Two UK Decisions Delivered Today

The United Kingdom courts have handed down two judgments today that seem to deal with interesting issues.

In Public Law Project v The Lord Chancellor, a unanimous Court of Appeal held that a residence-based test for qualifying for legal aid does not amount to illegal discrimination. Lord Justice Laws wrote the opinion of the unanimous court.

In Keyu v Secretary of State, the UK Supreme Court refused an application for judicial review to direct the Government to order an enquiry into the facts of a massacre of civilians, allegedly committed by British soldiers in Malaysia in 1948. The verdict was 4 – 1, with Lady Hale dissenting.

I haven’t read either case yet, but it does seem from their descriptions that they will touch upon issues relevant and topical for Indian constitutional jurisprudence as well.

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The Colonial Antecedents of the Supreme Court’s Jurisprudence on the Rights to Vote and Stand

(In this guest post, Rohan Kothari, who represented one of the interveners before the Supreme Court in the recently concluded hearings on the constitutionality of the Haryana Panchayati Raj Act, discusses the tangled history of the jurisprudence on the right to stand for elections)

Oral arguments in the dispute over the amendments to the Haryana Panchayati Raj Act, 1994 were concluded in the latter half of October, and the matter is reserved for judgment. However, in the interim, Justices Chelameshwar and Sapre had allowed parties to hand over additional written submissions dealing with certain issues that were discussed in haste during the proceedings. What is to follow is slightly altered version of one of the submissions made to the Court with regard to the nature and status of the right to vote and right to contest.

Unfortunate as it is, there is still no clear line of judicial thinking on the question of what is the meaning of this right to vote and right to contest. We still are hazy on whether they are symmetrical or not, whether they ought to be included as an implicit part of Part III of the Constitution, whether they occupy a separate place in the Constitution as “constitutional” but not fundamental rights, or are they mere statutory rights as contended by the State of Haryana throughout the proceedings.

I wont go into detail here as to why a conclusion on the status of the right to vote and contest was important to the dispute, since previous posts on the blog have dealt with that point quite well. But suffice it to say, should the Court find that the right to contest is a mere statutory right, the chance of it finding the amendments to the Haryana Act unconstitutional might be somewhat lower.

While reviewing the Supreme Court’s slightly awkward and sometimes awfully contrary determinations of the right to vote and contest, there came up a need to find the source of the dispute, the origin of the controversy. And this took us back to 1952-to the Supreme Court’s decision in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (1952 SCR 218), where the rights in question were first discussed. Now this decision becomes important for two reasons: (i) that it was the first time that the right to contest was debated upon, and (ii) the contention of the State of Haryana, that the rights to vote and contest were mere statutory rights and not fundamental or constitutional in nature was derived from a line of cases decided by the Supreme Court, the first of which was Ponnuswami.

In paragraph 19 of Ponnuswami, the Court relied upon the decision of the Privy Council rendered in the case of Joseph Théberge and Anr. v. Phillipe Laudry (1876) 2 AC 108 and observed (as obiter) that the following position of law emerges:

“(1) The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”

One should note here that the context in which these observations were made was that of the powers of the High Court to hear an election dispute, and the effect of the constitutional bar found in Article 329(b) on such powers.

The abovementioned observations have formed the foundations of an election jurisprudence in India that has identified at certain points, the rights to vote and contest as merely statutory, and at other points as constitutional or even fundamental. Given this, we contended that the observations made in Ponnuswami’s Case (and later followed in several other decisions of Supreme Court) were arrived by relying upon the ratio of Theberge v. Laudry, which was decided in a very specific context, i.e., that of colonial England, and as such the same could not be applied to the context of an independent and democratic India.

The decision of the Privy Council in the case of Theberge v. Laudry centered around roughly the same issues that arose in Ponnuswami’s Case– whether the Crown Court (equivalent to the High Court) could entertain an appeal from election petition when there existed a specific statutory provision that prohibited the entertainment of any such appeal, before any court. This is where the the history and scheme of the enactment in question in Theberge v. Laudry became important, as it provided for that vitally differentiation of the decision from the Indian context, making its ratio non-transposable, if not entirely inapplicable.

The Act of Parliament in question in the Theberge v. Laudry was the Quebec Controverted Elections Act of 1875. That Act had repealed an Act of Quebec Legislature of 1872 which was called “An Act to provide for the Decision of Controverted Elections by the Judges, and to make better Provision for the Prevention of Corrupt Practices at Elections.”

 Section 90 of the 1875 Act stated: “Such judgments shall not be susceptible to appeal.”

The Privy Council spoke about the Legislations in the following manner:

“These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their Character. They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assemble to be distinctly and speedily known…”

“…The whole scheme, therefore, of the Act of Parliament is that, once the action of the Superior Court takes places, and the decision of the Superior Court arrived at, the machinery is to go on just as it had formerly gone on inside the Legislative Assembly;- writs are to be issued, seats are tot be taken, other proceedings are to be had, as would have been the case before the Court was called into operation, and when the Legislative Assembly decided these matters by its own authority.”

