that warrant a balance between exigencies of governance and the constitution.

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The Supreme Court Upholds Reservations in Promotions for Disabled Persons

In an interesting judgment handed down at the end of last month, a two-judge bench of the Supreme Court considered the question of reservations in promotions for disabled persons.

The Prasar Bharati Corporation (a State employer) has four classes of posts – A, B, C, and D. These posts are filled up in three ways – through direct recruitment, promotion, and partly direct recruitment and partly promotion. Now, under Section 33 of the 1995 Persons With Disability Act, the Government is required to provide at least three percent reservation in “Identified Posts” for persons with disabilities. In pursuance of this, Prasar Bharati issued two office Memoranda. Certain posts in each of the four classes were selected to be the “Identified Posts”; however, while for Classes C and D, the reserved category posts could be filled up through any of the three means (promotion, recruitment, and partial promotion/recruitment), under Classes A and B, reserved posts could be filled only through recruitment. In other words, the Memoranda denied reservations in promotions to disabled employees working in Class A and Class B posts.

The legality of this denial was challenged. It was argued that since a number of posts in Class A and B were filled through promotions, effectively, disabled persons were being denied equality of opportunity.

The State’s response was this: in Indra Sawheny v Union of Indiathe Supreme Court had held that reservations in promotion were impermissible under Article 16(4). Subsequently, To get around this, Parliament then amended Article 16(4) by inserting 16(4A), which specifically authorised reservations in promotions for certain Scheduled Castes and Scheduled Tribes. 16(4A), therefore, excepted only SC/STs from Indira Sawhney’s rule against reservations in promotions. That rule would continue to apply to all other classes of employees, including persons with disabilities.

The basic premise of the State’s argument, therefore, was that the authority for reservations was contained within Article 16(4) of the Constitution. If that was the case, then Indra Sawhney’s interpretation of 16(4) – that it did not allow for reservations in promotions – would hold the field, and prevent the two-judge bench from reaching a different conclusion.

The Court rejected the argument on the basis that Article 16(4) was not the authority for reservations under the Constitution. It did so by going over the history of affirmative action jurisprudence: In its earlier years, the Court had held that Article 16(4) is an exception to Article 16(1)’s guarantee of equality of opportunity. In other words, the default position is a formal equality of opportunity, and Article 16(4) specifically departs from that by permitting the State to make reservations in aid of backward classes. However, starting with Justice Subba Rao’s dissenting opinion in T. Devaadan, through N.M. Thomas, and finally in Indira Sawhney, the position changed, with the Court now taking the view that Article 16(4) was an instance of, or an emphatic expression of, Article 16(1). That is, Article 16(1) involved a commitment to substantive equality (or, in the words of Justice Mathew, proportional equality), and Article 16(4) illustrated one specific way in which that substantive equality could be achieved.

The corollary of this is that Article 16(1) not only permits, but actively contemplates, reservations. So far (to my knowledge), the Court has been circumspect about this conclusion. In the disability judgment, however, Justice Chelameswar takes the logic to its explicit conclusion. In paragraph 21, he notes that:

“Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1).”

He then arrives at the inescapable conclusion that:

Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”

This judgment is a good example of how the seemingly abstract shift in the Court’s jurisprudence from “exception” to “facet”, starting with Justice Subba Rao’s radical dissent in Devadasan, to Justices Mathew and Krishna Iyer’s perceptive exploration in N.M. Thomas, and finally the culmination in Indra Sawhney, has a very tangible, real-life impact. The exception-facet shift changes the locus of reservations from 16(4) to 16(1), and allows the State to escape the straitjacket of “backward classes“, and the accompanying judicial restrictions that have crystallised over the years. This is the practical result of the transformation of the concept of equality.

That said, there are certain parts of the judgment that are slightly confusing. In paragraph 18, Justice Chelameswar observes that “the principle is that the State shall not discriminate (which normally includes preference) on the basis of any one of the factors mentioned in Article 16(1)”; then, in paragraph 21: “however, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16(1) as the basis.”

These factors, however, are not found in Article 16(1), which simply guarantees equality of opportunity in matters of employment under the State. They are found in 16(2), which states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State…” Presumably, Justice Chelameswar meant Article 16(2). However, once it is established that the equality principle animating Article 16(1) (and therefore, by extension, Article 16(2)) is the principle of substantive equality, it is not clear to me why Article 16(2) prohibits the reservation on the basis of its stipulated markers. Surely if reservations flow from a substantive vision of equality itself (as set out in Article 16(1)), the phrase “discriminated against” in Article 16(2) is also meant to be interpreted in that substantive manner, and therefore, reservations for subordinated religions, castes (or women, for that matter) are permitted under Articles 16(1) and 16(2)?

Be that as it may, the Supreme Court’s judgment is clear, sharp, and lucid on the legal issue, and demonstrates how substantive equality operates in doctrine and practice. It will be interesting to see whether and to what extent future reservation judgments follow this model.

