The Supreme Court’s Triple Talaq Judgment

Today, a narrowly divided Supreme Court held that the practice of instantaneous triple talaq (talaq – ul – biddat) [hereinafter “triple talaq” for short] which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid. On the outcome, the Court split three to two: Justices Nariman, Lalit and Joseph in the majority, with the Chief Justice and Justice Nazeer dissenting. However, Justice Nariman (writing for himself and Justice Lalit) and Justice Joseph used different – and partially contradictory – reasoning to arrive at the conclusion. With what is effectively a 2 – 1 -2 split, there will be considerable controversy over what, precisely, the Supreme Court held in this case. Before discussing the different opinions, therefore, it will be useful to provide a brief overview.

The constitutional status of triple talaq depended, in part, upon its legal status. In particular, there was a dispute over whether triple talaq had been codified into statutory law by the 1937 Muslim Personal Law (Shariat) Application Act. This was important, because all statutes are subject to fundamental rights. However, under existing jurisprudenceuncodified personal law is exempt from fundamental rights scrutiny. Therefore, if the 1937 Act did codify triple talaq, then the Court could examine whether it was consistent with the Constitution. If it did not, however, then the Court would have to ask whether triple talaq was part of Muslim personal law; and if so, whether to uphold its existing jurisprudence exempting personal law from fundamental rights scrutiny, or to reconsider it.

Within this framework, this is how the Court’s three judgments mapped out:

A. Does the 1937 Act codify triple talaq under statutory law?

Yes: Nariman and Lalit JJ

No: Kurien Joseph J., and Khehar and Nazeer JJ

A1. If the answer to A is yes, then does triple talaq (as codified by the 1937 Act) violate the Constitution?

Yes: Nariman and Lalit JJ (Article 14)

No: _____

N/A: Kurien Joseph J., and Khehar and Nazeer JJ

B. If the answer to A is no, then is triple talaq part of Muslim personal law – that is, is it uncodified Muslim personal law?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J

N/A: Nariman and Lalit JJ

B1: If the answer to B is yes, then can triple talaq be tested under the Constitution? 

Yes: ______

No: Khehar and Nazeer JJ

N/A: Nariman and Lalit JJ, Kurien Joseph J

C. In any event, is triple talaq protected under Article 25 as an “essential practice” of Islam?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J., Nariman and Lalit JJ.

Therefore:

A majority of three judges held that the 1937 Act did not codify triple talaq. Beyond that, however, there is no clear majority for any consequential legal proposition in this case (apart from a momentous change on the legal status of the doctrine of arbitrariness, which I shall deal with in a separate post). Justice Kurien Joseph – the “swing vote” in this case – agreed with the dissent that triple talaq had not been codified by the 1937 Act. This was at odds with the foundation of the judgment of Justices Nariman and Lalit, who held that the 1937 Act did codify triple talaq. However, Justice Joseph then disagreed with the next step in the dissent’s reasoning, which was the proposition that triple talaq was part of Muslim personal law (this, naturally, brought him into agreement with Justices Nariman and Lalit on the issue that triple talaq was not an essential or integral aspect of Islam, and therefore protected under Article 25 of the Constitution). What we therefore get, at the end of the day, is a majority in terms of outcome (3:2), a different majority on the interpretation of the 1937 (3:2) Act, but no majority for the reasoning leading up to the outcome.

The Judgment of Nariman J (joined by Lalit J)

Justice Nariman began by noting that talaq – ul – biddat was only one of the many permissible forms of divorce under Islamic law, and a strongly disapproved one at that (paragraph 9). With this brief background, he analysed the 1937 Act. Noting the Statement of objects and Reasons of the Act, which recognised a demand from the Muslim constituency that “Muslim Personal Law (shariat) should be made applicable to them.” Section 2 of the Act then stated that “Notwithstanding any custom or usage to the contrary… regarding… marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat… the rule of decision in cases where parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Nariman held that the plain meaning of Section 2 was that, after 1937, the shariat was accorded statutory sanction in India. Or, to put it in simpler language, after the 1937 Act, what made the shariat legally enforceable in India (as applied to Muslims) was the 1937 Act. Before the 1937 Act, colonial judges were applying and enforcing the shariat (presumably) directly as religious sanctions, drawn from the Quran, the Hadith, and other authoritative texts. The 1937 Act, however, now mediated between Islamic scripture and its application in concrete cases.

It was argued by the Muslim Personal Law Board that the opening words of Section 2 – “notwithstanding any custom or usage to the contrary…” implied that the purpose of the 1937 Act was not to enforce Shariat, but to remove “custom and usage” as sources of Islamic personal law. Justice Nariman swiftly rejected this argument, holding that to allow a non-obstante clause to determine the interpretation of a Section that was otherwise unambiguous, would amount to “the tail wagging the dog” (paragraph 16).

Consequently, Justice Nariman was able to conclude that the 1937 Act (which included the statutory sanction of triple talaq) “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.” (para 21). In other words, if the Court found that the practice instantaneous triple talaq violated any constitutional provision, then to the extent that Section 2 of the 1937 Act authorised it, it would be unconstitutional and void.

This would be true, of course, unless triple talaq was saved by any other constitutional provision. The Muslim Personal Law Board argued that it was saved by Article 25, which guaranteed the freedom of conscience and religion. Justice Nariman rejected this argument, pointing out that under Indian jurisprudence, Article 25 only protected “integral” or “essential” aspects of religion. In view of extensive and uncontroverted religious authority holding that triple talaq was an “irregular” way of conducting divorce, it could not, under any circumstances, be held to be an essential aspect of Islam (or under the Hanafi school of Islam, which practiced it) (paragraph 25).

Having strongly affirmed that it was the duty of the Court to strike down unconstitutional laws, and not leave the task up to Parliament (paras 26 – 30), Justice Nariman then came to the core of the case – the examination of the constitutionality of instantaneous triple talaq (paragraph 31 onwards). Focusing on Article 14 of the Constitution, he asked whether a law or a statute could be invalidated on the ground of “arbitrariness” (for a summary of the constitutional controversy on this point, see Mihir’s guest post here). After a detailed and technical discussion, Justice Nariman found that arbitrariness had always been a ground of legislative review under Article 14 (paragraphs 32 – 55), and judgments that held to the contrary were incorrectly decided.

The standard of arbitrariness required that if a law was “disproportionate, excessive… or otherwise manifestly unreasonable“, then it would be struck down under Article 14 (paragraph 45). Applying the standard to instantaneous triple talaq, Justice Nariman then held, in his concluding paragraph:

“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”

Three things stand out in Justice Nariman’s judgment. The first is his refusal to consider the question of whether personal laws are subject to the Constitution (although, in paragraph 22, he specifically casts doubt on the correctness of Narasu Appa Mali, and opines that it might need to be reviewed). In a guest post on this blog, Praharsh Johorey argued that the triple talaq case was an ideal opportunity to reconsider a judgment as clearly wrong as Narasu; elsewhere, I argued that a judgment invalidating triple talaq could either do it narrowly, through the 1937 Act and the essential religious practices test, or by taking a broad route, and reversing Narasu Appa Mali. Justice Nariman chose the narrow route, and in that sense, there is a feeling of a remarkable opportunity missed. To be fair, technically, it is difficult to fault him for this: once he had held that the 1937 Act codified Muslim personal law, there was no need for him to consider any other question. On this blog, I have often argued that judges should not go charging like wild horses over constitutional terrain, and ought to decide cases on the narrowest grounds available to them. I cannot, in good faith, criticise Justice Nariman for doing precisely that. Nonetheless, the sense of regret remains.

The second issue is Justice Nariman’s reliance upon the essential religious practices test to deny triple talaq the protection of Article 25. On this blog, I have tried to point out before that ERP is both constitutionally unprincipled and impractical, because it involves a secular Court making ecclesiastical judgments. I am not alone in this criticism: for the last four decades, ERP has been criticised by both scholars and practitioners; apart from a dissenting judgment by Justice Lakshmanan in 2004, however, it has never been seriously challenged within the judiciary. This case marked an ideal starting point for the Court to jettison this seriously flawed approach, and hold – along with Ambedkar in the Constituent Assembly Debates – that Article 25 simply wasn’t applicable to the laws of marriage, divorce, inheritance, which had a tangible impact upon the civil status of parties; in other words, one cannot, under the cover of religion, claim a vast domain of human life off-limits from constitutional values. As Ambedkar had said:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

In this second sense, the judgment represents a chance missed.