The Council went on to observe that:

“Now, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members. Those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place.”

 The quoted paragraphs tell us that the rights to elect and those of electors were administered in a very different fashion in England at the time when this decision was rendered. Since supremacy existed with the legislative (Parliament), the rights of the members of the legislative were also, originally, adjudicated upon by the legislative. This power to adjudicate upon these rights was, as can be surmised from the decision of the Privy Council, vested in a very narrow way. The power vested with a particular Tribunal through the medium of a particular statute, and hence no other court could claim to have jurisdiction over such a matter.

We contended that the rights commented upon in Theberge v. Laudry were administered in a vastly different manner than they are in India. Article 326 of the Constitution provides for universal adult franchise, therefore unlike in Colonial England, the right to elect does not find its origins in the supremacy of the legislature, but in the Constitution. Additionally, while parliamentary privileges are matters outside the jurisdiction of Courts even in India, no legislature in India has ever assumed the powers to adjudicate disputes relating to election petitions. The Constitution does not grant either the Parliament or the State Legislatures such a power, and Article 329 which deals with election petitions, specifies the manner in which such a dispute is to be heard, and by what authority.

It was on this basis that we concluded by stating that the observations made in Ponnuswami’s Case, which formed the basis of a large part of India’s electoral jurisprudence, were not something than could be as easily relied upon as put forward by the State, and that the conclusions drawn (in the several decisions that followed) need to be revisited and reconsidered. Given the reception of the Court in Raja Bala, I’m reasonably sure that this odious exercise might be evaded, but lets hope that the Court at least realizes that Ponnuswami was a little more complicated than it is made out to be.

(The author is a Delhi-based advocate)

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Guest Post – Article 16 and the Concept of a “Power plus Duty” – II

(In Part II of this series, Karan Lahiri continues his argument about the interpretation of Article 16 of the Constitution)

In the last post, I introduced the concept of “power coupled with duty”. In this part, I talk about a batch of writ petitions pending before the Supreme Court, emerging from the State of U.P. (the lead petition being W.P. © 273/2015 – Sewa Lal & Ors. v State of UP), where the issue of “power coupled with duty” is likely to be looked at once again. This second blog post gives some background on how these petitions came to be filed, because the factual context actually demonstrates why reading Article 16 as a hybrid provision, containing both a power and a duty, is the most just and equitable solution. At the end of this part, I look at how the current reading of Article 16 creates an asymmetry problem, and I then provide a brief breakdown of what I believe to be the correct reading of Article 16 as a hybrid power-plus-duty provision.

To place this in context, it may be remembered that in Indra Sawhney, it was held that Article 16(4), as it then stood, was not wide enough to bring within its fold reservation in matters of promotion. However, the Court declared that this would not affect promotions that had already been made and, in fact, granted the additional protection that where reservations have already been provided for in Central or State Services, the same position may continue for a further period of five years. Thereafter, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, which did provide for reservations in promotions. To recapitulate, this provision presently reads:

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

It was after this that the Supreme Court’s judgment in M. Nagaraj was rendered, in which the Court, while upholding the constitutional validity of the amendment, also set out certain conditions precedent for the State to implement ameliorative measures under Articles 16(4A), as also 16(4B) (which deals with carrying forward of vacancies reserved for backward classes/SCs/STs). It was observed –

“…There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on the facts of each case… Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335…” [Emphasis supplied]


Therefore, M. Nagaraj laid down three requirements: –

  1. General efficiency of the service must not be compromised. This is traceable to Article 335 of the Constitution.
  2. The State must come to the conclusion that the groups in question are not adequately represented in the service, based on quantifiable data. This flows from Article 16(4A) itself.
  3. The State, based on quantifiable data, must come to the conclusion that the class benefitting from the ameliorative measure is “backward”.

While this is a topic to which an entirely separate blog post can be devoted, I wish to point out at this juncture that this third requirement does not flow from the text of Article 16(4A), and this constitutes a major error in M. Nagaraj. We need to remember that Nagaraj was dealing with Article 16(4A), which speaks of “Scheduled Castes and Scheduled Tribes”, and not “backward classes”. Unlike reservations under Article 16(4), which categorically mentions ‘backward class’ (the relevant part of which reads “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens), the State did not have to undertake a separate exercise to determine “backwardness” for the purposes of Article 16(4A), because Article 16(4A) allowed for reservation in promotions only for SCs/STs (Nothing in this article shall prevent the State from making any provision… in favour of the Scheduled Castes and the Scheduled Tribes). As per both N.M. Thomas and Indra Sawhney, SCs/STs are presumed to be backward classes and, in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, they have correctly been identified as “not merely backward but the backwardmost.”