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Notes from a Foreign Field: Read and Contribute to the Constitutional Court Review

Constitutional Court Review – Now Available for Free Online Download

 All volumes of the Constitutional Court Review can now be read for free on an open access, dedicated website at: www.constitutionalcourtreview.co.za. Print versions of Volume V (and all forthcoming issues) can also be purchased directly from Juta Law at https://jutalaw.co.za/products/constitutional-court-review.

Constitutional Court Review, an accredited, peer-reviewed international journal of record, tracks the work of South Africa’s highest court. Renowned domestic and international authors reflect on recent case law in order to assess more general, long-term trends in the Constitutional Court’s jurisprudence.

Both the Academy of Science of South Africa and the Department of Higher Education and Training have recognised the Constitutional Court Review as a truly remarkable publication. They noted the high calibre of writing, the global sweep of institutions represented and its clear commitment to demographic representivity and the development of aspirant academics. A number of highly rated National Research Foundation academics serve as editors on an impressive editorial committee.

A complete list of the contributors is beyond the scope of this letter, but a full compendium would embrace: Frank Michelman (Harvard); Tshepo Madlingozi (Pretoria); Andre Van Walt (Stellenbosch); Karl Klare (Northeastern); Cora Hoexter (Witwatersrand); Dire Tladi (United Nations); Sanele Sibanda (Witwatersrand); Sujit Choudhry (NYU/Berkeley); Samuel Issacharoff: (New York University); Theunis Roux (New South Wales); Martin Krygier (New South Wales); Katharine Young (Boston College) David Landau (Florida State); Anton Fagan (Cape Town); Steve Ellmann (New York); Chris Mbazira (Makerere); Cathi Albertyn (Witwatersrand); Drucilla Cornell (London/Rutgers); Pierre De Vos (Cape Town); Nico Steytler (Western Cape); Lilian Chenwi (Witwatersrand); Heinz Klug (Wisconsin); Conrado Hubner Mendes (Sao Paulo); David Bilchitz (Johannesburg); Geo Quinot (Stellenbosch); Lucy Williams (Northeastern); Redson Kapindu (Judge, Malawi); Denise Meyerson (Melbourne); Daria Roithmayr (Southern California); Rosalind Dixon (Chicago); Christian Courtis (United Nations); Tom Ginsburg (Chicago); Okyerebea Ampofo-Anti (Webber Wentzel); Wessel Le Roux (Western Cape); Mkhululi Stubbs (Advocate, JHB Bar); Brian Ray (Cleveland Marshall); Jackie Dugard (Witwatersrand); James Fowkes (Yale); Michael Dafel (SAIFAC); Mia Swart (Johannesburg); Thomas Coggin; (Witwatersrand); Ngwako Raboshakga (Edward Nathan Sonnenbergs); Catherine O’Regan (Constitutional Court Justice, Emeritus); Geoff Budlender (Advocate, Legal Resources Centre (founder); Vanessa Barolsky (Human Sciences Research Council); Bonita Meyersfeld (Witwatersrand); Franziska Sucker (Witwatersrand); Juha Tuovinen (European University Institute); Karthy Govender (KwaZulu Natal); Ben Winks (Webber Wentzel).

The Constitutional Court Review enjoys the support of a number of institutions. The Konrad Adenauer Stiftung, the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (a Centre of the University of Johannesburg), Constitutional Law of South Africa generally solicits essays, articles, responses and comments by formal invitation, the journal also and the University of the Witwatersrand provide the funding necessary to produce the Constitutional Court Review.

While the journal publishes voluntary submissions. To contribute, please email Professor Stu Woolman at stuart.woolman@wits.ac.za or woolmanstu6699@gmail.com.

 

 

 

 

Yours Sincerely,

The CCR Editorial Team

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Privacy and Functional Constitutionalism

“… the functional–pragmatic view is normative… in the… sense of making predictions about the necessities acting on present practices. It could claim, for instance, that the commitments laid out in the [Constitution] cannot be consistently met without a further right to privacy. This would be a functional argument: a right to privacy is necessary to protect speech and property and to prohibit unreasonable search and seizure and self-incrimination. Such a move displaces the normative burden to a conception of dysfunction —to the idea that the difficulties encountered by democratic practice will undermine it if they are not resolved. The functional–pragmatic view reveals contradictions implicit in such practices and makes the claim, for example, that “if you’re really serious about protecting free political speech, you must institutionalize something functionally equivalent to a right to privacy.” In the case of free speech and the right to privacy, then, we would have to know when speech was not being properly protected and how a right to privacy could ameliorate the situation. A sound analysis of the particulars of the case would provide a functional argument for such a right. Absent some observable dysfunction, however, no such argument could be made.”

Kevin Olson, ‘Do Rights Have a Formal Basis?’ 11(3) The Journal of Political Philosophy 2003, pp. 284 – 285.

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