And thirdly, it appears to me that – notwithstanding his spirited revival of the doctrine of arbitrariness – Justice Nariman’s constitutionality analysis misplaces priorities. The core problem with instantaneous triple talaq was not its arbitrariness, but how, in giving men a unilateral power of instant divorce, it discriminated against Muslim women. It was more a question of unequal power and inequality (Article 15) than the rule of law (Article 14). Again, technically, one cannot fault the reasoning; in a broader sense, however, it seems to have achieved the right outcome, for the right reasons, but perhaps not… the best reasons.

The Judgment of Joseph J (for himself)

Justice Joseph wrote a brief judgment. He held that the Supreme Court, in Shamin Ara, had already held that “instantaneous triple talaq” was invalid under Islamic law (paragraph 1). It was necessary for him to carry out this analysis, because – in his view – the 1937 Act only made Islamic personal law applicable to Muslims, but was “not a law regulating talaq.” (paragraph 4) Noting that the primary authoritative source for Islamic personal law was the Quran, Justice Joseph then examined the Quranic suras that dealt with talaq, and found that:

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” (paragraph 10)

Justice Joseph then cited multiple High Court judgments, leading up to the Supreme Court judgment in Shamin Ara, which had affirmed this proposition (paragraphs 11 – 23), and concluded that:

“Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

It is important to note that Joseph J. expressed no opinion on the question of whether uncodified personal laws are subject to the Constitution, and therefore, there is no majority in this judgment that supports that point of view. In paragraph 5, he made the limited observation that “I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.” That is, his disagreement with Nariman J. was limited to the question of whether triple talaq, through the 1937 Act, could be tested under Article 14; however, since Nariman J. himself expressed no opinion on whether, if triple talaq remained uncodified, it could be tested under Article 14 (by overruling Narasu), Justice Joseph could not possibly have disagreed with him on this point, because there was nothing to disagree with.

That said, Justice Joseph’s analysis of Section 2 of the 1937 Act does not seem correct. The distinction between the 1937 Act enforcing the shariat, and the Act “regulating” triple talaq, is irrelevant to the constitutional analysis. What matters is not that the procedure of triple talaq is contained in a statute, but that the source of authority of triple talaq is a statute. The moment that is conceded, the statute in question – and along with everything that it authorises – becomes subject to Part III and the Constitution. On this issue, Justice Nariman’s view appears to be the correct one.

The Judgment of the Chief Justice (for himself and Justice Nazeer)

The Chief Justice’s judgment has the merit that, after page 176, when the recording of submissions ends, and the analysis begins, it is clear and easy to follow. That, however, is its only merit. The judgment advances novel constitutional propositions unsupported by the constitutional text, history, or precedent, and it severely undermines the constitutional balance between individual rights and religious precepts.

The Chief Justice began by noting that the sources of Islamic personal law are not limited to the Quran (paragraph 121), and that, in fact, all parties have agreed that talaq – ul – biddat is “bad in theology but good in (Islamic personal) law” (paragraph 127). Declining to go into an interpretation of rival hadiths provided by both parties, he noted that:

“The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that – before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case1 as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that ‘talaq’ had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of ‘talaq-e-biddat’, has been very much prevalent, since time immemorial.” (paragraph 144)

And:

“We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.” (paragraph 145)

The problem with this argument is that paragraph 145 does not follow from paragraph 144. Under the essential religious practices test, as applied by the Supreme Court over time, not everything sanctioned by religion is integral to it. The Chief Justice slid seamlessly between noting that instantaneous triple talaq is practiced by Indian Muslims as a part of their religion, to holding that is an essential part of it, without showing independently that the threshold of ERP has been met. Recall that the Supreme Court has held, in the past, that neither worshipping at a mosque nor cow-slaugher on Id, are integral parts of Islam, on the basis that Islam does not mandate either practice. Under this standard, in this case, it would under the ERP, it would have to be shown that Islam mandated instantaneous triple talaq. This, the Chief Justice did not show; and while I disagree with the ERP test, given that the Chief Justice had chosen to apply it, I think it important to point out that he applied it incorrectly.

The Chief Justice then advanced a proposition that is utterly bizarre. In paragraph 146, he said:

“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.”

Notably, no authority is advanced to support this proposition. That is because there is none. No Court has held that “personal law” is a fundamental right. In fact, that sentence is incoherent – how can “personal law” have the “stature” of a “fundamental right”? Rights under Article 25 belong to individuals, not to “laws”. More importantly, Article 25 does not confer constitutional protection upon personal laws. It guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

To go from “all persons are equally entitled to… freely… practice… religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Chief Justice been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of triple talaq, his Article 25(1) right was being violated; such a case, however (apart form being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

Most of all, what is entirely unacceptable about this proposition is that, as the Chief Justice himself observed (in the extract quoted above), marriage affects an individual’s civil status and civil rights. The effect of holding that “personal laws” are protected under the Constitution’s religious freedom guarantee is to grant to religious bodies the power of determining individuals’ civil status (and their civil rights), without constitutional recourse. This seems to be a negation of the very basic meaning of secularism.

The Chief Justice then held that the 1937 Act did not codify triple talaq, but only negated the use of “customs and usages” in adjudicating cases between Muslims (paragraph 156). I have already argued above that this is a flawed reading of the 1937 Act. Consequently, he held that the only limitations upon personal law can be those found in the opening phrase of Article 25(1): “public order, health, and morality.” On this, he noted:

“… it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’. We are also satisfied, that it has no nexus to ‘morality’, as well.

But why? He provided no reasoning for this. If “morality” under Article 25(1) refers to the concept of constitutional morality, then surely gender equality and non-discrimination art part of that definition of morality? And if not, what else does morality mean? What does the Chief Justice think it means, and why is instantaneous triple talaq “moral”? There are no answers.

The other preliminary phrase in Article 25(1) is “subject to… the other provisions of this Part” (that is, Part III). The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 – which triple talaq potentially violates – are only applicable to State action against individuals, and not to private violations of rights (paragraph 165). However, not only does this argument go against the Supreme Court’s recent liquor ban judgment, which the Chief Justice himself signed on to, and which held that Article 21 places an affirmative obligation upon the State to protect fundamental rights – but it also ignores the fact that triple talaq is only legally effective because it is sanctioned by the Courts. Triple talaq does not operate in some parallel, extra-legal domain; rather, it is not only recognised (as an aspect of personal law) by the State, but it can also be enforced through the courts. Therefore, the State involvement is inextricable.

Lastly, the Chief Justice addressed an argument that instantaneous triple talaq violates principles of constitutional morality, which he rejected by reiterating the proposition that personal laws themselves are a part of fundamental rights, and ending with this paragraph:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.” (paragraph 193)

It is a particularly stark irony that Chief Justice needed to replace the word “persons” (which is what Article 25(1) says) with the word “entities”, in order to sustain this unsustainable conclusion.

I have engaged with the dissent at some length, because a 3 – 2 split is a judgment by a hair’s breadth. Had one judge flipped, the dissent would have become the majority. While I feel that the majority opinions could have been stronger on some points, I feel – even more strongly – that the dissent, which elevates personal law to the status of the Constitution, and in fact, elevates it above all other fundamental rights in Part III, would – had it carried the day – done profound damage to the constitutional fabric. It would have fatally undermined the framers’ attempts to frame a secular Constitution, where religion could not become the arbiter of an individual’s civil status and her civil rights, and would, in a single stroke, have set back a long struggle for the rights of basic equality and democracy against the claims of religion.

What this divided judgment means for future jurisprudence dealing with the relationship between personal law and the Constitution, remains to be seen. The question is perhaps more open now than it ever was.

 

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Call for Submissions: The Indian Law Review Literature Review Prize 2017

Indian Law Review hopes to publish at least one Literature Review (of around 10,000 words, including footnotes) in every volume. We envisage a Literature Review will not only comprehensively survey existing scholarship (including out-of-print earlier scholarship) on any discrete area of Indian law, but also organise such scholarship thematically and subject it to critical examination. Locating the scholarship in the context of the development of Indian law in that area will be necessary. Some attention to comparative scholarly and doctrinal debates in other jurisdictions may also be welcome. We expect the Literature Review to be a complete initial guide to any scholar wishing to begin research in that area of law.