 This error in Nagaraj was compounded in U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors., (2012) 7 SCC 1. In this case, the Court was examining the constitutionality of Section 3(7) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007. Section 3(7) preserved pre-existing Government Orders in U.P. that provided for reservation in promotion. Rule 8-A provided for consequential seniority.

As it was found that no quantifiable data had been collected by the State of U.P. for effectuating reservation in promotion and making the rule of consequential seniority applicable, the Court held: –

“86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.

 … In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.” [Emphasis supplied]

The result of this judgment was, essentially, that all SC/ST candidates in the State services in U.P. would be subjected to reversion, i.e. they would be demoted to the posts they held as on 15.11.1997 (when the five year period of protection provided by Indra Sawhney ended), as the provisions on the basis of which they had been promoted had been effectively struck down with retrospective effect (reaching all the way back to 1997).

The nature of the “exercise” contemplated is set out in Paragraph 81, where Justice Misra summarized the ratio of M. Nagaraj: –

“(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons—“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.[Emphasis supplied]

There are two serious errors in this judgment. The first is a doctrinal error, which has already been pointed out, namely that no separate exercise to determine “backwardness” is required for SCs/STs, as the backwardness is presumed in the case of Schedule Castes and Scheduled Tribes, as per previous judgments of the Court.

The second error is based on equity, and is useful for understanding why Article 16 should be treated as a hybrid containing both a power and a duty. If, indeed, quantifiable data is to be collected for applying Articles 16(4A) and 16(4B), then, surely, even if the Court’s ruling is not prospectively applied (to protect those promoted prior in time due to the State’s errors), quantifiable data demonstrating that SCs/STs are adequately represented in various echelons of the State services would be a prerequisite for reversion. Assuming that SCs/STs are overrepresented in the higher echelons of the State services because of the State’s failure to collect data, the resultant reversion, in the absence of data, would probably lead to a situation where SCs/STs are underrepresented in the higher posts. The Court, however, failed to clarify this and, instead, in Paragraph 87, only stated that those promotions protected by the Indra Sawhney judgment would remain undisturbed.

Inevitably, contempt petitions came to be filed, as the Govt. of U.P. failed to either seek clarifications of the Supreme Court’s judgment, or take steps to collect “quantifiable data”. On 05.07.2013, the Supreme Court issued notice in the lead petition [Contempt Petition (C) No. 214/2013]. Instead of working to collect the data, the Govt. of U.P. instead took hasty steps to revert all those in the State services to the posts they held as on 15.11.1997. As recorded in the Court’s order of 13.10.2015 in Contempt Petition (C) No. 214/2013, 15,226 persons have been reverted as a result, all without the State having done anything to compile the data.

In this background, a number of SC/ST personnel, who have been reverted, have filed Writ Petitions before the Supreme Court, and some of these petition contain a positive averment to the effect that there is a “power coupled with a duty” in Article 16 to level the playing field.

Let us now consider the arguments. I contend that the problem with the way Article 16 [particularly 16(4), (4A) and (4B)] is read currently is that it is essentially asymmetrical. For ameliorative measures under these provisions, quantifiable data on backwardness and inadequacy of representation is a prerequisite, contributing to the formation of an opinion by the State. On the other hand, for reversion, no such data needs to be collected, and no opinion needs to be formed. Similarly, the current law on Article 16 allows the State to completely ignore the question of whether backward classes, SCs and STs are adequately represented in public services, by simply omitting to collect data, which is required for the formation of an “opinion” under Article 16(4), (4A) and (4B). Therefore, the State can essentially omit the entire process of forming an “opinion”, by refusing to collect the necessary data. There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognizes the fact that Article 16 contains within it an enabling power coupled with a positive duty.

While I will elaborate on this in later posts, this is how I conceive of the hybrid powers and duties contained in Article 16: –

  1. There is a positive duty on the State to periodically collect the data required for the formation of an opinion under Articles 16(4), 16(4A) and 16(4B).
  2. Once the data is collected, it is the duty of the State to apply its mind on backwardness, adequacy of representation and efficiency (i.e. the Nagaraj troika).
  3. In applying its mind, the State has discretion in the line-drawing exercise involved in deciding which group is backward, what degree of representation is adequate, and what is the optimum balance in the interest of efficiency.
  4. Based on the above, the State has the discretion to decide if any ameliorative measures are required. As discussed in Indra Sawhney, this need not necessarily be through reservation (or reservation in promotion), but through lesser concessions as well. Therefore, the State’s discretion would also extend to deciding the nature of ameliorative measure.

Therefore, I argue for a reading of Article 16 where the State has discretion in deciding whether ameliorative measure are required for backward classes/SCs/STs, and the extent and nature of of those measures, but, prior to that, the State would bear the positive responsibility of collecting data (as per Nagaraj) and then forming an “opinion”, whatever that opinion may be. In other words, the choice that is eliminated is complete inaction on the part of the State to apply its mind to the issue of adequacy of representation of backward groups in the State services, whether that inaction is a symptom of policy paralysis or political expediency.

(The author is a Supreme Court advocate)

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Guest Post: Does Article 16 Impose a “Power Coupled with a Duty” upon the State? – I

(In an upcoming series of guest posts, Karan Lahiri argues that, properly interpreted, Article 16 of the Constitution not only permits, but actually casts an affirmative duty upon the State to ensure the adequate representation of backward classes of citizens in public employment.)

As this blog already contains an excellent analysis on the topic of reservation, in the ten-part series titled “Reservation, Equality and the Constitution” (in which I would particularly encourage the reader to look at Parts III, IV, V and VII), I think I can skip any preliminaries on the contours of Article 16, and jump right to the question at hand – Does Article 16 of the Constitution of India confer on the State a power coupled with a duty to ensure that backward classes of citizens are adequately represented in public services? Further, is there a similar power coupled with a duty to provide for reservations in matters of promotion for those belonging to Scheduled Castes and Scheduled Tribes which are not adequately represented in the public services under the State?

In “Reservations, Equality and the Constitution – VI: The Middle Way”, it was correctly mentioned that, in Ajit Singh (II), the Supreme Court of India concluded that “Arts. 16(4) and 16(4A) are enabling provisions, and do not confer fundamental rights” and, further, that “the Court also rejected the argument that these Articles conferred a power coupled with a duty, overruling the cases of Jagannathan and Kuldeep Singh.”

What I will attempt to argue, in a series of posts, is outlined below: –

  1. I will first explain the concept of “power coupled with duty” (which has its roots in English administrative law principles).
  2. Based on a set of cases pending before the Supreme Court at the moment, I will attempt to explain why answering the questions posed in the first paragraph in the affirmative leads to the most just and equitable solution, in keeping with the principle of equality as it exists in the Constitution of India.
  3. Finally, I will demonstrate why Ajit Singh (II) is incorrectly decided, and how it conflated the issue of “power coupled with duty” with the issue of whether there is a fundamental right to reservation. In this part, I will also try to demonstrate that reading Article 16 as containing a power coupled with a duty is not only the most just and equitable solution to the interpretive issue at hand, but is also the most consistent with the other strands of precedent that exist regarding the interpretation of Article 16.

(At this point, it is important to clarify that I am NOT arguing that the State has a positive duty to specifically provide for reservations. The scheme of Article 16 (which I believe to be the proper interpretation), in respect of where the State’s duty ends and its discretion begins, will be set out in subsequent posts..)

Degrees of Discretion – Understanding the concept of “power coupled with duty”

 To understand the interpretive question posed in the first paragraph of this post, we must look at the scheme of Article 16 once again: –

“16. Equality of opportunity in matters of public employment.—

(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.


Both Article 16(4) and 16(4A) are framed as – Nothing in this article shall prevent the State from making any provision for [X], if in the opinion of the State, [Y] exists. This is, of course, a broad approximation, made only to simplify the language of the provision for the purpose of interpretation. The interpretive issue is whether the framing of these provisions, which appear to be enabling or permissive, can ever be read as conferring not merely a discretionary power but a concomitant duty on the State. In this first part, I will not be looking at the interpretation of Article 16 itself. Instead, I will try to explain the concept of “power coupled with duty”, and explain how this hybridity is often located in provisions containing permissive language, like the language contained in Article 16(4) and (4A).

One of the best expositions on the subject of discretion is contained in “De Smith’s Judicial Review”. On the subject of discretionary power, De Smith states: –

“The concept of discretion in its legal context implies power to make a choice between alternative courses of action or inaction. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no unique legal answer to a problem. There may, however, be a number of answers that are wrong in law. And even in cases where the power is discretionary, circumstances can exist which mean the discretion can only be exercised in one way. There are degrees of discretion, varying the scope for manoeuvre afforded to the decision maker.[Emphasis supplied]

 What flows from this is that even though discretion may be conferred on a State authority, the law may limit the choices that may be made in the exercise of that discretion.

However, when a provision is couched in permissive language, can it be read in a manner that imposes a duty? More specifically, can permissive language, at the very least, suggest that while various courses of action are open to a particular State authority to remedy a particular problem, the State authority can never ignore the problem itself and refrain from at least applying itself to the problem and exercising its discretion? The position in English law, which we have adopted, is summarized in De Smith’s Judicial Review as under: –

“Sometimes, the question before a court is whether words which apparently confer a discretion (words such as “may”, or “it shall be lawful if”) are instead to be interpreted as imposing a duty. The word “may” has over the years, primarily been construed as permissive, not imperative. However, exceptionally, it was construed as imposing a duty to act, and even a duty to act in one particular manner.”