We will offer a cash prize of INR 25,000 (Indian Rupees Twenty-five Thousand only) to the author of the entry selected for publication (the prize will be awarded in equal shares if the piece is co-authored). We expect the author to be a published expert in that area of law, or have a PhD in that area, or (at least) be pursuing an advanced PhD in that area. The deadline for submitting a Literature Review for our inaugural Literature Review Prize is 15 October 2017 (submissions made after that date would still be considered for publication, but we reserve discretion over the eligibility of late submissions for this prize). Any shortlisted author must also commit to working with the editors through November 2017 to improve the submission in light of reviewers’ comments and suggestions.

Submissions can be made on our dedicated submissions portal. Contributors are advised to read these Instructions for authors before making any submission. Potential contributors may direct any queries (including the suitability of their chosen area of law for the Literature Review) to our Reviews Editor Dr Arun Thiruvengadam <arun.thiruvengadam@apu.edu.in>.

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The Right to Privacy Hearing: Problems and Prospects

Yesterday, a nine-judge bench of the Supreme Court reserved judgment on the issue of whether there exists a fundamental right to privacy under the Indian Constitution. The case, which arose out of the constitutional challenge to the Aadhaar Scheme (and which has been covered extensively on this blog), was argued over seven days. An informal record of the oral hearings, prepared by two of us, is available here (filter for bias, because both Prasanna and I were representing the Petitioners), and the parties’ written submissions can be accessed on LiveLaw.

As is evident from the record of oral hearings, counsel on both sides, as well as the judges, undertook extensive and divergent intellectual journeys over the seven days, ranging from Aristotle, Descartes and Rousseau, through a century of American Supreme Court jurisprudence, to the European Data Protection Directive. In this essay, however, I’m going to set a very narrow course: I will focus on the two concrete reference questions that necessitated the establishment of the nine-judge bench, and argue that they deserve equally concrete answers. This is not only because judicial discipline – as specified by the Supreme Court in Mirajkar’s Case – requires the Court to cleave closely to the referral questions, but because privacy, which is a notoriously slippery and difficult concept at the best of times, is particularly unsuited to being resolved by an abstract enquiry. In jurisdictions all over the world, privacy jurisprudence has evolved over time, on a case-to-case basis, responding to changes in technology, surveillance, social mores, and ways of being in the world. Nine-judge benches are rare sightings, and whatever the Court decides, its decision is bound to hold the field for a few generations to come. It is therefore particularly important that the Court confine its opinion to the narrowest terms possible, lest, in the absence of any concrete case before it, it nonetheless ends up laying down dicta that will limit or stifle the evolution of privacy jurisprudence for a long time to come.

How then did this case come before a nine-judge bench? On August 11, 2015, while constitutional challenges to the Aadhaar scheme were being made before a three-judge bench, the Union of India argued that the main ground of challenge – the right to privacy – could not be raised, because the Indian Constitution did not guarantee a fundamental right to privacy. The Union of India relied upon two early judgments – M.P. Sharma vs Satish Chandra (1954, 8 judges) and Kharak Singh vs State of UP (1962, 6 judges), which contained observations suggesting that there may not be a fundamental right to privacy. The Union argued that all future judgments – starting with Gobind vs State of MP (1975, 3 judges), which had held that there was a fundamental right to privacy, had been decided by smaller benches, and were therefore not good law. It was in response to this contention that the Court passed an order referring the case to a higher bench, and framing two questions. In paragraph 13, the Court stated:

“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

The two questions, therefore, were concrete and straightforward. First – what was the ratio of M.P. Sharma and Kharak Singh? And secondly, were subsequent cases affirming the fundamental right to privacy correct or not? I will consider each in turn, because the answer to the second depends upon the answer to the first.

M.P. Sharma and Kharak Singh

In paragraph 17 of M.P. Sharma, an eight-judge bench of the Supreme Court observed that:

“When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

It was this observation that was at the heart of the State’s case that M.P. Sharma held against a right to privacy. However, to understand what, precisely, this observation means, it is important to read the case in its context. In M.P. Sharma, the question before the Supreme Court was with respect to the legality of search warrants pertaining to the documents and properties of a company accused of embezzlement of funds. One of the grounds of challenge was that the search warrants violated Article 20(3) of the Constitution (the guarantee against self-incrimination). It was in this background framework that the Court made the above observation, which reads, in full:

A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

The Court made this observation because, as it recorded in paragraph 3 of the judgment, the Petitioner in the case had argued that the prohibition of searches and seizures was “necessarily implied… by certain canons of liberal construction which are applicable to the interpretation of constitutional guarantees. In support of this line of argument, great reliance has been placed upon American decisions in which similar questions were canvassed.”

In particular, the Petitioner had argued that search and seizure of documents amounted to “compelled production”, which violated Article 20(3). To substantiate this analogy, he relied upon decisions of the US Supreme Court interpreting the Fourth Amendment of the US Constitution, which states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In M.P. Sharma, the Court rejected this argument on the ground that “there is no basis in Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same.” (paragraph 17) And it was in the same paragraph that it made the only observations about the right to privacy that are present in this case.

A holistic reading of P. Sharma, therefore, reveals the following:

  1. The holding of the case is that a search or a seizure does not amount to “compelled production” and therefore does not in itself violate Article 20(3) of the Constitution.
  2. The Court rejects incorporating a right to privacy analogous to the Fourth Amendment into Article 23.
  3. M.P. Sharma is silent on the question of whether there might be a right to privacy under other Articles of the Constitution, such as 19(1)(d) or 21.
  4. M. P. Sharma is silent on the question of whether there might be a basis for the right to privacy that is not grounded in principles “analogous to the Fourth Amendment”.

In this context, it is important to note that at the time M.P. Sharma was decided, the American approach to the Fourth Amendment was a property-based one (see Akhil Amar, “Fourth Amendment First Principles”, (1994) 107(4) Harvard Law Review 757, 800), and essentially protected persons against unlawful physical trespass from State agents (Olmstead vs United States (1928), upholding a warrantless wiretap on the basis that it did not involve any physical trespass onto a person’s property). However, subsequently, in Katz vs United States (1967), the Supreme Court abandoned the theory of physical trespass, and held that the Fourth Amendment applies to “persons, not places”, and that there existed “zones” in which every person had a “reasonable expectation of privacy.”

However, in a trio of cases – Griswold vs Connecticut (1965), Eisenstadt vs Beard (1972) and Roe vs Wade (1973) – the Supreme Court evolved a constitutional right to privacy that was not grounded in the Fourth Amendment. In Griswold – which was a case about whether outlawing contraception for married couples was constitutional – the Supreme Court held that the right to privacy was a “penumbral right” under the Constitution. A penumbral right was a right that emanated from a textual guarantee in order to give it “life and substance” (p. 484), and therefore was to be considered part of the textual right itself. The Supreme Court drew out the right to privacy from the textual rights to freedom of association (First Amendment), the guarantee against quartering of soldiers in peacetime (Third Amendment), prohibition of unreasonable searches and seizures (Fourth Amendment), the right against self-incrimination (Fifth Amendment), and the residuary rights clause (Ninth Amendment).

The holding in Griswold was subsequently extended to unmarried couples in Eisenstadt vs Baird, and in Roe vs Wade, which was a case about whether outlawing abortion was illegal, the Supreme Court accepted the logic of Griswold. It held that although there was no “explicit right to privacy” (p. 152), it was implicit in the “concept of ordered liberty” (p. 152). In addition to the Amendments already invoked in Griswold, Roe also invoked the Fourteenth Amendment (the “personal liberty” clause).

In Gobind vs State of MP – which, as discussed above, was the first Indian case to hold in favour of a fundamental right to privacy – the three-judge bench of the Supreme Court relied upon Griswold (paragraph 16) and Roe (paragraph 18), inter alia, to hold that there was a fundamental right to privacy under the Indian Constitution, drawn from Articles 19(1)(a) (“freedom of speech”), 19(1)(d) (“freedom of movement”) and 21 (“right to life and personal liberty”) (paragraphs 28 and 32). It is therefore clear that Gobind in no way went against the binding precedent in P. Sharma. This is because:

  1. M.P. Sharma only rejected importing principles of the Fourth Amendment into Article 20(3)
  2. Gobind was a case that was neither about the Fourth Amendment, nor about Article 20(3)
  3. The right to privacy was in Gobind was based not under Article 20(3), but under Articles 19 and 21
  4. Gobind relied upon American developments in the law of privacy, but not upon American Fourth Amendment law; rather, it relied upon American law that drew out a right to privacy as a “penumbral right”, which was necessary to make other rights – such as the right to freedom of speech and association – effective.