Interestingly, one of the authorities cited in De Smith’s treatise is Julius v. Bishop of Oxford, (1880) 5 App. Cas. 214, which the Supreme Court of India has repeatedly relied on for the proposition that permissive language may often imply a duty to act. The most famous of these, perhaps, is Ambica Quarry Works v. State of Gujarat, (1987) SCC 213, where Justice Sabyasachi Mukharji observed: –

“Often when a public authority is vested with power, the expression “may” has been construed as “shall” because power if the conditions for the exercise are fulfilled is coupled with duty… “May” is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. As early as 1880 the Privy Council in Julius v. Lord Bishop of Oxford explained the position. Earl Cairns, Lord Chancellor speaking for the judicial committee observed dealing with the expression “it shall be lawful” that these words confer a faculty or power and they do not of themselves do more than confer a faculty or power. But the Lord Chancellor explained there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty must depend upon the facts and circumstances of each case and must be so decided by the courts in each case. Lord Blackburn observed in the said decision that enabling words were always compulsory where the words were to effectuate a legal right.[Emphasis supplied]

A lesser known, yet interesting, examination of “power coupled with duty” is contained in Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85, commonly referred to as the Privy Purses case. In this case, the subject matter of challenge was a Presidential Order withdrawing recognition to Rulers of Princely States. One of the questions that arose is whether Article 366(22) of the Constitution, which invested the President with the power to recognize Rulers, also contained within it a power to withdraw such recognition. It was argued by the Petitioner that the President’s power was coupled with a duty to maintain the constitutionally recognized institution of “Rulership” and, therefore, there could be no power to arbitrarily withdraw recognition and extinguish a constitutionally recognized concept. Justice J.C. Shah’s majority judgment, in upholding this contention, explained the concept of “power coupled with duty” as follows: –

“117. There are many analogous provisions in the Constitution which confer upon the President a power coupled with a duty. We may refer to two such provisions. The President has under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits e.g. reservation of seats in the House of the People, and in the State Legislative Assemblies by Articles 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that Scheduled Castes and Scheduled Tribes are specially defined for the purposes of the Constitution by Articles 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative.[Emphasis supplied]

Justice Hegde drew a similar analogy: –

 “… In my opinion Article 366(22) imposes a duty on the President and for that purpose has conferred on him certain powers. In other words the power conferred on the President under that provision is one coupled with duty. There are similar powers conferred on the President under the Constitution. Under Chapter XVI of the Constitution certain special provisions were made for the benefit of the Scheduled Castes and certain Scheduled Tribes. Seats were reserved for them both in the Parliament as well as in the State Assemblies. Certain other benefits were also secured to them in the matter of appointments to services and posts in connection with the affairs of the Union or of a State. But the Constitution did not specify which castes were Scheduled Castes and which Tribes were Scheduled Tribes. Under Articles 341(1) and 342(1) of the Constitution, the President was given power to specify the castes which he considered to be Scheduled Castes and the Tribes which he considered to be Scheduled Tribes. Though both the Articles say the President “may” specify the castes which he considers as Scheduled and Tribes which he considers Scheduled, it is clear that a constitutional duty was imposed on him to specify which castes were Scheduled Castes and which tribes were Scheduled Tribes for the purpose of the Constitution. The word “may” in those clauses must be read as “must” because if he had failed or declined to specify the castes and tribes, Articles 330, 332, 334, 335, 338 and 340 would have become inoperative and the constitutional guarantees given to the Scheduled Castes and Scheduled Tribes would have become meaningless.[Emphasis supplied]

The reason I favour this explanation of “power coupled with duty” is not because of its explanation of the legal principle itself. Indeed, the interpretive concept is explained better in Ambica Quarry, and also in State v. I.K. Nangia, (1980) 1 SCC 258. However, the Privy Purses case appeals to me because it crystallizes the principle that, in a constitutional context, constitutional provisions which, at first blush, appear to confer discretion, ought to be read as conferring a power coupled with a duty, when the authorities failure or refusal to act would nullify a portion of the constitutional scheme, however small that portion might be. This is wider than the iteration of this concept in Ambica Quarry, which only speaks of a duty being implied if a legal right is to be effectuated.

Let’s call this principle, apparent in the Privy Purses case, the rule of constitutional consistency — a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.

In the next essay, I will substantiate this argument in the specific context of Article 16. By discussing a set of pending writ presently petitions before the Supreme Court, I will show that there is an asymmetry problem in the way that Article 16 as it is currently read, such that there is a hurdle for ameliorative measures to be put in place, but there is nothing to stop the State from entirely ignoring the under-representation of backward classes in the State service, or even from reverting them to lower posts for no better reason than political expediency.

(Karan Lahiri is an advocate practicing at the Supreme Court.)