For this reason, it is clear that Gobind – and the forty years of consistent privacy jurisprudence that have followed it – is not inconsistent with P. Sharma. The “ratio” of M.P. Sharma is that search and seizure of documents does not amount to “compelled testimony” under Article 20(3). The ratio of Gobind is that there exists a fundamental right to privacy under Articles 19(1)(a), (d), and 21.

The second case – Kharak Singh vs State of UP – also does not stand in the way. Kharak Singh  was a case involving police surveillance of a “history-sheeter”. Various forms of surveillance – with the exception of “domiciliary visits” were upheld as consistent with the fundamental right to freedom of movement, with the Court remarking at one point that it was not necessary to consider Article 21, since there was no equivalent in India to the American right to privacy.

Kharak Singh was decided by a bench of six judges. In Maneka Gandhi vs Union of India, (1978), a bench of seven judges expressly held that in view of the judgment of the bench of eleven judges in R.C. Cooper vs Union of India (1970) the majority in Kharak Singh stood overruled. Kharak Singh, therefore, was no longer good law after R.C. Cooper. Gobind – and all the cases that followed – were decided after R.C. Cooper, and were therefore not contrary to Kharak Singh.

In fact, Kharak Singh was specifically overruled on a relevant point: in Kharak Singh, the Court followed the approach to interpreting Part III of the Constitution outlined in A. K. Gopalan vs State of Madras (1950) where each individual right in the Constitution was deemed to deal with specific subject matter, to the exclusion of all other rights. It was in this context that the Court held, in Kharak Singh, that after the constitutionality of the police surveillance rules at issue had been considered under Article 19(1)(d), there was no need to consider Article 21, noting that: “the right to privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

It was this exact approach – whereby an impugned law could be analysed under only one constitutional provision – that was rejected by Maneka Gandhi relying upon R. C. Cooper. Consequently, Kharak Singh does not stand in the way of a definitive finding that there exists a fundamental right to privacy under the Indian Constitution.

The Correctness of Gobind and Subsequent Cases

With the shadow of M.P. Sharma and Kharak Singh having been removed, Gobind – and the forty years of consistent privacy jurisprudence that followed it – need only be considered on their own merits. This needs only a brief analysis. We may begin by noting that the absence of a specific textual guarantee is no bar to a finding that a fundamental right exists. Rather,  the right to privacy exists because – as held in Gobind – it is an essential element of Articles 19(1)(a), (d) and 21 of the Constitution. There is extensive literature by now (both judicial and scholarly), demonstrating that the freedom of speech, of movement, and the right to personal liberty would be rendered illusory if there was no accompanying guarantee of privacy (consider, for example, the American judgment of NAACP vs Alabama, where the Supreme Court held that compulsory disclosure of membership lists of a politically unpopular oganisation would stifle the freedom of association).

In this context, it is important to note that the two Constitutions from which the framers of the Indian Constitution borrowed most heavily – the American and the Irish – also did not have a guaranteed right to privacy. In both these jurisdictions, the right to privacy has been read into the Constitution by the judiciary. We have already examined the United States; and in McGee vs Attorney-General [1974], the Supreme Court of Ireland read in a right to privacy as part of the guarantee of “personal rights” under Article 40(3)(1) of the Irish Constitution. The logic of both the Supreme Court of the United States and the Supreme Court of Ireland was that textually guaranteed rights would be ineffective and without force were it not for an accompanying right to privacy. And this was precisely the logic employed by the Supreme Court in Gobind vs State of MP.

There is, therefore, no strong reason for the Supreme Court, in 2017, to turn the clock back and hold that all its judgments, starting with Gobind in 1975, were incorrectly decided, insofar as they held that there exists a fundamental right to privacy under the Constitution.

The Referral Questions

Let us come back to the two referral questions. As I noted at the beginning of this essay, the two questions were concrete and straightforward. After the discussion above, I submit further that they can be answered in an equally straightforward manner.

Answer 1: M.P. Sharma and Kharak Singh do not hold that there is no right to privacy under the Indian Constitution, and to the extent that they do, they are incorrect and deserved to be overruled.

Answer 2: The judgments of this Court, starting with Gobind vs State of MP, supra, and afterwards, which, for the last four decades, have been developing the law of privacy on a case by case basis are correctly decided, and good law.

All other issues – “definitions” of privacy, limitations on the right to privacy, the philosophical basis of privacy, privacy applied to horizontal relations, data protection – are simply irrelevant to the case. A particularly curious aspect of these hearings has been a general impression that the Court is considering these issues for the first time in its history, and is required to hand down a comprehensive judgment settling all possible issues. However, as the referral order was aware, that is not the case. The referral order consciously did not ask the Court to rule in the abstract about whether there existed a fundamental right to privacy, and if so, how it was to be defined, limited and understood (as I have suggested above, such an enterprise, in the abstract, is exceedingly perilous). What the referral order did ask the Court to do was to examine the ratio of one set of cases, and examine the correctness of another set. These two questions can – and should – be answered through a brief, three-paragraph order; everything else should be left to smaller benches of the Court to develop, with the benefit of concrete cases before it.

(Disclaimer: I assisted Mr Arvind Datar, one of the senior counsel representing the Petitioners.)

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ICLP Turns Four :: Some Thoughts on the Office of the Chief Justice and Other Supreme Court Miscellany

The Indian Constitutional Law and Philosophy blog turns four years old today. The last four years have been fairly turbulent: there have been important two-judge bench decisions on diverse facets of civil rights (freedom of speech and expression, equality and the right to vote, homosexuality, and many more); Constitution bench judgments on the judges appointments’ and the basic structure, the freedom of trade, and on the death penalty; seven-judge bench decisions that have upended the jurisprudence on ordinances and have reaffirmed the jurisprudence on electoral speech; a nine-judge bench decision on inter-state taxation (with another nine-judge bench decision on privacy due by the end of the month); a lot of Article 142; and some interesting contributions from the High Courts. On this blog, the attempt has been – and always will be – to analyse, discuss and criticise our courts’ constitutional jurisprudence in a straightforward, forthright and adversarial manner, and with as little technical jargon as possible. The idea is both to hold our justices to account, and to create a forum for open and public discussion about the Constitution.

I have used previous blog anniversaries to discuss issues at the interface of constitutional practice and scholarship in India (for example, the need for doctrinal engagement and problems of access). My concerns arise from my own position at this interface: for three out of four years of the blog’s existence, I have been a practicing lawyer in Delhi, in different forums. From November 2016, I have been at the Supreme Court, and have had a degree of exposure to some of its inner workings.

It is from that perspective that I want to highlight two issues today, which need greater scholarly and public scrutiny than they otherwise get. The first is the Office of the Chief Justice. Although it is rarely discussed, the position of the Chief Justice is one that has tremendous power, and that power flows from two things: The CJI’s discretion in “listing” cases, and the CJI’s discretion in constituting the roster of the Supreme Court.

Let’s take the second issue first. For the most part, the Supreme Court sits in benches of two judges (at present, there are thirteen functioning courtrooms in the Supreme Court – thirteen benches). In most of these benches, the senior judge is rarely crossed by his junior colleague, so effectively, these are one-judge benches. Judges have their individual proclivities when it comes to almost all areas of law: one judge might tend to be pro-labour, another judge might always vote to uphold the death penalty, a third judge might be very skeptical about claims brought to court by big builders. It therefore matters tremendously how the roster is arranged. Readers will recall, for example, that period in the mid-2000s where Justices Sinha and Pasayat were virtually writing duelling judgments on the death penalty – Justice Sinha would commute, Justice Pasayat would affirm; a convict’s fate, often, would depend upon whether his case went up before the former or the latter. Consequently, how the Chief Justice arranges the roster – and what kinds of matters go before which bench – needs to be scrutinised in detail. There needs to be far greater detail paid to judges’ ideological predilections over the course of their judicial career, and how that maps on to the kinds of cases they are assigned to here.

This issue acquires even greater significance in constitutional issues, where larger benches sit. It is the Chief Justice who decides the composition of five-judge, seven-judge or nine-judge benches; it is he who picks, out of the nearly thirty-odd judges on the Court (at any given time), which five, or seven, or nine, will be sitting on a bench. Again, as an institutional issue, this gives whoever occupies the position of the Chief Justice tremendous power to influence the outcome of a decision simply through the act of picking a bench. I am not alleging bad faith, or even saying that this is a bad thing (although, in my view, the fairest outcome would be through a draw of lots); however, once again, it needs to be scrutinised. Who has the Chief Justice picked to hear an important constitutional case about civil liberties? What is the prior record of these judges on the point? Do they have any experience adjudicating such cases before? And so on.