Filed under Equality, Reservations/Affirmative Action

Ambedkar on Citizenship and the Right to Hold Office under the State

Previously on this blog, we have discussed in detail the pending constitutional challenge to the Haryana Panchayati Raj Act, which imposes educational, property and debt-based disqualifications upon candidature in local government elections. Part of the argument has focussed upon the link between the right to vote (or the right to representation) and the right to stand for office, two sides of the same coin that, together, form the core of republican democracy. This leads to the conclusion that notwithstanding the absence of these rights from the fundamental rights chapter, State attempts to curtail them must meet a heavy burden of justification.

As we’ve also discussed on this blog, the qualification and disqualification provisions for parliamentary eligibility were introduced and elaborately defended by Ambedkar, during the Constituent Assembly Debates. Interestingly, today I came across a piece of history, from thirty years before the drafting of the Constitution. In 1919, Ambedkar was called upon to give evidence to the Southborough Committee on Franchise, which was set up to look into designing a system of representation for the Indian dominion. Ambedkar’s complete written submissions can be accessed here. What I found of particular interest was the following passage, in the context of the disabilities suffered by the Untouchables:

“Citizenship is a bundle of rights such as (1) personal liberty, (2) personal security, (3) rights to hold private property, (4) equality before law, (5) liberty of conscience, (6) freedom of opinion and speech, (7) right of assembly, (8) right of representation in a country’s Government and (9) right to hold office under the State. The British Government by gradual growth may be said to have conceded these rights at least in theory to its Indian subjects. The right of representation and the right to hold office under the State are the two most important rights that make up citizenship.”

Notice that Ambedkar runs together rights that are presently in Part III (or, as in the case of property, used to be), and specifically two others which are not: the right to representation, and the right to office. Notice also that whereas rights (1) to (7) are civil rights (previously in the same paragraph, Ambedkar refers to the prohibition of access to public spaces such as roads a denial of civil rights), representation and office (8) and (9) are political rights. It is therefore hardly a coincidence when Ambedkar goes on to state that “the right of representation and the right to hold office under the State are the two most important rights that make up citizenship”: it signifies, also, that representation and office are not hermetically sealed claims that operate in isolation from each other, but rather, are two complementary aspects of citizenship.

Ambedkar’s remarks here can help throw some light on his defence of representation disqualifications in the Constituent Assembly, and the structure of the final Constitution, because they demonstrate that underlying the text of the Constitution was the consistent conviction about the role and place of representation and office in the constitutional scheme. As we have discussed before, much has been made in the Supreme Court’s jurisprudence over the years, about the fact that voting is not a fundamental right, but a “mere statutory right.” The history of the framing of the Constitution, and indeed, the political thinking of its chief architect, reveals that this argument is something of a red herring. It is of course true – and trivially so – that the absence of voting or standing for elected office in Part III of the Constitution precludes a specific Part III claim merely on that ground. However, if it is true that representation and occupying (elected) State office are the fundamental, structuring principles of citizenship in a republican democracy (which has been held to be part of the basic structure), then the State’s attempts to deprive a section of the populace from exercising those rights must be scrutinised carefully by the judiciary. In the Haryana Panchayati Raj case, for instance, the primary claim is that of discrimination under Article 14. In such a situation – as we have argued on this blog – it is the nature and importance of the rights to representation and elected office as structuring principles of the Constitution – that require the Court to abandon its normally deferential Article 14 approach, and apply a level of strict(er) scrutiny, placing high evidentiary burdens upon the State to justify its claims that the restrictions are essential to the integrity of the political process. It also disqualifies the State from invoking unrelated justifications (such as debt-free citizens being “model citizens” and an “example” to others) to defend its law.

(N.B. The full text of Ambedkar’s submissions make for a fascinating read, and repay close study. Of further interest in the present context are his remarks on suffrage, in paragraphs 29 and 30).

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Filed under Ambedkar, Article 14, Basic structure, Constituent Assembly Debates, Constitutional History, Equality, Local Government (Panchayati Raj), Suffrage, The Basic Structure and Democracy

Ambedkar on Unconstitutional Conditions

Previously on this blog, we have discussed the doctrine of unconstitutional conditions (government may not make the grant of a privilege conditional upon the relinquishment of a fundamental right, even though there is no prior obligation upon it to accord the privilege in the first place). Recently, my attention was drawn to a statement by Ambedkar that seems to reflect the basic logic of the doctrine:

“Ask those who are unemployed whether what are called Fundamental Rights are of any value to them. If a person who is unemployed is offered a choice between a job of some sort, with some sort of wages, with no fixed hours of labour and with an interdict on joining a union and the exercise of his right to freedom of speech, association, religion etc., can there be any doubt as to what his choice will be ? How can it be otherwise? The fear of starvation, the fear of losing a house, the fear of losing savings, if any, the fear of being compelled to take children away from school, the fear of having to be a burden on public charity, the fear of having to be burned or buried at public cost are factors too strong to permit a man to stand out for his fundamental rights. The unemployed are thus compelled to relinquish their fundamental rights for the sake of securing the privilege to work and to subsist.” (B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 100)