The second power of the Chief Justice is the power to list cases. By now, everyone knows about the huge problems of backlog that are faced by the Supreme Court (and all other courts). This entails a massive queue for cases to be heard: if “leave” is granted in a particular case (see below), it will likely come up for hearing five or six years later. The queue, however, can be broken through an oral “mentioning” before the Chief Justice: at 10 30 in the morning, before hearings start, lawyers line up in Court No. 1 to “mention” a matter before the CJI; in many cases, the “mentioning” is a request for an “early listing”, because of some urgency. The CJI has absolute discretion to allow or deny a mentioning request for an early hearing, just as he has an absolute discretion in deciding when larger benches are to assemble (along with their composition).

The issue, of course, is that certain cases are simply more urgent than others (it’s also important to recall that when it was established, the Supreme Court was primarily expected to function as a constitutional court; constitutional cases now occupy a negligible part of its docket). Through the course of the last year, I’ve chronicled, in particular, the career of two cases where time has been of particular essence (Aadhaar, and the Delhi Govt vs Union of India case). There are cases which, if not heard in good time, effectively entail that one sides wins and the other side loses (The Delhi Govt vs Union of India case is a classic example of this). In such a situation, the CJI’s decision to accept or reject a mentioning request for an early hearing is no longer innocuous: inevitably, it acquires a political dimension. Consequently, it is important to scrutinise what kinds of cases that CJI allows for an early hearing, and what kinds of cases he does not, because the ramifications of delay in our system effectively, at times, amount to deciding a case in favour of one side without ever having a hearing. “Absolute discretion”, therefore, is not good enough.

The issue of how delays end up affecting the outcome of a case brings me to the second point I want to write about: granting leave and interim orders. Let me explain the meaning of “granting leave”. When the Supreme Court was established, one of its functions was to hear appeals from High Court decisions. Not all appeals, however, but only those where there was a substantial and important question of law, or where different High Courts were in disagreement – in short, cases that deserved to be heard by the highest, constitutional court. In most cases, the High Court, when deciding such a case, would issue a “certificate of leave to appeal” to the Supreme Court; i.e., the High Court would itself say that there was an important question of law involved, which the Supreme Court should resolve (if you read some of the old SC cases from the 1950s, you can still see this in the opening line of the judgment). If the High Court did not say so, however, the losing party before the High Court could still petition the Supreme Court for “special leave to appeal” – i.e., convince the Supreme Court that the High Court was mistaken in refusing to grant a certificate of appeal. “SLPs” were supposed to be allowed only in exceptional circumstances (and that is still the position in the UK’s judicial structure). When the Court did allow the SLP, it “granted leave” to appeal. The SLP (Special Leave Petition) was then “admitted”, and became an “appeal”, which would be heard by the SC as such.

As has been chronicled extensively, the SC’s SLP jurisdiction has now snowballed into monstrous proportions (the SC sets apart two days out of the five day week – Monday and Friday – just to hear SLPs). More importantly, however, the SC now disposes off SLPs in two ways: on the first date, it may “issue notice” to the other side, then hear the SLP as an SLP on a fixed date, and dispose it off. Or it may “grant leave” (in the traditional sense); in such a situation, the SLP is converted into an appeal, and it then goes into the five-or-six-year-long queue of appeals. Consequently, in practice, if a bench “grants leave” in a case, it is parking away the case for a few years.

Consequently, the decision to grant leave assumes tremendous consequence, because if the case is not going to be heard for a few years, then during that time, the High Court judgment will continue to hold the field (unless the SC grants a stay); as discussed above, in many cases, this effectively amounts to deciding in favour of whoever is in a better position at the time the case came to Court. However, this position would be reversed entirely if a stay was granted. The High Court’s judgment would cease to operate until the SC decided the case, and the winner in the High Court would suddenly become the loser.

There are two recent examples of this in the domain of constitutional law. In the middle of 2016, the High Court of Patna struck down the State of Bihar’s prohibition law in an extensive and closely-reasoned judgment (the judgment was covered on this blog). The case came before the Supreme Court, where it was promptly stayed (it is reported that Justice Dipak Misra observed that “liquor and fundamental rights cannot go together” while staying the judgment). I have not been able to track down what happened to the case, but there is something particularly troublesome about a detailed, constitutional judgment of the High Court, which was argued at length before that forum, being effectively rendered a nullity in a two-minute hearing at the SC. The other example is what the Supreme Court did with a Gujarat High Court judgment, which had held that denial of tex exemption to a film about homosexuality was discriminatory. On appeal, the SC granted leave and stayed the High Court judgment, meaning that the film lost its tax exemption. As the Indian Express correctly noted at the time, the SC effectively “shelved” the film.

What these cases show us is that “granting leave” and “interim stay” – two legal mechanisms that are supposed to be uncontroversial issues of procedure – are now substantive issues: because of the massive backlog and years-long queue at the SC, these “procedural” decisions often effectively decide peoples’ rights. And this happens without a full hearing or a reasoned judgment (there exists a detailed jurisprudence dealing with when interim stays should be granted, but in my time at the SC, I have rarely – if ever – seen judges invoke it).

My point, therefore, is this: as an institution, the Supreme Court cannot be effectively studied as you would study other constitutional courts: through a close reading of decided cases, legal doctrine, and transcripts of written and oral arguments (recall that transcripts aren’t even available for our Supreme Court). The Indian Supreme Court has to be studied through the actions of the Chief Justice in listing and refusing to list, through the actions of the Chief Justice in constituting benches, through the movement or non-movement of the queue of pending cases, and through judges’ one-line orders granting leave and staying, or refusing to do so.

And this leads to a strange situation: if you’re a traditional legal scholar, working at a university, you will simply be unable to do this. You have to be in Court and a witness to things actually happening to even know what is going on (because much of this is never recorded in the final orders). On the other hand, if you’re in Court every day from 10 30 to 4, a as a practicing lawyer, where will you ever have the time to write high quality legal scholarship?

If there is an answer, I haven’t found it yet.

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Guest Post: A Pulpit or a Courtroom – Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

(Previously on this blog, we have covered the serious constitutional issues arising out of the exclusion of the jurisdiction of the High Court in the ongoing “Coal Block” cases – see here and here. Yesterday, a three-judge bench of the Supreme Court upheld this exclusion. In a guest post, Abhinav Sekhri analyses the judgment. Cross-posted from the Proof Of Guilt blog with permission.)

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court’s order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a “prayer for stay or impeding the progress in the investigation / trial“, and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners’ case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects – (1) Curtailment of the High Court’s power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the ‘coal-block allocation scam’ cases under this special procedure. On all three counts, it disagreed with the Petitioners’ claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt – the issue, was whether it was unconstitutional to deprive the High Court of even this abilityto entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a ‘rarest of rare’ level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions.

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that “it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view.” This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 – most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein – Section 9 of the Criminal Law Amendment Act 1952 – in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court’s jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897]. 

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that “challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court.” The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety – express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand.

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are ‘trifling’ and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says “there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere.” This volte-face is completed at the end of this part of the decision, where the bench says that “there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest“. But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court’s to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled.

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold – the ‘coal block’ cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that “the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused.” There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the ‘classical mould’ of legislation is, this is doublespeak for “the Supreme Court can do whatever it wants” – a highlight of the Court’s White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja – (1) violation of Article 21 by the procedure created by the impugned order, which is not established by ‘law’; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands – the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that “it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. … It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum. 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court.

 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

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Review: Proportionality, Punishment and Judicial Review: A Response to Jeydev C.S.

(This is a guest post by Puneet Dinesh.)

In this Guest Post, Jeydev C.S examines a topical issue given the recent political developments of awarding life sentences and death penalty for cow slaughter. The post revolves around an important legal question: Whether the courts can review the proportionality of punishments linked to a crime?

While Jevdev analyses some crucial questions surrounding the issue, it is an interesting exercise to examine the manner in which the variants of proportionality gets incorporated in different parts of the Constitution.

I. Importing principles from Art. 19 to Art. 21

The post while examining whether the standard of proportionality can be found within Article 19, refers to the Supreme Court’s decision in State of Madras v V.G Row to argue that ‘proportionality’ can be read under the ‘reasonable restrictions’ under Article 19(2). The argument then takes the help of Maneka Gandhi to import the standard of proportionality, found in the ‘restrictions’ under Article 19(2) to Article 21. While Maneka Gandhi allows for a harmonious and combined reading of Article 19 and 21, it is crucial to understand what exactly this means. The question really is, when can a principle under the ‘reasonableness’ test be invoked for a Article 21 challenge? Bhagwati J, in Maneka provides some guidance in this regard:

The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article”.

For Bhagwati J, the challenges under Art. 19 can only be tested, if a freedom under Art. 19 is affected. However, this leaves us in a difficult position- any penal law prescribing punishment ipso facto violates various freedoms under Art. 19. Bachan Singh, when faced with the same question two years later after Maneka, observes that a penal law prescribing punishment cannot affect Art. 19 rights. Interestingly, Bhagwati J, writing his dissent in Bachan Singh two years later after the majority’s opinion, criticizing the majority for applying the wrong test to arrive at the conclusion that Art. 19 rights are not affected, also refuses to answer if a penal law stands to violate Art. 19 rights.

Is there another way to understand the harmonious reading of Art.14, 19, 21 per Maneka? The alternative reading that makes sense is to consider the principles of due process developed under Art. 14 and 19 in an Art. 21 inquiry. It is through this reading, that proportionality as a principle can be examined in an Art. 21 inquiry. It is a different matter altogether (as will be addressed later) the impact of the contents and the variants that proportionality takes within Art. 19 on Art. 21. The limited point being, proportionality as a principle can be considered through the harmonious reading of freedoms under Art. 19 and 21. In fact, a similar reading can be expected in the Canadian and South African Constitutions which subjects all rights to the proportionality standard.

II. Vikram Singh’s discussion on the Eighth Amendment in the United States and ‘substantive due process’

Jeydev’s post later relies on the observations by Vikram Singh on the appropriate standard to examine the proportionality of punishment. Vikram Singh relies on a series of United States and Canada precedents to further the position that proportionality is part of judicial review when the punishment is ‘outrageously disproportionate’. However, in the United States, the Eighth amendment specifically requires the court to examine if the punishment is proportionate to the crime and Section 12 under the Canadian Charter of Rights and Freedoms also provides a right not to be subjected to cruel or unusual punishment. Therefore, the principles evolved for determining proportionality (as discussed in Ronald Allen Harmelin v. Michigan 501 US 957 (United States) and R v Smith (1987) 1 SCR 1045 (Canada)) were due to the legislative mandate provided under the Eighth amendment and Section 12 respectively. It is important to note that a parallel provision is absent in the Indian constitution and the absence has not gone unnoticed before the Supreme Court.

The court in Jagmohan Singh (1972) observed that “…so far as we are concerned in this country we do not have in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply “the due process” clause”. Vikram Singh loses sight of this important distinction and proceeds to import the standard found in United States and Canada. Although Jagmohan Singh was prior to the Maneka Gandhi dicta, statues that define punishments forms part of the substantive due process review. (See Sunil Batra).While Bachan Singh and Mithu might help in arguing for a substantive review of a penal legislation, the bench strength in both the cases was lower than Maneka Gandhi.

The proportionality standard that ends up getting imported in the Indian context through Vikram Singh is nothing different from the Wednesbury standard of reasonableness. On this note, it is important to distinguish two different reviews of proportionality in cases of punishment. First, when the judiciary is reviewing the proportionality of a prescribed punishment in a penal law (Vikram Singh or the recent Bihar High Court’s prohibition judgment) Second, when the judiciary is reviewing the proportionality of a sentence given by a lower court (Santosh Bariyar line of cases). The analysis here is restricted to the former type of review.

III. Whether ‘proportionality’ is a constitutional standard?

The elevation of an administrative law standard as grounds for constitutional review has faced severe criticism from academic circles and the Supreme Court. The Supreme Court in Royappa v State of Tamil Nadu, while adjudicating on an administrative law matter, considered that mere ‘arbitrariness’ is sufficient to constitute an Article 14 violation. As Tarunabh Khaitan, points out, the case laws following this precedent has formulated the ‘unreasonableness’ test in the name of ‘arbitrariness standard’. It is in this context, an analysis on the proportionality test as a constitutional review standard becomes relevant.

Proportionality as an administrative law standard has been a recent addition to the list of standards open to judicial review for administrative actions. Om Kumar (2001) is perhaps the first case to add proportionality to the existing standards of administrative law review. As the court in McDowell noted, in 1996, ‘..The applicability of doctrine of proportionality even in administrative law sphere ..(was)..a debatable issue’ and further proceeded to note that, ‘It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled’. However, the incarnation that ‘proportionality’ has taken at least in the cases challenging the extent of punishment and administrative actions is nothing different from what the ‘arbitrariness’ standard has given us i.e ‘unreasonableness’ test or rather what the Supreme Court calls it the ‘Wednesbury principle of proportionality’.

Wednesbury standard and the proportionality test may constitute different or same standards of review depending on the relevant jurisdiction. In English law, the latter forms a higher threshold than the former, wherein, the proportionality standard involves a four-stage test examining if (a) the objective is necessary to limit a fundamental right, (b) the impugned measure is rationally connected to it and (c) there is minimal impairment of the right to accomplish the objective (d) balancing the rights against the restriction. In India, depending on the context, the proportionality standard has taken both the four-stage test (‘reasonable restrictions’ under Article 19(2)-(6) and the Wednesbury reasonableness (judicial review of administrative actions) approach. This scheme i.e different nature of proportionality tests for a constitutional case and an administrative law case, is worth noting for future evaluation of Vikram Singh.

Wednesbury standard, while consisting of several hierarchical standards internally, requires judicial interference only for decisions that are seriously unreasonable. Inspired by this standard, the Eighth amendment cases picks up on the ‘grossly disproportionate’ test, while the Indian counterpart, sticks to the ‘shockingly disproportionate’ test. Abhinav Chandrachud, analyses a plethora of administrative law decisions where the court uses the phrase ‘proportionality’ standard but ends up employing the Wednesbury standard of review blurring the distinction that Om Kumar had created (See Hazarila).

The four-prong test in the Indian jurisprudence has had a muddled journey so far. Mainly invoked in the context of ‘reasonable restrictions’ under Article 19 (2)- (6), the test has been severely misemployed. As Ashwita Ambast notes here, from ignoring to take certain prongs of the test into account (Brij Bhushan), disturbing the hierarchy of analyses and now, ignoring to apply the test after deliberating on it (Modern Dental College), the four-prong test is yet to be flawlessly applied. The constitutional status of this test was approved as early as in the year 1952 in VG Row. The judgment stresses on the requirement of ‘narrowest limits’ (minimal impairment) and ‘exceptional circumstances’ (necessity) – crucial aspects of the proportionality analyses. The reiteration of this test was elaborately made recently in the NEET judgment by AK Sikhri J. After making a detailed survey of the test referring to comparative sources, the court proceeds to observe the ruling in TMA Pai and PA Inamdar and satisfies itself of the ‘reasonableness’ test without making any analyses on the proportionality test. Therefore, there is very little value in the court’s effort to explore the contours of the four-prong test. The most important and the controversial part of this test is when the court examines if the impugned act is a ‘minimal impairment’ to accomplish the objective. This often requires the court to evaluate comparative sources and put forth its own ideas on what constitutes a ‘minimal impairment’. As seen earlier, Indian courts have shied away from applying this part of the test.

All these discussions, brings me to my core argument: the link between Article 19 ‘restrictions’ and Article 21 to employ the tool of ‘proportionality’

As mentioned previously, the restrictions under Article 19 have always demanded for a stricter proportionality analyses. While the traditional four-prong test might have not been employed, it is rarely the case that they have been substituted to the Wednesbury standard of reasonableness. (See Chintaman Rao). In a constitutional adjudication case, challenging the extent of punishment mandated by the legislation, the court in Vikram Singh and the recent judgment on prohibition of alcohol have employed the Wednesbury standard of proportionality. Therefore, even if one were to source ‘proportionality’ of punishments under Article 19, one cannot lose track of these difficult questions. However, since Vikram Singh’s analyses of proportionality did not originate from Article 19, it might be unfair to attack the judgment on that ground.

Where can we then place ‘proportionality’ as invoked by Vikram Singh in the Indian constitution? Article 14 is perhaps the only, but difficult, place for proportionality to clench. The scope of this essay does not extend to include Article 14 analyses but the ‘arbitrariness’ test developed post-Royappa has been unclear. Whatever one thinks of the dubious link between arbitrariness and inequality under Article 14, there are multiple instances wherein, the arbitrariness has taken the form of the ‘reasonableness’ test. In which case, it becomes easier to add one more administrative law standard i.e proportionality within the folds of Article 14 as the test essentially is one inquiring the ‘reasonableness’ of the impugned clause in the legislation. This link may be crucial to re-engage with the content of the ‘arbitrariness’ standard, a conversation which is much awaited. However, one can’t lose track of the impediments that 2G Reference; Subramanian Swamy and more recently, Rajbhala poses in this endeavor.