While there is a distinction in nuance – Ambedkar is here concerned with inequality of bargaining power in a contractual relationship between employer and employee, while the unconstitutional conditions doctrine is concerned with State action – the basic idea – that fundamental rights can be indirectly circumvented by conditioning their waiver upon receipt of a privilege that an individual is in no real position to reject – is the same. In her book, Citizenship and its Discontents, Niraja Gopal Jayal quotes this paragraph immediately after claiming that for Ambedkar, it was essential that “an individual should not have to relinquish any of his [fundamental rights] as condition of receiving a privilege.” (148) Indeed, Ambedkar’s own use of the word ‘privilege’ suggests a close affinity with the unconstitutional conditions doctrine.

(H/T: Rupali Samuel, for bringing the relevant part of Jayal’s book to my attention)



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Guest Post: The Delhi High Court’s Decision on the CAG’s DISCOM Audit

(In this guest post, Malavika Prasad analyses the Delhi High Court’s decision on the CAG DISCOM audit issue)

The Delhi High Court held yesterday, in United Rwas Joint Action v. Union of India and ors., that the Comptroller and Auditor General cannot be entrusted with the audit of DISCOMs in Delhi, under Article 149 of the Constitution of India read with the duties laid down under the CAG Act, 1971. The allegation in the public interest petition was that DISCOMS were inflating their cost of operation by making purchases of equipment from sister companies at values above the market price, thereby profiteering from the tariffs collected from consumers. The Delhi Electricity Regulatory Commission lacked the wherewithal to check this overpricing and thus, the GNCTD’s direction to the Comptroller and Auditor General of India, to conduct audit under Article 149 read with Section 20 of the CAG Act, was valid.

The DISCOMs argued that only 49% of the shareholding in DISCOMs is in the hands of Delhi Power Corporation Ltd., a GNCTD corporation, while 51% is privately held, thus bringing DISCOMs outside the ambit of Section 20 of the Act. The GNCTD contested this view by pointing out that the functions of DISCOMs were public in nature. The counsel for the CAG questioned the claim that DISCOMS are wholly private companies, adverting to not only the monetary funding (of more than Rs.2400 crores of public money ) by the State, but also the assets of the Delhi Vidyut Board that were transferred to DISCOMs, under Section 15 of the Reforms Act. Likewise, the public-interest petitioner pointed out that distribution infrastructure was made available to DISCOMs for free, and its character as a resource of the State cannot be ignored.

Dismissing the public interest petition, the Court faulted the procedure adopted by the GNCTD, holding that Section 20 could not have been invoked without notice of the “proposal for such audit”, as envisaged by Section 20(3). The proposal ought to be more than merely the desire or intention to audit, and must contain terms and conditions of the audit, as arrived at after consultation between the Government and the CAG according to Section 20(1), and reasons that led to the satisfaction that audit was necessary (Para 47). The Court also held, in a bid to prevent the GNCTD from undertaking another similar “misguided exercise”, on merits, that the CAG audit of DISCOMs would not be consistent with Section 20(3) and in public interest:

  1. In our opinion, the question, whether it is possible for the concerned government to take any action against a body or authority on the basis of the report of CAG, under the laws otherwise applicable to such body or authority and / or under the agreement, if any of the concerned government with such body or authority, would be a relevant consideration, whether it is expedient in public interest to direct such audit or not. Needless to state that if under the law applicable and / or the agreement, the concerned government is unable to take any action against the body or authority of which audit is sought to be directed in exercise of powers under Section 20, the audit cannot be said to be expedient in public interest; after all the audit is not be an empty exercise / formality.

The Court appears to have taken this view, to prevent what they apprehend to be a colourable exercise of power by the GNCTD, to fix tariffs. This is evidenced from the Court’s conclusion that according to Transmission Corporation of Andhra Pradesh Limited Vs. Sai Renewable Power Private Limited (2011) 11 SCC 34, the scheme of the electricity regulatory statutes is to grant supremacy to Regulatory Commissions on all matters regarding tariff fixation. Regulatory powers and functions once entrusted to Regulatory Commissions, after the Reform Act, cannot be sought to be exercised by the State Governments and State Boards. The Court records:

We highlight that the CAG refused to go into the question of unbundling of DVB, with respect whereto it had already submitted a report and which had been considered by PAC. Thus, the purpose of audit was / is not whether privatisation has served any purpose or whether the terms of transfer Scheme were in the interest of GNCTD. The sole purpose / purport of audit thus is tariff determination.