While the proportionality analyses for punishment clause stands on a weak footing in Indian constitutional law, it will certainly be interesting to see, the manner in which proportionality (especially, the variant of proportionality) will get invoked and incorporated in the Indian Constitution.

 

 

 

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Book Review: A Question of Design — Chintan Chandrachud’s “Balanced Constitutionalism”

In 1996, a three-judge bench of the Supreme Court was called upon to decide the constitutionality of certain provisions of the Chota Nagpur Tenancy Act of 1908, which effectively excluded women from inheritance in certain areas in Bihar. In Madhu Kishwar vs State of Bihar, a majority of the Court observed that “nonuniformities would not in all events violate Article 14“, and that it was refraining from striking down (this very obviously discriminatory Act) “as this would bring about a chaos in the existing state of law.” Instead, the Court issued “directions” the State of Bihar to “comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.”

Madhu Kishwar vs State of Bihar is an almost incomprehensible judgment to those who think of judicial review as being about protecting fundamental rights and invalidating legislation that violates those rights. The Court upholds a statute with reasoning that would ensure a failing grade in Constitutional Law 101:

“… an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal… however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court’s entering the thicket, it is for better that the court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models.” 

What has any of this got to do with the Constitution, you might ask. In a new book called Balanced Constitutionalism, Chintan Chandrachud argues that judgments of this kind are a feature, rather than a bug, of constitutional systems ostensibly committed to judicial supremacy (that is, Constitutions that grant the judiciary the last word on the meaning and scope of constitutional rights). It is unrealistic to think – or to hope – that judges will not decide cases with a view to the potential practical consequences (even though their protestations are generally to the contrary, and Madhu Kishwar is a bit of an outlier in that “social chaos” is made an express ground for upholding an Act that otherwise appears to violate the Constitution). And when judges are faced with a stark choice between upholding a law or striking it down, they will hesitate from choosing the latter option when it would lead to great disorder in the legal system. In such situations, Chandrachud argues that judges will “mask” their rights-reasoning (that is, their genuine understanding of whether or not the impugned statute violates rights) in order to achieve a sustainable outcome. The system of judicial review-judicial supremacy, therefore, constrains judges from giving effect to their genuine understanding of what the Constitution requires, and crimps judicial reasoning in important constitutional cases.

Introduction

What is the alternative, you might ask. Surely not Parliamentary supremacy, where rights are reduced to “playthings of the majority“? No: the comparison Chandrachud draws is not with pure Parliamentary models, but with the “hybrid” or “balanced” model, the best example of which is the United Kingdom. In the UK, the Human Rights Act effectively codifies the European Convention of Human Rights into domestic law, and allows the Courts to issue a “declaration of incompatibility” in situations where it is absolutely impossible to reconcile domestic legislation with a Convention right (the structure and mechanics of the Human Rights Act are explained by Chandrachud in the opening chapter). A “declaration of incompatibility” is not tantamount to striking down a law: in fact, it has no legal force at all. In theory, the UK Parliament can entirely ignore a declaration of incompatibility, and presumably, the only potential cost will be the (debatable) political cost of having clearly defied a court’s finding that domestic law violates a binding international convention. However, as Chandrachud points out, practice invariably departs from text. Balanced Constitutionalism, then, is a comparison between the UK and Indian constitutional models as they work in practice. As the first comparative analysis of this kind (between two Parliamentary systems, one of which follows the old judicial review model, and the other the new hybrid model), it marks an important point of departure, and will hopefully provide fertile ground for the continuation of what is an important and long-overdue conversation.

Chandrachud’s comparison between the UK and the Indian models proceeds along two metrics: which model, he asks, allows Parliament more freedom to articulate its “genuine understanding” of rights? And which model allows Courts more freedom to do the same? The model that “wins” on these metrics is the more “balanced one” (the underlying assumption, of course, is that the separation of powers in a parliamentary-constitutional democracy works at its best when both organs – the parliament-executive and the judiciary – are able to articulate their understandings of constitutional rights most freely.

What Parliaments Do 

Chapter One of Balanced Constitutionalism lays out this basic normative argument. Chapter Two discusses the range of political options available to the Indian and UK Parliaments in cases where Parliament wants to respond to the exercise of judicial review. In India, responses include constitutional amendments (after Kesavananda Bharati, constrained by the basic structure), placing laws in the Ninth Schedule to the Constitution, which makes them immune from a fundamental rights challenge (after I.R. Coelho, also constrained by the basic structure, although Chandrachud draws an important distinction between Ninth Schedule basic structure review and fundamental rights amendments basic structure review), passing Ordinances, and of course, filing review and curative petitions in the Supreme Court itself. To Indian readers, this is a familiar story, and Chandrachud’s account is comprehensive. As far as the UK is concerned, Chandrachud argues that, contrary to first impressions, “the space for political responses to declarations of incompatibility is much narrower than that which is assumed” (p. 64). This is not only because of a political climate in which judicial opinion is given great weight and respect, but also because judges themselves are strategic actors par excellence when deciding whether to issue declarations of incompatibility. Chandrachud shows how such declarations are often issued when there are already existing proposals to amend the impugned law, and are sometimes accompanied by “soft suggestions” to Parliament about what route the amendment might take to address the incompatibility. The result is that “responses to declarations of incompatibility have been made either through remedial orders or primary legislation in almost every instance” (p. 83), and State action after a declaration of incompatibility has focused on “how to act“, rather than on “whether to act at all.” This situation is heightened by the existence of the European Court of Human Rights at Strasbourg, which also has the power to find the UK in breach of its obligations under the ECHR. The possibility of a declaration of incompatibility being followed up with the initiation of proceedings before the ECHR provides further incentives to the State to act in response to such declarations.

This suggests, therefore, a convergence between the two models. In India, where judicial supremacy (ostensibly) holds sway, Parliament has developed a range of responses to ensure that it is not merely a passive actor when it comes to interpretation and application of rights. In the UK, where Parliament seemingly has unbounded discretion to respond or not to respond to the Courts’ interpretation of rights, actual practice reveals that the discretion is curtailed due to a range of institutional factors. In Chapter Three, Chandrachud focuses the question further by asking which model of judicial review “engenders a more balanced allocation of powers” (p. 97). After teasing out some of the different ways in which the two Parliaments have actually responded, Chandrachud focuses on what he calls the “Time Factor“: how long does it take for Parliament to respond to, or revise, judicial understanding of rights? Through graphs, Chandrachud demonstrates that – counterintuitively – “the Indian Parliament’s response time is slightly quicker than the Westminster Parliament’s response time.” This undermines the suggestion that the hybrid UK model is “better” than the Indian judicial review model because it allows greater ease of response to Parliament. Chandrachud concludes that on the Parliamentary metric (see above) neither jurisdiction “wins” over the other.

What Courts Do 

In Chapter Four, Chandrachud turns to the Courts. His argument – which I highlighted at the beginning of this review – is that the Indian Supreme Court operates in the “shadow” of its power to strike down law. Perhaps paradoxically, it is the existence of this power – and the inevitability of its usage consequent to the finding of a rights violation – that prompts the Court to “mask” its true understanding of fundamental rights in a manner that does not happen in the UK. To make this point, Chandrachud compares three sets of cases. First, in Namit Sharma vs Union of India, while responding to a constitutional challenge to various provisions of the Right to Information Act on grounds of Article 14, the Court backtracked on its own previous findings of presumptive unconstitutionality – followed by some creative “reading in” of principles into the text of the statute to save it – and ended up upholding most of the Act even while expressing unease about its compatibility with Article 14. In R v Thompson, on the other hand, the UK Supreme Court issued a declaration of incompatibility with respect to a provision of the Sexual Offenders Act that put offenders on notification requirements for life, without possibility of review. Chandrachud argues that the Right to Information Act and the Sexual Offenders Act were similar insofar as they were both of recent vintage, qualified as “social reform laws”, were deemed to be “landmark” laws by Parliament, and – perhaps most importantly – set up complex statutory regimes to deal with a social problem. What this meant was that invalidating a provision of either of the Acts would have a ripple effect upon the system as a whole. Here, the Indian Supreme Court was unwilling to cause legislative disturbance on such a scale, while the UK Supreme Court had no similar compunctions, because a declaration of invalidity would not invalidate the statute.