Thus, since neither the Legislature nor the GNCTD had the power to reduce tariffs charged by DISCOMs, an audit by the CAG under Section 20(3) would be an empty formality. Neither the Legislature nor the GNCTD would be able to take any action against DISCOMS, even if all the allegations in the litigation are proved to be true. Therefore, a CAG audit under Section 20 would not be in public interest (Para 48-59, 68-72).

There are two problems with this view. First, it was nobody’s case that the report of the CAG will be employed towards tariff fixation, and it is undoubted that tariff fixation is within the sole preserve of the Electricity Regulatory Commissions. Second, this view of the audit as of merely instrumental worth completely ignores the inherent value of an independent audit by the CAG. The logic of Article 149 itself was to advance Parliamentary control of executive and the public funds, by placing an independent Auditor in charge of scrutiny of accounts. It appears to have escaped the Court that so long as there is public money substantially funding an enterprise, independent scrutiny and accountability of such finances is inherently in public interest. If the logic of the Court held water, then no audit under Section 20 of the Act, of an authority functioning under a regulatory framework, could ever be found to be in public interest.

The Court then goes on to hold that the powers of a DERC, to approve costs incurred by a Licensee, and even direct audit, as evident from Clause 10 of the License terms, show that DISCOMs incurring expenditure above a certain amount were already required to obtain approval of the DERC. Thus, the CAG could not possibly arrive at a different conclusion (Para 74). The Court holds:

  1. Once by law a regulatory body has been constituted with powers inter alia have the accounts of the DISCOMs audited, there can be no other audit at the instance of the State Government. Moreover the said law as well as the Regulations made thereunder and the terms and conditions on which license has been granted by the DERC to the DISCOMs are found to contain and provide the same powers, if not wider, in the DERC in relation to the accounts of DISCOMs. We are unable to decipher anything, which DERC cannot and which CAG can unearth. DERC is neither found to be helpless nor dependent on the balance sheet filed by DISCOMs.”

This view of the Court is patently erroneous, as it is contrary to Section 20 itself. Section 20(1) states:

(1) Save as otherwise provided in section 19, where the audit of the accounts of any body or authority has not been entrusted to the Comptroller and Auditor-General by or under any law made by Parliament, he shall, if requested so to do by the President or the Governor of a State or the Administrator of a Union territory having a Legislative Assembly, as the case may be, undertake the audit of the accounts of such body or authority on such terms and conditions as may be agreed upon between him and the concerned Government and shall have, for the purposes of such audit, right of access to the books and accounts of that body or authority:

Provided that no such request shall be made except after consultation with the Comptroller and Auditor-General.

Section 20(3) provides:

“(3) The audit referred to in sub-section (1) or sub-section (2) shall not be entrusted to the Comptroller and Auditor-General except where the President or the Governor of a State or the Administrator of a Union territory having a Legislative Assembly, as the case may be, is satisfied that it is expedient so to do in the public interest and except after giving a reasonable opportunity to the concerned body or authority to make representations with regard to the proposal for such audit.”

The requirements of Section 20 are:

  1. the audit of an authority, if not entrusted to the CAG under any law of the Parliament
  2. may be entrusted to the CAG, on request of the President or Governor of a State/Administrator of a UT on the terms and conditions agreed upon between the CAG and the concerned Government
  3. after consultation with the CAG
  4. if the President/Governor/Administrator is satisfied that it is expedient so to do in the public interest
  5. after giving opportunity to represent against the proposal for audit

Clearly, while Section 20(1) is permissive of an audit not legislatively entrusted to the CAG to be entrusted to the CAG on certain conditions, it nowhere prevents an audit that is within the powers of an ordinary regulatory authority, from being entrusted to the CAG. Thus, the view of the Court that the regulatory authority’s powers to conduct audit cannot be divested in favour of the CAG finds no statutory basis.

Finally, the Court holds at para 78, the DERC’s lack of wherewithal to exercise its audit powers is held to be “no reason to fall back to the procedures and modalities prescribed in the pre-regulator regime.” Again, at para 80, the Court holds that the failure of the statutory body to perform its duties “cannot set in motion the regime prevalent prior to the constitution of the regulatory body.”

The Court here, in one fell swoop, dismisses the Constitutional office of the CAG altogether as a prior regime for audit, thus subordinating it to the regulatory regime made out by the electricity legislations. This leap of constitutional logic is needless to say, neither supported by the Constitutional text nor doctrine. The Constitution is the source of legislative (and consequently regulatory) powers. The Constitution also constitutes the office of the Comptroller and Auditor General, in Articles 148-151. Regulatory regimes and authorities born from an exercise of legislative powers, and sometimes delegated legislative powers, are therefore necessarily subordinate to powers and authorities constituted in the Constitution. Thus, regulatory audit mechanisms do not (and indeed cannot) replace or substitute the constitutional office of the CAG, and the two powers of audit must necessarily be found to co-exist. As judges are often wont to say, the stream cannot indeed rise higher than the source.

(Malavika is a Delhi-based advocate)



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