Chandrachud makes a similar argument when comparing Koushal vs Naz and Bellinger vs Bellinger. He attributes the recriminalisation of homosexuality by the Indian Supreme Court in Koushal to its fear that, by striking down Section 377 of the IPC, there would be a legislative vacuum as far as child sexual offences were concerned; on the other hand, in a case involving the right of a transsexual person to a post-operative marriage with a person (now) of the opposite sex, the UK Supreme Court had no difficulty in holding that the relevant provisions of the Matrimonial Causes Act, which only contemplated marriage between parties respectively “male” and “female”, were incompatible with the Human Rights Act. Chandrachud argues that what united these cases was the consequence that there would be a “series of effects across the legal system” in case the provisions were invalidated. Here again, the impossibility of “invalidation” allowed the UK Supreme Court to interpret rights with full freedom, while the Indian Supreme Court “masked” its reading of rights.

And lastly, Chandrachud compares Kartar Singh vs State of Punjab with the Belmarsh Prison Case. In the former, the Indian Supreme Court upheld an anti-terror statute that allowed for a wide departure from the rights guaranteed to accused persons under the CrPC and the Evidence Act, despite voicing unease with the legislative measures in question. At the same time, Belmarsh was also an anti-terror case, where the UK SC found that certain detention provisions of the Anti-Terrorism, Crime and Security Act, passed in the aftermath of 9/11, were incompatible with the Human Rights Act. Here, the argument is obvious: the possibility of a vacuum in anti-terror laws was a prospect that the Indian Supreme Court could not stomach.

Through these cases, Chandrachud makes the point that the Indian Supreme Court is constrained in its rights-reasoning in a manner that the UK SC is not, because of the consequences that accompany a finding that a particular statute violates constitutional rights. He goes on to argue that the Indian Supreme Court is constrained from fashioning new and effective “remedies” that go beyond the binary of striking down/upholding because of the text of the Constitution (which does not envisage such innovations) as well as institutional constraints (Parliamentary inaction despite judicial advice to amend or modify a statute).

This is an important point, and I would like to briefly extend it: in fact – as Chandrachud notices – the Supreme Court has tried to fashion new remedies, often relying upon Article 142 of the Constitution. These include the now-legendary “continuing mandamus”, and of course, the ubiquitous “guidelines”. In fact, Kartar Singh – and other similar cases – buttress Chandrachud’s argument in an even stronger fashion than is expressly acknowledged in the book: the very fact that the Supreme Court is compelled to pass “guidelines” is evidence of that fact that it has found a constitutional infirmity (whether it admits it or not), and is trying to cure that infirmity by substituting itself for the legislature (or the Executive, as the case may be), instead of having to perform its constitutional function of striking down the law. And of course, there is a very good reason why this simply does not work: the Court is venturing into fields (legislation or administration) that it is fundamentally unsuited to be in. That, however, is an ongoing debate: the point here is that the ubiquity of guidelines is further evidence of the Court’s “masking” its rights reasoning: (legislative) guidelines instead of (judicial) invalidation has come to define the Court’s constitutional responses.

In his last chapter, Chandrachud looks at “collateral institutions” (the JCHR in the UK and the European Court of Human Rights, and the National Human Rights Commission in India), and finds – unsurprisingly – that the robustness of the former is matched by the toothlessness of the latter. He concludes, therefore, by arguing that the UK model is a more “balanced” model of constitutionalism than the Indian, on the singular metric of the extent to which Courts can freely articulate their genuine understanding of constitutional rights.

Thinking Through Issues of Design 

Balanced Constitutionalism is an important book in that it goes beyond an analysis of constitutional doctrine, and places adjudication – and constitutionalism – in its political context. Ever since Ronald Dworkin’s Taking Rights Seriously, there have been complaints that constitutional theory is too focused on appellate Courts, and ignores the role of the other organs of State. Chandrachud avoids that trap: his book is about the relationship between Parliament and the Courts, and gives equal weightage to Parliamentary debate, statutory amendments, and legislative responses and non-responses, as it does to judgments.

This helps us to understand that court judgments ought not to be read in a vacuum, but as part of an existing political ecosystem that conditions and structures the way judges act. Balanced Constitutionalism demonstrates that when we do this, the results may be surprising and counter-intuitive: systems that are formally very distinct can converge at unexpected places, and diverge at still more unexpected places. We think that the UK Parliament is supreme, and the text of the Human Rights Act suggests that, but in practice, we find that it is about as constrained as the Indian Parliament in its response to adverse judgments. And, on the other hand, we may think that a system of judicial supremacy vests great power in courts; but it turns out that the very existence of this power creates a reluctance to use it, and constructs constraints that, in some ways, are even more cloying than in systems where the power doesn’t even exist. Balanced Constitution, therefore, pushes us to think more deeply about crucial issues of constitutional design, how constitutional design is embedded in the political structures of a society, and how that – ultimately – impacts outcomes.

Points of Disagreement

In conclusion, I would like to point to two arguments where I disagree with Chandrachud.

(a) Koushal vs Naz

I believe that Namit Sharma and Kartar Singh illustrate Chandrachud’s point about the Court “masking” its rights-reasoning well. However, Koushal vs Naz does not. Chandrachud suggests that the Supreme Court upheld Section 377 because of its fear of a legislative vacuum that would allow child sexual abuse to go unpunished. This is, indeed, mentioned at one point in the judgment but, in my view, was pure eyewash by the Supreme Court. This is not only because the 2013 amendments to the IPC covered the issue (which Chandrachud points out), but also because the case was never about whether S. 377 should be struck down. The High Court had only “read down” the Section to exclude consenting same-sex intercourse between adults in private; for the rest – including child sexual abuse – 377 continued to exist. Consequently, the core of Chandrachud’s argument – that rights-reasoning is masked because of the consequences of striking down – doesn’t work for Koushal, because the case was never about striking down at all.

Secondly, it is difficult to read Koushal as a case where the Supreme Court believed a statute was unconstitutional, but didn’t strike it down because it was afraid of the consequences. Everything in the judgment suggests the exact opposite: the Court refused to return any finding on Article 21 (the right to privacy) and Article 15(1) (the right against discrimination on grounds of sex), and spent exactly two paragraphs in a 98-page judgment dealing with Article 14. In its Article 14 analysis, it held that S. 377 punished acts and not persons, and therefore there was no issue of inequality. The poverty of this line of reasoning has been discussed extensively by now, and I don’t want to go into it here; the basic point is that the Court very clearly believed that S. 377 did not violate fundamental rights, and this is more than clear by a re-reading of its notorious labels: “the so-called rights” of the minuscule minorities.” Chandrachud does hint towards the end of his discussion that the Court was guided by ideological considerations; however, I think that on a dispassionate reading of Koushal vs Naz, there is no other way to describe it other than an utterly bigoted judgment, where contempt for rights is clear and evident, rather than Chandrachud’s reading of an uneasy Court trying to reconcile its sense that the statute was unconstitutional with the consequences of striking it down. This is not to say that the argument is incorrect; indeed, Madhu Kishwar vs State of Bihar (in my view) is an excellent example of a case in which the Court expresses its unease in clear terms, but upholds a law because of the possibility of “social chaos”.

(b) Response Time

Chandrachud argues that the time taken by Parliaments to respond to adverse judicial decisions is an important indicator in determining how free they are to articulate their understanding of rights. However, I believe that his actual discussion comparing India and UK leaves out a few important variables: for instance, response time is affected by the quality of deliberation, and there is no doubt that, at present, because of various structural and institutional features, the quality of legislative deliberation is much better in the UK than it is in India (Chandrachud himself mentions plenary bottlenecks at various points). Furthermore, response time is surely affected by the anti-defection laws, which spares the ruling party the necessity of having to convince its own back-benchers to vote for a (possibly controversial) law. Consequently, it seems to me that simply comparing response times without taking into account these other factors does not do enough for the argument that Chandrachud is trying to make.

Conclusion

In sum, therefore, Balanced Constitutionalism presents an detailed comparative analysis of the systems of judicial review in the UK and in India. The obvious commonalities between the two Parliamentary democracies make this comparison a topical and important one. Going forward, Balanced Constitutionalism will undoubtedly be a point of departure for discussions about constitutional design, and the relationship between design and how Parliaments and Courts interact over issues of rights adjudication.

Balanced Constitutionalism is available to purchase here.

(Disclaimer: The writer of Balanced Constitutionalism is a friend of the author).

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